[POCSO] Death of victim by cancer before examination during trial cannot be reason to acquit accused: Mumbai Court

Death of a minor sexual assault victim from cancer before she could depose during trial, cannot be a ground to give the benefit of doubt to the accused, a Mumbai court said while convicting a man for sexually assaulting a minor victim [State of Maharashtra v. Premchand Chavhan]..Special judge Priti Kumar Ghule relied on circumstantial evidence and the statement given by the victim before the judicial magistrate under Section 164 of the Code of Criminal Procedure to convict the accused and sentence him to 10 years in jail. "Only because the victim is dead, the prosecution case cannot be rejected. The circumstances are beyond control for her death. I do not have any reason to doubt on statement u/s. 164 of Cr.P.C. recorded by the Ld. Metropolitan Magistrate which corroborates to the evidence of complainant” the Court said.It also relied upon scientific evidence including medical examination report by the doctor who first examined the victim, to convict the accused.The incident took place in 2019, when the mother noticed abrasions around her victim daughter’s private parts while bathing her.After a medical examination, the accused came to be arrested for offences under the Indian Penal Code and Protection of Children from Sexual Offences (POCSO) Act. During the trial, the victim came to be hospitalised due to cancer, and therefore, could not be examined during trial. Thereafter, she expired in January this year..The Court opined that in the present case, since the minor victim had died due to illness, there was no direct evidence. Hence, the court will have to rely upon circumstantial evidence which included medical examination report by the doctor who first examined the victim. The special judge also relied upon the statement of the victim deposed before the judicial magistrate under Section 164 of the Code of Criminal Procedure. “Though it is not substantial piece of evidence, it corroborates to the story of the prosecution and to the medical report which is proved by the Medical Officer so also the history before the Medical Officer given by the survivor,” the judge recorded in the order..The judge also did not find any reason to doubt the statement given before the Magistrate. “It is not the case that she was not fit and unable to give statement then. In present case due to death of the victim she is not available to give direct evidence,” the Court emphasized..The accused pleaded not guilty, and claimed that the abrasions on the victim’s body may have been caused by the mother. He added that any bleeding from the victim’s body was due to the disease she was suffering from. The Court, however, did not accept the defence. The Court opined that the mother had lodged the complaint because her daughter narrated the incident to her first. “No mother will go to the police station alleging (about such) incident of penetration. The privacy of the girl child will not be exposed by the mother for quarrels with neighbour. No mother will make allegations of penetration as it touches the modesty of a girl and it is not a matter of pride for any girl and the family,” the order recorded..After considering all evidence, the Court convicted the accused and sentenced him to 10 years of rigorous imprisonment.The Court also imposed penalty of ₹25,000.Pertinently, the special judge also directed the State to compensate the complainant, the mother of the victim. The compensation under CrPC was awarded for rehabilitation of the victim, who in the present case, had expired.“The victim is not alive due to her illness, she expired. Hence, there is no rehabilitation to be done. The mother of the victim who has gone through the pain of loosing child due to illness and has also seen the child (being) subjected to penetrative sexual assault should be granted compensation by the State”, the judge said referring the case to the District Legal Services Authority of Mumbai. .[Read order]