Sub-standard testimony of survivor, no scuffle: Bombay HC acquits rape accused

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The Bombay High Court (Nagpur Bench) has acquitted a man accused of rape, penetrative sexual assault under the Indian Penal Code and the Protection of Children from Sexual Offences Act (POCSO).

The Single-judge Bench of Justice Pushpa Ganediwala noted in her judgment that, “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 trial court, in 2016, had acquitted the accused for the charge under POCSO while convicting him for rape under the Indian Penal Code. He was acquitted on the ground that the prosecution could not prove that the age of the prosecutrix was below 18 years.

The prosecution argued that there was no reason for the survivor to furnish incorrect statements against the appellant and that she clearly described the violent incident in her house where he criminally trespassed and committed rape. They submitted that, “The sole testimony of the prosecutrix is worthy of reliance.”

Whereas, the appellant/accused argued that the survivor was above 18 years of age and the act was consensual. It was also argued that she was habituated to sexual intercourse and that the FIR came to be lodged at the instance of her mother after she saw the appellant running out from her house.

The Single-judge Bench perused the submissions and concluded that the survivor was not below 18 years of age as was contended in the FIR and that the prosecution could not prove the age of the prosecutrix beyond reasonable doubt. The court said, “The prosecutrix herself in her cross objection admitted that at the relevant time her age was 18 years and she gave her age 15 years in the First Information Report on the say of her mother. Apart from this, the birth certificate though is a public document, does not indicate that the same is the extract of the public record kept in the office of Gram Panchayat. Furthermore, who gave the information about the date of birth of the prosecutrix and at what time her date of birth is taken on record is not reflected from Exh.39. The same is also not in the format as per law.”

With respect to the accusation of rape, Justice Ganediwala reasoned that during a forcible intercourse, there ought to have been a scuffle between the parties, which was absent even in the medical report. She remarked, “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.”

Further, she observed, “Had it been a case of forcible intercourse, there would have been scuffle between the parties. In the 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’.”

Justice Ganediwala, then set aside the Sessions Court’s verdict noting, “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.”

Accordingly, the court directed the immediate release of the appellant from jail.

In the past month, Justice Pushpa Ganediwala has received considerable criticism for her judgments on the interpretation of the POCSO Act. She has held that acts like pressing breasts of a minor without skin to skin or physical contact, holding hands and unzipping pants do not amount to sexual assault under the POCSO Act.

The Supreme Court has stayed the controversial skin to skin POCSO judgment in the interim. Such pronouncements have also cost her the post of a permanent judge, as the Supreme Court Collegium decided to withdraw its recommendation to make her permanent. She is currently an additional judge at the High Court.

The judgment may be read here: