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In The High Court of Jammu and Kashmir and Ladakh at Srinagar
M.A. Chowdhary, J.
Ishfaq Ahmad Khan – Appellant
Versus
State of J&K and Others – Respondent
Crl.A.(S) No.8/2019 Crl.M.No.914/2019
Decided on : 5-7-2022
(A) Ranbir Penal Code, 1989 – Section 372(2)(i) – Rape – Prosecutrix was stated to be child, whose statement is, otherwise, to be taken into account with all circumspection to rule out as to whether child had not been deposed having been tutored – It cannot be possible that child of age of only 9 years, who even had not reached age of menarche could be ravished three times repeatedly without any pain, protest or resistance which may not have been noticed by other persons sleeping in same room – Repeated sexual activity on such a person of tender age cannot be possible without any injury in vaginal /genital area – Statement of prosecutrix was not trustworthy – Prosecutrix, who was child, may have been tutored to make statement for implicating appellant falsely, who was stated to have some dispute with regard to some payments – Charge against appellant has not been proved beyond any shadow of reasonable doubt – Accused acquitted.. (Paras 21, 26, 27, 28, 33 and 34)
(B) Indian Evidence Act, 1872 – Section 118 – Child witness – Whether child is tutored or not can be deduced from contents of her statement – Statement of child witness had to be considered with all circumspection to rule out child being tutored for false implication of some person – Testimony of such a witness must be scrutinised to ensure that it was not given under duress or undue influence and that it must also corroborate other evidence – Main concern is inclination of child witness to be tutored by some other party who has an interest in the matter and which hampers the testimony.(Paras 24 and 29)
Judgment :
Appellant herein feeling aggrieved of the judgment and order dated 30.07.2019 passed by learned Additional Sessions Judge, Anantnag in the case No.76/ASJ, whereby he has been convicted for the commission of offence punishable under Section 376(2)(i) RPC and sentenced to rigorous imprisonment for ten years and a fine of Rs.50,000/-, and in default of payment of fine, to undergo further imprisonment for a period of six months.
2. The judgment and order impugned have been assailed on the ground that the appellant had been falsely implicated in the case by the father of the prosecutrix for dispute over some payments between them; that the trial court has relied upon the statement of prosecutrix, though her statement did not inspire confidence to base conviction; that the prosecution had examined most of the witnesses from the family of the prosecutrix only, and their statements are of no corroboration with that of the statement of prosecutrix; that the evidence of medical examination suggested that there was no evidence of fresh sexual intercourse when the prosecutrix was examined on 07.01.2017 though she was alleged to have sexually ravished during previous night and also there was absence of spermatozoa which remains alive within 72 hours of the incident.
3. The factual matrix of the case is that one Azad Ali Khan S/O Gul Ali Khan R/O Gulistan Mohalla Kehribal lodged a written report at the Police Station, Mattan on 07.01.2017 alleging therein that during the intervening night of 6th-7th January, 2017, appellant came to his house and after having dinner stayed there, and that during night he forcibly raped his daughter who was aged about nine years only. On the basis of this report, a case was registered vide FIR No. 03/2017 for the commission of offence punishable under Section 376 RPC, and the investigation was set in motion. After recording the statement of witnesses and conducting the medical examination of the victim, the investigation was concluded for the commission of offence punishable under Section 376 RPC against the appellant.
4. On completion of the investigation, charge-sheet was laid against the accused-appellant before the court of learned Chief Judicial Magistrate Anantnag who, vide his order dated 14.03.2017, committed the case to the Sessions Court Anantnag, wherefrom the case was assigned for disposal under law to the Fast Track Court for trial of rape cases (Additional Sessions Court) Anantnag. The appellant was charge sheeted by the trial court on 03.05.2017, who while pleading innocence, denied the charge and claimed trial.
5. Prosecution, in order to bring home the charge against the appellant, examined 10 out of 11 listed prosecution witnesses, whereas the defence had admitted the statement of PW-7 Dr. Tariq Ahmad recorded in terms of Section 161 Cr.P.C. The appellant was examined in terms of Section 342, Cr.P.C., disclosing him the incriminating evidence on 17.07.2018, who again while pleading innocence, denied the prosecution version and besides himself as his own witness, examined two other witnesses in his defence. The trial court vide impugned judgment and order, held the appellant guilty, recorded conviction for the commission of offence punishable under Section 376 (2)(i) RPC and sentenced him to undergo rigorous imprisonment for 10 years and a fine of Rs.50,000/- and in default of payment of fine to undergo further imprisonment for a period of six months.
6. Heard learned counsel for both the sides, perused trial court record and considered.
7. Learned counsel for the appellant argued that this is a case where the appellant for some payment due to him from the complainant, was falsely implicated and that the minor daughter of the complainant was used to settle the scores with the appellant by involving him in the commission of such heinous offence. He has further argued that having examined the statement of prosecution witnesses recorded by the court below, it is clear that no witness other t
: Statement of child witness had to be considered with all circumspection to rule out child being tutored for false implication of some person.
The main legal point established in the judgment is the importance of prompt reporting, medical evidence, and the credibility of the prosecutrix and her family in cases of sexual assault involving me....
The need for trustworthy and corroborating evidence in cases of sexual offenses, especially when the victim is a minor.
Hon’ble Supreme Court has held that in the cases where there are serious doubts regarding the sexual intercourse, the benefit of doubt has been provided upon the accused.
The need for unassailable evidence, especially in cases of sexual offenses, and the potential for false allegations.
The testimony of the victim of sexual assault is vital and can be relied upon without corroboration, and delay in lodging a complaint does not necessarily indicate falsehood.
The testimony of the victim of sexual assault is vital and more reliable than that of an injured witness. Conviction can be founded on the testimony of the prosecutrix alone unless there are compelli....
Offence of Rape - Conviction Upheld - Reliability of statement of prosecutrix/victim - Statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration - Court may ....
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