Bombay High Court acquits rape convict after victim's testimony fails to inspire confidence

The Nagpur Bench of Bombay High Court has handed down another acquittal in a case under the Protection of Children from Sexual Offences Act (POCSO), the third such acquittal from Justice Pushpa Ganediwala this month (Jageshwar Wasudeo Kawle v. State of Maharashtra)..The Court reversed a conviction order after noting that there was nothing supporting the prosecution's case for rape. It was further noted in the judgment,"...she does not depose with regard to dates, times, who were present in the house at the relevant time, how the other members of the house permitted the unmarried boy and girl to sleep together, how many rooms were there in the house, how could the prosecutrix and the appellant/accused got privacy, under what circumstances the prosecutrix was forced to establish physical relationship with the appellant/accused etc...".Though the judgment acknowledges that a conviction can occur on the basis of the rape victim's testimony, in this case, the testimony of the prosecutrix did not inspire confidence of this Court, and was not of "sterling quality"..The accused had challenged the order of conviction under Sections 376(2) (rape) of Indian Penal Code and Section 5, 6 (aggravated penetrative sexual assault) of the POCSO Act..Justice Ganediwala reversed the conviction order on the grounds that the offence of rape against the accused could not be established beyond reasonable doubt..The Court recorded from the victim’s testimony that she had vividly described about her love relationship with the accused.However, it noted that the incidents of sexual relations between them at the accused’s sister’s place was missing from her statements to the police, and the offence of rape came to be added later on the basis of a positive pregnancy test. ."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 Court said. .The Court also noted that there was no conclusive evidence that the victim became pregnant as a result of the sexual relations with the accused, and that there was no information regarding what happened to the pregnancy. In this regard, there were no records regarding a DNA test. ."There is no conclusive evidence before this Court to conclude that she conceived from the appellant/accused. The prosecution also did not find it necessary to conduct DNA examination. The record is silent with regard to DNA test and what happened to her pregnancy. 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 judgment stated. .Opining that there was nothing supporting the prosecution case of rape except the statement of sexual intercourse at the house of the sister, the Court held that “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.”.The Court, therefore, acquitted the accused of all offences including the conviction under IPC, unlike in other two cases wherein conviction under IPC was maintained while acquittal was only with respect to POCSO offence..Groping 12-year-old child without removing her clothes not 'sexual assault' under POCSO Act, but only 'outraging modesty' under IPC: Bombay HC .Holding hands of victim or open pant zip of accused will not amount to sexual assault under POCSO Act: Bombay High Court .[Read order]