A Bombay high court judge, facing flak for her interpretation of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act, had in two recent rulings acquitted two persons accused of raping minor girls, after noting that the victims' testimony did not inspire confidence to fix criminal liability on the accused.
Justice Pushpa Ganediwala recently acquitted a man accused of groping a 12-year old girl's breast because he did not make skin-to-skin contact, and days earlier, ruled that holding the hands of a five-year-old girl and unzipping pants do not amount to 'sexual assault' under the POCSO Act.
In two other judgments, she acquitted two persons accused of raping minor girls after noting that the testimony of the victims did not inspire confidence to fix criminal liability on the accused persons.
"No doubt, the testimony of the prosecutrix (victim) is sufficient for conviction of the accused. However, the same ought to inspire confidence of this court. It ought to be of sterling quality, Justice Pushpa Ganediwala said in one of the judgments.
In the second judgment, she said sole testimony of the victim in rape cases is sufficient to fix criminal liability. "However, in the present case, considering the sub-standard quality of testimony of the prosecutrix, it would be a grave injustice to send the appellant behind bars for 10 years, her order said.
In the judgments, delivered on January 14 and 15, she questioned how could a single man gag the victim, undress both of them and rape without leading to a scuffle. She wondered how an unmarried couple was allowed to stay in a house by the family members and how did it find the privacy to indulge in physical relations.
In the judgment of January 15, Justice Ganediwala was hearing an appeal filed by one Suraj Kasarkar, 26, against his conviction for rape of a 15-year-old girl.
He was sentenced to ten years in jail.
The prosecution's case is that in July 2013, Kasarkar barged into the girl's house and raped her.
The accused in his appeal claimed that he and the girl were in a consensual relation, adding the case was lodged against him at the behest of the girls mother after she learnt of the relation.
Justice Ganediwala while acquitting the accused noted that the alleged act of forceful sexual intercourse is unbelievable to the natural human conduct.
Her order noted that the girl while deposing before the trial court said she was 18 years old and that she had falsely claimed she was 15 years old in the FIR at her mothers instance.
The order said that the deposition of the victim on the alleged incident does not inspire the confidence of the court.
"It seems highly impossible for a single man to gag the mouth of the prosecutrix (victim) and remove her clothes and his clothes and to perform the forcible sexual act without any scuffle. The medical evidence also does not support the case of the prosecutrix, the order said.
"Had it been a case of forcible intercourse, there would have been scuffle between the parties. In medical report no injuries of scuffle could be seen, Justice Ganediwala said adding the defence of consensual physical relations does appear probable.
In the judgment of January 14, Justice Ganediwala wa hearing an appeal filed by 27-year-old Jageshwar Kawle, who was convicted under POCSO Act and Indian Penal Code for raping a 17-year-old girl. He was sentenced to ten years.
The prosecution's case was that the accused took the girl to his sisters house for two months and had sexual intercourse with her several times.
The court order noted that except the statement of the victim that the accused had sexual intercourse with her there was 'absolutely nothing' to support the case of rape.
In the order, Justice Ganediwala also wondered as to how did other members of the house allow an unmarried boy and girl to sleep together and also how could the victim and the accused get privacy to indulge in sexual intercourse.
In a January 13 ruling, Justice Ganediwala acquitted a 23-year-old man from Rajasthan accused of kidnapping and raping a 16-year-old girl in 2017, noting that the victims testimony does not inspire confidence and that there was no strong evidence to prove her age.
The accused Prakash Dhari had been convicted and sentenced to ten years in jail under relevant provisions of the POCSO Act and Indian Penal Code (IPC) by the trial court.
In his appeal he claimed that he thought the girl was 18 years old and that they were in a consensual relationship and he was desirous of marrying her.
The court noted that the offence of sexual intercourse with a girl below 18 years was a serious offence and the consent of the girl was immaterial.
'However, for sending the accused behind bar for the sentence of ten years, there ought to have been clinching and inspiring evidence before the Court with regard to the rape and with regard to the age of the girl, as these both are the only decisive factors for conviction,' Justice Ganediwala said in the order.
Her order noted that while the victims birth certificate shows her birth year as 2001 there is no mention as to who gave the information about the date of the birth of the girl at the time of registration which was done in 2003.
On the isolated ocular testimony of the prosecutrix which is of substandard quality, it is highly illogical and irrational to sentence the appellant (Dhari) a young boy, aged around 22 years, to ten years jail, the order said, noting that the prosecution failed to prove its case and acquitted Dhari.
Justice Ganediwala was appointed as district judge in 2007 before which she was an advocate.
She was elevated as additional judge of the Bombay high court in February 2019.
On January 20 this year, the Supreme Court Collegium approved her appointment as a permanent judge of the high court.
