Nagpur Bench of the Bombay High Court recently dismissed an appeal filed by a rape convict, upholding the lower Court’s decision to reject attempts to tarnish the rape survivor’s character.
Justice Manish Pitale was hearing an appeal filed by one Ramkrishna Ganesh Wagh, challenging an order passed in October 2005 by the Sessions Court, Akola convicting him for raping a 15-year-old girl.
During the trial, Wagh had examined a woman as a witness to allege that the prosecutrix was indulged in an illicit affair with the woman’s husband, in order to cast aspersions on her character. However, the woman stood discredited during the cross-examination. The High Court, therefore, upheld the rejection of her testimony, while at the same time observing that even if the allegations were true, it would not help Wagh’s case. It observed,
“The said defence witness stands absolutely discredited in cross examination and it is evident that she was brought up by the appellant and her father, only with an intention of creating an adverse opinion about the prosecutrix and her character.
The trial Court has correctly ignored the same and it is correctly observed that even if the prosecutrix was assumed to be of loose character, it could not be said that the appellant had a right to rape her or to have sexual intercourse with her. The said finding of the trial Court cannot be found fault with.”
The Court further noted that since the prosecutrix was less than 16 years of age on the date of the incident, her consent, if any, was rendered immaterial in view of clause sixthly of Section 375 of the Indian Penal Code. It explained, “The evidence and material on record, in the present case, clearly demonstrates that the prosecutrix (PW1) was less than 16 years old at the time when the incident took place on 05.10.2003.
Thus, as per clause 'Sixthly' of Section 375 of the IPC, as it then stood, consent in the present case, was rendered immaterial. Therefore, even if it is presumed for the sake of argument that the medical evidence did not show that there had been forcible sexual intercourse indicating that there might have been consent on the part of the prosecutrix, since she was less than 16 years old, consent was immaterial.”
The Court therefore upheld the impugned order and dismissed the appeal, directing that Wagh be taken into custody to serve out his sentence.