Mumbai: The Nagpur bench of the Bombay High Court recently acquitted a man of rape charges since the victim, a minor, in her testimony, did not specify how she and the accused found privacy and how the relatives of the accused permitted them to sleep together. The HC, while noting that the statements of the girl did not inspire confidence, considered the testimony of the man, who claimed that the girl told him she was a major before the duo had intercourse.
A bench of Justice Pushpa Ganediwala was dealing with an appeal filed by the 22-year-old accused, a truck driver, who was convicted for raping the minor, a 16-year-old girl, on the pretext of marriage.
According to the prosecution, the girl and the accused had a love affair and in October 2017, the girl left her parents' house and went to Jaipur to marry the accused.
While in Jaipur, the accused took the girl to the homes of three of his maternal relatives, and at these locations he had sex with her by promising marriage, the girl alleged. However, the Nagpur police, on a complaint from the girl’s family, brought the couple back to Maharashtra.
The medical report stated that there wasn’t any recent sexual intercourse but she was habituated to it.
Since the girl's age was shown to be 16-and-a-half years, the accused was booked under the stringent POCSO law and was subsequently convicted by a lower court under provisions of raping a minor and was sentenced to 10 years of jail.
However, the accused petitioned Justice Ganediwala’s bench challenging the conviction.
Justice Ganediwala, in her order, noted that “on the point of sexual intercourse, apart from the testimony of the victim, there was no other substantive material”.
“In the testimony of the victim, she has stated that the accused maintained physical relationship with her at various places i.e. at his elder sister’s house and also that of his maternal aunt and grandmother. The minimum sentence prescribed in section 4 of the POCSO Act is 10 years’ imprisonment and maximum is for life imprisonment,” the judge noted.
Accordingly, the judge said that considering the seriousness of the punishment, the sole testimony of the victim should be of sterling quality and detailed, with regard to the incident.
“She (victim) states that accused maintained physical relations with her wherever he took her while she was with him in Rajasthan. She does not narrate the details of the incident, as to how they could get privacy, the presence of other members of the house, how did the other members of the house permit them, in which room they slept, how many rooms were there in the house so that they could get privacy, at what time they slept, at what time and under what circumstances he committed rape etc,” Justice Ganediwala opined.
The judge further noted that apart from this, none of the witnesses, especially the relatives of the accused were examined by the prosecution.
“The age of the accused, at the relevant time, was 22 years. A boy of young age, nourishing his desire to marry with the victim,” the judge noted.
“No doubt, as per provisions of the IPC and the POCSO, sexual intercourse with a girl below 18 years is a serious offence and the consent of the girl is immaterial. However, for sending the accused behind bar for minimum sentence of ten years or 20 years (in case girl is below 16 years), there ought to have been clinching and inspiring evidence before the court with regard to rape and with regard to the age of the girl, as these both are only the decisive factors for conviction,” the judge said.
The judge further took into account that the accused had denied having sexual intercourse. “He has stated that the victim had told her age as 18 years. Therefore, on the isolated ocular testimony of the victim which is of substandard quality, it is highly illogical and irrational to sentence the accused - a young boy, aged around 22 years, with 10 years RI,” Justice Ganediwala held, while acquitting him.
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