Rape victims' testimony not confidence-inspiring: HC judge

A Bombay High Court judge, facingflak for her interpretation of sexual assault under theProtection of Children from Sexual Offences (POCSO) Act, hadin two recent rulings acquitted two persons accused of rapingminor girls, after noting that the victims' testimony did notinspire confidence to fix criminal liability on the accused.

Justice Pushpa Ganediwala recently acquitted a manaccused of groping a 12-year old girl's breast because he didnot make skin-to-skin contact, and days earlier, ruled thatholding the hands of a five-year-old girl and unzipping pantsdo not amount to 'sexual assault' under the POCSO Act.

In two other judgments, she acquitted two personsaccused of raping minor girls after noting that the testimonyof the victims did not inspire confidence to fix criminalliability on the accused persons.

''No doubt, the testimony of the prosecutrix (victim)is sufficient for conviction of the accused. However, the sameought to inspire confidence of this Court. It ought to be ofsterling quality, Justice Pushpa Ganediwala said in one ofthe judgments.

In the second judgment, she said sole testimony of thevictim in rape cases is sufficient to fix criminal liability.

''However, in the present case, considering the sub-standardquality of testimony of the prosecutrix, it would be a graveinjustice to send the appellant behind bars for 10 years, herorder said.

In the judgments, delivered on January 14 and 15, shequestioned how could a single man gag the victim, undress bothof them and rape without leading to a scuffle. She wonderedhow an unmarried couple was allowed to stay in a house by thefamily members and how did it find the privacy to indulge inphysical relations.

In the judgment of January 15, Justice Ganediwala washearing an appeal filed by one Suraj Kasarkar, 26, against hisconviction for rape of a 15-year-old girl. He was sentenced toten years in jail.

The prosecution's case is that in July 2013, Kasarkarbarged into the girl's house and raped her. The accused in hisappeal claimed that he and the girl were in a consensualrelation, adding the case was lodged against him at the behestof the girls mother after she learnt of the relation.

Justice Ganediwala while acquitting the accused notedthat the alleged act of forceful sexual intercourse isunbelievable to the natural human conduct.

Her order noted that the girl while deposing beforethe trial court said she was 18 years old and that she hadfalsely claimed she was 15 years old in the FIR at hermothers instance.

The order said that the deposition of the victim onthe alleged incident does not inspire the confidence of thecourt.

''It seems highly impossible for a single man to gagthe mouth of the prosecutrix (victim) and remove her clothesand his clothes and to perform the forcible sexual act withoutany scuffle. The medical evidence also does not support thecase of the prosecutrix, the order said.

''Had it been a case of forcible intercourse, therewould have been scuffle between the parties. In medical reportno injuries of scuffle could be seen, Justice Ganediwala saidadding the defence of consensual physical relations doesappear probable.

In the judgment of January 14, Justice Ganediwala washearing an appeal filed by 27-year-old Jageshwar Kawle, whowas convicted under POCSO Act and Indian Penal Code (IPC) forraping a 17-year-old girl. He was sentenced to ten years.

The prosecution's case was that the accused took thegirl to his sisters house for two months and had sexualintercourse with her several times.

The court order noted that except the statement of thevictim that the accused had sexual intercourse with her therewas ''absolutely nothing'' to support the case of rape.

In the order, Justice Ganediwala also wondered as tohow did other members of the house allow an unmarried boy andgirl to sleep together and also how could the victim and theaccused get privacy to indulge in sexual intercourse.

In a January 13 ruling, Justice Ganediwala acquitted a23-year-old man from Rajasthan accused of kidnapping andraping a 16-year-old girl in 2017, noting that the victimstestimony does not inspire confidence and that there was nostrong evidence to prove her age.

The accused Prakash Dhari had been convicted andsentenced to ten years in jail under relevant provisions ofthe POCSO Act and Indian Penal Code (IPC) by the trial court.

In his appeal he claimed that he thought the girl was18 years old and that they were in a consensual relationshipand he was desirous of marrying her.

The court noted that the offence of sexual intercoursewith a girl below 18 years was a serious offence and theconsent of the girl was immaterial.

''However, for sending the accused behind bar for thesentence of ten years, there ought to have been clinching andinspiring evidence before the Court with regard to the rapeand with regard to the age of the girl, as these both are theonly decisive factors for conviction, Justice Ganediwala saidin the order.

Her order noted that while the victims birthcertificate shows her birth year as 2001 there is no mentionas to who gave the information about the date of the birth ofthe girl at the time of registration which was done in 2003.

On the isolated ocular testimony of the prosecutrixwhich is of substandard quality, it is highly illogical andirrational to sentence the appellant (Dhari) a young boy,aged around 22 years, to ten years jail, the order said,noting that the prosecution failed to prove its case andacquitted Dhari.

Justice Ganediwala was appointed as district judge in2007 before which she was an advocate. She was elevated asAdditional Judge of the Bombay High Court in February 2019. OnJanuary 20 this year, the Supreme Court Collegium approved herappointment as a permanent judge of the high court.