The Calcutta High Court recently reiterated that a victim of rape is the best witness to prove the charge and merely because she chooses to go with the accused by consent, does not entitle the accused to infringe her privacy or commit any sexual offence, as defined under Section 375 of the Penal Code, 1860. The court was hearing an appeal against conviction and sentence for the offence of rape and kidnapping under the Penal Code on the complaint lodged by the victim’s father.
Justice Siddhartha Roy Chowdhury, while allowing the appeal in part, held, “If we, go by the maiden statement of the de facto complainant, and if it is assumed that the victim was not abducted or kidnapped she left her house with accused person on her own, that does not give the accused person the right to invade upon the privacy of the victim girl or to commit any penetrative sexual offence within the meaning of rape as defined under Section 375 of the Indian Penal Code.”
Considering that the incident dates back to 2007 and the accused is the sole bread earner of his family, the High Court reduced the sentence from seven years to four years for the offence of rape. Conviction and punishment for the offence of kidnapping were set aside.
Counsel for the appellant submitted that the accused had a relationship with the victim and therefore the trial court ought to have considered the alleged incident as an “adventure of two persons in love”.
It was added that there was no mens rea on the part of the accused to commit any offence and that there was no kidnapping within the meaning of Section 361 of the Penal Code, as the victim left her house with the accused person on her own. “The victim had attained the age of discretion when the incident took place and therefore the trial court had no reason to hold that she was taken out of the “keeping of her lawful guardian,” the appellant argued.
With respect to conviction under Section 376 of the Penal Code, it was submitted that there were no marks of injury suggesting any application of force on the person of the victim.
“The victim in her testimony made it clear that force was applied by the accused person while he engaged himself in sexual intercourse that too against the consent of the victim, the prosecution case stands proved. The victim not only with stood the test or cross examination, the defence counsel by way of cross-examination has extended support to the prosecution case, the Court observed with respect to conviction under Section 376 of the Penal Code.
Additional Sessions Judge (ASJ), Jalpaiguri passed an order of conviction against the appellant, for committing offences under Section 365 and Section 376 of the Penal Code, 1860, thereby imposing rigorous imprisonment for 3 years and 7 years, for the said offences respectively.
Comments
0 comment