Mumbai: Observing that there were many discrepancies in how the trial was conducted against two cousins in a rape case, the Bombay High Court has remitted the trial back to the trial court. Justice Bharati Dangre sent the matter back while hearing appeals filed by two cousins who were sentenced to 10 years in prison for raping one of the cousin’s minor sister.
Justice Dangre has asked the Mangaon sessions court in the Raigad district to conduct the trial afresh from the stage of recording the statement of the two accused under Section 313 of the Criminal procedure code (CrPC). Section 313 deals with the power of the trial court to examine the accused which enable the accused to explain any circumstances appearing in evidence against him.
DNA test found that the accused in the case was not responsible for girl’s pregnancy
While remitting the trial back, the Ahad said that the trial be done to give "meaningful effect to the procedural aspect of recording the statement under Section 313 of the CrPC”.
According to the prosecution, a case was registered after the parents of a girl, a Class 8 student, discovered that she was pregnant and delivered a girl child. Initially the girl said that her 21-year-old cousin raped her. He was arrested by the police. However, the DNA test found that he was not responsible for the girl’s pregnancy.
10 years in Jail for accused
Later, the girl revealed that it was her biological 19-year-old brother who had raped her, which was confirmed by the DNA test. However, the prosecution argued that both the accused had sexually exploited the girl, while they denied the allegation. Despite the girl turning hostile during the trial, the sessions court convicted the two and sentenced them to 10 years in prison.
The cousins approached the HC challenging their conviction. During the hearing in the appeals, Justice Dangre went through the statement of the accused recorded under Section 313 of the CrPC and noticed "glaring discrepancies and said that it appears that the prosecution was confused between the two accused."
DNA report not exhibited properly
The bench noted that questions that should have been put to the cousin brother were put to the victim’s brother and vice versa. This Reflected “complete non-application of mind”, said HC.
Even the DNA report was not properly exhibited as mandated under the procedure, which “is a classic example of the perfunctory approach adopted by the prosecution in sensitive trials like the present one, where the life of the young victim and two accused persons, equally young, is at stake”, said the judge.
Case remitted to additional sessions judge in Mangaon
"Since the recording of statement under Section 313 is not a mere empty formality, but a most imperative mandate to afford an opportunity to the accused to explain the inculpatory material being used against him to sustain his conviction,” said Justice Dangre.
She further added that “not inviting his attention to such inculpable piece of evidence would result in a miscarriage of justice as it has prejudiced both the accused personsand to avoid this, I deem it appropriate to remit the matter to the Additional Sessions Judge, Mangaon, District”, while sending the case back to the sessions judge.
