Man accused of raping ‘minor’ girl acquitted by POCSO court in Mumbai

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A 25-year-old person from Mumbai was acquitted on Friday by the special POCSO (Protection of Children from Sexual Offences) court after the Worli Police failed to prove his involvement in the kidnapping and raping of a ‘minor' girl.

The accused, a resident of Worli, was arrested in December 2020 and spent over one and half years in jail in the case.

"Credibility of complainant is brought under doubt as she is not deposing truthfully," said Special judge Priti Kumar Ghule in her order.

The court also mentioned that the prosecution failed to prove that the girl was minor as it didn't produce the original birth certificate till the time of filing of the charge sheet and that there was no ossification test done to prove that she was a minor. "The IO did not take any efforts to collect the birth certificate from the BMC. The prosecution has failed to prove that the girl was a minor," the court order read.

The special court order also added that, " The complainant has mentioned age of her three daughters as 21, 20 and 16 respectively. The victim also deposed that she has not gone to school at all. She does not know her date of birth. The oral evidence of the complainant and the victim is silent on date of birth."

The court further said the girl was told by the police to say she was a minor to use stringent sections of the POCSO Act. During cross-examination, the victim admitted that she is deposing in court that her age is 16 because the police told her to do so. "These circumstances and evidence show that the victim was not a minor. As the POCSO Act is stringent, the prosecution should prove age of minority with strict proof. In present case, the prosecution failed to prove beyond doubt that the girl was below 18 years of age. Hence, it is inferred that the applicability of POCSO Act is not proved. The presumption u/s. 29 of POCSO Act is not triggered," the judge added in her order.

"The victim is falsely stating that she was forcibly taken in taxi from Worli to Shivaji Park. If she was kidnapped, she never drew anybody's attention at th crowded Shivaji Park. She also did not draw the attention of the taxi driver. She further deposed that the accused kept handkerchief on her mouth when they were in taxi," the court said.

"It only shows that the witness is deposing such facts to fill up lacunas. It is not believed that she was forced to sit in the taxi, taken to Shivaji Park where they spent whole night on road. In the cross­examination, she has clearly stated that she did not seek any help or tried to run away or asked help from people when she was with the accused. Defence advocate submitted that her conduct shows that she and accused had eloped. There is no ingredient of kidnapping," the court order reads further.

Case details

As per the complainant, on 29 November 29, 2020, she had gone with her 16-year-old daughter to sell onions and potatoes. The daughter when went missing after she went home to get fetch water for her mother. The complainant suspected that an unknown person, who had earlier in the year 2018 allegedly committed sexual offence on her daughter, has had again kidnapped her. Later, she registered a complaint at the Worli police station against the accused.

According to the FIR, the complainant went to the accused person's house in Wadule village in Ahmednagar on December 4 and brought her daughter back. On December 5, the complainant produced her daughter at Worli police station where she gave additional statements. Her daughter disclosed to her mother that on November 29, the accused forcibly made her sit in a taxi and took her to Shivaji Park. They spent the night at Shivaji Park footpath. The next day, the accused took the girl to Jivdani Temple in Virar by bus and established sexual relation with her. Thereafter, on December 1, the accused brought the girl to his village in Ahmednagar.