Bombay HC Says Non-Examination Of Victim Or Officer Denied Fair Trial | Suspicion Cannot Replace Proof | Rape Conviction Set Aside, Kidnapping Alone Upheld
Sanchayita Lahkar
The High Court of Judicature at Bombay, Division Bench comprising Justice Suman Shyam and Justice Shyam C. Chandak, delivered judgment setting aside the conviction of an accused under Sections 376(2)(f) and 377 of the Indian Penal Code while affirming conviction under Section 363 IPC. The Bench directed that since the appellant had already undergone more than ten years of imprisonment, which is the maximum sentence for Section 363 IPC, he be released forthwith unless required in any other case. The Court recorded that "suspicion, howsoever strong, cannot take the place of proof" while interfering with the order of conviction under serious sexual assault charges.
The proceedings arose out of a criminal appeal filed under Section 374(2) of the Code of Criminal Procedure against a judgment dated 30th September 2015, delivered by the learned Additional Sessions Judge, Nashik, in Sessions Case No. 106 of 2014. The trial court had convicted the appellant under Sections 376(2)(f), 377, and 363 IPC, sentencing him to rigorous imprisonment for life under Sections 376(2)(f) and 377 IPC, and three years’ rigorous imprisonment under Section 363 IPC, with fines imposed for each conviction. All sentences were ordered to run concurrently.
The prosecution case, as detailed in the judgment, began with a complaint filed by the father of a minor girl, then aged three years, alleging that his brother (the appellant) had taken the child on the pretext of buying clothes. The victim did not return, prompting a missing complaint on 3rd October 2013 and registration of Crime No. 313 of 2013 on the following day at Ambad Police Station. After four days, the child was recovered from Mumbra Railway Station, allegedly found in a semi-naked condition. The mother of the victim, examined as PW 1, deposed to the injuries and the child’s disclosures that the accused had sexually assaulted her. She stated that “he removed her knicker and inserted his private part into her private part.”
The father (PW 2) corroborated the narrative, testifying that his daughter was taken by his brother during his absence from home. The medical officer (PW 3) at Nashik Civil Hospital recorded lacerations, bruises, and tears on the private parts of the child, along with greenish discharges, and opined that sexual assault had occurred. Panch witnesses, police officials, and the investigating officer were also examined to establish recovery, seizures, and investigative procedures. A neighbor, PW 8, testified to having seen the accused with the victim near a temple on the morning of the incident.
The defense was one of complete denial, with the accused pleading false implication due to family property disputes. No defense evidence was adduced. The trial court, relying on medical evidence, the last-seen circumstance, and testimonies of PWs 1 and 8, convicted the accused.
In appeal, counsel for the appellant argued that the victim, being the best witness, was never examined despite being capable of narrating events. The statement recorded by the investigating officer was not placed through examination. The non-examination of PSI Ghodke, who recorded the child’s statement, was also stated. It was argued that conviction rested solely on last-seen theory and Section 106 of the Evidence Act, which could not shift the burden of proof absent prima facie prosecution evidence. Precedents including Kattavellai @ Devakar v. State of Tamil Nadu (2025) and Reena Hazarika v. State of Assam (2019) were cited.
The State opposed, asserting that PW 1 and PW 8 sufficiently proved the taking away of the child, and that the accused’s failure to explain what transpired was incriminating under Section 106. The State, however, conceded that no explanation existed for the non-examination of the victim as a witness.
The Division Bench carefully examined the prosecution evidence and reasoning adopted by the trial court. The Bench recorded: “suspicion, howsoever strong, cannot take the place of proof.” It further observed that while the medical evidence established that the child had been sexually assaulted, there was absence of any direct evidence linking the appellant to the act.
The Court observed: “Law has been firmly settled that last seen together circumstance is a weak piece of evidence.” Referring to Kattavellai @ Devakar v. State of Tamil Nadu, it stated that conviction cannot be sustained solely on such basis. The Court found the time gap of nearly four days between the last seen circumstance and recovery at a public railway station too significant to exclude the possibility of third-party intervention.
The judgment recorded: “There is not even an iota of evidence available on record so as to indicate as to what transpired between 3rd October 2013 and the time when the victim girl was recovered from Mumbra railway station.” The Bench stated that in such circumstances, the prosecution’s reliance on Section 106 Evidence Act to shift the burden on the accused was misplaced, noting that: “Section 106… cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused.”
Discussing Reena Hazarika v. State of Assam, the Court reproduced: “Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act.” Similarly, it cited Balvir Singh v. State of Uttarakhand, observing that the persuasive burden under Section 101 always remains on the prosecution.
The Bench critically noted the failure to examine the child victim despite her ability to communicate in the Vadari language, stating: “Testimony of the victim girl would have been the best evidence. Therefore, failure on the part of the prosecution to put her in the witness box without any reasonable explanation would afford a reasonable ground… to draw adverse presumption.”
Citing Zahira Habibulla H. Sheikh v. State of Gujarat, the Court underscored the duty of trial courts to actively unearth truth and secure fair trials: “The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society.” The Court found that failure to examine the victim and investigating officer deprived the accused of fair trial, contravening Article 21.
The Bench concluded: “Unless the accused is granted a fair opportunity to defend his interest in a fair trial, an order of conviction would stand vitiated merely on such count.”
The Division Bench directed that the conviction of the appellant under Sections 376(2)(f) and 377 IPC be set aside, granting the benefit of doubt, while affirming the conviction under Section 363 IPC. The Court stated: “We accordingly interfere with the conviction of the Appellant under Sections 376(2)(f) and 377 of IPC and set aside the sentences imposed upon him by the learned Trial Court for committing the offences under the aforesaid provisions. We, however, affirm the conviction of the Accused/ Appellant under Section 363 of the IPC and the sentences imposed on him for the said offence.”
The Court further directed: “Since the Appellant has already spent more than 10 years in jail, which is the maximum jail sentence that can be awarded for offence committed under Section 363 of the IPC, hence, we direct the Appellant be set at liberty unless his custodial detention is deemed necessary in connection with any other case.”
The appeal was allowed to the extent indicated, and the trial court record was ordered to be sent back.
Advocates Representing the Parties
For the Appellant: Mr. Sandeep Karnik, Legal-aid appointed Advocate
For the Respondents: Ms. Deepa Punjabi, Legal-aid appointed Advocate; Ms. G. P. Mulekar, APP for the State of Maharashtra
Case Title: XXX v. State of Maharashtra & Anr.
Neutral Citation: 2025:BHC-AS:35291-DB
Case Number: Criminal Appeal No. 188 of 2023
Bench: Justice Suman Shyam, Justice Shyam C. Chandak
