Altering a conviction under Section 376 RPC to one under Section 376 read with Section 511 RPC, the Court held that while the evidence established a determined attempt to commit rape, the prosecution had failed to prove the ingredient of penetration beyond reasonable doubt.

A Bench of Justice Sanjay Parihar upon scrutinizing the evidence on record observed,

"This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth."

In the instant case and according to the prosecution, the victim had gone to a field for irrigation purposes when the appellant allegedly took her to a nearby forest area and subjected her to forcible sexual intercourse. The prosecution case was that the victim's mother reached the spot after hearing cries and allegedly found the appellant over the victim, following which he fled from the scene.

An FIR came to be registered under Section 376 RPC. During the investigation, the victim was medically examined. The medical examination recorded injuries on her nose, chest and thigh, besides a laceration on the perineum. However, the hymen was found intact and the medical report recorded that the introitus admitted only a little finger with difficulty. No semen could be detected as the victim had changed her clothes and taken a bath before medical examination.

After completion of investigation, a charge-sheet was filed and the appellant was tried for the offence under Section 376 RPC. The trial court held that the testimony of the victim stood corroborated by the medical evidence and convicted the appellant for rape. Aggrieved, the accused appealed before the High Court.

Court's Observations:

The Court examined the evidence in the light of the principles laid down by the Supreme Court regarding appreciation of prosecutrix testimony in rape cases. Referring to the governing legal position, the Court reiterated that the testimony of a prosecutrix stands on a higher footing than that of an ordinary witness but is nevertheless required to be tested on the touchstone of credibility and surrounding circumstances.

The Bench noted that the prosecution case underwent variations at different stages. While the victim stated that she had been dragged from the field to the forest area, the Court found that the medical evidence did not support that assertion. The medical expert had not noticed injuries ordinarily expected if a person had been forcibly dragged over a considerable distance while resisting throughout.

The Court further found that the prosecution version regarding the torn pyjama also raised concerns. It noted that the victim admitted having washed the garment before it was seized by the police. The Court observed that if the pyjama had indeed been torn during the commission of the offence, it would ordinarily have remained in the same condition and not have been washed before seizure.

The Bench then turned to the medical evidence, which it considered crucial in the facts of the case. The Court observed,

"Although the victim alleged that she was subjected to rape, the medical opinion does not support the allegation of penetrative sexual assault." It noted that the medical expert had categorically found the hymen intact and recorded that the introitus admitted only a little finger with difficulty. According to the Court, these findings substantially weakened the allegation of penetrative sexual intercourse.

The Court clarified that an intact hymen by itself is not conclusive proof that rape did not occur. However, in the present case, the absence of any clinical evidence suggestive of penetration assumed significance because the prosecution case rested upon an allegation of completed rape. The Court observed that in such circumstances the allegation had to be assessed in the light of the remaining evidence on record.

The Bench also noted that the medical examination revealed injuries on the victim's body indicating that some form of struggle had taken place. However, the medical expert had specifically opined that those injuries were not consistent with the allegation that the victim had been dragged from the field to the place of occurrence. Consequently, the Court held that an important component of the prosecution narrative remained uncorroborated.

The Court further observed,

"... The Court is conscious of the fact that there is no suggestion of prior animosity between the victim and the appellant which would readily explain a false implication. Equally, the defence has not been able to establish any convincing motive on the part of the victim to falsely implicate the appellant. Nevertheless, the Court cannot overlook the inconsistencies and infirmities emerging from the prosecution evidence."

Another circumstance which weighed with the Court was the testimony of the Investigating Officer. The Court noted that during investigation the appellant had initially been found liable for an offence under Section 376 read with Section 511 RPC and that no substantial additional evidence emerged thereafter to justify alteration of that opinion into one supporting a charge of completed rape.

Upon an overall assessment of the evidence, the Court concluded that although the prosecution had failed to establish penetration beyond reasonable doubt, the evidence unmistakably demonstrated that the appellant had attempted to commit rape. The Court observed that the injuries on the victim, the circumstances spoken to by the witnesses and the conduct attributed to the appellant clearly established an attempt falling within the ambit of Section 511 RPC. The Court held,

"Though the prosecution has failed to establish the commission of rape beyond reasonable doubt, unmistakably demonstrates that the appellant had made a determined attempt to commit the offence."

It added,

“… the evidence on record clearly establishes that the appellant had disrobed himself, torn the victim's pyjama and subjected her to a sexual assault by pressing his genital organ between her thighs, culminating in ejaculation. Such conduct unmistakably demonstrates his intention to commit rape, though the allegation of actual penetrative sexual assault remains unproved in view of the medical evidence on record”

Accordingly, the Court altered the conviction from Section 376 RPC to Section 376 read with Section 511 RPC. The appeal was disposed of accordingly.

Case Title: Showkat Ahmad Seer v. Union Territory of J&K Through Police Station Qalamabad

Citation: 2026 LiveLaw (JKL)

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