Mumbai: After spending nearly 12 years in prison on charges of repeatedly gang-raping an 11-year-old girl, a special Protection of Children from Sexual Offences (Pocso) court acquitted a 35-year-old man, observing that the prosecution failed to provide "clinching evidence" to prove the victim's age or the allegations of sexual assault.
Another accused died during the pendency of the trial, and the third was a minor and tried separately. While a birth certificate indicated the girl's age as 11 at the time of the 2014 incident, hospital records from the same period recorded her birth year as 1993, suggesting she was 21 years old. The judge noted that the prosecution did not examine the authority that issued the birth certificate to resolve the discrepancy.
"...in the absence of examination of the issuing authority, to my mind, it cannot be firmly said that the date of birth of the victim girl is March 4, 2003, as the medical report indicates her date of birth as May 4, 1993," the judge said.
Furthermore, medical evidence failed to support the prosecution's claims of repeated penetrative assault. A doctor who examined the girl testified about a ruptured hymen but stated that such a condition could result from non-sexual activities and that it was impossible to determine when or how the rupture occurred. "As per Modi's jurisprudence, the status of the hymen is irrelevant because the hymen can be torn due to several reasons, such as cycling, riding, among other things. An intact hymen does not rule out sexual violence, and a torn hymen does not prove previous sexual intercourse..."
The judge also took a dim view of the two-day delay in filing the police report, which remained unexplained throughout the trial. "If there is an inordinate, unexplained delay in registration of FIR, there is every scope to draw inference that the same FIR might have been registered after thought," the judge said.
The judge further noted that the mother of the victim admitted that neighbors had advised her to lodge the complaint, raising questions about the spontaneity of the report. Although the examining doctor noted a ruptured hymen, the doctor admitted during cross-examination that such a condition could result from non-sexual activities and that it was impossible to determine when or how the rupture occurred. Special Judge N D Khose remarked that "only rupture of hymen cannot be the sole criterion to opine about the sexual intercourse," especially since no other physical injuries or forensic links were found.
The judge said that the "prosecution has failed to prove beyond a reasonable doubt that, before one month of November 2, 2014, at different dates and at different times, the accused, along with the co-accused, committed rape on the victim girl."
The prosecution's case was centered on allegations that the victim was repeatedly assaulted over a month-long period at a residence in Dahisar East. According to the mother's complaint, the girl began complaining of abdominal pain in late 2014, which was initially ignored. The matter escalated on October 31, 2014, when the mother returned home to find the girl missing and eventually discovered her at the house of the accused. The victim later alleged that the accused, along with another man and a minor boy, had shown her obscene videos on a mobile phone and established physical relations through threats of violence.
