Rape victim voluntarily having sexual intercourse with someone else is immaterial in deciding rape case: Bombay High Court

The Aurangabad Bench of the Bombay High Court recently held that a rape victim having voluntary sexual intercourse with someone else is immaterial in deciding a rape case (State of Maharashtra v. Mahadu Dagdu Shinde)..A Bench of Justices Ravindra V Ghuge and BU Debadwar, therefore, declined to take into account the doctor's statement that the complainant woman was habituated to sexual intercourse after she was deserted by her husband. ."We are not giving any weightage to the particular statement of PW6 – Doctor, that the prosecutrix, though deserted by her husband, after his remarriage, several years ago, was habituated to sexual intercourse, for the reason that it is immaterial whether she voluntarily has intercourse with anybody else," the Court said. .If the prosecutrix has opposed a sexual intercourse by any person, her disinclination or her refusal will tantamount to the male counterpart offending her physically and such intercourse committed against the will and the desire of the prosecutrix, would constitute an offence punishable under Section 376 of the IPC, the Court added. .The Court also expressed its “strong displeasure” at the choice of words by the Additional Sessions Judge SV Ranpise while recording the testimony of the prosecutrix and the investigating officer in its judgment in a rape case.It noted that the trial court had used the words "which are used in slang language, are treated to be foul words and are utterly disrespectful to women.""The Trial Court has used the words ‘F*****’ and “F******”. These words are used in slang language, are treated to be foul words and are utterly disrespectful to women. We have also noticed that though the Marathi version of the testimony of the prosecutrix indicates certain Marathi words like “vait Krutya Kele, vait karma Karun maajhi izzat lutli” (wrongful act committed, dishonoured me) yet the Trial Court has repeatedly used the above mentioned objectionable words, while recording the English version of her testimony," the High Court said. .The Court, however, proceeded to uphold the acquittal of the accused on the ground that the prosecution failed to prove the case beyond reasonable doubt. .The appeal before the High Court arose from rape charges against a 52-year-old by his brother’s daughter-in-law. The Sessions Court had acquitted the accused of the charges..During the examination of the prosecutrix it was brought to the Court’s attention that she suffered from injuries from the crime committed.“She has also stated that she has suffered a bleeding injury to her private part due to the violent act of the accused and three to four stitches had to be administered.” the testimony stated..The High Court observed that for it to come to a contrary finding, it needs to be convinced based on the entire evidence available to it that:Trial court committed a patent error in delivering a finding of acquittal; orThe evidence available does not leave an iota of doubt in the mind of the appellate court that the guilt of the accused is proved beyond any doubt and that the accused alone and no one else has committed the crime..The High Court dismissed the appeal for the reason that the prosecution failed to convince them that it was “the accused and the accused alone” who had committed the offence..It also deduced from the evidence that there seemed to be no abrasion on the prosecutrix’s body and the entire narration of the several injuries could not be proved. .The learned Prosecutor is also unable to convince us that the absence of even an abrasion or any ‘tell tale’ sign of sexual assault, there was evidence before us to convict the accused, the Court said while rejecting the appeal..[Read Judgment]