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The high court said that belated examination of the victim cannot be a point for the accused to give benefit. It was also noted that the appellant had ravished a six-year-old child and should not be shown any leniency.
A division bench of the Bombay High Court at Aurangabad comprising Justice Vibha Kankanwadi and Justice SG Chapalgaonkar recently observed that even after independence health services are not available in remote areas.
“It is unfortunate scenario that even after independence, health services are not available in many remote areas. The basic medical facilities are also not available there and, therefore, we cannot expect that expert medical officers would be available at such Sub District Hospitals or Rural Hospital,” the court observed.
The bench presided over a criminal appeal filed by Dilip Gajbhare, who sought to challenge a May 2016 judgment from a sessions court, which found him guilty of rape under the Indian Penal Code (IPC) and offenses under the Protection of Children from Sexual Offences Act (POCSO Act).
According to the prosecution's case, on the afternoon of September 8, 2014, the appellant allegedly gave a ₹1 coin to a six-year-old victim who was playing outside her house. Subsequently, he took the girl inside his house and raped her. The victim confided in her mother, and later, the village's Police Patil and Deputy Sarpanch were informed of the incident, leading to the filing of a first information report (FIR) against the accused on the following day.
One of the arguments raised by the appellant focused on the delayed timing of the FIR, which was lodged on September 9 despite the incident occurring on September 8. Additionally, he pointed out that the medical examination of the girl only took place on September 10. The appellant argued that this delay in the medical examination should be viewed with suspicion.
Upon further investigation, the bench discovered that the sub-district Hospital in the girl's village lacked the necessary facilities to conduct a proper examination of a rape survivor. As a result, she was referred to the District Hospital, where she travelled accompanied by a lady constable on September 10.
The division bench noted that a belated examination of the victim cannot be a point for the accused to give a benefit.
“The purpose behind those provisions is that the rape victim should be taken to the nearest medical expert so that the evidence should not get lapsed or destroyed. Unfortunately, either police do not approach those private medical practitioners or sometimes they do not get cooperation from the private practitioners. This reality will have to be considered in this case also. Therefore, the belated examination of the victim cannot be a point for the accused to give benefit,” the court noted
Therefore, while dismissing the appeal the high court noted that the appellant had ravished a six-year-old child and should not be shown any leniency.
“We do not find any merit in the present appeal. The appellant was aged 46 when the offence was committed and it has come in the evidence that he was residing with his wife and children. Still, he has ravished a small child aged six years and, therefore, no leniency can be shown as against him. Hence, the appeal stands dismissed,” the court noted
Case title: Dilip Sambhaji Gajbhare vs State of Maharashtra.
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