‘Just being male not enough’ to prove rape, Calcutta HC frees man – Times of India

KOLKATA: Calcutta high court on Tuesday acquitted a youth, who had been imprisoned on the charge of raping and cheating a girl, who was over 17 years old, observing that just being male wasn’t enough to presume that sex between two sufficiently mature persons was forced, and not consensual.
The legal definitions of rape or sexual abuse of children “has to be construed as a unilateral act on the part of the accused,” Justice Sabyasachi Bhattacharyya observed, adding that rather than automatically charging an accused under Pocso (Protection of Children from Sexual Offences Act) when the accuser is below 18 years old, it was essential to ascertain “whether the act was unilateral or participatory, along with the level of maturity and psyche of the victim as well as the accused, before convicting the accused under such serious allegations of rape and penetrative sexual assault, which might ruin an otherwise bright career.”
In November 2015, the youth, a resident of Krishnagore, had been accused of rape by the girl, with whom he was in a relationship for two-and-a-half years. She accused him of having sex with her under the promise of marriage, but later reneged on the promise, prompting her to complain. Because she said her age was around 17 years and five months when the incident took place, the police slapped charges of rape and sex abuse under Pocso. The trial court in 2017 convicted the youth of all charges and sent him to prison.
On Tuesday, Justice Bhattacharyya, in his 11-page order, said it would be wrong to assume, just because the accused was male, that “any sexual union between two sufficiently mature persons was a unilateral act of the accused and not participatory,” otherwise it would lead to an “absurd presumption that, even if the sexual union between two persons of sufficient maturity was participatory in nature, only the male should be held guilty of such offence.”
Justice Bhattacharyya also remarked that the trial court’s judgment, which suggested that the girl was born on May 30, 1998, was not borne out by evidence, either documents or medical tests. “The age of 17 and above, based on assumptions and bereft of supporting documents, gives rise to sufficient doubt as to whether the victim had already attained majority at the relevant juncture,” he said.
The judge held that the accuser was over 17 years and the accused, 20. “The evidence produced in court and testimony of witnesses bear out that they had a romantic affair, which had led to physical relations,” the court observed, adding that this negated negates the presumption that the sexual union was “a unilateral act, for which the accused should be held guilty.”
The court also held that it was “evident from the depositions of the mother of the victim as well as the victim herself, as corroborated by the father of the victim, that the complaint was mere backlash due to the altercation regarding the conditions of marriage…. Thus, mere refusal to marry, that too at a stage subsequent to the alleged incident, cannot be a handle to incriminate the appellant on the charges clamped against him, particularly keeping in view the antecedents of the accused and admitted previous physical and romantic relationship between the alleged victim and the accused. This would frustrate the purpose of the Pocso Act as well as the jurisprudence behind the IPC and lead to unscrupulous abuse of the said statutes at the drop of a hat.”