The Bombay High Court has acquitted a 32-year-old man in a 1999 rape case observing that a woman caught in the act of consensual sex outside her wedlock might resort to levelling allegations of rape to protect her character
While clearing Yogesh Shinde of the charges after he served five-year rigorous imprisonment for raping his neighbour's wife in Ulhasnagar in neighbouring Thane district, the court said it found "improbable" the prosecution charge and the version given by the victim.
Shinde had filed the appeal after he served the jail term handed down to him by a Kalyan sessions court. Since the appeal was admitted earlier, it was heard on merits and the high court acquitted him on "benefit of doubt".
According to prosecution, Shinde raped the woman at knife point behind her house on June 2, 1999 with the help of his friend. His friend was, however, acquitted by the trial court.
"Though, in ordinary circumstances, a woman is not likely to make a false allegation of rape, when she is caught or is suspected of having had sexual intercourse with someone outside the wedlock, she is quite likely to try to protect her character by claiming that what was done was without her consent," Justice A M Thipsay recently observed.
"Such a possibility is quite clear in the facts and circumstances of the present case where the victim's story when judged by ordinary yardstick, appears to be improbable," the judge noted while allowing the appeal filed by Shinde against his conviction by a sessions court in Kalyan.
"Thus, even if it is assumed that sexual intercourse had taken place between the appellant and the victim, as alleged by her, the possibility of victim being a consenting party to the act, cannot be overruled.
Certainly, at least a doubt that sexual intercourse, if any, between the appellant and the victim, was consensual, arises upon a consideration of the entire evidence", he observed.
The judge said that the appellant was entitled to the "benefit of such reasonable doubt" and should have been acquitted.
"The appreciation of evidence, as done by the trial court, was not proper or legal. The impugned order, therefore, needs to be interfered with, in the interest of justice," he said.
While noting that the prosecution case mainly relied on the testimony of the victim, the court said that the victim's husband, though a witness, was not examined during the trial where other witnesses did not support the prosecution's case.
Except for a scratch on right illiac crest--the upper border of the pelvic bone--the victim did not have any injury marks on her body and the doctor examined as witness was unable to give an opinion whether the victim had been subjected to any forcible sexual intercourse.
The appellant too had not sustained any injury, the court said. "In her evidence, the woman also did not mention about the appellant having a knife or threatening her with a knife.
From this, the recovery of knife, allegedly at the instance of the appellant, is rendered meaningless.
It may, however, be observed, that even otherwise the evidence in that regard cannot be considered as satisfactory," the judge noted.
The victim had admitted during cross examination that at the time of the incident, she and her husband had slept on a 'khat' in the house and was forcibly taken outside her room by the accused.
The fact remains that it would be extremely difficult to accept that the victim could be taken away forcibly from her room when her husband was sleeping besides her, the judge observed.
The victim had stated in the cross-examination that she was forced on the ground by the accused who raped her.
She also admitted that there were stones on the ground. Had this been true then the prosecutrix would have expected to have at least some more scratches on her person.
But, the medical evidence does not show the presence of any injuries, except a scratch on right iliac crest, the court noted.