21 years after acquittal, Bombay HC convicts rape case accused

Full Judgment

Twenty-one years after he was acquitted of charges of raping an 11-year-old girl, a Nashik resident was convicted by the Bombay high court

on Saturday. A division bench of Justices Indrajit Mahanty and Vishwas Jadhav overturned a 1997 trial court order acquitting Macchindra Sonawane (who was 19 at the time of the incident and is now 41), and held him guilty of rape and sentenced him to seven years imprisonment. The bench refused a plea to show the accused leniency over the two-decade delay and directed Sonawane to pay Rs 1 lakh as compensation to the survivor. Sonawane has been given a month to surrender.

The high court said the sessions court had erred and acted in a “casual or cavalier manner”. It had freed the accused relying on an X-ray ossification

test of the survivor that estimated her age as 14. Taking into consideration the two- to three-year margin of error, it determined that the survivor’s age was 16, which was the age of consent at that time. 

The HC asked the legal services authority to trace the survivor and help her get compensation under the Maharashtra government scheme for rape survivors.

“Even though the incident took place in 1996, we remain with the fervent hope and confidence that protecting the confidence of the common man in the institution entrusted with the administration of justice is reaffirmed,” said the bench. 

On December 1, 1996, the survivor, who was alone at her home in Nashik, visited the accused’s shop for medicine for her headache. Sonawane forcibly dragged her to his room, raped her and threw her out of his house. The suvivor’s family found her outside the house in blood-stained clothes and took her to a hospital where it was confirmed that she suffered forcible sexual intercourse.

Police arrested the accused for rape. In 1997, a sessions court acquitted him. The trial court relied on an x-ray ossification test of the survivor that estimated her age as 14. The sessions court took into consideration the two- to the three-year margin of error, and concluded in favour of the accused, after determining that the survivor’s age was 16. Prior to 2013, 16 was the age of sexual consent in India; now it is 18. The trial court also concluded that the incident was consensual saying there were no injuries to show that the survivor had put up a resistance and her story that she had gone to get medicines was not believable.

Additional public prosecutor Mankunwar Deshmukh, while arguing the state’s appeal against the acquittal, said the trial court had erred in determining the survivor’s age. The prosecutor pointed out from the evidence that the survivor had not yet hit puberty and had not even started menstruating. Further, her physical features, as well as lack of development of sexual characteristics, revealed that she was below 14.

The high court agreed and said the trial court had mechanically determined the age and had wrongly given the benefit of “plus-two, minus-two years” principle to the accused who had committed a heinous crime.

Since the survivor was held to be a minor and consent was immaterial, the high court still dealt with the issue of consent. “The absence of any injury on her body cannot lead to a conclusion that she had given her consent and all that it indicates is that she did not put up resistance. Lack of any resistance or absence of injury on the body of the victim are of no consequence vis a vis the issue of consent,” said the bench.

The bench further pointed out that the survivor had categorically denied that she had consented to the act. “The provision is clear and specific that where sexual intercourse by an accused is proved and the question is whether it was without the consent of a woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent,” the high court ruled.

“We are of the considered view that the sessions judge has lost sight of the provisions of Evidence Act, and consequently erred in the finding on the issue of consent itself,” the high court added.