Bombay HC sets aside man’s conviction, death penalty for rape of 2-year-old girl

“Since this is a case of capital punishment, the court has to ensure that all opportunities are afforded to the accused to defend himself. The accused must get one opportunity to argue all aspects with respect to additional evidence before the trial court itself, so that he does not lose one forum,” the High Court said.

A bench of Justices Sarang V Kotwal and Shyam C Chandak passed the order while considering the state government’s plea seeking confirmation of the death sentence awarded to the man who was nearly 38-year-old at the time of incident, along with his appeal challenging his conviction.

According to police, in February 2021, the girl was kidnapped from outside her home while she was playing in the front yard. The investigation relied on the account of a rickshaw driver who had dropped a man and a child nearby, and a local woman who directed police towards the route taken by the man.

The girl was found dead inside a cement pipe next to a bridge, and medical examination revealed she was raped. Police arrested a brick-kiln worker, who was convicted and sentenced to death under Section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act. However, he was not sentenced for the offence of murder.

In his interim application appealing the conviction, among other claims, the worker argued that the forensic experts who prepared key DNA reports were not examined during the trial, denying him the chance to challenge their findings. He also sought lab records and worksheets to scrutinise the evidence. The high court, in July last year, had directed the trial court to comply with these requests, after which the record and proceedings were sent to the high court.

Advocate Rebecca Gonsalves, representing the accused worker, argued that the matter needed to be remanded to the special court in light of a Supreme Court judgment in another case with “strikingly similar” facts and issues.

The high court referred to the SC judgment and found it “necessary to remand back the matter.” It added that the trial court can consider additional evidence and ascertain its cumulative effect with other evidence. However, the trial court should not conduct a full re-trial or re-record all evidence.

“If this course is not adopted, then the accused would lose his valuable right to having the entire evidence appreciated by the first forum, i.e., the trial court. We are ensuring that this does not happen and he gets full opportunity to raise all grounds based on additional evidence before the trial court,” the bench noted.