Mumbai, March 11, 2022: Ensuring that the welfare of the child born out of rape is of paramount consideration, the Bombay High Court has held that the child born to the rape victim is her legal heir and also a victim in view of Section 2(wa) of the CrPC. Therefore, he must be adequately compensated for as it was the culprit who was responsible for bringing him in this world and then abandoning him at the mercy of an Orphanage.
The Division Bench of Justice Sadhana S. Jadhav and Justice Prithviraj K. Chavan said, “As abundant caution as well as in view of public policy, law can not afford to allow such consequence befalling an innocent child only because he was abandoned by a father (appellant).”
The Appeal in question had been filed by the appellant-culprit challenging the judgment and order of conviction and sentence rendered by the Special Judge, Greater Bombay under the Protection of Children from Sexual Offences Act, 2012.
The factual background of this matter was that the appellant had seduced the victim and subjected her to rape and aggravated penetrative sexual assault resulting into her pregnancy.The victim was 17 years old at the relevant time when she was found pregnant and was carrying a foetus of 8 months in her womb. The victim delivered a male child but she died on the fourth day while she was in ICU. Later, the child of the victim was given to an Orphanage.
The petitioner’s counsel mainly tried to point out some infirmities and lacunae in the evidence of the Doctor’s evidence and prayed for setting aside the judgment of conviction and acquitting the appellant of the charges.
On the contrary, from the respondent’s side it was strenuously argued that looking to the nature of clinching evidence, there was hardly any room for doubt as regards complicity of the appellant in committing penetrative aggravated sex with the victim by impregnating her and then ultimately resulting into her death. It was argued that a strong message was required to be given that in such cases there should be no question of any lenient view.
After perusing the evidence on record, testimonies of the Doctors coupled with DNA report, as well as proof of age of the victim and other evidence in the form of continuous communication between the victim and the appellant, the Division Bench established that the victim was a child when she was subjected to not only aggravated penetrative sexual assault by the appellant but he had also impregnated her as a consequence of such sexual assault.
The accused-appellant had taken undue malefit of the tender age of the victim by seducing her for his amorous sexual lust resulting into not only impregnating by committing aggravate penetrative sexual assault but was also responsible for her untimely death and in addition to that permanently abandoned his own child at the mercy of an orphanage.
According to the Court, it had been conclusively proved that he is the biological father of the male child ill-begotten to the victim. He, therefore, could not absolve himself from the said offence as well as the fact that it was he who was responsible for putting the life of not only the victim but also the newly born into jeopardy.
Stating that the evidence of the prosecution inspired confidence, the Division Bench clarified that the prosecution had proved beyond doubt that the victim was a child not only from the evidence in the form of her school record but also from the result of DNA analysis which conclusively established that the appellant and the victim are the biological parents of the male child begotten to the victim.
“The victim had not only been abandoned by the appellant but also by her real mother(PW 1). They did not stop there but had put the life of the newly born child into jeopardy by sending him in an Orphanage. In view of Section 2(w a) of the Code of Criminal Procedure, the victim means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and expression victim includes his or her guardian or legal heir. The child born to the victim is indeed her legal heir and also a victim in view of the definition of victim and therefore, he must be adequately compensated for as it was the appellant who is responsible for bringing him in this world and then abandoning him at the mercy of an Orphanage”, said the Division Bench.
The Court also opined that the Trial Court though had convicted the appellant under Section 4 of the POCSO Act, but it did not award any compensation which ought to have been awarded by it.
Thus, maintaining the conviction of the appellant u/s 4 of the POCSO Act, the High Court reduced the sentence of imprisonment for life to the extent of 10 years and directed the appellant to deposit an amount of Rs.2 lakhs in the joint account in the name of the Secretary, District Legal Services Authority and the victim child (boy). The Court also specifically mentioned that the victim child would be at liberty to withdraw the entire amount after attaining majority.