Rape Victim's Evidence Stands On Higher Pedestal Than That Of Injured Witness: Bombay HC [Read Judgment]

Justice AM Badar said the prosecution was unable to prove that the alleged victim was under 18 at the time of the incident and also, that the relationship between the two was consensual.

The court allowed an appeal filed by one Pramod Jadhav, a 34-year-old man currently lodged in Nashik jail. The appeal was against a judgment of an Additional Sessions Judge, Nashik, dated February 16, 2015, convicting Jadhav under S.376 IPC and S.4 of the Protection of Children from Sexual Offences (POCSO) Act sentencing him to 10 years and 7 years in prison, with both sentences to run concurrently.

Case Background

According to the prosecution, the alleged victim was a school-going girl studying in 9th standard at Janata Vidyalaya, Dindori. She was born on October 28, 1999, and on the day of the incident i.e., on December 23, 2013, she was 15 years old.

Pramod Jadhav was residing in the same neighbourhood as the alleged victim and she used to take tuition classes from him. The victim developed feelings for Jadhav and slowly the relationship turned into a love affair, the prosecution told the court. Thereafter, on December 23, 2013, the victim left her parental home under the pretext of going to school instead she went to Nashik to see Jadhav. Apparently, the victim had threatened to commit suicide if the accused did not run away with her. Later, the two ended up in Surat where they had sexual relations. Meanwhile, the victim's father lodged a missing person's report after a frantic search for his daughter did not yield any result.

Eventually, the victim's father realised that Jadhav was also missing and filed a case under Sections 363 and 366 of the Indian Penal Code. The couple was brought back to Dindori and Jadhav was charged for rape and eventually convicted.

Judgment

Jadhav's lawyer Ganesh Gole argued that the evidence of the victim is completely unreliable and she discredited herself by the statement she gave to the investigating officer. Further, he submitted that the prosecution failed to prove the age of the alleged victim. The prosecution relied on a birth certificate, which, according to Gole, had nothing to do with the alleged victim as there is variance in the name of the father of the child as per evidence led by the prosecution as well as the name of the father of the child shown in the birth certificate.

After examining submissions from both sides, the court observed: "By now, it is well settled that victim of rape is not an accomplice, but she is victim of lust of another person. Her evidence stands on higher pedestal than that of an injured witness. Evidence of victim of rape case is required to receive same weight as is attached to evidence of an injured witness. If totality of circumstances emerging on record discloses that the victim of such crime does not have any motive to falsely implicate the accused, then evidence of such victim does not require any corroboration and the Court is required to accept such evidence. Broader probabilities of the prosecution case is required to be examined in such crimes and the Court is not expected to get swayed by minor contradictions and insignificant discrepancies in evidence of prosecution.

At the same time, principle of criminal jurisprudence requires that the prosecution must establish it case by clear, cogent and trustworthy evidence. No matter how shameful and antisocial the crime is, the burden always rests on the prosecution to prove guilt of the accused beyond all reasonable doubt. The same principle is equally applicable to the cases of sexual offences."

Refusing to believe the alleged victim's version, the court examined her statement to the police in detail: "During her entire stay of two months with appellant/accused No.1 Pramod Jadhav at various places such as Ahmedabad, Amba Vihar, etc., as admitted by the victim female child/P.W.No.2, she never attempted to extricate herself from clutches of appellant/accused No.1 Pramod Jadhav. She was undergoing her routine chores and never tried to escape from the custody of appellant/accused No.1 Pramod Jadhav.

The couple was visiting the Ashram of Asaram Bapu and even visited the market for purchasing dress for her. Still the victim female child, as seen from her cross-examination, never made any hue and cry for getting herself separated from company of appellant Pramod Jadhav. The victim female child wants this Court to believe that she went to various places accompanied by appellant Pramod Jadhav after she lost her senses."

As for the correct age of the alleged victim, although, the birth certificate in question states the date as October 28, 1999, and Jadhav confirmed the date to the police when he was asked about the same. However, the name of the alleged victim's father varies. The court concluded that the prosecution had failed to establish that the alleged victim was underage and did not even make an effort to submit additional evidence from the school she studied in.

"In the result, it cannot be said that the sexual intercourse between appellant/accused No.1 Pramod Jadhav and the victim female/P.W.No.2 was amounting to rape or penetrative sexual assault. On the contrary, it seems to be consensual sex. The appellant/accused No.1 is, therefore, entitled for benefit of doubt," it said.

Thus, the appeal was allowed.

Read the Judgment Here