HC upholds conviction of Bandra man for ‘unnatural sex’

It is time to protect interests of rape victims, says Bombay High Court

Observing that time has come to give justice to victims in rape cases, the Bombay High Court recently upheld the conviction of a 28year-old man for unnatural sex and rape. The HC also upheld his conviction under the provisions of Protection Of Children from Sexual Offences (POCSO) Act.

A single-judge bench of Justice Sadhana Jadhav was seized with a criminal appeal filed by Khalil Mehboob Shaikh, who had challenged his conviction and the 20 years' rigorous imprisonment imposed on him by a special court.

Shaikh, a Bandra resident, was arrested by Mumbai Police after he was found raping a minor orphan on the terrace of a building at Railway Colony near Khar. He was arrested at 3 am in February 2013, after his movements were found to be ‘suspicious’ by police monitoring the CCTV footage of the area at Nirmal Nagar police station.

After the man was arrested, the minor revealed he was an orphan and had been sent on a Mumbai tour by his grandparents and he had got lost in the city. He claimed that Shaikh lured him with money and took him to the building’s terrace and raped him twice. Medical tests of the boy substantiated his claims.

To clear the confusion over the victim’s age, the medical team conducted his ossification test, which revealed he was aged between 15 and 16 years. Police, however, failed to obtain his birth certificate or the school certificate to establish his age and this was used by Shaikh in his defence.

Shaikh also pointed out other lapses in the probe, before Justice Jadhav’s bench. However, his contentions were junked.

“In several cases, benefit of doubt is extended to the accused, however, time has come to protect the interest of the victims as well. When the state agencies failed in their duties to establish the case against the accused beyond reasonable doubt, that too by keeping certain lacunae either in the investigation or at the time of trial, the onus would be upon the courts to see that the justice is done to the victim as well,” Justice Jadhav observed.

Justice Jadhav, accordingly, relied upon the ossification test report as an ‘expert opinion.’

“The medical evidence is only the evidence of an expert and it is a substantive piece of evidence,” Justice Jadhav said while citing some Supreme Court decisions.

The bench, accordingly, upheld Shaikh’s conviction for unnatural sex and also under the provisions of POCSO.