Rape victims’ testimony not enough for criminal liability: Bombay HC judge

A Bombay
High Court judge, who had in two recent rulings acquitted two individuals facing
charges of raping minor girls, had noted in one of her judgements that the
victims’ testimony did not inspire confidence to hold the accused persons criminally
liable.

“No doubt,
the testimony of the prosecutrix (victim) is sufficient for conviction of the
accused. However, the same ought to inspire confidence of this Court. It ought
to be of sterling quality,” PTI quoted Justice Pushpa Ganediwala saying in her
judgement.

Also Read | Who is Justice Pushpa Virendra Ganediwala, the Bombay HC judge in the news for her recent rulings?

Justice Ganediwala
is facing flak for her interpretation of sexual assault under the Protection of
Children from Sexual Offences (POCSO) Act.

She also recently
acquitted a man who was accused of groping a 12-year-old girl’s breast because
he did not make ‘skin-to-skin’ contact. Days earlier, she ruled that holding
hands of a five-year-old girl and unzipping pants do not amount to ‘sexual
assault’ under the POCSO Act.

In the
second of her recent judgements, delivered on January 14 and 15, she noted the
sole testimony of the rape victim is sufficient to fix criminal liability.

“However,
in the present case, considering the sub-standard quality of testimony of the
prosecutrix, it would be a grave injustice to send the appellant behind bars
for 10 years,” she said.

Justice
Ganediwala also questioned how a single person could gag and undress both the
victims and rape without a scuffle. She wondered how an unmarried couple was
allowed to stay in a house by the family members and how did it find the
privacy to indulge in physical relations.

In the
judgment of January 15, Justice Ganediwala was hearing an appeal filed by one
Suraj Kasarkar, 26, against his conviction for rape of a 15-year-old girl. He
was sentenced to ten years in jail.

The
prosecution’s case is that in July 2013, Kasarkar barged into the girl’s house
and raped her. The accused in his appeal claimed that he and the girl were in a
consensual relation, adding the case was lodged against him at the behest of
the girls’ mother after she learnt of the relation.

Justice
Ganediwala while acquitting the accused noted that the alleged act of forceful
sexual intercourse is unbelievable to the natural human conduct.

Her order
noted that the girl while deposing before the trial court said she was 18 years
old and that she had falsely claimed she was 15 years old in the FIR at her
mother’s instance.

The order
said that the deposition of the victim on the alleged incident does not inspire
the confidence of the court.

Also Read | SC stays Bombay HC order that said groping without ‘skin to skin contact’ is not sexual assault

“It
seems highly impossible for a single man to gag the mouth of the prosecutrix
(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 order said.

“Had
it been a case of forcible intercourse, there would have been scuffle between
the parties. In medical report no injuries of scuffle could be seen, Justice
Ganediwala said adding the defence of consensual physical relations does appear
probable.

In the
judgment of January 14, Justice Ganediwala was hearing an appeal filed by 27-year-old
Jageshwar Kawle, who was convicted under POCSO Act and Indian Penal Code (IPC)
for raping a 17-year-old girl. He was sentenced to ten years.

The
prosecution’s case was that the accused took the girl to his sister’s house for
two months and had sexual intercourse with her several times.

Also Read | Bombay HC rejects actor Sonu Sood’s plea against illegal construction notice

The court
order noted that except the statement of the victim that the accused had sexual
intercourse with her there was “absolutely nothing” to support the
case of rape.

In the
order, Justice Ganediwala also wondered as to how did other members of the
house allow an unmarried boy and girl to sleep together and also how could the
victim and the accused get privacy to indulge in sexual intercourse.

Justice
Ganediwala was appointed as district judge in 2007 before which she was an
advocate. She was elevated as Additional Judge of the Bombay High Court in
February 2019.

On January
20 this year, the Supreme Court Collegium approved her appointment as a
permanent judge of the high court.