Proof Of Occurrence Crucial, Victim's Minority Cannot Rescue Doubtful Prosecution: J&K&L High Court Acquits Gang Rape Accused

While reiterating that consent of a minor is legally irrelevant in a rape prosecution, the Court cautioned that such a legal position comes into play only after the occurrence itself is firmly established. Justice Mohammad Yousuf Wani made these crucial observations while allowing a criminal appeal and setting aside a conviction for gang rape recorded by the Sessions Court, Udhampur .

Background:

The case arose out of FIR registered at Police Station Udhampur in 2005, alleging that the prosecutrix, a student of Class 8th, had been subjected to sexual assault. According to the prosecution, the victim had travelled to Udhampur town to meet her sister and was returning home in the evening when she alighted from a matador. It was alleged that she was taken to a secluded place and raped by the accused. After investigation, a charge-sheet was filed for offences under Sections 376(2)(g), 342 read with 34 RPC.

The Sessions Court, Udhampur, convicted both accused and sentenced them to ten years rigorous imprisonment for gang rape along with ancillary punishment. During the pendency of the appeal before the High Court, one of the convicts died and the appeal abated as against him, leaving the Court to examine the case of the surviving appellant.

The conviction was assailed on multiple grounds, including an unexplained delay of about eleven days in lodging the FIR, material contradictions in the statements of the prosecutrix recorded at different stages, inconsistency between medical evidence and the prosecution story, non-examination of investigating officers, failure to conclusively prove the age of the prosecutrix through primary school records, and the absence of scientific corroboration. It was also pointed out that despite allegedly knowing one of the accused, the prosecutrix did not name him either in the FIR or in her statement under Section 161 CrPC.

The State defended the judgment of conviction by asserting that delay in lodging FIRs in sexual offence cases is not unusual due to social stigma, that minor inconsistencies are natural, and that conviction can be based on the sole testimony of the prosecutrix, especially when she was a minor whose consent was immaterial in law. It was argued that the trial court had correctly appreciated the evidence on record.

Court's Appreciation of Evidence:

After a detailed re-appraisal of the entire evidence, Justice Wani found serious and fundamental infirmities in the prosecution case. The Court noted that the delay of eleven days in lodging the FIR was not satisfactorily explained by the prosecution. The prosecutrix herself gave varying explanations during trial as to when and why the complaint was lodged, leading the Court to observe that such unexplained delay lends itself to embellishment and afterthought. The Court reiterated that an FIR is a substantive piece of evidence and assumes importance as the earliest version of the occurrence.

The Court then turned to the contradictions in the prosecutrix's statements, observing that her versions in the FIR, during investigation, and at trial were inconsistent on material particulars. Of particular significance was the fact that although she claimed during trial that the deceased accused was known to her and had also raped her, his name did not find mention either in the FIR or in her Section 161 statement.

“… The non-mentioning of the name of the said accused No.1 (deceased) in the earlier statements by the prosecutrix raises a reasonable doubt as to the genuineness of the prosecution version of the case”,the court remarked.

Examining the medical evidence, the High Court found that it did not support the prosecution version of forcible sexual assault. The medical expert categorically stated that there were no marks of violence on the body of the prosecutrix except a minor bruise, that no spermatozoa were detected, and that sexual intercourse within a week of examination was unlikely.

“… It was inter-alia deposed by the prosecutrix at the trial that she was forcibly subjected to sexual assault which does not appear to have proved in the light of the medical evidence. So there occurs an inconsistency between her statements and the medical opinion”, the court recorded.

The non-examination of investigating officers was viewed as a serious lapse. Justice Wani emphasised that investigating officers are crucial witnesses for unfolding the prosecution story and for ensuring fairness of investigation. Their deliberate non-examination, the Court held, justified drawing an adverse inference against the prosecution.

On the issue of age of the prosecutrix, the Court found that the prosecution failed to produce the best evidence. The witness who issued the date of birth certificate admitted that the original record lay with the primary school where the prosecutrix had initially studied and that there were cuttings in the admission register. In the absence of primary records, the Court held that the minority was not conclusively proved.

While reiterating the settled principle that conviction can be based on the sole testimony of a rape victim, the High Court stressed that such testimony must be of “sterling quality” and added that where the evidence of the prosecutrix is riddled with contradictions and lacks corroboration from medical and circumstantial evidence, it cannot be treated as sterling or wholly reliable.

Minority Cannot Cure Failure to Prove Occurrence

In what forms the core of the judgment, the High Court categorically observed,

“Where prosecution fails to prove the foundational facts of its case and the alleged occurrence becomes doubtful, the minority of the alleged victim cannot be pleaded as a support. Admittedly, the consent of minor victim is immaterial in respect of the prosecution for the offence of rape but the establishment of the occurrence through clear and un-contradictory evidence is the prior legal requirement for pleading such legal issue to nullify the consent even if given.”

The Court made it clear that statutory presumptions or legal doctrines relating to consent cannot substitute the prosecution's primary burden of proving that the crime actually occurred.

Holding that the trial court had failed to properly appreciate the evidence on record, the High Court allowed the appeal, setting aside the judgment of conviction.

Case Title: Sanjay Kumar & Anr Vs State of J&K

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