Setting aside the death sentence of a man in a case of gang rape of two women and the killing of one of them, the Bombay high court has raised doubts on the testimony of the survivor and noted that there was substance in the suggestions made by the accused that she used to indulge in prostitution. The HC also observed that the victims were not forced by the accused to accompany them and that they had consumed liquor with the accused without any hesitation.
A division bench of Justices Sadhana Jadhav and Prithviraj Chavan, on November 25, acquitted Rahimuddin Shaikh, observing that the prosecution had failed to prove the case beyond reasonable doubt.
The detailed order copy was made available on Thursday.
The HC was hearing a confirmation petition filed by the state government seeking that Shaikh’s death sentence be upheld. All death sentences awarded by sessions court have to be confirmed by the HC.
On May 11, 2017, the Thane sessions court convicted Shaikh and sentenced him to death for murder and gang rape to two women.
The second accused in the case was declared a juvenile.
According to the prosecution, in May 2012, Shaikh and the juvenile accused took the survivor, 19, and victim, 28, to Navi Mumbai on the pretext of having arranged jobs for them. There they consumed liquor.
After this, the accused allegedly gang-raped the women and assaulted them. While one of the victims died on the spot, the other managed to escape. Based on her statement, police arrested the duo.
The HC noted that the women were neither coerced nor forced to accompany them in a rickshaw nor compelled to consume alcohol.
“It is also apparent that both the deceased victim and the survivor victim had consumed liquor at ease without any hesitation. Rather, it is not the evidence of the survivor that they were forced or compelled to consume liquor,” the HC observed in its 56-page judgment.
Besides, the medical papers of the survivor demonstrate that she had a history of consumption of unknown drugs on the day of the incident before the alleged assault.
The HC also took note of suggestions made by the accused that the victims had indulged in prostitution.
“If they (victims) were earning their livelihood as ragpickers, they would not have readily accepted the invitation and offer of the accused, who, according to them, were unknown and would accompany them, consume liquor and go under the bridge in a hollow. Be that as it may,” observed the HC.
The survivor was taken to a psychiatrist where she claimed that she used to have depressive thoughts and had also tried to end her life in the past.
Based on this, the HC said: “Looking at the report of the psychiatrist, coupled with the fact that the survivor was under the influence of liquor at the time of the incident, it would not be safe to accept her testimony as a truthful version of the incident in respect of the alleged assault by the accused.”
The HC expressed displeasure in the “casual and perfunctory manner” in which the case was investigated and the trial conducted.
While observing that there was no dispute that the survivor had been brutally assaulted, the HC said that the prosecution has failed to connect the accused with the crime. The HC said: “Having appreciated the entire evidence on record as well as material discrepancies, lacunae and blatant illegalities would definitely indicate that the prosecution has utterly failed in connecting the dots and bringing home the guilt of the accused.”
The judges said: “In an accusatory system, such as that prevailing in our country, it is for the prosecution to prove beyond reasonable doubt that the accused committed the offence; it is not for the Court to speculate as to how the crime has been committed.”
Merely because the crime is heinous and brutal, it would not be just to get carried away sans any legal proof required to substantiate the charge of murder and rape, said the HC.
“There is absolutely no question of awarding death sentence to the accused, rather, it is a case wherein the accused must be given the benefit of the doubt, nay, it would be a travesty of justice,” the judges said while setting aside the death sentence.
The Indian setting, the refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to the injury. However, in the present case, the facts, circumstances and evidence, the complicity of the accused itself is shrouded with doubts and suspicions and hence it would not be safe to reply upon the sole testimony of the survivor, the court said, while acquitting Shaikh.
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