Bombay HC Sets Aside Rape Conviction Of 19 yr Old boy, Says Possibility Of false Implication Cannot Be Ruled Out [Read Judgment]
The Bombay High Court recently quashed and set aside the conviction of a 19-year-old in a rape case. Court gave the benefit of doubt of the accused and concluded that the sole testimony of the victim cannot be relied upon as there were talks of marriage between the victim and the accused before the incident.
Justice Revati Mohite Dere was hearing the criminal appeal filed by Sunil Shelke from Thane district, who was lodged in Thane jail. Shelke was convicted under Section 376 and sentenced to 7 years imprisonment by the Sessions Court in Thane.
According to the prosecution, on March 10, 2009, the day of Holi, when the victim was celebrating outside, three accused including the appellant dragged her to a nearby river, which was approximately 10 minutes walking distance and the appellant raped her on the said spot.
Thereafter, the appellant held her and it was only in the morning that she removed the appellant's hand and returned home, after he fell asleep. According to the victim, her relatives were looking for her the whole night and after her return, she narrated the incident to her parents and to the villagers. Then there was some settlement between the parties that took place in writing.
She stated that as the appellant refused to marry her, she lodged a complaint against the appellant for offences punishable under Sections 366A, 376(2)(g), 341, 504, 506 r/w 34 etc., of the Indian Penal Code. During investigation, the appellant and other two co-accused came to be arrested.
Submissions and Judgement
Amicus Curiae Karman Vivan submitted that prosecution had miserably failed to prove that the victim was a minor, below 16 years at the time of the alleged incident. He further submitted that the medical injuries do not corroborate the allegations of rape; that the prosecutrix had not spelt out the nature of the act of "rape" in order for it to constitute an offence; that the Settlement Deed does not show that the appellant had raped her, but it only shows that they were together through the night. He said that on the basis of this evidence, conviction of the appellant cannot be sustained.
Court noted that the victim's testimony shows that she was unable to state her date of birth, however had stated that in 2009 she was approximately 15 years age. She reiterated in her cross-examination that she is not in a position to remember her date of birth.
"Dr.Gavanda, the medical officer who examined the prosecutrix shows that the prosecutrix had developed permanent teeth and second molar was present and that Molar teeth crops up at the age of 16 to 18. PW4 – Dr.Gavanda has also admitted in his cross-examination that the girl could be 17 ½ years at the time of the incident relying upon Parekh's Modi's medical jurisprudence." Court observed.
Ankush Gade, the Head Master of victim's school where she studied for 3 years disclosed that he had made an entry in the school sister stating the victim's date of birth as July 28, 1994.
After examining all the evidence on record, Court said-
"In the facts, having regard to the evidence on record, what was understood by the prosecutrix as rape, may not have the same connotation of 'rape' as defined in Section 375 of the I.P.C. (old Section) PW4 – Dr.Anil Gavanda, the Medical Officer who examined the prosecutrix, in the column of 'History of alleged rape/kidnapping given by victim in her own words' has mentioned "Not specified". In the column of 'Injuries on her private parts/breasts' it is stated as "Not Detected".
As far as the settlement is concerned i.e, there is nothing in this document, which indicates that the appellant had raped the prosecutrix. All that the said document suggests is that the prosecutrix was with the appellant during the said night, which the appellant accepted and paid a fine of Rs.1,051/-. Thus, there is nothing in the Settlement Deed to even remotely suggests, that the appellant had raped the prosecutrix."
Justice Dere concluded that the possibility of the appellant being falsely implicated for rape, cannot be ruled out, as the marriage did not materialize. Thus, the conviction was set aside and appeal was allowed.