Case Note & Summary
The appellant, Abdul Rajak Chapparban, was convicted by the Children's Court for offences under Section 376 and 506 IPC, Section 8(2) of the Goa Children's Act, 2003, and Section 6 of the Protection of Children from Sexual Offences Act, 2012, for an alleged single incident dated 24.02.2013. He was sentenced to rigorous imprisonment for 10 years and fine for the rape offences, and one year for criminal intimidation. The appellant appealed to the High Court of Bombay at Goa. The appellant's counsel argued that the charge framed related only to the incident of 24.02.2013, but the trial court convicted the appellant for a different incident without altering the charge or affording opportunity, causing prejudice. He also contended that the trial court failed to consider the appellant's statement under Section 313 CrPC and the defence evidence, and that the competency of the minor victim was not certified before recording her testimony. The State opposed the appeal. The High Court found merit in the appellant's submissions, noting that the trial court convicted for an uncharged act without altering the charge, which is impermissible and causes prejudice. The court also noted non-consideration of the defence evidence and lack of certification of the minor victim's competency. Consequently, the High Court allowed the appeal, set aside the conviction and sentences, and acquitted the appellant.
Headnote
A) Criminal Law - Conviction on Uncharged Act - Prejudice - The trial court convicted the accused for an incident different from the one charged, without altering the charge or affording opportunity, causing prejudice - Held that such conviction is unsustainable and liable to be set aside (Paras 3, 6). B) Criminal Procedure - Section 313 CrPC - Defence Evidence - Non-consideration - The trial court failed to consider the accused's statement under Section 313 CrPC and the defence evidence led, which was duly proved or probabilized - Held that this is a serious infirmity warranting setting aside of conviction (Para 4). C) Evidence Law - Competency of Minor Witness - Certification - The competency of the minor victim to testify was not certified by the court before recording her deposition - Held that reliance on such uncertified testimony is not justified (Para 4).
Issue of Consideration
Whether the conviction of the appellant for an incident different from the one charged, without altering the charge or affording opportunity, is sustainable; and whether non-consideration of the accused's statement under Section 313 CrPC and defence evidence vitiates the conviction.
Final Decision
Appeal allowed. Impugned judgment and order dated 16.12.2016 set aside. Appellant acquitted of all charges. Bail bonds cancelled.
Law Points
- Conviction on uncharged act without alteration of charge causes prejudice
- Section 313 CrPC statement and defence evidence must be considered
- Competency of minor victim must be certified before recording evidence
