IMPORTANT POINT
Rape – Conviction cannot be recorded on solitary statement of prosecutrix which does not inspire confidence.

JUDGMENT

M.A. Chowdhary, J.—The Appellant, through the medium of this Criminal Appeal, has challenged the “Judgment of Conviction” dated 24th of February, 2010 as well as the “Order of Sentence” dated 25th of February, 2010 passed by the learned 1st Additional Sessions Judge, Srinagar in a case titled ‘State v. Raja Sajad Ahmed Wani’, bearing File No. 97/Sessions, whereby the Appellant was convicted for the commission of offences punishable under Sections 366 and 376 of the now repealed Ranbir Penal Code (for short “RPC”) and sentenced to: (i) rigorous imprisonment of seven years and to pay a fine of Rs.10,000/- under Section 376 RPC; and (ii) rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- under Section 366 RPC, with a direction that both the sentences of imprisonment shall run concurrently.

2. The factual matrix of the case, is that the Appellant, on 9th of November, 2001, was alleged to have abducted the prosecutrix (name withheld to hide her identity) from Chiterhama when she had gone to a spring near mosque to fetch water and that she was taken to Dangerpora, Padgampora, Pulwama, where she was seduced to illicit intercourse with her against her will and wish. The father of the prosecutrix, on 15th of November, 2001, lodged a complaint at Police Station, Zakoora, Srinagar, whereupon a case was registered vide FIR No. 59/2001 for the commission of offences punishable under Sections 366 and 376 RPC against the accused/ Appellant herein. During investigation, the police recovered the abductee (prosecutrix) from Dangerpora, Padgampora, Pulwama from the house of one Abdul Majeed Dar, whereafter she was medically examined and, after completion of the investigation, a charge sheet was laid against the accused/ Appellant herein for the commission of offences punishable under Sections 366 and 376 RPC.

3. The Appellant was charge-sheeted for the commission of aforementioned offences vide Order dated 24th of October, 2002 by the Court of learned 1st Additional Sessions Judge, Srinagar (hereinafter referred to as the “trial Court”), who pleading innocence, denied the charges and claimed trial.

4. The Prosecution, in order to prove its case to bring home the charge against the accused/Appellant, examined: (i) Gulzar Ahmad Sheikh; (ii) Mst. Hajira; (iii) Habibullah Dar; (iv) Khazir Mohammad Dar; (v) Abdul Rehman Dar; (vi) Nazir Ahmad Dar; (vii) Manzoor Ahmad Dar; and (viii) the prosecutrix as Prosecution witnesses.

5. The Prosecution evidence was explained to the accused/Appellant and he was examined in terms of Section 342 of the J&K Code of Criminal Procedure, who, again, refuted the allegations levelled against him and, on his part, examined: (i) Abdul Ahad Dar; and (ii) Showkat Ahmad Rather as Defence witnesses.

6. After conclusion of the trial, the trial Court found the accused/ Appellant having committed offences punishable under Sections 366 and 376 RPC and, accordingly, convicted and sentenced him vide the impugned “Judgment of Conviction” and “Order of Sentence”.

7. The Appellant has assailed the impugned “Judgment of Conviction” and “Order of Sentence”, inter alia, on the following grounds:—

“(a) That as per the allegations levelled in the challan, the alleged accused is alleged to have forcibly abducted the prosecutrix on 09.11.2001 and the FIR in this behalf has been lodged in the concerned police station on 15.11.2001 i.e. after about six days of the alleged occurrence. This long delay of six days has not been explained by the prosecution, as such, was fatal to the prosecution in view of the various authoritative pronouncements of the Apex Court and other courts of the Country. This vital aspect of the matter though vehemently canvassed before the trial court, but the trial court was not considered, which renders the impugned judgments as bad in law and liable to be set aside;

(b) That the case of the prosecution is that the accused has abducted and raped the prosecutrix. The prosecutrix whi