Citation – MANU/MH/0737/2019

Facts of the Case

The instant matter had arisen as an appeal before the Bombay HC against the judgement passed by the District Judge-8 and Special Judge, Protection of Children Against Sexual Offences, 2012 (“POCSO”) The accused, Atul Rama Lote is alleged to have kidnapped the deceased victim (who is a minor, aged seven at the time of death) for the purpose of committing rape, subsequently murdering her and hiding the body. For the same he had been charged by the police under sections 363, 366(A), 376 and 302 of IPC and under sections 6 and 8 of POCSO Act on 25/2/2014.

The Trial Court, however before passing the judgement, had altered the charges as per the provisions of section 216 to sections 363, 376(2)(f), 302 and 201 of IPC and section 3(a), 4, 5(i) and 5(m) and 6 of POCSO. The defence lawyer has claimed a procedural oversight on the part of the Trial Court and requested for initiation of new proceedings. The issues raised will be dealt with in the next section.

Issues raised

Advocate Dr Yug Mohit Chaudhary, counsel on behalf of the accused-respondent, raised the following issues:

1. The Test Identification Parade (TIP) conducted of the prosecution witnesses was improper, and evidence relied upon by the prosecution as well as the Trial Court judgement is contradictory to the results of the same.

2. The altering of charges by Trial Court was done in a manner which put the accused at prejudice and therefore not in line with the provisions of section 216.

3. The prosecution story is not satisfactorily corroborated by the evidence that has been presented and hence the trial court judgement is not correct to pass a verdict on that basis. 

4. These issues have been sufficiently considered by the High Court while passing the judgement, especially with reference to the reverse onus clause in POCSO and would be elaborated upon in the next section.

Judgement

1. The verdict passed by the two-judge bench ordered:Quashing and setting aside the trial court judgement;

2. Police remand for the accused owing to the nature of the crime which involves a presumption of guilt on his part;

3. Holding either denovo trial or proper conduct of judicial proceedings in the trial court from the stage just before the framing of charges.

4. The Court has given due consideration to the needs and problems that the accused has had and therefore extended leniency him so as to prevent the miscarriage of justice owing to procedural flaws in the conduct of proceedings by the lower rungs of the judiciary.

Personal Comments

The author would like to add that the principles of criminology and natural justice have been harmoniously construed by the Bombay HC in ordering re-investigation as well as re-trial. Even the accused has certain rights ascribed to him which cannot be overridden by any power whatsoever. Hence the instant judgement has been passed in furtherance of justice, equality, reasonableness and fairness for the accused.

(By – Abhigyan Tripathi)