Bombay High Court: The Division Bench of Sadhana S. Jadhav and Prithviraj K. Chavan, JJ., while addressing an alleged rape and murder case of two rag pickers, held that,
“…prosecution has utterly failed in connecting the dots and bringing home the guilt of the accused.”
The instant case was a sordid story of two poor, helpless and hapless victims who had not only been raped but one of them had been brutally murdered.
Victims were friends and rag pickers which was their only source of livelihood.
It was stated that Survivor-Y did not know the accused previously, however, deceased-X knew accused 1. On the fateful day, survivor-Y and deceased-X were both standing near a garden infront of railway station and at that time both the accused came over and said that they would arrange for some job, both survivor-Y and deceased-X decided to go along with the accused.
Accused offered liquor and took both survivor-Y and deceased-X below the tunnel of a bridge and raped them, on resistance, both the accused assaulted them with hacksaw blade and a knife.
Deceased-X and survivor-Y sustained multiple injuries on the vital parts of their body. However, survivor-Y escaped from the clutches of the accused and ran away from the spot. While running away, she fell down below the bridge and sustained a head injury. She became unconscious, however, deceased-X died on the spot due to the multiple injuries.
On the basis of information given by survivor-Y, an FIR came to be recorded, crime came to be registered under Sections 302, 376(2) read with Section 34 of the Penal Code, 1860.
Reference under Section 366 (1) of the CrPC had already been made by the Additional Sessions Judge for confirmation of the death sentence.
Analysis, Law and Decision
Whether the testimony of survivor-Y who herself is an injured witness can be fully accepted as a truthful version of the entire episode sans corroboration, which is significant in light of the fact that it has been held by catena of decisions that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law but a guidance of prudence under given circumstances.
High Court stated that normally, evidence of an injured eye witness cannot be discarded in toto, particularly when the evidence is tested in the light of broad probabilities, it can be concluded that he or she was a natural eye witness and had no reason to concoct a case against the accused.
Court added that,
Merely because, she is an injured eye witness, her evidence cannot be mechanically accepted though her testimony holds more credence.
Bench while elaborating further, stated that,
Looking to the report of the Psychiatrist coupled with the fact that survivor-Y was under the influence of liquor at the time of the incident, it would not be safe to accept her testimony as a truthful version of the incident in respect of the alleged assault by the accused.
It was expressed that, in a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests upon the prosecution and on its failure, it cannot fall back upon the evidence.
Well Settled Principle of Law:
Corroboration is not a sine qua non for a conviction in a rape case.
Refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.
Additional Sessions Judge appeared to have fallen into grave error in not recording the evidence of prosecution witnesses in Marathi which is the language of the District Courts in the State of Maharashtra.
In Court’s opinion, due to such a lapse on the part of the Additional Sessions Judge, a failure of justice has been occasioned and the proceedings stand vitiated.
High Court while taking into consideration the totality of circumstances in the case at hand as well as failure on the part of the trial Court in not promptly furnishing translated copies of English deposition to juvenile-in-conflict-with-law may vitiate the trial and it cannot be said to be a fair and impartial trial, especially when capital punishment is sought to be inflicted upon the accused.
Merely because the crime is heinous and brutal, it would not be just to get carried away sans any legal proof required to substantiate the charge of murder and rape.
Present matter at the most be a case of strong suspicious and no more.
It was apparent that the murder was neither pre-planned nor premeditated and evidence was neither clear, cogent nor credible.
Hence, there was absolutely no question of awarding death sentence to the accused, rather, it was a case wherein the accused must be given a benefit of doubt, nay, it would be a travesty of justice.
“…trial was conducted in a casual manner without ascertaining whether the legal aid provided to the accused was competent and whether the trial was just and fair in a capital punishment case. The quality and credibility of the evidence adduced is not even upto the mark.”
Since the prosecution miserably failed to bring home the guilt of the accused, there was no question of considering whether the case falls under the rarest of rare category wherein the question of award of capital punishment or otherwise would arise.
High Court opined that the decision of the Additional Sessions Judge was full of surmises and conjectures. The entire approach of the trial Court in dealing with the evidence was patently illegal and the conclusions arrived at by it were wholly untenable.
Therefore, Bench acquitted the accused of the offences punishable under Section 376 (2) (g), 302 and 326 of the Penal Code, 1860 in view of Section 368 (c) of the Criminal Procedure Code. [State of Maharashtra v. Rahimuddin Mohfuz Shaikh, Confirmation Case No. 1 of 2017, decided on 25-11-2021]
Advocates before the Court:
Ms. M.M. Deshmukh A.P.P for Appellant-State.
Ms. Rebecca Gonsalvez i/b Dr. Yug Chaudhry, appointed Advocate for Respondents.