The Delhi High Court on Tuesday acquitted a security guard of a children's home of the charge of repeatedly raping a seven-year-old HIV positive orphan, observing that the situation remained a "classic, and unsolved locked room mystery".
Justice C Hari Shankar overturned the trial court's verdict which had sentenced the man to 10 years in jail, saying it would be a "travesty of justice" to convict him of having committed such an "unsolved" crime.
"...this court is of the view that, in the present case, the evidence marshalled by the prosecution, and relied upon by the additional sessions judge (ASJ), is insufficient to return a finding of guilt, against the appellant, of having committed sexual assault upon the child," the high court said, allowing the man's appeal against trial court's verdict.
The high court, in its 69-page judgement, noted that while the child was HIV positive, accused Amardeep Kujur, a Jharkhand native, was tested negative.
It said there were allegations that the child was sexually assaulted multiple times and the possibility of non-transmission of the HIV virus to the other person would be remote.
The high court disagreed with the trial court's finding that it was not necessary that the HIV virus would, in every case of sexual contact, be transmitted from partner to partner.
"...the ASJ has ignored the above two facts, apparent from the evidence, i.e., firstly, that the child had suffered mucosal tears in the private parts and, secondly, that the man was alleged to have repeatedly sexually assaulted the child. Sexual contact is, it is well known, the primary mode by which the HIV virus is transmitted," it said.
In the judgement, the high court said the mystery of how the assaulter entered the room where the minor was sleeping, and raped him day after day, remained "unanswered".
"The allegation being that the man committed repeated sexual assault on the child, it was totally impermissible for the ASJ to have returned a finding of guilt, without even ascertaining, as and when the offence occurred."
"The situation, in the present case, remains a classic, and unsolved 'locked room mystery', even while the man stands convicted and sentenced (by the trial court). This is entirely impermissible in law," it said.
The prosecution had said the Child Welfare Committee sent a letter to Shahbad Dairy Police Station in north west Delhi in February 2013 stating that a report submitted by NGO Child Survival India had alleged a 7-year-old boy was sexually abused and harassed by three minors of a children home in Alipur in Delhi.
During investigation, it was found that the child was allegedly sexually assaulted by the Children Home's guard who had also threatened the victim not to disclose it to anyone.
The child had alleged that he was sexually assaulted multiple times in the children's home room where he used to sleep along with several others.
While the child's father was in jail, his mother had died of HIV and, as there was not nobody to look after him, he was sent to the children home for boys.
When the minor was medically examined, he was found to be HIV positive and handed over to Child Survival India which looked after the children affected by the virus.
The man had claimed he had not sexually assaulted the victim.
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