“Attempted Act” & “Completed Act” Of Sexual Intercourse Not An Insignificant Detail: J&K&L High Court Acquits Man In Rape Case
The Jammu & Kashmir and Ladakh High Court has acquitted a man convicted of rape, observing that the material variation between the earliest version of the occurrence as an “attempt” and the subsequent prosecution case of a completed act went to the root of the case and, when considered cumulatively with the limitations of the medical evidence and other inconsistencies, created reasonable doubt.
Justice Sanjay Parihar was hearing an appeal filed by Mohammad Ashraf Ganie against the judgment of conviction passed by the Additional Sessions Judge (Fast Track), Budgam. The appellant had been convicted under Sections 376, 450 and 506 of the Ranbir Penal Code (RPC).
The prosecution case was that on July 15, 2007, the prosecutrix was alone at her home when the appellant allegedly entered the house, bolted the door, gagged her and threatened her before committing rape. The FIR was registered on July 16, 2007.
However, the High Court noted that the earliest version of the occurrence, including the statements of the material witnesses recorded during investigation, referred to an “attempt” to commit rape. It was only after the medical opinion was received that Section 511 RPC was dropped and the case proceeded on the basis of a completed offence under Section 376 RPC, with Sections 450 and 506 RPC also added.
The Court observed,
“The distinction between an attempted act and a completed act of sexual intercourse is not an insignificant matter of detail. It goes to the nature of the principal offence itself.”
The Court acknowledged that the prosecutrix had explained the discrepancy by stating that a girl in such circumstances may not be able to clearly disclose the incident to police. It held, however, that such an explanation had to be tested against the remaining evidence to determine whether the subsequent version was established beyond reasonable doubt.
The Court attached significance to the medical evidence, particularly because it was relied upon by the investigating agency while altering the nature of the case. It noted that the medical officer found no marks of violence but opined that sexual intercourse had taken place, however, she could not state when the intercourse had occurred. The Court thus held,
“The medical opinion establishes, at its highest, that the prosecutrix had experienced sexual intercourse. It does not establish when that intercourse took place, whether it occurred on 15.07.2007, or whether the appellant was the person involved.”
The Court further made it clear that medical evidence by itself could neither establish consent nor non-consent. The absence of injuries could not, by itself, discredit an allegation of rape; equally, a finding of sexual intercourse without establishing its timing or identity could not prove that the particular act alleged against the appellant had occurred, the court underscored.
The Court also held that the appellant's medical examination, which showed that he was capable of performing intercourse, could not establish that he had committed the particular act alleged against him.
The Court additionally noticed uncertainty concerning the timing of the prosecutrix's medical examination. Since the medical examination was relied upon to support the subsequent case of completed rape, that uncertainty assumed evidentiary significance.
The appellant had claimed that he was in Srinagar on the date of occurrence and relied upon an alibi. The Court found that the alibi had not been satisfactorily established, particularly as the person whom the appellant himself described as the best witness to establish his presence in Srinagar was never examined.
But the Court held that failure of the alibi could not strengthen an otherwise deficient prosecution case. “The prosecution must succeed on the strength of its own evidence and not upon the weakness of the defence”, the court opined.
The Court further observed,
“A weakness in the defence cannot supply a deficiency in the prosecution case.”
The High Court stressed that minor discrepancies, absence of injuries or lack of an independent eyewitness could not, individually, justify rejection of the prosecution case. What mattered was their cumulative effect, particularly when considered alongside the material alteration from an alleged attempt to a completed act, the uncertainty surrounding the medical examination and the absence of forensic material connecting the appellant with the occurrence.
The Court ultimately concluded that the prosecution had failed to establish the charges beyond reasonable doubt. It added that where two reasonably possible views emerge from the evidence, the view favourable to the accused must prevail, observing that “the benefit of doubt is not a matter of grace but a necessary consequence of the prosecution's failure to cross the required threshold of proof.”
Accordingly, the Court allowed the appeal, set aside the conviction and sentence under Sections 376, 450 and 506 RPC, and acquitted the accused by extending to him the benefit of doubt.
Case Title: Mohammad Ashraf Ganie v. Union Territory of Jammu & Kashmir
Citation: 2026 LiveLaw (JKL) 326