'Non-Examination Of Sexual Assault Victim Or Officer Who Recorded Her Statement Amounts To Denial Of Fair Trial To Accused': Bombay High Court

The Bombay High Court has held that failure to examine the victim in a case of sexual assault, coupled with the omission to examine the police officer who recorded her statement, fatally undermines the prosecution's case and results in denial of a fair trial to the accused. The Court observed that such lapses strike at the root of the prosecution's case and violate the constitutional guarantee of a fair trial under Article 21.

A Division Bench of Justice Suman Shyam and Justice Shyam C. Chandak was hearing an appeal filed by Deepak Babasaheb Gaikwad, who had been convicted under Sections 376(2)(f), 377 and 363 of the Indian Penal Code.

The appellant argued that neither the victim nor the investigating officer who recorded her statement was called as a witness by the prosecution. He contended that this is a fit case for the Court to draw an adverse inference by invoking Section 114(b) of the Indian Evidence Act.

The Court noted that the time gap since the Accused was last seen in the company of the victim and when she was recovered from Mumbra railway station is nearly four days, which is a substantial gap. It observed:

“There is nothing on record to indicate as to what the victim girl went through during these 3-4 days. Therefore, the victim's testimony was essential. In these circumstances, it is not possible for the Court to presume that there was no scope of the victim girl to be sexually abused by any other person save and except the Appellant.”

The Court, finding merit in the appellant's contention, observed that failure on the part of the prosecution to put the victim in the witness box without any reasonable explanation provides a reasonable ground to the Court to draw an adverse presumption against the prosecution. The Court remarked that unless the Accused is granted a fair opportunity to defend his interest in a fair trial, an order of conviction would stand vitiated.

The Court emphasised that neither the victim child nor the officer recording her statement had been examined.

“… neither the child has been examined as a witness nor has the PSI Ghodke, who had recorded the victim's statement called as a witness by the prosecution. The failure on the part of the prosecution to examine the victim or the PSI, without any just explanation, in our considered opinion would amount to denial of an opportunity to the accused to prove his innocence and therefore, in the facts of the case, would constitute denial of fair trial to the accused,” the Court observed.

Consequently, the Court set aside the conviction of the Appellant under Sections 376(2)(f) and 377 of the IPC while affirming his conviction under Section 363 of the IPC.

Case Title: Deepak Babasaheb Gaikwad v. State of Maharashtra & Anr. [CRIMINAL APPEAL NO. 188 OF 2023]

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