The Nagpur Bench of Bombay High Court has set aside the conviction of a man for rape after observing that the testimony of the prosecutrix did not inspire confidence and that the defence of consensual physical relationship was probable.
The Bench of Justice Pushpa Ganediwala was hearing an appeal against conviction of the appellant for the offence punishable under Sections 376 (1) and 451 of the Indian Penal Code, passed by the ASJ, Yavatmal, in Special (POCSO) Case No. 35 of 2016, sentencing him to suffer rigorous imprisonment for 10 years.
Case:
On July 26, 2013, the prosecutrix lodged a report against the appellant for committing rape on her by criminal trespassing into her house.
On the basis of the report, crime came to be registered against the appellant for the offence punishable under:
- Section 376(2)(i)(j)
- Section 451
…..of the Indian Penal Code
and under Section 4 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act).
The Special Court framed charge against the appellant for the offence punishable under Sections 376(2)(i)(j) and 451 of the Indian Penal Code and under Section 4 of the POCSO Act.
After hearing both the sides, the Special Court found that the prosecution could prove the charge of rape and criminal trespass, however, it was observed that the prosecution could not prove the age of the prosecutrix that at the relevant time she was below 18 years.
FIR Filed By Girl
According to the girl’s statement given in FIR, she quoted:
It was the time of 9.30 p.m. At the relevant time, I was lying on a cot in my house. My younger brother was sleeping on ground. My mother had been to natural call out of the house. At that time, accused Suraj came in my house under the influence of liquor. He gagged my mouth and not allowed me to shout when I tried to shout. Thereafter, he removed his clothes and also removed by clothes from my person.
The complainant also added that the accused committed rape on her and ran away, and after her mother returned, the FIR was lodged.
High Court Observations
The High Court observed that the testimony of the prosecutrix did not “inspire confidence” and was against “normal human conduct”.
The Court observed,
A perusal of this portion of the testimony of the prosecutrix, as rightly pointed out by the learned defence counsel, does not inspire the confidence of the Court as the incident, as narrated, does not appeal to the reason as it is against the natural human conduct.
Undisputedly, the appellant is the neighbour of the prosecutrix. It seems highly impossible for a single man to gag the mouth of the prosecutrix and remove her clothes and his clothes and to perform the forcible sexual act, without any scuffle. The Medical evidence also does not support the case of the prosecutrix.
The Court further noted:
Had it been a case of forcible intercourse, there would have been scuffle between the parties. In medical report, no injuries of scuffle could be seen. The defence of consensual physical relations does appear probable.
In cross-examination, the defence could bring on record the probable doubt with regard to consensual relations. In her cross-examination, she has admitted that “it is true that if my mother had not come, I would not have lodged report.
Court Order
At the outset, the High Court found that a perusal of the testimony of the prosecutrix, her mother and the medical evidence coupled with birth certificate does not establish the fact that at the relevant time, the prosecutrix was below 18-years of age.
Further, the court also observed that in the medical report, no injuries of scuffle could be seen. The court thus remarked,
Had it been a case of forcible intercourse, there would have been scuffle between the parties. In medical report, no injuries of scuffle could be seen. The defence of consensual physical relations does appear probable.
In cross-examination, the defence could bring on record the probable doubt with regard to consensual relations. In her cross-examination, she has admitted that “it is true that if my mother had not come, I would not have lodged report.
The Court noted that the appellant was sentenced to 10-years rigorous imprisonment and since the punishment was strict, evidence required stricter proof. The court said,
As per settled law, stricter the sentence, stricter the proof is required.
Importantly, the Court observed,
No doubt, sole testimony of the prosecutrix in rape cases is sufficient to fix the criminal liability against the appellant, however, in the instant case, considering the sub-standard quality of testimony of the prosecutrix, it would be a grave injustice to send the appellant behind the bar for 10 years.
Lastly, the Court opined that the prosecution miserably failed to fix the criminal liability of rape against the appellant by criminal trespassing in the house of the prosecutrix.
Thus, the Court observed that the appellant deserved to be acquitted and the judgment and order of conviction dated 14th March 2019 passed by the Special Court was quashed and set aside.
CLICK ON THE LINK TO READ FULL ORDER
NOTE BY MEN’S DAY OUT
Since last week, a pattern has been observed, where Media has been selectively picking up headlines & questioning Bail Orders in alleged rape cases This seems to be an effort to tarnish image of judges giving judgements based on evidences. This is an extremely worrying precedent for falsely accused or innocent men.
Sensational 240 characters are being posted on twitter, where social media readers including influencers, are blindly posting comments without even reading full orders. This seems to be co-ordinated effort to pull down reality of #FalseRape cases that are now being reported daily
This is also an open intimidation of judges by targeting their orders, so that they do not give bail henceforth – even as benefit of doubt – due to media pressures
Since last week, a pattern has been observed, where Media has been selectively picking up headlines & questioning Bail Orders in alleged rape cases
This seems to be an effort to tarnish image of judges giving judgements based on evidences
Extremely worrying for innocent men
— Men’s Day Out (@MensDayOutIndia) January 29, 2021
Men’s Day Out does not stand for supporting rape convicts, however, it is important for us to disseminate clear information when it comes to bail in rape cases. Judges go by evidence on record and should not be bullied by pressures of social media. Remember before sharing screen shots, all may not be true. You could be responsible for lives of innocent men.
ALSO READ –
http://voiceformenindia.com/in-the-law/pressing-breasts-without-disrobing-not-sexual-assault-as-per-pocso-act-but-offence-under-sec-354-ipc/
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