'Consensual Intercourse, Victim Habituated To Sex': Chhattisgarh High Court Acquits Man Of Rape Charges After 6 Yrs In Jail

The Chhattisgarh High Court has acquitted a man convicted for commission of offences under Section 376(2)(n) (repeated rape on same woman) of the Indian Penal Code ('IPC') and Section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences Act ('POCSO Act') after finding lack of evidence to suggest minor age of the victim so also upon being convinced that the sexual intercourse was consensual, and that the victim was 'habitual' to sexual intercourse.Passing order for release of the appellant, who has already spent nearly six years in jail, the Single Bench of Justice Arvind Kumar Verma observed –“…she is a consenting party and even the Doctor PW-09 in her deposition has stated that she did not found any external and internal injury on the body of the victim as well as on her private part. The secondary sexual organs were fully developed and the prosecutrix was habitual of sexual intercourse.”Case BackgroundThe father of the victim lodged a report with the police on July 12, 2018 informing that on July 08, 2018, the victim had left the house on the pretext of paying a visit to her grand-mother. However, when the informant went there, he could not find her. Thereafter, he searched for her in the neighbourhood, but he was unable to trace her. Subsequently, one of the female friends of the victim told the informant of seeing the victim proceeding somewhere along with the appellant. It was also discovered that the appellant was also missing from his house from the same day. On July 18, 2018, the victim was traced in the company of the appellant.Accordingly, the police submitted a charge-sheet against the appellant, which led to the framing of charge and the onset of trial. After appreciation of evidence on record, the trial Court convicted the appellant under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act. Being aggrieved, he impugned the judgment before the High Court in this criminal appeal.Court's ObservationsThe Court, at the outset, examined the evidence on record which allegedly suggested the victim to be a 'minor', i.e. less than 18 years of age. It noted that the prosecution strongly relied upon the 'Dakhil Kharij Register' (School Admission Register) wherein the date of birth of the victim was recorded as April 10, 2001.“There is no any documentary evidence available on record that only on the basis of 1st class mark-sheet her date of birth of prosecutrix is marked and also no Kotwari Register has been produced. Even the ossification test of the prosecutrix has not been done. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age,” it observed.It further said that in absence of testimony of the author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix since the said register is a weak type of evidence. It relied upon the judgment of the Supreme Court in Alamelu & Anr. v. State, represented by Inspector of Police (2011) wherein it was held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined.Besides the above, the prosecutrix herself deposed her date of birth to be April 10, 2000 and suggested that her date of birth has been erroneously recorded as April 10, 2001 in the Dakhil Kharij register. Thus, the Court was convinced that the charge under the POCSO Act is not sustainable. Accordingly, it held –“…I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix was minor and less than 18 years of age on the date of incident, despite the fact that the Trial Court in the impugned judgment has held the prosecutrix minor.”So far as the charge of rape is concerned, the Court perused the statement made by the victim. She had categorically stated to have asked the appellant to take her away from her home or else she would end her life by committing suicide. Subsequently, the appellant eloped with her and they stayed in a hotel where they developed sexual relationships.“Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of time, the appellant has committed any forceful sexual intercourse with her rather it was a mutual consent for physical relation. She has stated that she herself went with him and remained with him for some days,” the Court remarked.Further, it was also observed that the medical report of the victim does not suggest any internal or external injury either on the body or on the private part of the victim. It also noted that as per the medical report, the victim was “habitual of sexual intercourse”.Therefore, taking into consideration the fact that the age of the victim could not be proved by the...

'Consensual Intercourse, Victim Habituated To Sex': Chhattisgarh High Court Acquits Man Of Rape Charges After 6 Yrs In Jail

Jyoti Prakash Dutta

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