After her recent controversial order on sexual assault under POCSO, Justice Pushpa Ganediwala of the Nagpur bench of Bombay High Court recently acquitted a rape accused, stating that it seemed “highly impossible for a single man to gag the victim and remove her and his clothes at the same time without any scuffle.” Ganediwala recently acquitted a man accused of groping a 12-year old girl's breast because he did not make skin-to-skin contact, and days earlier, ruled that holding the hands of a five-year-old girl and unzipping pants do not amount to 'sexual assault' under the POCSO Act.
“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," the bench observed, according to a report in India Today.
Ganediwala was hearing an appeal against the conviction of Suraj Kasarkar, 26, who belongs to Yavatmal. In July 2013, the victim's mother had lodged a complaint against Kasarkar, their neighbour. She said her daughter was 15-years-old when he raped her. Subsequently, the police filed an FIR and a charge-sheet.
While the special trial court found that the prosecution could prove the allegation of rape and criminal trespass, it could not prove the victim was under 18 years of age at the time of the incident.
The advocate representing the accused told the court the victim was above 18 years and that it was a consensual act between the two.
But the prosecution said the victim clearly described the violent incident took place against her will in her house. She said the accused criminally trespassed and entered her house and raped her.
The victim said in her account that the man came to her house at around 9.30 pm when her younger brother was sleeping on the ground, and her mother was out of the house. "At that time, 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," she said, the report states.
The victim said that after raping her, Kasarkar ran away taking his clothes. She narrated the incident to her mother later, and they lodged a police complaint.
But according to Ganediwala, the testimony of the victim, her mother and the medical evidence coupled with her birth certificate did not prove the fact that at the time of the incident, the victim was below 18 years of age.
Ganediwala said the testimony of the victim "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 report’," she noted.
"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,” Ganediwala said while overturning the 10-year imprisonment ordered by the trial court.
Recently, the Supreme Court stayed another controversial order led by Ganediwala acquitting an accused, which had stated 'skin-to-skin' contact necessary to be classified as sexual assault under the POCSO Act. Attorney General KK Venugopal said the order would set a dangerous precedent.
The single bench of Justice Ganediwala in the Bombay High Court also produced another shocking ruling which held that “the act of holding a girl's hands and opening the zip of pants will not come under the definition of sexual assault” under the Protection of Children from Sexual Offences (POCSO) Act 2012." The act instead comes under the ambit of “sexual harassment” under Section 354-A (1) (i) of the Indian Penal Code, observed the bench.