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Friday, April 16, 2021

‘Tied’ up by law: Bombay HC sets aside conviction of accused in minor daughter’s rape case

The court urged Centre, state to strengthen laws to ‘avoid similar situation’ in future

Written by Omkar Gokhale | Mumbai |
Updated: April 4, 2021 10:33:12 pm
A division bench of Justice Prasanna B Varale and Justice Shriram M Modak passed the judgment on March 31 on criminal appeal by a 39-year-old man from Nashik through advocate Aniket Vagal.

THE BOMBAY High Court recently set aside the conviction of a man for raping his minor daughter, saying that the victim’s statement under Section 164 of the Code of Criminal Procedure (CrPC) before the magistrate was insufficient as she did not support her case before trial court and therefore, the guilt of the accused remained unsubstantiated.

The court confirmed the man’s conviction under the Information Technology (IT) Act, 2000, for obtaining her nude photographs on his mobile phone. It asked the Central and the state government authorities and legislatures to bring amendments under the relevant laws to give vital status to Section 164 of the CrPC “to avoid similar situation” in future cases. The court added that the mother-son and father-daughter relationships have no longer remained “sacrosanct” with such incidents.

A division bench of Justice Prasanna B Varale and Justice Shriram M Modak passed the judgment on March 31 on criminal appeal by a 39-year-old man from Nashik through advocate Aniket Vagal.

The man was convicted by the Special Protection of Children from Sexual Offences (POCSO) Act Court in July 2015 for offences punishable for rape and criminal intimidation under the IPC, Section 4 (penetrative sexual assault) of the POCSO Act, 2012, and Section 67B (publishing or transmitting of material depicting children in sexually explicit act in electronic form) of the IT Act, 2000. The trial court had, however, acquitted him of the offence punishable under Section 323 (voluntarily causing hurt) of the IPC.

As per prosecution, the man in November 2013 took his 14-year-old daughter to a bungalow, where he was working as a watchman, and sexually assaulted her and threatened her of dire consequences if she told the incident to anyone.

The man had repeatedly assaulted the victim and obtained her nude images in his phone. He also threatened her of publishing them on social media. In May 2014, the victim narrated her ordeal to her sister, who informed her mother. Eventually, the victim lodged a police complaint.

Vagal submitted that the victim had resiled while stating the actual incident before the trial court and the trial court had “wrongly” approached the case by believing the victim’s statement under Section 164 of the CrPC. Therefore, the conviction was arbitrary and it should be set aside, he argued.

The bench observed that the victim was the “sole witness” of the incident. “Such incidents always take place in secrecy… Unfortunately, the victim had chosen not to speak about the incident before the court,” it said. “The situation warrants that there are certain materials suggesting sexual intercourse but the hands of the court are tied due to provisions of law.”

Justice Modak, who authored the ruling, said, “Due to passage of time, relationships between brother and sister and mother and son have no more remained sacrosanct. There are instances of overstepping the sacrosanct relationships.”

The court directed its registry to send the judgment’s copy to the law ministries of the Central and the state government to take a speedy initiative in incorporating amendments under relevant laws. The court said, “We hope that legislatures will also consider the practical realities of the life which the victim has to face.”

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