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IN THE HIGH COURT OF BOMBAY
Urmila Joshi Phalke, J.
Dalsu Kumma Gawde - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 312 of 2022
Decided On : 18-07-2023
RAPE - Conviction under IPC - Sec. 375, Sec. 376(1) IPC, Sec. 90 IPC, Sec. 114A Evidence Act, Sec. 428 CrPC - The court discussed the definition of rape under Sec. 375 IPC, emphasizing that consent must be voluntary and informed. It highlighted that the victim's testimony is credible and does not require corroboration, as established in previous judgments. The court also noted the significance of the delay in filing the FIR, which was adequately explained by the victim. The recovery of the victim's clothes from the accused's possession further supported the prosecution's case, leading to the conclusion that the accused was guilty of the charges against him.
Fact of the Case:
The appellant was convicted for the rape of a minor girl, who reported the incident after her mother returned home. The accused entered her room at night, assaulted her, and fled the scene with her clothes. The victim's testimony was supported by medical evidence indicating a torn hymen, although the defense claimed the act was consensual due to a supposed love affair.
Finding of the Court:
The court found the victim's testimony credible and consistent, rejecting the defense's claims of consent. It emphasized that the absence of physical injuries does not negate the occurrence of rape and that the victim's evidence, corroborated by medical findings and the recovery of her clothes, was sufficient to establish the accused's guilt beyond reasonable doubt.
Issues: Whether the victim consented to the sexual act, the credibility of the victim's testimony, the significance of the delay in filing the FIR, and the sufficiency of evidence to support the conviction.
Ratio Decidendi: The court reiterated that the testimony of a victim in sexual assault cases is to be given due weight and does not require corroboration. It established that consent must be clear and voluntary, and the absence of consent is a critical factor in determining the occurrence of rape. The court also noted that delays in reporting such incidents can be explained by the victim's psychological state.
Final Decision: The appeal was dismissed, affirming the conviction and sentence of the accused for the crime of rape.
JUDGMENT/ORDER
1. The appellant (accused) has assailed judgment and order dtd. 28/4/2022 rendered by learned Additional Sessions Judge, Gadchiroli in Sessions Case No.16/2020 whereby he is convicted for offence punishable under Sec. 376(1) of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 10 years and to pay fine Rs.3000.00, in default, to suffer simple imprisonment for 3 months. The accused is also given set-off under Sec. 428 of the Code of Criminal Procedure since he was in jail.
2. Facts in a nutshell are as under: On 23/11/2019, victim girl (due to the mandate of Sec. 228-A of the Indian Penal Code, name of the victim girl and her relatives are not mentioned in this judgment), has lodged report with Bhamragad Police Station, district Gadchiroli alleging that she is residing along with her parents and grandfather and two brothers. Her younger brother is residing at Bhamragad. She studied upto 12 Std. and left the education. On 19/11/2019, when her mother had been to Bhamragad in the hospital, as her sister-in-law was admitted in the hospital for delivery, she was at home along with her father and grandfather. On 20/11/2019, in the evening, after having a dinner, they all went to sleep. Her grandfather was sleeping in a shed attached to the house and her father was sleeping in a room adjacent to the said shed and she was sleeping in a room which was adjacent to the room where her father was sleeping. She had not locked the door and just pushed the door and she went to sleep. At about 9:00 pm, when she was in a sleep, the accused came inside her room by pushing the door, pressed her mouth, and removed her clothes. Though she attempted to shout, she could not shout as her mouth was pressed by the accused and, thereafter, he disrobed himself and subjected her for sexual assault. While leaving the house, the accused took her clothes, i.e. leggin and undergarments, with him. When he was running from the house, she shouted for help and her father and her grandfather witnessed the accused eloping from the spot of the incident. Immediately, she narrated the said incident to her father and grandfather. As her mother was not at home, she approached to the police station 22/10/2019, after her mother came home, and lodged the report.
3. On the basis of the said report, the police registered the offence against the accused. The investigating officer has forwarded a special report to his superior officer. After issuing the letter to the Tahsildar, he called two panchas and drawn spot panchanama. The victim girl was referred for medical examination. The accused was arrested. The accused was also referred for medical examination. He collected samples obtained by the medical officer while examining the victim girl as well as the accused. He has seized all samples by drawing seizure memo. During investigation, the accused shown his willingness to make a memorandum statement. Accordingly, his memorandum statement was recorded and the clothes of the victim girl, i.e. leggin and a nicker, are seized at the instance of the accused by drawing panchanama. The clothes of the accused are also seized in the police station which were on his person. The clothes of the victim girl and the clothes of the accused and their samples are forwarded to the Chemical Analyzer. After completion of the investigation, the investigation officer has filed chargesheet.
4. As the offence is exclusively triable by the court of sessions, learned Magistrate committed the case to the court of sessions. The Sessions Court framed the charge vide Exhibit-18. The accused pleaded not guilty and claimed to be tried.
5. In support of the prosecution case, it has examined in all 11 witnesses, as follows:
The evidence of a victim in sexual assault cases is credible and does not require corroboration, and consent must be unequivocally established; any ambiguity regarding consent leads to the presumptio....
The presumption of guilt under Section 29 of the POCSO Act is not absolute and requires the prosecution to establish foundational facts before the burden shifts to the accused to rebut the presumptio....
The court established that the victim's age and circumstances negate any claim of consent, reinforcing strict liability for sexual crimes against minors under Indian law.
The victim's testimony alone can suffice for conviction in rape cases, as corroboration is not mandatory if the testimony is credible.
The central legal point established in the judgment is the immateriality of the minor victim's consent in a rape case and the lack of requirement for corroboration in cases of sexual assault when the....
The court established that in cases of sexual assault, the victim's testimony can be sufficient for conviction, and that slight penetration constitutes an offense under the POCSO Act, regardless of t....
As per Section 9(m) of Act, whoever commits sexual assault on a child below twelve years will come under definition of aggravated sexual assault.
The testimony of a victim in a rape case can be sufficient for conviction, and delays in reporting do not automatically undermine credibility, particularly in cases involving minors.
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