Medical Examination Of Rape Accused U/s 53A CrPC Not Mandatory; Can Be Done To Facilitate Prosecution’s Case: Gauhati HC
The Gauhati High Court held that the medical examination of a rape accused under Section 53A of the Code Of Criminal Procedure is not mandatory but could be done to facilitate the prosecution to prove its case.
The Bench affirmed the conviction of a man accused of committing aggravated penetrative sexual assault on his minor daughter. The Court observed that sentencing was mandatory in view of the "gruesome and abhorrent" nature of the offence, which could only be committed by a "morally depraved person".
A Division Bench of Justice Manish Choudhury and Justice Robin Phukan observed, “It is discernible that examination of a person accused of committing an offence of rape or an attempt to commit rape is not mandatory. Such examination can be made if there are reasonable grounds for believing that an examination of a person arrested on a charge of committing an offence of rape or an attempt to commit rape will afford evidence as to the commission of such offence and its purpose is to facilitate the prosecution to prove its case. Such kind of examination albeit is a step in the course of investigation to facilitate the prosecution to prove its case.”
Advocate A. Devi represented the appellant, while Addl. P.P. S.H. Borah appeared for the respondents.
The Court dismissed the appeal filed by the accused challenging the conviction under Section 6 of the Prevention of Children from Sexual Offences POCSO Act, 2012 (POCSO Act) by the trial court for raping a 9-year-old minor girl.
An FIR was registered against the accused under Section 376AB of the IPC read with Section 4 of the POCSO Act.
The accused argued that the mandatory procedure prescribed under Section 53A of the CrPC was not followed by the investigating authority during the investigation as a medical examination of the accused would have determined the falsity in the case of the prosecution.
The High Court clarified that non-examination of the accused under Section 53A of the CrPC was at best, a flaw in the investigation. “But for such shortcoming in the investigation, an accused is not entitled to be acquitted by interfering with a judgment of conviction,” the Court explained.
“A child witness if found competent to depose on the facts and to be reliable one, his evidence could be the basis of conviction. Even in the absence of oath, the evidence of a child witness can be considered under Section 118 of the Evidence Act, subject to the rider that such child witness is able to understand the questions and able to give rational answers thereof,” the Bench remarked.
After the accused argued that there was a delay in filing the FIR, the Court clarified that “mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court.”
Consequently, the Court upheld the decision of the trial court held that the accused committed penetrative sexual assault on the minor, which was fortified by the medical examination of the victim.
Accordingly, the High Court dismissed the appeal.
Cause Title: Santosh Tanti v. The State of Assam & Anr.
Appearance:
Appellant: Advocate A. Devi
Respondents: Addl. P.P. S.H. Borah; Advocate P. Saha
