‘No other evidence except victim’s bare words’; Bombay HC acquits father for allegedly having sexual intercourse with daughter

Bombay High Court: In the present case, the judgment and order dated 23-02-2021 passed by the Additional Sessions Judge and Special Judge, Amravait, was challenged whereby the Judge convicted appellant-victim’s father for the offences punishable under Sections 376(2)(f)¹, 376(2)(j)², 376(2)(n)³, 323⁴, and 506⁵ of the Penal Code, 1860 (‘IPC’) and under Sections 4, 8, and 12 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’). The Judge sentenced appellant to suffer rigorous imprisonment for ten years and to pay a fine of Rs 5,000 and, in default, to suffer rigorous imprisonment of six months for the offence punishable under Sections 376(2)(f) and 376(2)(j) of IPC.

A Single Judge Bench of G.A. Sanap, J., opined that the father who looked after the victim in the absence of her mother, would not commit such an act with his daughter. The Court further noted that the Medical Officer on the victim’s examination did not notice the injury on her body and similarly, the doctor did not notice an injury to her genitals, except an old, healed hymen, which could not be attributed to appellant. The Court stated that appellant was entitled to get the benefit of the doubt and therefore, appellant was acquitted of the offences punishable under Sections 376(2)(f), 376(2)(j), 376(2)(n), 323, and 506 of IPC.

Background

The victim, whose mother had left her when she was a child. It was stated that appellant was addicted to liquor and when the victim was studying in 3rd standard, appellant for the first time, removed her clothes and committed intercourse with her. Appellant, thereafter, continued to sexually abuse the victim and would also beat her. He threatened the victim not to disclose the sexual assault on her to anyone, otherwise, he would kill her and she, therefore, could not disclose the repetitive sexual intercourse with her by appellant.

One day, the victim made a phone call to appellant’s maternal aunt and told her to take her to her house. Thereafter, appellant’s maternal aunt came, and the victim went to Rahatgaon with her maternal grandmother. On 19-01-2019, appellant went to Rahatgaon to bring the victim back to his house, but the victim refused to accompany him and thus, appellant mercilessly beat her. On inquiring with the victim, the maternal grandmother was shocked to know about repetitive sexual intercourse with the victim by appellant from last 4-5 years. Thus, she took the victim to the police station, where the victim lodged a report against appellant.

Analysis, Law, and Decision

The Court opined that in ordinary circumstances, a daughter would not level such an allegation against her own father and similarly, in the ordinary circumstances, the father would also not sexually assault his own daughter. However, considering human psychology and tendency, mistakes could occur, even in the case of the father, who was an ordinary saviour of the children.

The Court stated that appellant, as per the victim, was addicted to liquor and except her bare words, there was no other evidence. The Court stated that the father had shouldered the responsibility of maintaining the family and well-being of his children in all respects and even if it was assumed that the father was addicted to liquor, it would not favour prosecution’s case. The Court noted that the victim did not state that appellant did not look after their well-being and maintain them.

The Court noted that it was suggested that the victim lodged a false report against appellant because he did not agree to her marriage with the boy whom she wanted to marry. The Court further noted that when appellant’s maternal aunt was cross-examined, she admitted that she knew the boy whom the victim wanted to marry. She even admitted the fact that the boy married the victim and she herself had helped in performing the boy’s marriage with the victim, as appellant opposed it. The Court opined that this was the crux of the present case.

The Court opined that the father who looked after the victim in the absence of her mother, would not commit such an act with his daughter. The Court noted that there was a delay in filing the report and opined that it was conscious of the fact that the delay per se could not be the ground to discard and disbelieve the otherwise credible and trustworthy evidence of the prosecution witness. The Court stated that if the prosecution was able to prove the charge against the accused by cogent and concrete evidence, then the delay did not assume significance and must take a back seat and the delay became relevant when the evidence adduced by the prosecution created a doubt about the credibility and trustworthiness of the evidence adduced by the prosecution and about the occurrence of the incident.

The Court noted that as per the victim’s version, one month prior to the lodging of the report i.e., on 19-01-2019, she was subjected to penetrative sexual assault by appellant. The Court noted that it was not the victim’s case that appellant, one or two days prior to the report, insisted for sexual intercourse and it was also not her case that when she did not allow him to establish sexual relations with her, he beat her black and blue. The Court opined that appellant’s defence was significant, which made prosecution’s case doubtful. Therefore, the Court opined that the evidence of the victim and appellant’s maternal aunt was not credible and trustworthy.

The Court further noted that the Medical Officer on the victim’s examination did not notice the injury on her body and similarly, the doctor did not notice an injury to her genitals, except an old, healed hymen, which could not be attributed to appellant. The Court stated that appellant, was entitled to get the benefit of the doubt and therefore, the Court allowed the appeal.

The Court quashed and set aside the judgment and order of conviction and sentence of appellant dated 23-02-2021 passed by the District-4 and Special Judge under POCSO Act and further, appellant was acquitted of the offences punishable under Sections 376(2)(f), 376(2)(j), 376(2)(n), 323, and 506 of IPC. The Court thus directed that appellant, who was in jail, should be released.

[XYZ v. State of Maharashtra, Criminal Appeal No. 882 of 2022, decided on 05-12-2024]

Advocates who appeared in this case:

For the Appellant: A.D. Tote, Advocate (appointed) for appellant.

For the Respondent: Soniya Thakur, Addl. Public Prosecutor for respondent.

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