'She Has Vividly Described Her Love Relationship With Accused' : Bombay High Court Acquits Man Accused Of Raping Minor Girl

The Nagpur Bench of the Bombay High Court has set aside the conviction and sentence of a 27 years old driver, accused of raping a minor girl on the ground that her testimony did not inspire confidence.The prosecutrix was aged 17 years and 9 months on the date of crime.The trial court had sentenced the accused to 10 years rigorous imprisonment for the offences under Section 376(2)(n) of the IPC(repeated rape on same woman) and Section 5 punishable under Section 6 of the POCSO Act(aggravated penetrative sexual assault on minor). The order of conviction passed by the Trail Court was set aside on the ground that apart from statement of the minor prosecutrix with regard to sexual intercourse, there is absolutely nothing on record to support the prosecution's case of rape. "Only on the basis of allegation with regard to commitment of sexual intercourse on many occasions, it would be highly irrational to convict the appellant/accused with 10 years imprisonment," a Single Bench of Justice Pushpa Ganediwala said.The order stated :"A perusal of the testimony of the prosecutrix would reflect that she has vividly described about her love relationship with the appellant/accused. With regard to pregnancy, the prosecutrix did not say anything about the same. There is absolutely nothing on record as to what happened to her pregnancy. She was just three months short of attaining the age of majority… Except the above statement of the prosecutrix, with regard to sexual intercourse at the house of the sister of the appellant/accused, there is absolutely nothing supporting the prosecution case of rape." The bench observed that the minor prosecutrix's did not inspire the confidence of the Court as she did not disclose the allegations of rape before the Police, and discuss about how she and the appellant/accused got privacy and under what circumstances she was forced to establish physical relationship, etc. "This omission is so much material in nature that it has strength to decide the fate of the case. She has not stated before the police the incidents of sexual relations between them at his sister's place. The offence of rape came to be added on the basis of positive pregnancy test," the Judge opined. Background The minor prosecutrix was acquainted with the appellant-accused as they were tenants of the same land lord in Hinganghat. In the facts of the case, it is alleged that when the prosecutrix returned to Hinganghat from her hometown, the accused took her to his parents' house and stayed there for couple of days. Thereafter, they visited the accused' sister's house and developed a sexual relationship. The accused was convicted by the Court of an Additional Sessions Judge under Sections 376(2)(n) of IPC and Section 5 punishable under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. In appeal, despite clear allegations of sexual intercourse with a minor, the Judge proceeded to acquit the accused, for want of more material. The Judge said that since the prosecution had not brought on record the DNA report of the accused to prove his paternity, the Court could not proceed on a mere statement of the prosecutrix. "No doubt, the testimony of the prosecutrix is sufficient for conviction of the appellant/accused, however, the same ought to inspire confidence of this Court. It ought to be of sterling quality. Given the aforesaid facts and circumstances of the case, this Court is of the opinion that the prosecution could not establish, beyond reasonable doubt, the offence of rape against the appellant/accused," the Court held.It is significant to note at this juncture that the consent of a minor is immaterial in matters of sexual intercourse. Section 375 of the Indian Penal Code clearly provides that a man is said to commit rape if he has sexual intercourse with a woman inter alia, with or without her consent when she is under eighteen years of age. In fact, it has been held by various Courts that consent of a minor girl cannot even be treated as a 'mitigating factor' in matters of sentencing.Holding hands of minor girl & opening pants zip not 'sexual assault'- Another Judgment by same judge In another case concerning a minor rape victim aged 5 years, the same judge held that the act of holding a minor girl's hands and opening the zip of pants will not come under the definition of "sexual assault" under the POCSO Act (Libnus v. State of Maharashtra). In the judgment dated January 15, the Judge held that such acts would amount to "sexual harassment" under Section 354-A(1)(i) of IPC.Holding Hands Of Minor Girl & Opening Pants Zip Not 'Sexual Assault' Under POCSO Act But 'Sexual Harassment' Under Section 354A IPC : Bombay High Court The Court observed that as per the definition of 'sexual assault', a 'physical contact with sexual intent without penetration' is essential ingredient for the offence. ...

'She Has Vividly Described Her Love Relationship With Accused' : Bombay High Court Acquits Man Accused Of Raping Minor Girl

Akshita Saxena

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