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'Defence Of Consensual Physical Relations Probable' : Bombay High Court Acquits Man Convicted For Rape

Sparsh Upadhyay
29 Jan 2021 3:06 PM GMT
Defence Of Consensual Physical Relations Probable : Bombay High Court Acquits Man Convicted For Rape
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The Bombay High Court(Nagpur) bench has set aside the conviction of a man for rape after observing that the testimony of the prosecutrix did not inspire confidence and that the defence of consensual physical relationship was probable. The Bench of Justice Pushpa Ganediwala was hearing an appeal against conviction of the appellant for the offence punishable under Sections 376 (1) and 451...

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The Bombay High Court(Nagpur) bench has set aside the conviction of a man for rape after observing that the testimony of the prosecutrix did not inspire confidence and that the defence of consensual physical relationship was probable.

The Bench of Justice Pushpa Ganediwala was hearing an appeal against conviction of the appellant for the offence punishable under Sections 376 (1) and 451 of the Indian Penal Code, passed by the ASJ, Yavatmal, in Special (POCSO) Case No. 35 of 2016, sentencing him to suffer rigorous imprisonment for 10 years.

The first information statement of the girl was as follows :

"It was the time of 9.30 p.m. At the relevant time, I was lying on a cot in my house. My younger brother was sleeping on ground. My mother had been to natural call out of the house. At that time, accused Suraj came in my house under the influence of liquor. He gagged my mouth and not allowed me to shout when I tried to shout. Thereafter, he removed his clothes and also removed by clothes from my person".

She then added that the accused committed rape on her and ran away, and after her mother returned, the FIR was lodged.

The High Court observed that the testimony of the prosecutrix did not "inspire confidence" and was against "normal human conduct".

The Court observed,

A perusal of this portion of the testimony of the prosecutrix, as rightly pointed out by the learned defence counsel,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. Undisputedly, the appellant is the neighbour of the prosecutrix. 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. The Medical evidence also does not support the case of the prosecutrix.


The Court further noted :

"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".

Background of the Case

On 26th July 2013, the prosecutrix lodged a report against the appellant for committing rape on her by criminal trespassing into her house.

On the basis of the report, crime came to be registered against the appellant for the offence punishable under Sections 376(2)(i)(j) and 451 of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act).

The Special Court framed charge against the appellant for the offence punishable under Sections 376(2)(i)(j) and 451 of the Indian Penal Code and under Section 4 of the POCSO Act.

After hearing both the sides, the Special Court found that the prosecution could prove the charge of rape and criminal trespass, however, it was observed that the prosecution could not prove the age of the prosecutrix that at the relevant time she was below 18 years.

Court's Observations

At the outset, the High Court found that a perusal of the testimony of the prosecutrix, her mother and the medical evidence coupled with birth certificate does not establish the fact that at the relevant time, the prosecutrix was below 18 years of age.

Further, the Court, while observing that in the medical report, no injuries of scuffle could be seen, remarked,

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 noted that the appellant was sentenced to 10 years rigorous imprisonment and since the punishment was strict, evidence required stricter proof.

"As per settled law, stricter the sentence, stricter the proof is required", the Court said.

Importantly, the Court observed,

"No doubt, sole testimony of the prosecutrix in rape cases is sufficient to fix the criminal liability against the appellant, 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."

Lastly, the Court opined that the prosecution miserably failed to fix the criminal liability of rape against the appellant by criminal trespassing in the house of the prosecutrix.

Thus, the Court observed that the appellant deserved to be acquitted and the judgment and order of conviction dated 14th March 2019 passed by the Special Court was quashed and set aside.


Case title - Suraj v. The State of Maharashtra [Criminal Appeal No. 115 of 2020]

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