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The High Court of Jammu & Kashmir and Ladakh at Srinagar has held that the absence of spermatozoa in a medical examination conducted after a delay of 72 hours does not falsify the testimony of a rape victim, as such absence is natural given the time gap.

The Court further held that the non-rupture of the hymen or the absence of injuries on private parts does not invalidate the testimony of a victim of sexual assault if her evidence inspires confidence, particularly when there is no material to suggest false implication.

The Court was hearing appeals challenging the judgment of conviction and order of sentence passed by the Principal Sessions Judge, Reasi, in a case arising out of an FIR registered under Sections 363, 376 and 109 of the Ranbir Penal Code.

The trial court had convicted the appellants for kidnapping and raping a minor girl, which was challenged on the grounds of contradictory statements, lack of medical evidence, delay in lodging the FIR, and improper seizure of clothes.

The appeal was heard by Justice Rajnesh Oswal, who observed,

“It was also urged by learned counsel for the appellants that the medical evidence has not supported the evidence of victim. The incident took place on 16.11.2014, whereas the victim was examined by Medical Officer on 19.11.2014 and absence of spermatozoa after 72 hours is but natural.”

Background

It was in 2014, the complainant, father of the victim, submitted a written application with the Station House Officer, stating that on 16.11.2014, his 11-year-old daughter had gone to the fields to gather leaves for goats but did not return. Upon searching, he found her lying unconscious in the bushes with blood-stained clothes.

The victim narrated that three accused persons had taken her into the bushes, where two of them committed rape upon her. FIR No. 89/2014 was registered, and after investigation, a charge sheet was filed.

The trial court convicted appellants Rakesh Singh and Sanjeev Sharma for offences under Sections 376 and 363 RPC, and appellant Rashpal Sharma for offences under Sections 363 and 109 RPC. Aggrieved, the appellants approached the High Court.

The counsel for the appellants contended that the medical examination of the victim did not establish the commission of rape, as no spermatozoa was found and the hymen was intact. It was further argued that the FIR was lodged belatedly, after a delay of four days, which cast doubt on the prosecution story.

It was also contended that the clothes worn by the victim were not proved to have been seized by the Investigating Officer, and that the witnesses had made material improvements in their statements before the court. Per contra, the Government Advocate argued that the trial court rightly appreciated the evidence of the victim and that there was no illegality in the impugned judgment.

Court's Observation

The Court observed that the incident took place on 16.11.2014, whereas the victim was examined by the Medical Officer on 19.11.2014.

The Court noted that the absence of spermatozoa after 72 hours is but natural, relying on the judgment of the Hon'ble Supreme Court in Wahid Khan v. State of M.P. (2010), wherein it was observed that to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen.

The Court further addressed the contention regarding the non-rupture of the hymen, holding,

“Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutor particularly when we find that in the cross- examination of the prosecutor, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake.”

Regarding the delay in lodging the FIR, the Court relied on the judgment of the Hon'ble Supreme Court in State of Punjab v. Gurmit Singh (1996), which held,

“The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.”

The Court noted that the victim was found in an unconscious state in the bushes and was taken to the hospital, which adequately explained the delay of four days in approaching the police.

On the seizure of clothes, the Court observed that although the marginal witnesses to the seizure memos were not examined by the prosecutor regarding the seizure, the testimony of the Investigating Officer, who proved the seizure memos, remained unchallenged during cross-examination.

The Court relied on Mallikarjun v. State of Karnataka (2019) to hold that the evidence of the investigating officer can be relied upon to prove recovery even when panch witnesses turn hostile. The Court further noted that the FSL report established the presence of spermatozoa and blood stains on the victim's trouser, which could not be explained away by the defence.

The Court thus dismissed the appeals preferred by appellants Rakesh Singh and Sanjeev Sharma, upholding their conviction and sentence. The appeal preferred by appellant Rashpal Sharma was allowed, and his conviction and sentence were set aside, as the victim had not made any incriminating statement against him.


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