The Madras High Court today set aside the conviction and sentence awarded to an accused in a rape case, earlier referred by it to mediation and then recalled after it sparked a row over the order, and remitted it back to the trial court to fine out the age of the victim.
Justice A Selvam set aside the conviction of one Mohan, found guilty by a Mahila court in Cuddalore for raping a minor child in 2009 and sentenced to seven years RI and imposed a fine of Rs two lakh and remitted the matter back to the trial court.
Mohan had moved the court against his conviction.
On June 18, 2015, Justice P Devadoss had directed Mohan to appear before a mediation centre.
The judge had recalled his July 11 order on the basis of a Supreme Court order of July 1 which said that these types of rape cases should not be referred to mediation.
The judge had asked Mohan to surrender before the trial court by July 13. Otherwise, the trial court is free to issue a warrant to secure him, he had said.
Before the SC order, the legal fraternity from different parts of the country had raised objections that the rape accused should not be sent for mediation.
In today's hearing, Mohan's counsel contended that his client and the girl were in love with each other and it was with her consent they had got into a physical relationship.
Further, the girl had attained majority in the relevant period, he said.
The trial court had not considered these aspects and erroneously found his client guilty. Therefore, the conviction and sentence passed by it are liable to be set aside, he said.
Additional Public Prosecutor submitted that at the time of giving birth, the girl was just 15 years old. Under the circumstances, the trial court was right in awarding the conviction and sentence, he said.
Justice Selvam pointed out that the prosecution had not filed any document to back their claim that the girl had not attained majority during the relevant period.
When the criminal appeal was pending, they had filed a memo with transfer certificate, where her birth date was mentioned as June 27, 1993. Here too, no document was filed to prove her date of birth. The trial court simply believed the evidence of the girl with regard to her age.
"Under the circumstances, this court is of the view to direct the trial court to take additional evidence. The conviction and sentence passed by the trial court are liable to be set aside and the matter is liable to be remitted to the file of the trial court."
The Judge allowed the criminal appeal filed by Mohan and set aside the conviction and sentence.
He also directed refund of the fine amount, if any, paid as also the compensation, if any paid by him.
The Judge also directed the trial court to take additional evidence as the accused has the right of cross examination and dispose the case before December 2015-end and report it to the High Court Registry.
