Man can’t commit rape on his own without scuffle: HC

Man can’t commit rape on his own without scuffle: HC

Acquits Accused Sentenced To 10 Years RI Under Pocso Act

Vaibhav Ganjapure TNN

Nagpur:29.01.2021

The Nagpur bench of Bombay high court acquitted a man of rape charges while ruling that he alone cannot commit a sexual act without any scuffle. He was accused of raping a 15-yearold girl.

“It seems highly impossible for a single man to gag a survivor’s mouth, remove her and his clothes, and perform the forcible sexual act, without any scuffle. Had it been a case of forcible intercourse, there would have been a scuffle. Medical evidence also doesn’t support the survivor’s case, as no injuries from a scuffle could be seen,” Justice Pushpa Ganediwala, who was made HC’s permanent judge by the Supreme Court collegium on January 20, held.

On March 14, 2019, petitioner Suraj Kasarkar (26), who belongs to Yavatmal, was sentenced to 10 years of rigorous imprisonment by the Yavatmal sessions court after being convicted for a rape of the minor. He was also convicted for criminal trespass for having entered her home. He was charged under Sections 376(1) and 451 of IPC along with Section 4 of Pocso Act. The complaint against him was lodged by the survivor on July 26, 2013.

Kasarkar challenged the trial court’s verdict in HC, contending that it wasn’t rape but a consensual act and the survivor lodged the complaint after her mother found him fleeing her house. He also said that the girl was “habituated to sexual acts”. Additional public prosecutor MJ Khan argued that the survivor couldn’t have given a false deposition.

Justice Ganediwala observed that the testimonies of the girl and her mother could not prove that she was below 18 years when the offence was committed. Moreover, in her cross-examination, she admitted that she declared her age as 15 years in the FIR on the mother’s insistence. Even the birth certificate submitted in court isn’t in the specified format and couldn’t prove the survivor’s age. “The defence of consensual physical relations does appear probable. The accused could bring on record probable doubt with regard to consensual relation. The girl admitted that she wouldn’t have lodged a complaint if her mother hadn’t arrived,” the judge said.

Quoting settled law in such cases, Justice Ganediwala added that stricter the sentence, stricter proof is required. “Sole testimony of prosecutrix in rape cases is sufficient to fix criminal liability against accused. However, considering the sub-standard quality of the girl’s testimony, it would be grave injustice to send the petitioner behind bars for 10 years. The prosecution miserably failed to fix criminal liability of rape against him by criminal trespassing in the survivor’s house,” she said, while quashing the sessions court order convicting the accused.

Justice Ganediwala said that considering the sub-standard quality of the girl’s testimony, it would be grave injustice to send the petitioner behind bars for 10 years