The Bombay High Court recently acquitted a man for kidnapping and raping a minor as the evidence suggested that the physical relationship between them was consensual.
The prosecution had also falsely tried to prove that the alleged victim was a minor. However, Bombay High Court found the same otherwise.
The case pertains to 2015 when the ‘minor’ was residing with her parents at Lohagaon, Pune and was studying in Class 9. On April 8, 2015 the minor was at her paternal aunt’s house and the accused, Mahadev Khodave, came and said the girl’s mother had asked him to pick her up.
The duo then travelled to Dadar, Mumbai and then Pandharpur on his motorcycle. There the man rented a room and allegedly had forcible intercourse with her. After three days, he dropped her at Pune. After this, the girl called her brother and a FIR was registered against the man.
On September 21, 2019 a special Protection of Children from Sexual Offences (POCSO) convicted Khodave under:
- Section 363 (kidnapping)
- Section 366 (kidnapping, abducting or inducing woman to compel her marriage, etc)
- Section 376 (punishment for rape)
…of the Indian Penal Code
- Section 4 (punishment for penetrative sexual assault) of POCSO.
The accused then challenged his conviction and filed an appeal before a single bench of Justice Anuja Prabhudessai.
The advocate appearing for Khodave said the prosecution had failed to prove that the girl was a minor. He also said that the girl’s brother had said he was 27-years-old at the time of the incident and that the girl was five years younger than him, that is, 22-years-old.
The prosecution, in order to prove the girl was 14-years of age, relied upon the School Leaving Certificate issued by Sant Tukaram Vidyalaya, Lohegaon.
The uncle of the girl also indicated that the victim got married about two to three months after the incident, and the court said,
This belies the contention that the minor was 14-years of age as on the date of the incident. Hence, in my view, the prosecution has failed to establish beyond reasonable doubt that the girl was a ‘child’ within the POCSO Act.
Bombay High Court
The court relied upon photographs of the time the couple was together and said,
The photographs not only falsify the contention that the survivor was under pressure and or frightened but demonstrates that the girl was very much comfortable and happy in the company of Mahadev.
The court allowed the appeal and quashed the conviction by saying,
The evidence on record therefore suggests that the physical relationship between the accused and survivor was consensual. The prosecution has thus failed to establish the charge of kidnapping/abduction and rape.
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