Difficult for man to rape without a scuffle, says Bombay High Court

Bombay High Court. File pic

Acquitting a 26-year-old man in a rape case, the Bombay High Court has recently ruled that it is highly impossible for a man to gag a girl, de-nude her and self and then rape a 15-year old girl without a scuffle.

In a verdict delivered last fortnight, Justice Pushpa Ganediwala at the Nagpur Bench said that there were no signs of any scuffle between the accused and the minor victim, while hearing an appeal by the convicted accused in an eight-year-old rape case under the POCSO Act.

"A perusal of 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 natural human conduct," said Justice Ganediwala, while acquitting the accused Suraj Kesarkar who was convicted and sentenced to 10-years jail by a lower court.

The judge said that though the accused was the neighbour of the girl, it appeared "highly impossible for a single man to gag the mouth of the victim, remover her clothes and his clothes and to perform the forcible sexual act without any scuffle".

The court further observed that if it was a case of rape, there would have been a scuffle between the parties, but in the medical report no injuries of a struggle could be seen, and hence, "the defence of consensual physical relations does appear probable".

Despite the allegations by the victim that it was forcible intercourse, the medical evidence did not support her contentions, Justice Ganediwala observed.

Moreover, the victim had also stated that she would not have lodged the complaint if her mother had not entered the house at that time.

Kesarkar had challenged his conviction and 10-year jail terms awarded by the lower court in March 2019 in the case filed in July 2013, claiming that the girl was "habituated to sexual acts", and their relationship was consensual.

Justice Ganediwala further said that it was not proved that the victim was minor at the time the offence was committed as she had admitted to giving her age as 15 at her mother's insistence, and the birth certificate was not in the specified format.

In her complaint, the girl had claimed that the accused, who was her Neighbour, had trespassed her home, gagged her, removed her clothes and his simultaneously, and committed a forcible sexual act, but fled when her mother entered the house.

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