The Bombay High Court on Thursday upheld the conviction of a 30 year old man for committing rape of a minor girl, however, commuted his life sentence into 10 years jail term considering his young age and "future prospects" in his profession of a Disc Jockey (DJ). The HC even ordered the man to pay Rs 2 lakh as a compensation to the boy, who was delivered by the victim after the rape.
A bench of Justices Sadhana Jadhav and Prithviraj Chavan noted that the victim's mother and sister both had turned hostile, however, it relied upon the testimony of her younger brother, who too was declared hostile by the prosecution.
The bench was hearing a criminal appeal filed Ramesh Vavekar, a resident of suburban Khar challenging his conviction under the POCSO law and life sentence imposed on him by a special court.
As per the prosecution case, in 2015, the victim's mother noted the sudden change in her behaviour and accordingly took her to a local doctor's clinic where she learnt that the victim was 8 months pregnant. She later was admitted to a hospital where she gave birth to a male child and then due to deterioration of her health, she was shifted to the ICU at KEM hospital, where she died after a few days of admission.
The child was then handed over to an orphanage.
The bench noted that the girl's mother falsely testified in the trial which benefited Vavekar. The mother said that she didn't noted the change in the physical appearance of her daughter and learn of her pregnancy only in the doctor's clinic. She had also not named the accused in the FIR and similar was the testimony of her elder daughter. They both claimed that the victim didn't named anyone as to who impregnated her.
"It sounds unbelievable and incredible that despite repeatedly asking the victim, she did not spill the beans by naming Vavekar or for that matter any other person responsible for her pregnancy," the bench said.
The bench further said that that it was hard for any prudent man to believe that the family of the victim wasn't aware of her love affair with Vavekar.
"We, therefore, say that though she is the real mother of the victim, she did not disclose the name of the real culprit. The reason for suppressing a material fact is quite apparent as even a layman would infer what must have happened," the bench said.
"Normally, real sisters are like very good friends. A daughter may not share everything with the mother but she would definitely share her real feelings and emotions to the sister. The conduct of the victim's sister is also not free from doubt as she also did not want to disclose the truth for the reasons best known to her," the judges added.
The bench then considered the testimony of the victim's brother, who was in class 6 at the relevant time. The boy had testified that Vavekar often visited his house when the victim was alone. He even cited an instance when Vavekar and his mother assaulted the victim for often visiting their lane.
The statements were backed by the testimony of the victim's cousin, who agreed that she was in a relationship with the accused.
"Prosecution has thus, proved beyond doubt that the victim was a child not only from the evidence in the form of her school record but also from the result of DNA analysis, which conclusively established that Vavelar and the victim are the biological parents of the male child begotten to the victim," the bench held.
"The prosecution has further succeeded in proving beyond doubt that he had seduced the victim and subjected her to rape and aggravated penetrative sexual assault resulting into her pregnancy," the judges said, adding, "Evidence of the prosecution inspires confidence and there is no room for any doubt. The victim had not only been abandoned by him but also by her real mother. They did not stop there but had put the life of the newly born child into jeopardy by sending him in an Orphanage."
The bench said that since the victim died "now the welfare of the child born out of illicit relations between the victim girl and Vavekar would be of paramount importance."
"As abundant caution as well as in view of public policy, law can not afford to allow such consequence befalling an innocent child only because he was abandoned by a father (Vavekar)," the bench said, adding, "Looking to the young age of the convict and his future prospects in his profession as a Disk Jocky as well as the fact of his willingness to provide adequate compensation to the child, we are of the considered view that, no fruitful purpose would be served in detaining him for his entire life, instead, if the amount of compensation to be awarded to the child, is adequate, it would serve the ends of justice."
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