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Victim ‘habituated’ to sex, court sets rape convict free

Acquitting the accused, the court said that the victim’s testimony was not “trustworthy". As a rape convict, Kalidas Shinde was to serve 10 years in prison.

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As a rape convict, Kalidas Shinde was to serve 10 years in prison. But he walked out a free man after six years as the Bombay high court recently held that the prosecutrix (the victim girl) was “habituated” to sexual intercourse, and had lodged an FIR against the accused under pressure.

Acquitting the accused, the court said that the victim’s testimony was not “trustworthy”. Shinde, a resident of Satara, was arrested in November 2002. Following trial, he was sentenced to 10 years’ rigorous imprisonment in 2004. By the time the high court acquitted him, Shinde had served more than half of his punishment.

While acquitting him of charges of rape (section 376 of the IPC) and criminal intimidation (section 506[2]), justice JH Bhatia said on July 1, “The facts of each case have to be appreciated on their merits. In the present case, the prosecutrix appears to be habituated to sexual intercourse. Possibly that was the reason why she had a quarrel with her mother much before the incident (rape) had occurred.”

The judgment also said that the prosecutrix initially had not revealed that she had sexual intercourse with the accused. On the first day (when she was taken to police station after she went missing), she was not willing to disclose that she had been raped or had sexual intercourse with anybody. The next day, she lodged an FIR accusing Shinde of rape, but it seemed that her uncle, who worked with the police department, had forced her to file the complaint.

The court also observed that it is now a well-settled stance of the law that a prosecutrix in a rape case is a victim of the offence and hence, cannot be treated as an accomplice. Therefore, if the evidence of the prosecutrix is found to be trustworthy, conviction can be based solely on her testimony. However, if the evidence of the prosecutrix does not seem to be trustworthy, the court may look for independent evidence.

The judge also pulled up the prosecution for not examining the medical officer and the investigating officer of the case.

According to the prosecution, the prosecutrix had a fight with her mother on November 11, 2002, after the latter pulled her up for her affair with a boy from the neighbourhood. The prosecutrix discussed the incident with her friend Sumala, who in turn took her to her maternal uncle’s home. There, Sumala forced the prosecutrix to sleep with Shinde.

Shinde raped the prosecutrix on two occasions — between November 12 and 13, 2002. The girl returned to her village the next day, but did not file a rape complaint immediately.

The court also noted that although the girl had claimed to be 14 years old, she was actually 17-and-a-half. Taking note of the girl’s behaviour, the court gave the benefit of doubt to Shinde, and acquitted him of the charges.

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