UPHOLDING the conviction of a man found guilty of raping a minor, the Bombay High Court held recently that even if the girl had been sexually active during the period, the offense of rape was proved by medical evidence and the fact that she was a minor then. The incident took place on February 11, 2010 in Pune when the victim was out with her boyfriend near the Shivaji Nagar railway station. Around 8:30 pm, when she was returning home, she was having trouble walking as her footwear was broken. One of the accused offered her help. While she stopped to have water, she was dragged behind the Shivaji Nagar bus stand by several men and raped. She later managed to escape.
She was taken to the Shivaji Nagar police station and then to Sassoon Hospital for medical examination.
The lawyer of the accused argued she had reported to the medical officer that she was kidnapped by 15 unknown persons and taken to an unknown place, where she was raped. The lawyer argued cross-examination of the victim and from what she told her medical officer show she was “habituated to sexual intercourse”.
“One may argue the victim was a consenting party to the alleged act and, therefore, conviction of the accused of the offence of rape cannot be sustained. However, according to the prosecution’s case, the victim was a minor at the time of commission of the alleged offence, she is below 16 years of age at the relevant time on the date of incident,” said the court.
Taking documentary evidence regarding her age into account, the court held the victim was below 15 years of age. “As such, her consent, if any, becomes irrelevant as she had not attained the consenting age,” it added.
“The victim may be habitual to sexual intercourse but she had not attained the consenting age and, therefore, sexual intercourse with her amounts to rape, as her consent, if any, is immaterial,” said Justice A M Badar.
Meanwhile, taking the medical evidence on record, the court held that it fully corroborates the victim’s version. “The evidence on record shows the accused had procured the minor victim by dragging her to a secluded place and thereafter committed sexual intercourse by criminally intimidating her. The trial court imposed appropriate sentence on him,” said Justice Badar.
On the statement of the victim of 15 people kidnapping her, Justice Badar added, “The only exaggeration which she made before the medical officer is she was kidnapped by 15 unknown persons. The question will be whether on this count, the entire version of the victim needs to be discarded as she had improved her version before the medical officer who had conducted the medical examination. It is an experience in life that witnesses go on adding embellishments to their version, perhaps with a fear that otherwise their testimony might be rejected by the court. However, it is the duty of the court to separate nuggets of truth from the version of the witness by discarding the embellishments… The court has a duty to sift truth from falsehood,” observed the court.
“Therefore, there is general agreement and consistency with regard to the evidence of the victim that she was taken to a secluded place where she was raped by the accused. As such, the history given by her to the medical officer to the effect that she was kidnapped by 15 unknown persons needs to be discarded in order to sift truth from falsehood,” it added.