'She Has Vividly Described Her Love Relationship With Accused' : Bombay High Court Acquits Man Accused Of Raping Minor Girl

The order of conviction passed by the Trail Court was set aside on the ground that apart from statement of the minor prosecutrix with regard to sexual intercourse, there is absolutely nothing on record to support the prosecution's case of rape.

"Only on the basis of allegation with regard to commitment of sexual intercourse on many occasions, it would be highly irrational to convict the appellant/accused with 10 years imprisonment," a Single Bench of Justice Pushpa Ganediwala said.

The order stated :

"A perusal of the testimony of the prosecutrix would reflect that she has vividly described about her love relationship with the appellant/accused.

With regard to pregnancy, the prosecutrix did not say anything about the same. There is absolutely nothing on record as to what happened to her pregnancy.

She was just three months short of attaining the age of majority…

Except the above statement of the prosecutrix, with regard to sexual intercourse at the house of the sister of the appellant/accused, there is absolutely nothing supporting the prosecution case of rape."

The bench observed that the minor prosecutrix's did not inspire the confidence of the Court as she did not disclose the allegations of rape before the Police, and discuss about how she and the appellant/accused got privacy and under what circumstances she was forced to establish physical relationship, etc.

"This omission is so much material in nature that it has strength to decide the fate of the case. She has not stated before the police the incidents of sexual relations between them at his sister's place. The offence of rape came to be added on the basis of positive pregnancy test," the Judge opined.

Background

The minor prosecutrix was acquainted with the appellant-accused as they were tenants of the same land lord in Hinganghat. In the facts of the case, it is alleged that when the prosecutrix returned to Hinganghat from her hometown, the accused took her to his parents' house and stayed there for couple of days. Thereafter, they visited the accused' sister's house and developed a sexual relationship.

The accused was convicted by the Court of an Additional Sessions Judge under Sections 376(2)(n) of IPC and Section 5 punishable under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

In appeal, despite clear allegations of sexual intercourse with a minor, the Judge proceeded to acquit the accused, for want of more material.

The Judge said that since the prosecution had not brought on record the DNA report of the accused to prove his paternity, the Court could not proceed on a mere statement of the prosecutrix.

"No doubt, the testimony of the prosecutrix is sufficient for conviction of the appellant/accused, however, the same ought to inspire confidence of this Court. It ought to be of sterling quality.

Given the aforesaid facts and circumstances of the case, this Court is of the opinion that the prosecution could not establish, beyond reasonable doubt, the offence of rape against the appellant/accused," the Court held.

It is significant to note at this juncture that the consent of a minor is immaterial in matters of sexual intercourse. Section 375 of the Indian Penal Code clearly provides that a man is said to commit rape if he has sexual intercourse with a woman inter alia, with or without her consent when she is under eighteen years of age.

In fact, it has been held by various Courts that consent of a minor girl cannot even be treated as a 'mitigating factor' in matters of sentencing.

Holding hands of minor girl & opening pants zip not 'sexual assault'- Another Judgment by same judge

In another case concerning a minor rape victim aged 5 years, the same judge held that the act of holding a minor girl's hands and opening the zip of pants will not come under the definition of "sexual assault" under the POCSO Act (Libnus v. State of Maharashtra). In the judgment dated January 15, the Judge held that such acts would amount to "sexual harassment" under Section 354-A(1)(i) of IPC.

Holding Hands Of Minor Girl & Opening Pants Zip Not 'Sexual Assault' Under POCSO Act But 'Sexual Harassment' Under Section 354A IPC : Bombay High Court

The Court observed that as per the definition of 'sexual assault', a 'physical contact with sexual intent without penetration' is essential ingredient for the offence.

Since no actual touching of the private parts of the body happened in the case, the High Court considered if the act will come under the ambit of the the third part of the definition- "any other Act with sexual intent which involves physical contact without penetration".

Skin to skin contact necessary for Sexual Assault under POCSO- Another Judgment by same judge

In another judgment, the same judge held that direct skin to skin touch was necessary for 'sexual assault' under POCSO. That was a case where the accused had groped the breasts of a 12 year old girl without removing her clothes (Satish v State of Maharashtra).

In the judgment delivered on January 19, 2021, the court interpreted the words "physical contact" in the definition of sexual assault to mean "direct physical contact- direct physical contact i.e. skin -to- skin contact with sexual intent without penetration."

"Considering the stringent nature of punishment provided for the offence(under POCSO), in the opinion of this Court, stricter proof and serious allegations are required. The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of 'sexual assault'", the court held.

However, the Court held the accused in that case guilty for the offence of 'outraging the modesty of woman' under Section 354IPC, which carries a lesser sentence when compared to Section 8 of POCSO. "Sexual assault" under section 8 of the POCSO Act would attract a minimum punishment of three years as compared to outraging of a woman's modesty under section 354 of the IPC, which attracts a minimum punishment of only a year. Both the offenses carry a maximum imprisonment of five years.

Pressing Breasts Without Disrobing Not "Sexual Assault" As Per POCSO Act But Offence Under Sec 354 IPC : Bombay High Court

This judgment sparked widespread criticism and public outrage. On Wednesday (January 28), the Attorney General for India, K K Venugopal, brought this judgment to the attention of the Supreme Court.

The AG said that the judgment is "unprecedented" and will set a "dangerous precedent". Based on the mentioning made by the AG, a bench headed by the Chief Justice of India stayed the acquittal under the POCSO Act as per the judgment.

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