A special court in Maharashtra's Thane district has acquitted a man and three others accused in a case of kidnap and rape of a girl in 2015 while giving them the benefit of doubt. Judge P M Gupta, hearing cases pertaining to the Protection of Children from Sexual Offences (POCSO) Act, in the order passed on March 31 held the prosecution has failed to prove the charges against the accused beyond reasonable doubt. The prosecution also could not prove that the victim was a minor at the time of the incident, so as to attract charges against the accused under the POCSO Act, the judge said in the order, a copy of which was made available on Monday.
The prosecution told the court that a 26-year-old man was in love with the victim residing in the same locality in Navi Mumbai and wanted to marry her. On August 14, 2015, the man, his mother and another couple allegedly took the victim to the house of the man's sister at a village in Panvel area of neighbouring Raigad district. They allegedly forced her to marry the man, who later raped her. The victim returned home the next day and and informed her family members about the incident. Later, based on complaint, a case was registered against the man and the three other accused and they were arrested.
The judge in his order said the prosecution has not produced the birth certificate of victim or her certificate issued by primary school, which is mandatory to attract an offence under the POCSO Act. Herein, the prosecution has produced certificates issued by the middle/secondary school, which are clearly inadmissible to prove the victim's age at the time of incident, the court said. The victim was also not referred for bone ossification test for determining her age at the time of the incident, it said. On the contrary, as per the evidence of medical witness, the victim during medical examination stated her age as 18 years. Thus on the basis of the above mentioned deliberation, "I come to the conclusion that the prosecution failed to prove that at the time of the incident, the victim was a 'child' within the meaning of Section 2 (d) of the POCSO Act," the judge said.
Hence, provisions of the POCSO Act are not applicable to this case, he said. The judge also said that on examination, the medical witness came to know the victim girl was habitual to sexual intercourse. The medical and forensic science laboratory reports found no evidence of sexual intercourse between the victim and the accused, the court said. "Thus, even if I assume that there was sexual intercourse between the victim girl and the accused, then it cannot be said the accused had sexual intercourse with the victim girl against her wish and consent. Hence, in the absence of cogent and reliable evidence, I come to the conclusion that the prosecution failed to prove that the accused raped the victim," the judge said.
Also, in spite of having a mobile phone and numbers of her parents and relatives, the victim did not make any calls to them to inform that the accused persons had kidnapped her and were forcing her to marry the accused, the court said. On that point also, the evidence of prosecution witnesses is not consistent, it noted. "Hence, on the basis of aforesaid deliberation, I come to be conclusion that the prosecution failed to prove beyond reasonable doubt the guilt of the accused persons for offences punishable under IPC Sections 366 (kidnapping, abducting or inducing woman to compel her for marriage), 368 (wrongfully concealing or keeping in confinement, kidnapped or abducted person) and 34 (common intention)," the judge noted.
