Sub-standard quality of testimony of victim, absence of scuffle injuries: Bombay High Court acquits rape, POCSO accused

The Nagpur Bench of Bombay High Court, on January 15, acquitted a 26-year-old accused charged under the Protection of Children from Sexual Offences Act (POCSO Act) for the offence of penetrative sexual assault and rape under Indian Penal Code (IPC) [Suraj Kasarkar v. State of Maharashtra]..The trial court had earlier acquitted the person for the charge under POCSO while convicting him for rape under IPC. The accused was acquitted of POCSO charges on the ground that the prosecution could not prove that the age of the prosecutrix at the relevant time was below 18 years..On appeal, Justice Pushpa V Ganediwala of Bombay High Court confirmed the acquittal under POCSO while overturning the conviction under IPC. .The acquittal under IPC came on the ground that the victim's testimony did not inspire confidence and there was no evidence suggesting use of force..Justice Ganediwala, in her judgment, observed that “it seems highly impossible for a single man to gag the mouth of the prosecutrix and remove her clothes and his clothes and to perform the forcible sexual act, without any scuffle.”.Justice Pushpa Ganediwala has been in the news for her recent judgments on POCSO Act and her interpretation of sexual assault under Section 7 of the Act. One of the judgments said that groping a child without removing the child's clothes will not amount to sexual assault but will only be 'outraging the modesty of woman' under IPC, an offence which entails a lesser punishment. Justice Ganediwala's judgments cost her the post of permanent judge with the Supreme Court Collegium deciding to withdraw its recommendation to make permanent. She is currently an additional judge. .[POCSO Acquittals] Supreme Court Collegium withdraws recommendation to make Bombay High Court judge permanent.The appellant’s contention in the present case was that victim was above 18 years of age and the act was consensual. It was also argued that she was habituated to sexual intercourse.He submitted that the FIR came to be lodged at the instance of the victim’s mother after she saw the appellant running out from her house..The prosecution’s case was that the FIR was lodged immediately after the incident with no reason to give a false deposition against the appellant.The Court was also told that the victims’ testimony solely was worthy of reliance and all other witnesses withstood the cross-objection questions..After considering both contentions, the Court concluded firstly that the victim was not below 18 years of age as was contended in the FIR.."The prosecutrix herself in her cross-objection admitted that at the relevant time her age was 18 years and she gave her age 15 years in First Information Report on the say of her mother. Apart from this, the birth certificate though is a public document, does not indicate that the same is the extract of the public record kept in the office of Gram Panchayat. Furthermore, who gave the information about the date of birth of prosecutrix and at what time her date of birth is taken on record is not reflected from birth certificate. The same is also not in the format as per law," the Court noted. .Hence, it ruled that the prosecution could not prove beyond reasonable doubt that the prosecutrix was below 18 years. .Regarding the charge of rape, the Court reasoned that in the event of a forcible intercourse, there ought to have been scuffle between the parties, which was absent even in the medical report.."Had it been a case of forcible intercourse, there would have been scuffle between the parties. In medical report, no injuries of scuffle could be seen. The defence of consensual physical relations does appear probable. In cross-examination, the defence could bring on record the probable doubt with regard to consensual relations. In her cross-examination, she has admitted that 'it is true that if my mother had not come, I would not have lodged report'," the Court said..After perusing the testimony the Court opined that “considering the sub-standard quality of testimony of the prosecutrix, it would be a grave injustice to send the appellant behind the bar for 10 years.”.It, therefore, set aside the judgment of the trial court and ordered that the accused be released.