To prove guilt,1st instance crucial clue: HC

The Bombay High Court recently held that in a charge of rape repeatedly over a period of time,the circumstances at the time of the first instance of rape would be significant in establishing the guilt of the accused.

Written by Express News Service | Mumbai | Published: January 23, 2012 3:32:48 am

The Bombay High Court recently held that in a charge of rape repeatedly over a period of time,the circumstances at the time of the first instance of rape would be significant in establishing the guilt of the accused.

The observation was made while upholding the conviction of Santacruz resident Idris Shaikh (47) booked for raping his teenage domestic help over a period of time.

On October 1,2006,the victim had filed a complaint against him after she became pregnant. On March 13,2007,the victim delivered a baby girl and a paternity test proved Shaikh was the father.

The court observed,“from the narration of the story by victim,it appears that at one stage,there was possibility of consensual sex between the appellant and the victim. In this view of the matter,it is necessary to determine as to what was the age of the victim at the time of alleged sexual intercourse.” The victim said Shaikh,in whose house she worked round the clock,had started molesting her since she was 14 and repeatedly had sexual relations with her. The doctor who conducted an ossification test on the victim stated that she was 15-16 years old when she was examined on October 5,2006. The court took into account that there could be margin of error on either side and held that the victim could be 13-17 years old.

The benefit of the outer limit was given to Shaikh,who had contended that the sexual intercourse between them was consensual.

“Even if the appellant is given concession of consensual sex… the prime question which remains to be determined is whether the first ever sexual intercourse was with consent or without consent,” Justice M L Tahaliyani observed.

The court took note of the fact that the victim had been working in Shaikh’s house for three years and counting three years backwards from the date of the FIR,the first intercourse between the two would have been around October 2004. The court said the victim would have been 14 years old at that time.

“The evidence clearly shows that the appellant had been indulging in the sexual intercourse with the victim even before she had attained the age of 15 years. A question of the consent,therefore,does not arise,” Justice Tahaliyani said in his order and concurred with the trial court that had convicted him under Section 376 (punishment for rape) of the IPC.

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