After finding that the testimony of the prosecutor did not inspire trust and that the defense of a sexual arrangement was feasible, the Bombay High Court (Nagpur) bench set aside the conviction of a man for rape.
An appeal against the appellant’s conviction for the crime punishable under Sections 376(1) and 451 of the Indian Penal Code, adopted by the ASJ, Yavatmal, in Separate (POCSO) Case No. 35 of 2016, was heard by the Bench of Justice Pushpa Ganediwala, sentencing him to stringent imprisonment for 10 years.
First information report of the girl,
It was 9.30 p.m.; I was lying in my house on a cot at the right time. My younger brother was sleeping on the ground. My mother was on natural call outside the house. At that time, under the influence of liquor, the accused Suraj came into my house. He gagged my mouth and did not allow me to shout when I tried to shout.
After that, he took his clothing and then mine clothes as well. Then she added that the accused raped her and ran away, and then the FIR was filed when her mother recovered. The High Court observed that the prosecutor’s evidence did not “inspire confidence” and was against “normal human conduct”.
Court observation,
Analysis of the testimony of the prosecutor’s evidence, as the educated defense counsel correctly points out, does not encourage the trust of the Court as the event narrated, does not appeal to the justification as it is against natural human behavior. The appellant is certainly the prosecutor’s neighbor. It seems incredibly unlikely for a single man to gag her mouth and to remove her clothes at the same time and then his own, without any scuffle, to execute the forced sexual act. The medical evidence does not help the prosecutor’s argument, either.
Further observation of court,
“If it had been a case of forcible intercourse, there would have been scuffle between the parties. No scuffle injuries could be seen in the medical report. The defense of consensual physical relations appears probable. The defense could record the probable doubt about consensual relations in cross-examination. She admitted in her cross-examination that “I would not have lodged the report if my mother would not have come.
Background,
The prosecutor lodged a complaint against the appellant on 26 July 2013 for committing rape against her through criminal trespassing at her residence. Based on the study, an offense punishable under Sections 376(2)(i)(j) and 451 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offenses Act, 2012, was reported against the appellant for the offense (hereinafter referred to as POCSO Act).
For the offense punishable under Sections 376(2)(i)(j) and 451 of the Indian Penal Code and under Section 4 of the POCSO Act, the Special Court brought a charge against the appellant. The Special Court, after hearing both sides, found that the defense could prove the charge of rape and unlawful trespass, but it was found that the defense did not show that the prosecutor’s age was below 18 years at the appropriate time.
Court held that,
At the beginning, the High Court found that an analysis of the testimonies of the prosecutor, her mother, and the medical evidence followed by a birth certificate did not prove that the prosecutor was younger than 18 years of age at the relevant time. In addition, the Court, while acknowledging that no scuffle injuries could be seen in the medical study too.
The Court observed that the appellant had been sentenced to 10 years of rigorous imprisonment and that, because the sentencing was strict, more stringent proof was required. “No doubt, the sole evidence of the prosecutor in rape cases is sufficient to remedy the criminal liability against the appellant, but in the present case, taking into account the sub-standard quality of the prosecutor’s testimony, it would be a serious injustice to send the appellant behind bar for 10 years.”
Finally, the Court held that the state had miserably failed to remedy the criminal guilt of rape through criminal trespass against the appellant.
The Court thus held that the appellant deserved to be convicted and that the judgement and warrant of conviction passed by the Special Court on 14 March 2019 was quashed and set aside.
