February 26, 2021 1:21:15 pm
The Aurangabad bench of the Bombay High Court has set aside the death sentence and acquitted from all charges and gave ‘benefit of doubt’ to a man, who was convicted and sentenced for the rape and murder of a five-year-old. The court cited discrepancies in the probe and said that the prosecution had failed to establish the involvement of the convict in the crime.
The court also expressed displeasure over the conduct of the presiding officer for failing to bring forth vital pieces of evidence and said that such cases involving minors should be dealt with “utmost sensitivity”.
A Division Bench of Justices Ravindra V Ghuge and Bhalchandra U Debadwar passed the judgment on February 11 on a plea by the state government seeking confirmation of the death sentence given by the special POCSO Court, Parbhani in February 2017 to Vishnu Madan Gore, a 34-year-old labourer, along with his appeal against the death sentence .
As per Parbhani Police, the minor was living with her grandparents as her biological father had died and mother had remarried.
On October 27, 2016, the grandparents, who worked as labourers in the fields of a villager returnied, they found the girl missing from the house and started searching for her.
A missing complaint was filed on October 29, 2016 and a police probe was initiated. On October 31, the body of the minor was found floating in a well in the agricultural field of another villager.
As per the prosecution, the victim’s body, wrapped in a piece of lungi and a nylon rope tightened around her neck, was found in a gunny bag that also had a few stones. The police had sent the lungi as well as the nylon rope for FSL examination.
Based on circumstantial evidence and statements of witnesses, including the ‘last seen’ witness of a grocery shop owner in the village, Gore, who is also a labourer, was arrested on November 20 from Karnataka.
He was present in the village on the day of the incident and had left soon after the minor was cremated on November 1.
The appellant was booked under sections 376-A (punishment for rape and inflicting injury causing death) and 302 (punishment for murder) of the Indian Penal Code among others and section 6 (punishment for aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act, 2012.
The police had told the special court that it had recovered a similar rope as found around the neck of the minor was recovered from the house of the accused and that the lungu recovered from the minor’s body allegedly belonged to Gore’s father. They also said that the sniffer dog had reached close to the appellant’s house from the well where the body was found. As per prosecution, two witnesses had seen the victim with Gore.
The police, through Additional Public Prosecutor S D Ghayal, had submitted that when they questioned the accused’s colleagues from Karnataka, they stated that he was “very silent, was not talking to anyone and appeared to be frightened”.
In light of the evidences, the special court had found that a “heinous” crime was committed by accused in “cold-blood” and awarded him the death penalty.
Advocate Sudarshan J Salunke for the appellant submitted that the special court verdict was “perverse” and cannot be sustained due to its failure in noticing the various missing links in the chain of circumstantial evidence.
He also submitted that the ‘last seen alive together’ theory, on which the police relied, has “discrepancies in abundance” and the time factor is most important, however, the version by witnesses pertaining to the same would create a doubt and were not convincing enough.
He said that as the conviction cannot be based on “assumptions and inferences”, and the evidence were not substantiated as the medical report did not indicate the minor was raped and therefore sought setting aside of the trial court ruling as it would not amount to “rarest of the rare case”.
After hearing submissions, the bench observed, “Unless all the links could have held themselves together so as to complete the chain of circumstantial evidence, the accused could not have been held guilty of having committed the crime…We have no hesitation in observing that we are indeed disturbed by the manner in which the prosecution has investigated the crime, collected evidence and conducted the trial in a most insensitive manner.”
The HC added, “It is unfortunate that such amount of hard work is met with an order of acquittal at our unfortunate hands only because the prosecution has not collected evidence and has not even taken efforts to get a result from the Forensic Science Laboratory as regards the nylon string. In view of this, we grant the benefit of doubt to the accused and set aside the special Court ruling acquitting the appellant of all charges.”
The court went on to observe, “We are equally surprised by the manner in which the Special Judge, Gangakhed, Dist.Parbhani has decided the case. We find that the Judge has referred to portions of the examination-in-chief of prosecution witnesses and has overlooked their cross-examination, while drawing his conclusions.”
The court also directed the Directorate of Prosecution, Maharashtra to initiate action against those responsible for the loss of the nylon string.
Moreover, pulling up the presiding officer, Justice Ghuge, who penned down 87-page judgement for the bench observed, “ The presiding officer should have paid attention to the fact that the nylon string by which the victim was strangled had also gone missing. Every case has to be dealt with by the Presiding Officer with sensitivity and such cases involving children of a tender age, should be dealt with, with utmost sensitivity.”
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