'Can't Turn Nelson's Eye To Minor Victim's Ordeal': Bombay High Court Refuses To Reduce Sentence Of 83 Yr-Old Rape Convict

A bench of Justice Shreeram V Shirsat said that the age of the Appellant could not be a mitigating circumstance to reduce the sentence in such offences as the Court can't "turn a Nelson's eye" to the age of the victim and the ordeal the victim has undergone.

In its 63-page order, the High Court concluded that the trial Court had rightly convicted the Appellant of the offences for which he was charged, as the same were duly proved beyond a reasonable doubt by cogent evidence.

Case in brief

BRIEFLY PUT, it was the prosecution's case that in April 2012, the 9-year-old victim had gone to the house of the Appellant (then 75 years of age), his neighbour, to meet his daughter. As per her testimony, the appellant had dragged her into the bathroom through the back door, where he removed all her clothes.

The accused had allegedly forcibly inserted his finger in her private part, kissed her on her lips and also on her private part.

Considering the evidence on record and after hearing the respective parties, the Children's Court convicted the Appellant/Accused under Sections 341, 354, 375(b) and 376(2)(i) of IPC r/w Section 2(y)(i) and (ii) punishable under Section 8(2) of the Goa Children's Act, 2003.

Challenging the conviction, he moved the HC wherein his counsel argued that he had been falsely implicated and that the medical evidence ruled out sexual assault as the doctor found no injuries on the private parts.

Furthermore, his counsel also highlighted the unexplained delay in lodging the FIR and the non-examination of the Appellant's daughter, whom the victim claimed was present in the house's front area during the incident.

The Addl. Public Prosecutor, on the other hand, argued that there is sufficient material brought on record against the Appellant as the testimony of PW1 itself is believable and sufficient to confirm the conviction.

It is also argued that age of the Appellant should not be considered as a mitigating factor for either acquitting or reducing the sentence of the Appellant and no interference is warranted in the order passed by the trial Court.

High Court's order

Against the backdrop of these submissions, Justice Shirsat noted that the evidence of PW1 was probable, natural and trustworthy, and it cannot be said that her evidence was tutored.

The HC added that there was no reason to disbelieve and discard her testimony as the same not only clear and consistent in the narration of the incident but natural as well.

The Court noted the absence of injury on the private part was also not of much significance, as the Doctor (PW8, who examined the victim) had categorically deposed that the injury to the genitals must have healed due to lapse of time, as it takes around 7 to 10 days to heal such an injury.

The Court also rejected the argument that the delay in filing the FIR was fatal to the prosecution's case.

"Needless to mention that as far as delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint", Justice Shirsat observed.

Addressing the argument regarding the non-examination of the Appellant's daughter, the Court referred to the Supreme Court's ruling in Takhaji Hiraji v. Thakore Kubersing Chamansing 2001, wherein it was held that if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material.

Against this backdrop, upholding the conviction, the Court categorically rejected the accused's prayer for leniency, citing his advanced age of 83 years, his lack of criminal antecedents and the fact that he was on bail throughout the trial.

The Court remarked thus:

"This Court does not find the age of the Appellant, who is 83 years, a mitigating circumstance to reduce the sentence in such offences, as the Court also cannot turn a Nelson's eye to the age of the victim and the ordeal the victim has undergone."

In this regard, the Single Judge referred to the Supreme Court's observations in Sumer Singh v. Surajbhan Singh (2014), wherein it was held that if the proper sentence is not awarded, the fundamental grammar of sentencing is 'guillotined' and that the “rainbow of mercy” cannot be allowed to rule over the fundamental grammar of sentencing.

Thus, the appeal was dismissed and the sentence of 10 years rigorous imprisonment was upheld. The Court also rejected the prayer of the accused to stay the operation of the judgment for a six-week period.

The Appellant (Martin Soares) was ordered to forthwith surrender to serve his sentence.