MUMBAI: The Nagpur bench of the Bombay High Court has upheld the conviction of a man, who kidnapped and raped an 18-month-old neighborhood girl and left her in the jungle unattended for one full night. The HC has enhanced his life imprisonment till the end of his natural life.
A bench of Justices Mahesh Sonak and Pushpa Ganediwala was hearing a plea filed by one Mithun Nisad, challenging the orders of a special court in Nagpur, convicting him under charges of aggravated sexual assault as defined in the Indian Penal Code (IPC) and also the Protection of Children from Sexual Offences (POCSO) Act.
The bench had dismissed his plea in November 2021 but the order copy was made available on Thursday.
As per the prosecution case, Nisad, a labour working in the brick factory, in April 2015, picked up the victim girl while she was playing with her elder brothers. He took her to a nearby forest and there raped her and left her there as it is and she was found on the next morning.
The bench noted that there wasn't any direct evidence to prosecute Nisad as even the victim was merely 18 months at the relevant time period and couldn't testify before the court.
"In the instant case, which is based on circumstantial evidence, the forensic evidence played a major role and for that matter the purity in the procedure from the stage of collection of the samples till the collection of the reports is to be established beyond doubt," the bench said, adding, "The defence could not point out any lacunae in the procedure followed during the investigation."
The judges further noted that Nisad failed to rebut the presumption of having committed the offence and having a culpable mental state to commit it as provided under the POCSO law.
"The presumption to his culpable mental state has essentially to be drawn in as much as the child was only of 18 months at the time of the commission of the offence," the judges noted.
"Considering the overwhelming eyewitness account, circumstantial evidence, medical evidence and DNA analysis, we have no hesitation to hold that the prosecution conclusively proved that it is Nisad and he alone, who is guilty of committing the horrendous crime in this case," the bench said.
The judges further said that each and every link in the chain of circumstances have been firmly established by the prosecution pointing towards Nisad that he is the only person and no other person than him has committed rape on the victim of 18 months.
Accordingly, the bench upheld the conviction. However, as far as the sentences imposed upon Nisad by the lower court is concerned, the bench noted that the POCSO law provides for an alternate punishment allowing choosing between the penalties provided under the IPC and also the POCSO.
The bench, thus noted that the IPC offence penalising aggravated sexual assault with a minor provides for jail term till the remainder of the convict's natural life and accordingly imposed the same on Nisad.
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