Minor Girl If Subjected To Rape Will Be Terrified, Won't Act Normal: Bombay High Court Acquits Man In POCSO Case

A minor girl subjected to sexual assault would normally be 'terrified' and not 'act normal and play', the Nagpur bench of the Bombay High Court observed recently while acquitting a 64-year-old man convicted for sexually assaulting a minor girl.

Single-judge Justice Govind Sanap noted from the testimony of the girl's mother that the girl was allegedly sexually assaulted by the applicant in a Samaj Mandir (community hall) and when she went to the hall, the victim girl was playing.

"She has stated that when she went there, she found that the victim was playing. It is to be noted that if such act was done by the accused with the victim, by applying any standard, it was a serious act. Such an act would have obviously terrified the victim. Such an act would have caused immense pain, suffering and trauma to the victim," the judge said in the order passed on August 14, but made available on Thursday.

The victim, in the ordinary circumstances would have ran away from the spot to the house after such a deplorable act and narrated the incident to her mother, the judge said.

"Similarly, the victim after facing the ordeal of such an incident, at the hands of the accused, could not have behaved normally. If she was subjected to penetrative sexual assault, then she would have ran towards her house and narrated the incident to her mother. The victim has nowhere stated that after this gruesome act committed by the accused she was threatened by the accused with dire consequences in case incident was disclosed to anybody. The evidence of informant therefore, is not beyond the pale of doubt," the judge noted.

It is true that mother in the ordinary circumstances, would not involve a girl child in such incident. But in my view, in order to satisfy the Court about the actual occurrence of the incident, the evidence on record must be cogent and concrete, the judge opined.

Further the bench perused the 'cross-examination' of the victim, wherein she said that on the relevant day she did not go to play in the community hall and that no such incident took place. She stated that her mother 'told' her about the questions that could be asked to her, the name of the appellant etc.

"The cross examination of the victim would show that she was tutored to depose against the accused," the judge noted.

The bench considered the argument of the defence that the he was being implicated in the case as the appellant had slapped the victim's father for cutting grass from his farm.

The judge was satisfied that the trial court failed to consider the vital facts.

"The evidence adduced by the prosecution is not cogent, convincing, and trustworthy. The evidence is not sufficient to prove the guilt of the accused beyond reasonable doubt. The attending circumstances are sufficient to doubt the credibility and trustworthiness of the witnesses. The evidence has not been corroborated by the medical evidence," the judge said while acquitting the appellant.

The judge was hearing a plea filed by one man convicted by a lower court on January 22, 2021 under charges of rape and relevant provisions of the Protection Of Children from Sexual Offences (POCSO) Act.

According to the prosecution case, on March 8, 2019 when the victim was playing in a community hall, the accused, then 59-year-old, alleged gave her a ladoo (sweet) and then sexually assaulted her. However, the bench found that the allegations were not proved beyond reasonable doubt and acquitted the appellant.

Appearance:

Advocate AM Jaltare and ND Dawada appeared for the Appellant.

Additional Public Prosecutor RV Sharma represented the State.

Case Title: Vijay Jawanjal vs State of Maharashtra (Criminal Appeal 185 of 2021)

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