"Only on the basis of allegation with regard to commitment of sexual intercourse on many occasions, it would be highly irrational to convict the appellant/accused with 10 years imprisonment," a Single Bench of Justice Pushpa Ganediwala said.
A 27-year-old man convicted of raping a minor girl (17 years and 9 months) was acquitted and his conviction and sentence was set aside by the Nagpur Bench of the Bombay High Court.
Let us look at the definition of the rape that is given in the section 375 of the Indian Penal Code-
A man is said to commit rape if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of
a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis,
into the vagina, the urethra or anus of a woman or makes her to do so with him or any
other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into
the vagina, urethra, anus or any part of body of such woman or makes her to do so with
him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do
so with him or any other person,
under the circumstances falling under any of the following seven descriptions:
First—Against her will.
Secondly—Without her consent
Thirdly—With her consent, when her consent has been obtained by putting her or
any person in whom she is interested, in fear of death or of hurt.
Fourthly—With her consent, when the man knows that he is not her husband and that
her consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly—With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.
Sixthly—With or without her consent, when she is under eighteen years of age.
Seventhly—When she is unable to communicate consent.
So in the present case the accused was sentenced for 10 years of rigorous imprisonment by the trial court. He was sentenced under the following offences –
- IPC Section 376(2)(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
- POSCO Section 6- Punishment for aggravated penetrative sexual assault on minor. —Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Under the Section 3 of the Majority Act, 1875 a major is defined as - Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. Thus, in that sense a minor is someone who is under 18 years of age.
Hence, the victim in the present case was a minor at the time of the crime as her was 17 years and 9 months. Thereby, it doesn’t matter if she gave her consent for the sexual act or not.
It is perplexing to note that the Bombay High court judge Justice, Pushpa Ganediwala, stated in her order that, "A perusal of the testimony of the prosecutrix would reflect that she has vividly described about her love relationship with the appellant/accused. With regard to pregnancy, the prosecutrix did not say anything about the same. There is absolutely nothing on record as to what happened to her pregnancy. She was just three months short of attaining the age of majority… Except the above statement of the prosecutrix, with regard to sexual intercourse at the house of the sister of the appellant/accused, there is absolutely nothing supporting the prosecution case of rape."