Over-Emphasis On Accused's Rights Risks Undermining Rights Of Victim, Courts Must Strike Balance: Bombay High Court In POCSO Case

The Bombay High Court on Monday, while upholding a man's conviction and life sentence for raping a minor girl, bemoaned the 'danger' of 'over-emphasis' on the rights of the accused while 'ignoring' the rights of the victim.A division bench of Justice Manish Pitale and Justice Manjusha Deshpande highlighted the fact that it is the victim, who sets the criminal law into motion and yet the rights of the victim are often ignored completely. "In our system, sometimes there is a danger of over-emphasis on the rights of the accused, while completely forgetting or ignoring the rights of the victim. It is often observed that the accused raises a plethora of contentions regarding his or her rights claiming fair trial, while the victim is forgotten. It has to be kept in mind that the victim triggers the criminal justice system and quite often, the focus on the rights of the accused is over-emphasized to such an extent that the victim is bewildered and feels completely lost, as regards his or her rights and concerns," the judges observed. The bench therefore, called for 'balancing' the rights of the accused as well as the victim, stating that the enquiry in a criminal trial and also, while considering an appeal against order of conviction, is to cut to the truth of the matter to examine as to whether the guilt of the accused has been proved beyond reasonable doubt. "So long as no prejudice is caused to the accused and there is no failure of justice, even if there is an error in framing of charge, the appellant cannot claim re-trial and remand of proceedings to the Trial Court. Instead, the appellate Court can correct the error," the bench opined. The ruling was delivered while dismissing an appeal filed by one Ramesh Dada Kalel, who challenged the verdict of a Sessions Court in Panvel, Navi Mumbai, which through an order passed on August 29, 2023 convicted him under charges of rape punishable under the Indian Penal Code (IPC) and the relevant provisions of the Protection Of Children from Sexual Offences (POCSO) Act. He was sentenced life imprisonment, till the remainder of his natural life. According to the prosecution case, October 29, 2018, the victim then a school going child, as usual had visited her house during school hours, to take her 'epilepsy' medicine and while returning to school, she was forcibly taken by Kalel to his house, where he raped her four times till early morning of October 30, 2018. When the victim's family was searching for her, Kalel confined the girl in his bedbox, and helped her parents to lookout for her. However, when he left the girl the next morning, with threats of dire consequences, the girl disclosed her ordeal to her mother, who lodged the FIR which resulted in Kalel's arrest. In his appeal, Kalel pointed out an apparent error on part of the Sessions Court, which while framing the charges invoked section 376(2)(i) of the IPC whereas convicted him under section 376(3) of the IPC. The judge noted that section 376(2)(i) which provided punishment for raping a woman below the age of 16 years, was admittedly deleted in 2019 and was replaced with section 376(3).The bench noted that at the time of framing of the charges, Kalel was aware that the court referred to the age of the victim, who was 13 years at the time of offence, several times and in fact on this very point (regarding age) the appellant had cross-examined a few witnesses. "The material clearly indicates that the appellant was never misled about the case against him and hence, he had full opportunity to defend himself, which he indeed utilised. There was no prejudice caused to the appellant and failure of justice was certainly not occasioned," the bench said. The judges, further referred to their powers, while sitting in appeal, to alter the conviction of the appellant. "In the present case, this Court, in appeal, altering the conviction to Section 376(3) of the IPC, would not have the effect of convicting the appellant for a higher offence, for the reason that maximum punishment prescribed in the now deleted Section 376(2)(i) of the IPC and Section 376(3) thereof, is the same i.e. imprisonment for life, which means imprisonment for remainder of the natural life of the convict," the bench opined. With these observations, the judges disposed of the appeal. Appearance:Advocates Tapan Thatte, Vivek Arote, Akshay Dingale and Dayanand Mane appeared for the Appellant.Additional Public Prosecutor Dr. Dhanalakshmi Krishnaiyer represented the State.Advocate PS Potdar, was appointed through legal aid, to represent the Victim.Case Title: Ramesh Dada Kalel vs State of Maharashtra (Criminal Appeal 1133 of 2023)Click Here To Read/Download Judgment

Over-Emphasis On Accused's Rights Risks Undermining Rights Of Victim, Courts Must Strike Balance: Bombay High Court In POCSO Case

Narsi Benwal

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