The Bombay High Court has overturned a 1997 trial court order acquitting a 41-year-old man in a rape case of a girl in 1996.
A division bench of Justices Indrajit Mahanty and V K Jadhav Saturday convicted Macchindra Sonawane (who was 19 years old at the time of the incident) and sentenced him to seven years in jail for raping the 11-year-old girl.
The bench, in its judgment, said the trial court had erred and acted in a "casual or cavalier" manner, in determining the girl's age as that of being a major.
The prosecution case is that on December 1, 1996, Sonwane allegedly raped the girl who had gone to his shop to buy medicines.
A sessions court in Nashik had in July 1997 acquitted Sonwane after determining the girl's age as 16 and not 11.
The court had taken into consideration the girl's X-ray ossification test that estimated her age as 14.
The trial court applied the plus two minus two margin of error and determined that girl was 16, which was the age of consent at that time.
The trial court had also disbelieved the girl's statement that she had resisted the rape after observing that there were no injuries on her body to show resistance.
Thereafter, the Maharashtra government approached the HC in appeal against the acquittal and said the trial court had erred in determining the girl's age and claimed that she had not even hit puberty at the time of the crime.
The High Court, in its judgment, noted that the trial court had mechanically determined the age of the girl.
The bench also took note of the girl's statement to the police and her deposition before the trial court in which she had categorically denied having consented to the act.
"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," the High Court said.
The bench, while convicting Sonwane, directed him to pay a fine of Rs 1 lakh as compensation to the girl.
It asked the Nashik District Legal Services Authority to locate the girl and get an application from her for consideration of payment of compensation under the government's scheme of financial assistance for women victims/survivors for sexual assault and other crimes.
"We hope and trust that such application will be dealt with necessary sympathy that the case deserves," the HC said.
The bench refused to show leniency for the accused and said, "Even though the incident took place in 1996, we remain with fervent hope and confidence that protecting the confidence of the common man in the institution entrusted with the administration of justice is reaffirmed."