Home » News » “Impossible for a Single Man to Gag, Denude, and Rape at the Same Time”: Bombay HC Justice Ganediwala in News for Another POCSO Order

In the series of controversial judgments, Bombay High Court judge Pushpa Ganediwala has acquitted another rape accused under POCSO Act. The court observed that it is “highly impossible for a single man to gag the victim and remove her and his clothes at the same time without any scuffle”.

“It seems highly impossible for a single man to gag the mouth of the prosecutrix (the victim) 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,” noted the Nagpur bench of Bombay High Court.

The High Court was hearing an appeal filed by 26 year old accused, Suraj Kasarkar from Yavatmal who was convicted by a trial court and sentenced to 10 years in jail.

The mother of the victim had lodged a complaint against Kasarkar. She claimed that her daughter was 15 years old at the time of the incident. The police registered the complaint and filed a charge sheet as well.

The special court had observed that prosecution could prove the charge of rape and criminal trespass, it could not prove the claim that the victim was 15 years old at the time she was raped.

The advocate appearing for the accused submitted that the victim was above the age of 18 and it was a consensual act between the two.

“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 the ground. My mother had been to natural call out of the house. At that time, the accused Suraj came to 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 my clothes from my person,” the complaint stated.

Bombay High Court noted that the testimony of the victim, her mother, and the medical evidence coupled with her birth certificate does not establish the fact that at the relevant time, the victim was below 18 years of age.

Justice Ganediwala further stated, “the testimony 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.”

“Had it been a case of forcible intercourse, there would have been a scuffle between the parties. In the medical report, no injuries of a 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 a report,” observed Justice Ganediwala.

She acquitted the accused and overturned his conviction and 10 years of imprisonment while stating, “As per settled law, stricter the sentence, stricter the proof is required. No doubt, sole testimony of the victim in rape cases is sufficient to fix the criminal liability against the accused, 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.”

Justice Ganediwala has been in the limelight for two of her recent judgments in connection to the POCSO Act. First order was passed on January 19 which stated that skin-to-skin contact necessary to constitute ‘sexual assault’ which was stayed by the Supreme Court on January 27. The second controversial judgment was passed on Thursday stating act of holding hands of a minor girl and opening pant’s zip will not come under the definition of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act 2012.

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