The court upheld the conviction for attempted rape based on the victim's testimony, corroborated by a witness and medical evidence, despite challenges regarding contradictions and lack of penetration.

JUDGMENT :

Sanjay Dhar, J.

1. The appellant has challenged judgment dated 22.02.2024 passed by learned Additional Sessions Judge(P.O. Fast Track Court), Kulgam, (hereinafter referred to as “the trial court”) whereby the appellant has been convicted of offences under Section 376 read with Section 511 RPC . Challenge has also been thrown to order dated 22.02.2024, whereby the appellant has been sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.10,000/ for having committed the aforesaid offences. In default of payment of fine, he has been directed to undergo rigorous imprisonment for a further period of six months.

2. As per prosecution case, on 06.07.2012, PW Mushtaq Ahmad Ganie, father of the victim girl, lodged a written report with the Police alleging therein that on the said day in the evening, while his minor daughter was playing with other children in the house of PW Rafiq Parray, the appellant herein caught hold of her and forcibly committed rape upon her after ousting other children therefrom. It was alleged that the appellant/accused is 25 years old. As per the report, the victim girl raised hue and cry, whereafter the appellant fled away from the spot. The victim girl was left unconscious in the room and the other children upon hearing the noise entered the room. It was further alleged that the complainant was not present in his house at the relevant time and when his wife and elder son went to the house of the appellant, they were attacked by the family members of the appellant and his son was beaten up. It was further stated in the report that the appellant has absconded whereas the victim girl is undergoing treatment.

3. on the basis of aforesaid report (EXPW-1), the police registered FIR No.111 of 2012 for offences under Section 376 , 511 of RPC and started investigation of the case, which was entrusted to PW Head Constable Mukhtar Ahmad of P/S Kulgam. During the course investigation, the victim girl was subjected to medical examination. Her date of birth certificate was obtained from the concerned school, the statements of the witnesses under Section 161 of Cr. P. C and the statement of the victim girl under Section 164-A of J&K Cr. P. C were recorded. Potency test of the appellant was also conducted. After undertaking investigation of the case, offences under Section 376 and 511 RPC were found established against the appellant/accused and the charge sheet was laid before the Chief Judicial Magistrate, Kulgam, whereafter the same was committed to the trial court.

4. The learned trial court, vide its order dated 28.09.2012, framed charges for offences under Section 376 and 511 RPC against the accused, to which he pleaded not guilty and claimed to be tried. Accordingly, the prosecution was directed to lead evidence in support of the charges. The prosecution examined all the eleven witnesses cited in the challan. After completion of prosecution evidence, statement of the appellant/accused in terms of Section 342 of the J&K Cr. P. C was recorded by the trial court on 20.04.2017, in which he termed the case of the prosecution as false and stated that the prosecution witnesses are biased against him. The appellant/accused, however, did not lead any evidence in defence. The learned trial court, after hearing the parties and after appreciation of the evidence on record, came to the conclusion that the charge framed against the appellant stand established beyond any reasonable doubt and, accordingly, in terms of the impugned judgment, he has been convicted of offences under Section 376 and 511 of RPC .

5. The appellant has challenged the impugned judgment of conviction and the order of sentence on the grounds that the same are based upon wrong appreciation of evidence on record. It has been contended that the victim while making her statement before the trial court has not supported the prosecution case but the learned trial court has relied upon the uncorroborated testimony of PW-5, Showkata Jan,