Police officers not expert to determine mental condition of victim, says Bombay HC acquitting man of rape – Times of India

MUMBAI: “Simply on the basis of physical examination of the patient, opinion cannot be formed that the victim was patient of schizophrenia,” said Bombay high court setting aside a rape conviction and life sentence in a 14-year-old case after finding no proof that alleged victim was either raped or schizophrenic.
“It is difficult to accept that victim was a patient of schizophrenia—at the time of the alleged offence of rape– a mental disease in absence of expert evidence or opinion,” said Bombay high court bench of Justices Prasanna Varale and Shrikant Kulkarni on July 21. The HC allowed a nine-year-old appeal against conviction.
The HC directed his release from Kolhapur prison forthwith, with a Rs 15,000 bail bond in case of any appeal against its order. In 2016, he was denied bail pending appeal.
The appeal bench after a detailed hearing of his advocate MM Khokhawala, additional public prosecutor HJ Dedhia as well as advocate V V Phatate appointed for the complainant concluded that “police officers are not expert to determine mental condition of the victim” and it was essential for the police to have had her examined by a psychiatrist to know her mental state.
“Mere statement of police officer about mental condition of the victim is not any way sufficient to arrive at correct conclusion”, the court said.
Also given the evidence, HC said police “miserably failed to prove the scene of offence” alleged to be a guesthouse.
The woman was not examined fully during the trial. The HC said while rape charges cannot be dropped merely because a victim does not depose, there was no medical to support the prosecution case.
The HC said, “The offence of rape is certainly serious and heinous. It is well settled position of law that testimony of a victim in case of sexual offence is vital and unless there are compelling reasons which necessitate looking for corroboration, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence.” But in this case, the HC said “though she was in a position to tender her evidence,” it was “given up midway” when deposing and hence her evidence is not on record and prosecution has not examined her grandmother who had narrated the history to the doctor.
The HC said, “The Additional Sessions Judge seems to have not appreciated the evidence carefully and arrived at an incorrect conclusion. Certainly, the findings recorded by the learned Additional Sessions Judge are liable to be upset. The impugned order of conviction and sentence is liable to be struck down. The prosecution agency has failed to prove the charge of offence of rape and wrongful confinement against the appellant-accused for want of cogent and sufficient evidence. Resultantly, the appeal must succeed,” and thus quashing the conviction order, acquitted the man.
In February 2016, the man was denied bail by a bench of then acting Chief Justice and Justice Shalini Phansalkar Joshi “having regard to gravity of the offence.” In the bail rejection order, the HC had then said, “prima facie at this stage” there was “evidence more than sufficient to prove” his involvement in the offence as held by the trial court.
(The victim’s identity has not been revealed to protect her privacy as per Supreme Court directives on cases related to sexual assault)