The prosecution is finding it difficult to obtain leave of the Bombay high court to file an appeal against the acquittal of six men accused of raping a 21-year-old US national studying at Tata Institute of Social Science (TISS) in April 2009.
"Where is the evidence suggesting sexual intercourse?" a division bench of justice NH Patil and justice Mridula Bhatkar asked assistant public prosecutor Shilpa Gajare on Tuesday.
"There is no direct evidence, nor any circumstantial evidence suggesting the girl was raped. Even if we take the testimony of the girl [the victim] as it is, at the most there could be a case of outraging modesty of a woman against three of the six accused, and nothing more than that."
"We understand the plight of a foreigner, who is alone in this city, but there should be some evidence to show that there was sexual intercourse," said Bhatkar.
"You are talking about an offence under 376-G [provision of the Indian Penal Code providing punishment for gang rape], it's a serious offence."
Gajare, on the other hand, pointed out two circumstances - the victim found herself in a semi-nude condition when she gained consciousness and one of the accused then took her to a chemist and compelled her to take a contraceptive pill.
"Had nothing wrong taken place, the girl's clothes would not have been disturbed and she would not have been forced to take a contraceptive pill," the prosecutor said.
But the judges felt not all six could be booked for gang rape without cogent evidence. "We do understand that she was unconscious during the alleged assault on her, and also that she had taken bath after the incident leading to washing away of evidence, but she has not even suggested that she could have been raped while she was unconscious," the court said.
"We cannot be static to a incident involving, say, a very smart person, who makes a girl unconscious, rapes her and leaves absolutely no evidence behind," Patil said. The court has now granted Gajare a day to point out any evidence showing physical assault on the victim that might have escaped her attention.