‘If prosecution fails, the court must protect survivor’s rights’: Bombay high court

The court was hearing an appeal by a rape convict against his 20-year conviction – 10 years under the Protection of Children from Sexual Offences (POCSO) Act for rape and another 10 years under the Indian Penal Code (IPC) for carnal unnatural sex.

The Bombay high court (HC) recently held that in the event of the prosecution failing to prove guilt of the accused, it was the responsibility of the court to safeguard the rights of the survivor.

‘If prosecution fails, the court must protect survivor’s rights’: Bombay high court ( Photo by Bhushan Koyande )

The court was hearing an appeal by a rape convict against his 20-year conviction – 10 years under the Protection of Children from Sexual Offences (POCSO) Act for rape and another 10 years under the Indian Penal Code (IPC) for carnal unnatural sex.

The convict argued that the prosecution had failed to prove the survivor was a minor at the time of the incident and hence, the conviction under POCSO should be set aside. However, the court held that lacunae in investigation could not be held as grounds for relief and since the right of the survivor must be safeguarded, the convict would have to serve the full sentence under POCSO. However, the bench of justice Sadhana Jadhav set aside the sentence for unnatural sex.

During the hearing, the counsel for the convict told the bench that the prosecution had not produced his birth certificate and the trial was solely based on evidence by the medical officer. The convict further appealed that the sentence be reduced to five years, 10 months and 12 days, by the period already served by him at Nashik Road Central Prison.

After hearing the arguments, Jadhav said that despite the fact that the prosecution had failed to get the birth certificate, the doctor’s evidence – based on an X-Ray and ossification test – could not be negated.