Court rejects retired policeman’s plea in 33-year-old custodial rape case

The Mumbai sessions court has rejected the plea filed by a retired policeman booked for sexually assaulting a woman in his custody way back in April 1989

The Mumbai sessions court has rejected the plea filed by a retired policeman booked for sexually assaulting a woman in his custody way back in April 1989. The petition sought to discard on technical grounds the evidence of the complainant - the rape victim’s son recorded in December 2017.

Representational image HT File Photo

The court, while rejecting the plea, said the purpose of procedural law was to aid justice and not meant to cause miscarriage of justice.

The accused, Dasharath Avhad, along with two other police personnel are facing trial for sexually assaulting the woman when she was in their custody in April 1989. The woman and her son were arrested for abetting the suicide of a farmer’s wife.

Following her release, the woman had filed a private complaint before the metropolitan magistrate court in March 1990, after police refused to take cognisance of her complaint. During the proceedings, the court had recorded woman’s testimony and ordered a judicial probe against the police personnel.

After the probe, the court found substance in the complaint and referred the case to the sessions court for prosecuting the policemen for raping the woman.

During pendency of the trial, the woman died following which her son stepped in as the complainant in the case and his examination-in-chief was recorded by the woman’s lawyer. Examination-in-chief is part of the testimony of a witness, conducted by the lawyer of the party who calls the witness in support of their case.

Avoid had moved an application seeking to discard his evidence recorded through her private lawyer claiming that in a sessions triable case, evidence of a witness had to be recorded only through a public prosecutor.

The court rejected the plea noting that no objection was taken when the evidence was recorded in November 2017 while the application was moved about two years later in June 2019. Besides, the victim woman had died pending the trial, it said.

“There is no fault on the part of the complainant when nobody pointed out the procedure, including the presiding officer [of the court]. Therefore, recording of evidence by private advocate in my view is an irregularity and not an illegality,” the court said.

It added that the incident occurred in April 1989 and the complainant had been pursuing the case for the last 33 years seeking justice.