Disturbed by insensitive probe and surprised by manner in which special court decided the case, Bombay High Court acquits POCSO death row convict

The Aurangabad Bench of Bombay High Court recently acquitted a death row convict in a POCSO case taking exception to the “insensitive manner” in which prosecution investigated the crime, collected evidence and conducted trial (State of Maharashtra v. Vishnu Gore)..A Bench of Justices Ravindra V Ghuge and BU Debadwar granted the benefit of doubt to the convict who was accused of raping a 5-year-old girl and strangulating her to death. ."We have no hesitation in observing that we are indeed disturbed by the manner in which the prosecution has investigated the crime, collected evidence and conducted the trial in a most insensitive manner,” the Court said. .It also proceeded to issue directions to the Directorate of Prosecution, Maharashtra, to initiate action against those responsible for loss of material evidence and non-examination of material witnesses. .It further expressed surprise at the manner in which the Additional Sessions Judge decided the case overlooking absence of crucial evidence. "We are equally surprised by the manner in which the learned Additional Sessions Judge (Special Judge), Gangakhed, Dist. Parbhani has decided Special (POCSO). We find that the learned Judge has referred to portions of the examination-in-chief of prosecution witnesses and has overlooked their cross-examination, while drawing his conclusions," the Court said. .The Court was hearing the confirmation case forwarded by the Special Court dealing with Protection of Children from Sexual Offences (POCSO) Act cases along with the appeal filed by the accused Vishnu Gore against his convict by the Special Court..The factual matrix of the prosecution’s case was that the Shelgaon police was approached by the 5-yr old victim’s grandfather after she went missing and they registered a First Information Report (FIR). During the investigation in the FIR, they came across the dead body of the minor girl floating in a well.After carrying out post-mortem of the body it was discovered that the victim had been raped, and then strangulated to death..After Gore's trial concluded, the Special Court awarded the sentence of hanging by the neck till dead for committing offences punishable under Section 376A (causing death after rape), 302 (murder) and 201 (causing evidence to disappear) of the Indian Penal Code along with Sections 5 and 6 (aggravated penetrative sexual assault) of the POCSO Act..The High Court set aside the order on the ground that the Special judge had failed consider that the prosecution had not brought on record enough evidence which could have proved that the offence was committed by Gore beyond any doubt..Having concluded that the victim had indeed been raped and her death was homicidal, the High Court examined evidence which according to the Special Court led to the conclusion that it was Gore who had committed the crime..The Court relied upon the statement of the victim’s uncle to the Investigating Officer which demolished the last seen alive theory of the prosecution. As per the uncle's statement, the victim admittedly was last seen alive with the uncle at 3.30 pm as opposed to the case of the prosecution that she was last seen at 1.30 pm with the accused..The Court then proceeded to consider the incriminating evidences relied upon by the prosecution in the trial court..The prosecution had submitted a nylon string rope piece recovered from the neck of the deceased victim and an allegedly similar rope which was recovered from the house of Gore.The Court observed that they did not have the necessary expertise to compare the fibres on both ropes and there was a missing piece of string which was absent in the evidence..The prosecution had also claimed to have recovered a lungi which was used to wrap the body of the deceased which purportedly belonged to the father of the accused.The Court mused whether the accused can be convicted on the basis of the lungi in the absence of corroboration..The police had used sniffer dogs who brought the police close to the house of Gore from the location where the body was found.“We do not find this factor to be a link in the chain of circumstantial evidence pointing towards the guilt of the accused, in the absence of corroborative evidence.” .The Court held that other pieces of evidence like the half burnt piece of quilt which was seized from Gore’s house was also worthless evidence as it had neither semen nor blood stains to be considered incriminating..Finally considering Gore’s conduct, the Court referred to the other testimonies which stated that Gore did seem frightened and subdued and his behaviour was unusual. However, it did not inspire confidence to convict him of having committed the offence.."We do not find such evidence before us which would convince us that it was this accused and no other person who can be said to have committed the crime. The chain of circumstantial evidence is broken at the stages of (a) last seen alive together, (b) sniffer dog, (c) the lungi and (d) the nylon rope. Unless all these links could have held themselves together so as to complete the chain of circumstantial evidence, the accused could not have been held guilty of having committed the crime, it ruled..The Court, however, complimented prosecutor SD Ghayal “for the tremendous efforts he has put in and the manner in which he has marshalled the facts of the case” before it. “It is unfortunate that such amount of hard work is met with an order of acquittal at our unfortunate hands only because the protection has not collected evidence and has not even taken efforts to get a result from the Forensic Science Laboratory as regards the nylon string,” the Court noted. .As regards the POCSO judge, the Court said that he was under duty to direct the prosecution to bring forth such witnesses or pieces of evidence which were necessary for reaching to the correct conclusion. The Court specifically alluded to the missing nylon string, stating that the judge should have paid attention to the fact that the nylon string by which the victim was strangulated had gone missing."Every case has to be dealt with by the Presiding Officer with sensitivity and such cases involving children of a tender age, should be dealt with, with utmost sensitivity," the Court emphasised. .The Court also issued directions to the Directorate of Prosecution, Maharashtra, to initiate action against those responsible for the “loss of the nylon string, failure to acquire the report from the Regional Forensic Science Laboratory (FSL) as regards the matching of the fibre of the nylon string and for the failure in examining material witnesses”..[Read Judgment]