In yet another controversial order, Justice Pushpa Ganediwala of the Nagpur bench of Bombay High Court said 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."
The observation was made when Justice Ganediwala was hearing an appeal challenging the conviction of a 26-year-old man from Yavatmal, India Today reported.
"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.
On July 26, 2013, the victim's mother filed a rape complaint against her neighbour, identified as, Suraj Kasarkar. The victim's mother also said that her daughter was 15 years old when the incident took place.
The special trial court found that the prosecution could prove the charge of rape and criminal trespass, however, it failed to prove that the victim was below 18 years of age when the incident had occured.
The advocate representing the accused told the court that the victim was above 18 years and called it a consensual act between the two.
The prosecution, however, said that the victim claimed that the incident occurred against her consent in her house. The accused criminally trespassed and entered her house and raped her, she had said.
"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, 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," the victim said.
She also said that the accused raped her and then ran away taking his clothes.
Justice Ganediwala said that the statements of the victim, her mother and the medical evidence does not establish the fact that at the relevant time, the victim was below 18 years.
"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'," Justice Ganediwala noted.
Justice Ganediwala reversed the 10-year imprisonment ordered by the trial court and stated, "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."