Impossible For Rape Accused To Gag Victim & Remove Clothes, Says Bombay HC Judge

Nagpur: Justice Pushpa Ganediwala of the Nagpur bench of Bombay High Court recently acquitted a rape accused, stating that it seemed ‘highly impossible for a single man to gag the victim and remove her and his clothes at the same time without any scuffle.’ She recently acquitted a man accused of groping a 12-year old girl because he did not make skin-to-skin contact. Earlier, she ruled that holding the hands of a five-year-old girl and unzipping pants do not amount to ‘sexual assault’ under the POCSO Act, News18 reported.

“It seems highly impossible for a single man to gag the mouth of the prosecutrix (the victim) and remove her clothes and his clothes and to perform the forcible sexual act, without any scuffle. The medical evidence also does not support the case of the prosecutrix,” the bench observed, according to a report in India Today.

Ganediwala was hearing an appeal against the conviction of Suraj Kasarkar, 26 of Yavatmal. In July 2013, the victim’s mother had lodged a complaint against Kasarkar, their neighbour. She said her daughter was 15-years-old when he raped her. Subsequently, the police filed an FIR and a charge-sheet.

While the special trial court found that the prosecution could prove the allegation of rape and criminal trespass, it could not prove the victim was under 18 years of age at the time of the incident. The advocate representing the accused told the court the victim was above 18 years and that it was a consensual act between the two.

But the prosecution said the victim clearly described the violent incident took place against her will in her house. She said the accused criminally trespassed and entered her house and raped her, according to the report.

But according to Ganediwala, the testimony of the victim, her mother and the medical evidence coupled with her birth certificate did not prove the fact that at the time of the incident, the victim was below 18 years of age.

Ganediwala said the testimony of the victim “does not inspire the confidence of the court as the incident, as narrated, does not appeal to the reason as it is against the natural human conduct.”

“Had it been a case of forcible intercourse, there would have been a scuffle between the parties. In the medical report, no injuries of a 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’,” she noted.

“As per settled law, stricter the sentence, stricter the proof is required. No doubt, sole testimony of the victim in rape cases is sufficient to fix the criminal liability against the accused, however, in the instant case, 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,” Ganediwala was quoted as saying while overturning the 10-year imprisonment ordered by the trial court.