Child rapists be punished mercilessly and inexorably: Bombay HC

The Bombay High Court recently emphasised that persons convicted for the rape of minor victims are a menace to civilised society and that they should be mercilessly and inexorably punished.

Justice Prithviraj K Chavan made the observation while dismissing an appeal filed by 29 year old Sagar Dhuri, challenging a special court order convicting him for the sexually assault of a five year old child. The Court had sentenced him to ten years in jail.

After affirming his conviction, inter alia, the judge took note of observations made by the Supreme Court in the case of Madan Gopal Vs. Naval Dubey. In view of the same, the High Court also echoed that child rapists should not be shown any clemency.

"The dicta is loud and clear as to how such offences are required to be dealt with who are menace to the civilized society and, therefore, they should be mercilessly and inexorably punished."

The order convicting the appellant had been passed by the Special Judge under Protection of Children from the Sexual Offences Act, 2012 (POCSO Act) last year.

Dhuri used to live in the same neighbourhood as the then five- and half-year-old victim. On April 18, 2015, the victim’s friend, one of the witnesses, who was looking for the victim found her to be in the house where Dhuri was residing and thereafter informed a woman residing in the neighbourhood.

When the woman went to check on them, she saw through a space through the back door that the appellant was lying on top of the victim. The woman called the victim out and took her to her mother. She also narrated what she saw. Through the victim's narration, it came to be known that Dhuri had called her to show her songs on his mobile and, under that pretext, sexually assaulted her.

A First Information Report (FIR) came to be registered over the offence at Powai Police Station in Mumbai against Dhuri, who was taken into custody.

A Special POCSO Judge eventually convicted Dhuri under Section 6 (aggravated penetrative sexual assault) of the POCSO Act and sentenced to suffer rigorous imprisonment for ten years. Further, Dhuri was also convicted under section 342 (Punishment for wrongful confinement) of the Indian Penal Code.

Challenging the Sessions Court order, advocate Aniket Vagal contended, for Dhuri, that there is no medical evidence indicating whether she was sexually assaulted or molested by the appellant.

In this regard, it was submitted that this is a case which would, at the most, fall under Section 7 (sexual assault) of the POCSO Act, for which a punishment of three to five years imprisonment would lie under Section 8 of the POCSO Act.

On the other hand, Additional Public Prosecutor (APP) SA Gavand strongly opposed the appeal, contending that the Special judge had rightly appreciated the evidence of the prosecution witnesses before convicting and sentencing Dhuri. The APP argued that Dhuri was guilty of having attempt to commit aggravated penetrative sexual assault on the child, and urged that no leniency should be shown to the convict.

The Court ultimately found that there was no merit in the appeal filed. Further, in the judge also noted that the convict was well aware of the significance of his act, diminishing his prospect for reformation.

"This is a case in which there is no question of reformation of the appellant as he was quite a grown up male who knew the consequences of his act."

The Court, therefore, dismissed the appeal, stating,

“The learned trial Judge has elaborately and succinctly discussed each and every aspect of the case by correctly appreciating the evidence on record and reached a finding which does not warrant interference in the appeal. As such, the appeal is devoid of merits and, therefore, needs to be dismissed.”

[Read Judgement dated December 20, 2019]