Age leads to 25-year-old's acquittal of rape, kidnapping

Jan 03, 2013, 07:34 IST | Samarth Moray

The court observed that the victim was on the verge of 'attaining majority' and not once did she raise an alarm during her kidnapping and had consensual sex every day

The Sewree Fast-Track Sessions Court has acquitted a 25-year-old Sewree resident in a case of kidnapping and rape of a 17-year-old girl.

Though a controversy over the victim’s age had emerged, the court in its hearing concluded that she was 17, and capable of giving consent.

Mobin Shaha, the accused, had eloped with Rubina (name changed) and fled to Bihar. He was later, lured back to the city and arrested.

The two got to know each other when Mobin started working at Rubina’s father’s house as a carpenter and soon they became friends.

A few days later, while the girl was heading to her tailoring classes, Mobin met her at Reay Road station and professed his love for her. He courted her for two days and on May 21, 2011 they eloped.

That day, Rubina left home ostensibly for her tailoring classes but did not return. Worried about her safety, family members inquired at the classes but were informed that she had not turned up. Her father then lodged a missing person complaint on May 22 at Sewree police station. On May 25, he was informed that his daughter had been kidnapped and taken to Bihar by Mobin.

Though a police team was sent to Mobin’s house, they returned empty-handed. In July, Rubina’s father informed the police that Mobin was returning to the city, lured by the girl’s uncle, who convinced him that he would allow him to marry Rubina. On August 2, 2011, he was arrested from Bhusawal station.

The judgment
The main question before the court was of Rubina’s age. According to her father, she was born on May 21, 1995, but Rubina’s own contention was that March 21, 1995 was her birthday. Ossification tests revealed that Rubina was between 14 to 15 years of age, plus or minus six months.

The court, relying on a High Court judgment on age determination held that Rubina was about 17 years old. Ad-hoc Assistant Sessions Judge KD Boche observed, “There is no evidence on record with respect to the age of prosecutrix. The age that has been stated by victim and her father has no base. Only evidence available with the prosecution is the certificate issued by the medical officer… it can be said that victim at the time of the incident was at the verge of attaining majority.”

The judge also relied on an apex court ruling that observed that if a girl was on the verge of reaching majority ‘ran off’ of her own accord, then an offence of kidnapping could not be made out. Judge Boche added, “There is a marked distinction between ‘taking’ and ‘allowing’ a minor to accompany a person… Prosecutrix knew what is good and what is bad for her future life.”

The court also noted that Rubina never raised an alarm en route to Bihar on being ‘kidnapped’, though even later, she had ample opportunities to run away. In fact, the couple had consensual sex every day, and intercourse with a woman above the age of 16 with her consent is not rape.

Since there was no inducement on Mobin’s part, the court held him not guilty. Judge Boche, while acquitting Mobin, added, “The mere fact that the victim left her house and she was found in the company of the accused in circumstances that would possibly offend very greatly against canons of morality is not sufficient to show that the accused must either have taken or enticed the victim.” 

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