The Bombay High Court has quashed the rape conviction of a man who kidnapped a four-and-a-half-year-old girl in 2001.
The court, however, upheld the kidnapping conviction of the accused, Shankar Thakre, who was 27 years old at the time of the incident, on October 20, 2001, when the Protection of Children from Sexual Offences Act, 2012, had not come into force.
A Single Bench of Justice Rohit Deo was hearing an appeal filed by Thakre challenging his conviction by the Nagpur sessions court under Section 363 (kidnapping) and Section 376 (rape) read with Section 511 (attempt to commit offences punishable with imprisonment for life or other imprisonment) of the Indian Penal Code on June 19, 2004. The court had sentenced Thakre, a daily wage labourer, to two years rigorous imprisonment.
Thakre challenged the verdict in the High Court through counsel advocate J.M. Gandhi and was released on bail in 2004. The plea was then admitted for final hearing.
The child’s maternal aunt, Ushabai, told the police that Thakre kidnapped the child when she was playing in front of her home at Shaniwari Ward in Ramtek. She said that Thakre lured the child to his house by promising to serve her tapioca. A police complaint was lodged at Ramtek police station after the child complained of pain in her private parts.
Victim’s testimony
During the cross-examination, the child admitted that she had not complained of pain in her private parts. Mr. Gandhi, appearing for Thakre, said on the basis of the child’s testimony, the evidence is grossly insufficient for a case of rape to be made out. Mr. Gandhi said that Thakre was falsely implicated in the case as he did not agree to be party to a theft of forest teak wood by Ushabai and her husband.
The court quoted the sessions court judgment, “on appreciation of the entire evidence, offence under Section 376 is not established as the victim does not testify to any penetration,” and said “this is finding is unexceptionable.”
The court’s order read: “The evidence is grossly insufficient to bring home the charge and the evidence is inconsistent with the medical evidence”. The court added, “Even if the evidence is accepted on face value an offence neither under Section 354, nor Section 376 or Section 511 is founded.”
The Bench went on to say that the evidence proves that the accused made preparation to commit the offence but then “the dividing line between preparation and an attempt albeit blurred and thin at times, is well recognised.”
The court said that the accused did outrage the modesty of the child, but the evidence on record is not sufficient to prove beyond reasonable doubt that he attempted to rape the child. Justice Deo acquitted Thakre under Section 376 but upheld charges under Section 363. The court cancelled his bail bond and ordered that he be taken into custody.
