{"id":246582,"date":"2021-04-06T18:20:13","date_gmt":"2021-04-06T12:50:13","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=246582"},"modified":"2021-04-08T18:01:29","modified_gmt":"2021-04-08T12:31:29","slug":"rape-2","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2021\/04\/06\/rape-2\/","title":{"rendered":"Bom HC | Father rapes minor daughter, but conviction under S. 376(2) (i) IPC set aside. Why? Read Court\u2019s opinion in light of S. 164 CrPC || Detailed Report"},"content":{"rendered":"

Bombay High Court: <\/strong>The Division Bench of Prasanna B. Varale and S.M. Modak, JJ., while addressing the present matter expressed that:<\/p>\n

\u00a0<\/em>\u201c\u2026relationship in between brother and sister, relationship in between mother and son, relationship in between father and daughter and so on were considered as sacrosanct. However, due to passage of time, these relationships have no more remained sacrosanct and there are various instances of overstepping the sacrosanct relationship by the near relationship.\u201d<\/em><\/p>\n

In the instant matter, appellant sexually abused his own daughter\/victim. There are two views that is:<\/p>\n

Whether the victim was a real daughter or a step-daughter. But the fact remains that she is victim.<\/p>\n

Trial Court had convicted the appellant for the offence of Section 376 (2)(i), 506 IPC and under Section 4 of POCSO. A further separate sentence was imposed for the offence under Section of the said Act. Appellant had also obtained nude photographs of the victim on his mobile handset, trial court convicted him for the offence punishable under Section 67-B of the Information Technology Act 2000. Adding to this, the trial court acquitted the appellant for the offence punishable under Section 323 IPC.<\/p>\n

In the present appeal, trial court\u2019s judgment is challenged by the appellant.<\/p>\n

Analysis, Law and Decision<\/u><\/strong><\/span><\/h3>\n

Bench noted that the present matter was based on direct and corroborative evidence.<\/p>\n

High Court considered the following:<\/strong><\/p>\n

Even though morally and legally Bench cannot think of a situation wherein the father has raped his minor daughter, but it is correct that Court is bound by rules of law. Even though such instances involving such a relationship are on rise, can Court take into account the evidence which is not admissible (as per existing provisions of law and on its interpretation) and convict the wrongdoer just for the purpose of sending a message in the society?<\/p>\n

Bench stated that unfortunately, it cannot take such a view by bypassing the provisions of law.<\/p>\n

Corroboration<\/strong><\/p>\n

Evidence given by way of corroboration cannot be said to be substantive evidence.<\/p>\n

While elaborating on the concept of corroboration, High Court in light of the present context stated that when the trial court opined that the Section 164 statement can be utilized by way of corroboration, this Court fails to understand what the trial Court mean to say corroboration of which fact?<\/p>\n

Trial Court failed to consider the difference and infact considered the Section 164 statement as substantive evidence itself. High Court stated that it is not permissible and hence the said observation was set aside.<\/p>\n

Bench noted that there were image files of victim girls and video clips were pornographic. But there is a need to understand what is its evidentiary value, whether it is substantive evidence or whether it is a corroborative piece of evidence?<\/p>\n

High Court for the above answered that the person who had seen the incident recorded or who is victim of events recorded can be the proper person and his evidence is substantive evidence. What is recorded and stored in the memory card when it is produced becomes corroborative piece of evidence.<\/p>\n

Bench relied upon the following cases for the purpose of electronic evidence:<\/p>\n