21 years after acquittal, HC convicts rape case accused
Trial Court Ruled Act Consensual, Had Got Age Wrong
Shibu.Thomas@timesgroup.com
Mumbai:23.12.2018
Twenty-one years after he was acquitted of the charge of raping an 11-year-old girl, a Nashik resident was convicted by the Bombay high court on Saturday.
A division bench of Justices Indrajit Mahanty and Vishwas Jadhav overturned a 1997 trial court order acquitting Macchindra Sonawane (who was 19 at the time of the incident and is now 41), and held him guilty of rape and sentenced him to seven years’ imprisonment. The bench refused a plea to show the accused leniency over the two-decade delay and directed Sonawane to pay Rs 1 lakh compensation to the survivor. Sonawane has been given a month to surrender.
The high court said the sessions court had erred and acted in a “casual or cavalier manner”. It had freed the accused relying on an x-ray ossification test of the survivor that estimated her age as 14. Taking into consideration the 2-3-year margin of error, it determined that the survivor’s age was 16, which was the age of consent at that time.
The HC asked the legal services authority to trace the survivor and help her get compensation under the Maharashtra government scheme. “Even though the incident took place in 1996, we remain with the fervent hope and confidence that protecting the confidence of the common man in the institution entrusted with the administration of justice is reaffirmed,” said the bench.
On December 1, 1996, the survivor, who was alone at her home in Nashik, visited Sonwane’s shop for medicine for her headache. Sonawane forcibly dragged her into his room, raped her and threw her out of his house. The suvivor’s family found her outside the house in bloodstained clothes and took her to a hospital where it was confirmed that she suffered forcible sexual intercourse.
Police arrested the accused for rape. In 1997, a sessions court acquitted him. The trial court concluded that the incident was consensual saying there were no injuries to show that the survivor had put up resistance and her story that she had gone to get medicines was not believable. The trial court relied on an x-ray ossification test of the survivor that estimated her age as 14, took into consideration the two- to three-year margin of error, and concluded in favour of the accused, after determining that the survivor’s age was 16. Prior to 2013, 16 was the age of sexual consent in India, now it is 18.
Additional public prosecutor Mankunwar Deshmukh, while arguing the state’s appeal against the acquittal, said the trial court had erred in determining the survivor’s age. The prosecutor pointed out from the evidence that the survivor had not yet hit puberty and had not even started menstruating. Further, her physical features as well as lack of development of sexual characteristics revealed that she was below 14.
The high court agreed and said the trial court had mechanically determined the age and had wrongly given the benefit of “plus-two, minus-two years” principle to the accused who had committed a heinous crime. Since the survivor was held to be a minor and consent was immaterial, the high court still dealt with the issue of consent.
“The absence of any injury on her body cannot lead to a conclusion that she had given her consent and all that it indicates is that she did not put up resistance. Lack of any resistance or absence of injury on the body of the victim are of no consequence vis-à-vis the issue of consent,” said the bench.
For full report, www.toi.in
The HC asked the legal services authority to trace the survivor and help her get compensation under the Maharashtra government scheme
Trial Court Ruled Act Consensual, Had Got Age Wrong
Shibu.Thomas@timesgroup.com
Mumbai:23.12.2018
Twenty-one years after he was acquitted of the charge of raping an 11-year-old girl, a Nashik resident was convicted by the Bombay high court on Saturday.
A division bench of Justices Indrajit Mahanty and Vishwas Jadhav overturned a 1997 trial court order acquitting Macchindra Sonawane (who was 19 at the time of the incident and is now 41), and held him guilty of rape and sentenced him to seven years’ imprisonment. The bench refused a plea to show the accused leniency over the two-decade delay and directed Sonawane to pay Rs 1 lakh compensation to the survivor. Sonawane has been given a month to surrender.
The high court said the sessions court had erred and acted in a “casual or cavalier manner”. It had freed the accused relying on an x-ray ossification test of the survivor that estimated her age as 14. Taking into consideration the 2-3-year margin of error, it determined that the survivor’s age was 16, which was the age of consent at that time.
The HC asked the legal services authority to trace the survivor and help her get compensation under the Maharashtra government scheme. “Even though the incident took place in 1996, we remain with the fervent hope and confidence that protecting the confidence of the common man in the institution entrusted with the administration of justice is reaffirmed,” said the bench.
On December 1, 1996, the survivor, who was alone at her home in Nashik, visited Sonwane’s shop for medicine for her headache. Sonawane forcibly dragged her into his room, raped her and threw her out of his house. The suvivor’s family found her outside the house in bloodstained clothes and took her to a hospital where it was confirmed that she suffered forcible sexual intercourse.
Police arrested the accused for rape. In 1997, a sessions court acquitted him. The trial court concluded that the incident was consensual saying there were no injuries to show that the survivor had put up resistance and her story that she had gone to get medicines was not believable. The trial court relied on an x-ray ossification test of the survivor that estimated her age as 14, took into consideration the two- to three-year margin of error, and concluded in favour of the accused, after determining that the survivor’s age was 16. Prior to 2013, 16 was the age of sexual consent in India, now it is 18.
Additional public prosecutor Mankunwar Deshmukh, while arguing the state’s appeal against the acquittal, said the trial court had erred in determining the survivor’s age. The prosecutor pointed out from the evidence that the survivor had not yet hit puberty and had not even started menstruating. Further, her physical features as well as lack of development of sexual characteristics revealed that she was below 14.
The high court agreed and said the trial court had mechanically determined the age and had wrongly given the benefit of “plus-two, minus-two years” principle to the accused who had committed a heinous crime. Since the survivor was held to be a minor and consent was immaterial, the high court still dealt with the issue of consent.
“The absence of any injury on her body cannot lead to a conclusion that she had given her consent and all that it indicates is that she did not put up resistance. Lack of any resistance or absence of injury on the body of the victim are of no consequence vis-à-vis the issue of consent,” said the bench.
For full report, www.toi.in
The HC asked the legal services authority to trace the survivor and help her get compensation under the Maharashtra government scheme
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