NAGPUR: The Nagpur bench of the Bombay high court on January 17 acquitted a man of raping a 15-year-old girl, ruling that “it seems highly impossible for a single man to gag a survivor’s mouth, remove her and his clothes, and perform the forcible sexual act without any scuffle”.
“Had it been a case of forcible intercourse, there would have been a scuffle. Medical evidence also doesn’t support the survivor’s case as no injuries from a scuffle could be seen,” Justice Pushpa Ganediwala held.
On March 14, 2019, petitioner Suraj Kasarkar (26) was sentenced to 10 years of rigorous imprisonment by a sessions court after being convicted for rape of the minor.
He was also convicted for criminal trespass. He was charged under Sections 376(1) and 451 of the IPC along with Section 4 of the Pocso Act. The complaint against him was lodged by the survivor on July 26, 2013. Kasarkar challenged the trial court’s verdict, contending it wasn’t rape but a consensual act and the survivor lodged the complaint after her mother found him fleeing her house.
He also said the girl was “habituated to sexual acts”. Additional public prosecutor MJ Khan argued that the survivor couldn’t have given a false deposition.
Justice Ganediwala observed that the testimonies of the girl and her mother could not prove that she was below 18 years when the offence was committed. Moreover, in her cross-examination, she admitted that she declared her age as 15 years in the FIR on her mother’s insistence. Even the birth certificate submitted in court isn’t in the specified format and couldn’t prove the survivor’s age.
“The defence of consensual physical relations does appear probable. The accused could bring on record the probable doubt with regard to consensual relation. The girl admitted that she wouldn’t have lodged a complaint if her mother hadn’t arrived,” the judge said.
Quoting settled law in such cases, Justice Ganediwala added that stricter the sentence, stronger should be the proof.
“The sole testimony of the prosecutrix in rape cases is sufficient to fix criminal liability against the accused. However, considering the substandard quality of the girl’s testimony, it would be grave injustice to send the petitioner behind bars for 10 years. The prosecution miserably failed to fix criminal liability of rape against him by criminal trespassing in the survivor’s house,” she said, while quashing the sessions court order convicting the accused