The Bombay High Court has dismissed a rape convict's appeal for a lesser punishment, observing that his HIV+ status and that he had children to raise could not be sufficient grounds to change the sentence.
Justice ML Tahilyani of the Nagpur bench recently dismissed the appeal of Raju Girnare, who was convicted of raping a 13-year old girl at Buldhana in May 2009.
In February 2012, a sessions court sentenced him to seven years rigorous imprisonment for kidnapping and rape. Girnare pleaded that he was HIV+ and also had two children to take care of.
The court, however, refused to grant him relief saying his children were being taken care of by relatives after he was arrested in 2009.
"In my view, the illness of the appellant and his two growing children cannot be special and adequate reason for imposing a lesser sentence. In the present case, the children are already being looked after by some other family members as the appellant is in custody from the date of arrest. Therefore, there is no occasion for the children to suffer," the judge said.
As far as his health is concerned, the judge noted that medical aid could be provided in the prison itself.
"As far as the disease of the appellant is concerned, it is most probably invited on himself for which no leniency can be shown. HIV can be treated by regular visits to the hospital or consultation with the medical officer of the prison. Such facilities are provided in the prison, where authorities are always mindful of the problems of the prisoners, particularly those who are suffering from severe diseases," the judge said.
According to the prosecution, the girl and her father were at the civil hospital where her mother had been admitted for delivery. Girnare was also at the hospital attending to a relative.
In the morning of May 17, 2009, the girl, her father and Girnare made a trip to the market and returned to the hospital. The girl went missing in the evening and her father lodged a complaint with the police.
The girl came back to the hospital the next day and told her father what had happened. Girnare was arrested and confessed to committing the crime. Medical tests confirmed the sexual assault.
The public prosecutor stated that Girnare lured the girl with promise of marriage and raped her. The defence counsel sought leniency saying that the girl had consented to go along with the man.
Dismissing the argument, the judge said: "It may be mentioned that even it it is assumed, for the sake of argument, that the consent was given by the girl, the appellant would be guilty of the offence punishable under section 376 of the Indian Penal Code inasmuch as she was not of consenting age."