SANJEEV SHARMA AND OTHERS vs UT OF J AND K TH SHO PS ARNAS

IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT JAMMU
Reserved on: 29.08.2026
Pronounced on: 31.10.2026
Uploaded on: 31.10.2026
Whether the operative part
or full judgment is
pronounced: Full
CrlA (S) No.10/2022

1. Sanjeev Sharma alias Sanju, age: 29 years
S/o Tilak Raj
2. Rashpal Sharma, age: 38 years
S/o Nanak Chand
3. Rakesh Singh, age:30 years
S/o Kartar Singh
All residents of Village Kanthan Tehsil Mahore District Reasi.
... APPELLANT(S)
Through: - Mr. G. S. Thakur, Advocate,
Mr. Ajay Singh Kotwal, Advocate.
Vs.
Union Territory of Jammu and Kashmir
Through Station House Officer,
Police Station, Arnas.
…RESPONDENT(S)
Through: - Mr. Sumeet Bhatia, GA.
CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1)
This appeal is directed against the judgment of
th
conviction dated 30 July, 2022, passed by the learned
Principal Sessions Judge, Reasi (for short “he trial court”) in
the challan titled “ State vs. Rakesh Singh and others ”,
arising out of FIR No.89/2014 under Sections 363, 376 and
109 RPC registered with Police Station, Arnas, whereby the
CrlA(S) No.10/2022 Page 1 of 69

appellants have been convicted for commission of offences
under Sections 363 and 376 RPC. The appellants have also
th
assailed the order of sentence dated 30 July, 2022,
whereby they have been sentenced to rigorous imprisonment
for a period of ten years and fine of Rs.10,000/- for
commission of the offence under Section 376 of RPC,
rigorous imprisonment for a period of six months and fine of
Rs.500/- for commission of the offence under Section 363 of
RPC, and in default of payment of fine, the appellants have
been directed to undergo further imprisonment for a period
of three months.
Grounds of Challenge:
2) The appellants have assailed the judgment of
conviction and order of sentence on the grounds that the
victim had made contradictory statement before the learned
trial court vis-à-vis the statement recorded under Section
164-A of Cr.P.C, as in her statement before the learned trial
court, she had stated the place of occurrence as a
jungle/nallah, whereas in the statement recorded under
Section 164-A Cr.P.C., she had stated the roof of the house
as the place of occurrence. It is also urged that the medical
examination of the victim did not establish the commission
of rape and further that the FIR was lodged belatedly, after
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a delay of four days. It is also contended by the appellants
that the learned trial court has not complied with the
mandate of Section 119 of the Evidence Act and in the
absence of mandatory compliance with the provisions of
Section 119 of the Evidence Act, the statement of the victim
could not have been relied upon by the learned trial court to
convict the appellants.
Submissions:
3) Mr. G. S. Thakur, learned counsel appearing for
appellant Nos.1 and 3, has laid much stress that the learned
trial court has not complied with the mandate of Section 119
of the Evidence Act. He further submits that, at one stage of
the proceedings before the learned trial court, the
prosecution itself moved an application for re-examination
of the victim and the interpreter PW Roshan Bhan, thereby
admitting that there was an irregularity in recording
statement of the victim on account of her being a ‘deaf and
dumb witness’, as such, the conviction of the appellants
cannot be sustained. Learned counsel further contends the
medical evidence doesn’t corroborate the statement of the
victim with regard to commission of offence of rape and even
the apparels worn by the victim have not been proved to have
been seized by the Investigating Officer, which further
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creates doubt about the prosecution story, notwithstanding
the fact that the FSL report reveals that there were stains of
blood and semen on the trouser sent for forensic
examination. Learned counsel has vehemently argued that
in the statement of the victim recorded under Section 164-A
Cr.P.C., the place of occurrence was shown to be the roof of
the house, whereas in her statement before the learned trial
court, an altogether new place of occurrence has been stated
by the victim, as such, the appellants could not have been
convicted on the basis of the solitary statement of the victim.
He has relied upon the judgments of the Hon’ble Apex Court
in “ Ram Singh Vs. The State of Himachal Pradesh”,
2026INSC 330 , “ Munna Pandey Vs. State of Bihar”, AIR
2023 SC 788 and “ Dola and Anr. Vs. State of Odisha”,
(2018) 18 SCC 695 and Division bench of this court in
“State of J&K Vs. Ramesh Chander”, 2017(6) JKJ
206(HC) .
4) Mr. Ajay Kotwal, learned counsel appearing for
appellant Rashpal, has submitted that there is absolutely no
evidence against appellant-Rashpal, as such, he could not
have been convicted by the learned trial court.
5) Per contra , Mr. Sumeet Bhatia, learned Government
Advocate, appearing for the respondent, has argued that the
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learned trial court has rightly appreciated the evidence of the
victim and, as such, there is no illegality in the impugned
judgment of conviction. He has vehemently argued that as
per report of ENT Specialist, Govt. Hospital Sarwal, the
victim was having difficulty in speech. Learned Government
Advocate has also placed reliance upon the examination
report of Audiologist & Speech Pathologist of ASCOMS
Hospital, Batra, Sidhra, to submit that the victim was not
dysphonic.
6) Heard and perused the record.
Prosecution Case:

7) The facts necessary for the disposal of the present
th
appeal are that on 18 November, 2014, at 1500 hours, PW-
1, the complainant-father of the victim, submitted a written
application with SHO, Police Station, Arnas, stating therein
th
that on 16 November, 2014, he, along with his wife, had
gone to purchase household goods and, on returning home
at about 5:00 p.m., his family members informed him that
his 11-year-old daughter had gone to the fields to gather
leaves for the goats, but did not return home. He, along with
family members, went into the jungle to search for his
daughter. When they reached in the jungle, they heard
someone talking. When he called out his daughter's name,
CrlA(S) No.10/2022 Page 5 of 69

he saw the accused persons, Rakesh Singh, Sanjeev Kumar,
and Rashpal, running away. When he went towards the
bushes, he found that his daughter was lying there in an
unconscious condition and her clothes were blood-stained.
He and his family members took his daughter to his home,
where she regained consciousness and narrated that all the
three accused persons, finding her alone, came towards her.
One of them, who was wearing a black jacket, took her on
his shoulders and carried her towards the jungle. When she
raised a hue and cry, one of the other two accused caught
hold of her legs while the other covered her mouth, and they
took her towards the bushes. The accused who was wearing
the black jacket raped her, whereas the other two accused
caught hold of her. She became unconscious and did not
know as to what happened thereafter. The complainant
further stated that when he saw the three accused running
away, accused Rakesh Singh was wearing a black jacket. He
stated that, as the occurrence had taken place in a remote
area, as such, he could not reach the police station and
inform the police immediately.
8) On receipt of the aforesaid report/application, FIR
th
No.89 of 2014 was registered on 18 November, 2014, for
commission of offences under Section 376 and 109 RPC.
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During investigation of the case, the statement of the victim
was recorded before the learned Magistrate under Section
164-A of Cr.P.C. The victim was medically examined by the
Medical Officer. Her clothes were also seized and sent to the
FSL for chemical examination. The trouser/shalwar
allegedly worn by the victim was found to have seminal as
well as blood stains, whereas the shirt was found to be
blood-stained. After conclusion of the investigation,
chargesheet was filed against the appellants for commission
of the offences under sections 363,376/109 R.P.C before the
th
Court of the Chief Judicial Magistrate, Reasi, on 20
February, 2015, which was thereafter committed to the
learned trial court.
9) Appellants Rakesh Singh and Sanjeev Sharma were
charged for commission of offences under Sections 376 and
th
363 RPC in terms of order dated 5 May, 2015, whereas the
appellant Rashpal Sharma was charged for commission of
offences under Sections 363/109 RPC. Out of 18 witnesses
cited by the prosecution, 13 witnesses were examined.
10) After recording the statements of the appellants under
Section 342 of the J&K Cr.P.C., the appellants were provided
an opportunity to lead evidence in their defence, but they did
not lead any defence evidence.
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11) After hearing the parties and upon appreciation of the
evidence available on record, the learned trial court
convicted and sentenced the appellants in the manner
mentioned hereinabove.
12) In order to appreciate the contentions raised by the
appellants, it is deemed appropriate to briefly summarize the
evidence led by the prosecution.
PROSECUTION EVIDENCE
a. PW-10 Romesh Bhan, (Interpreter, posted as
Principal, School for the Hearing Impaired) has
stated that he has been posted as the principal since
1995. Prior to that, he had been serving in the same
school as the headmaster since 1981. The said
school was established by the Jammu and Kashmir
Samaj Kalyan Kendra, which is a registered NGO. In
the year 1977, he received training in the education
of the deaf and dumb at Lady Noyce Secondary
School and Teacher Training College, Delhi. He
completed the said training over a period of one year.
During this training, he was imparted education and
training relating to the teaching of deaf and dumb
people. On the basis of this training, he was initially
appointed as the Headmaster of the aforesaid school,
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and thereafter, since 1995, he has been serving as
the Principal. After completing the training in the
education of the deaf and dumb, he also obtained a
diploma. By virtue of this training and diploma, he
possesses expertise in the education of the deaf and
dumb, and can communicate effectively with them,
and is capable of understanding what they say. He
stated on oath that whatever would be put to victim
by the Court, by the PP or by the ld. defence counsel,
he shall translate the same before the Court in an
impartial manner.

b. PW-2 (victim) stated that she knows the
accused present in the Court. The accused reside in
their house, in a village, which is at a distance. She
had gone to the field (Bhadi) to collect leaves for the
goats. She does not know the names of the accused.
While she was cutting leaves, someone caught hold
of her from behind. There was a man with a small
beard standing on the roof of a house, but he did
nothing. Thereafter, the accused present in the
Court, (the witness identified the accused by
pointing towards him) whose name in the challan is
recorded as Rakesh Singh and the other accused,
CrlA(S) No.10/2022 Page 9 of 69

Sanju (whom the witness has identified by holding
his hand), took her into the nala and committed a
shameful act ( sharam ki bat ) with her. After the said
shameful act, she remained lying unconscious at the
spot. Thereafter, she does not know where she was
taken or who took her. She was taken to a doctor,
but she does not know who took her there. Her
statement was recorded in the Court prior to that
day. The thumb impression affixed on her statement
recorded under Section 164-A Cr.P.C. was shown to
her, for the purpose of identification. However, she
did not furnish any satisfactory reply in this regard.
The Interpreter present in Court identified his
signatures, whereupon the same was marked as RB .
The Interpreter stated that, in his presence, the
victim had also affixed her thumb impressions on
the said statement. During Cross-examination
conducted by the learned counsel for the appellant
Rashpal Sharma , she stated that the fact mentioned
in her statement, that the accused had committed
an act of shame with her, was not disclosed by her
to her parents. She had not gone to the police
regarding the said occurrence. She did not know the
name of the boy with the small beard. The police had
CrlA(S) No.10/2022 Page 10 of 69

not come to her house. In her previous statement
recorded under Section 164-A Cr.P.C., she had also
stated before the Court that she had been taken to
the nallah where the act of shame was committed
with her. However, on perusal of the statement
recorded under Section 164-A Cr.P.C., it was found
that there was no mention of the nallah therein. This
nallah is near the field ( baadhi ) from where she was
cutting leaves. There were no residential houses
near nallah, however, there were trees and plants.
She regained consciousness on the next day after the
occurrence. She did not know whether she had gone
to a doctor or not. She had also come to the Court
along with her parents to give her statement, and no
police official was accompanying her. She has 5-6
sisters and one brother. During her cross-
examination by the learned counsel representing
the appellant Sanjeev Sharma , she stated that she
had five goats. She had gone alone to the field ( badhi )
to collect leaves for her goats. That place was far
away from her house. When she had gone to get
leaves, nobody else was accompanying her, and she
had gone alone. She did not meet anyone on the way.
The clothes worn by her on the day of occurrence
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were kept in her house at Arnas. She neither wore
those clothes thereafter nor was she wearing them
now. Those clothes were still lying in the Arnas . The
clothes were dirty and not washed. There was no
water in the nallah where the accused persons had
committed the shameful act with her. The police had
not done anything. When the shameful act was
committed with her, she had pain in her abdomen
and there was bleeding also. Except for that, she had
not sustained any other injury. The pain continued
till the next day. No bleeding had occurred from any
place other than her abdomen. Keshu and Sanju
used to talk to each other, due to which she came to
know their names. Before the occurrence, she did
not know Sanju and Keshu . Prior to the date of
occurrence, she had not seen the aforesaid accused
in her village. After the occurrence, when she
regained consciousness in the nallah , nobody was
present there. She did not know how she reached
her house. No further question was asked.
c. PW-01 (Complainant and father of the
victim) in his examination-in-chief stated that he
knows the accused present in the Court. The victim
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is his daughter. His daughter speaks a little, which
is understandable to him. He stated that on
16.11.2014, function was held at the house of his
uncle, Puran Singh, and the accused present in the
Court, namely Rakesh Singh , Rashpaul and Sanjay
Kumar , also attended that function. At about 2:00
p.m., he and his wife went to the market to purchase
some articles. At about 5:30 p.m. on the same day,
when they returned, his other children were
searching for the victim, who was missing from the
house. He inquired of his children as to since when
the victim had been missing. His children stated that
approximately forty-five minutes prior, the victim
had left for their land to collect fodder for the goats
but did not return. Thereupon, all of them started
searching for the victim. When he reached his land,
he found that three branches cut from the tree were
lying there, and a sickle was also lying. Thereafter,
they all continued searching while calling out the
victim's name. There were thick bushes beyond their
land, and the accused present in court were passing
by those bushes. When the accused saw them, they
fled from the spot. Upon seeing the accused passing
near the bushes and then running away after
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noticing him and the others, he and his family
members became suspicious as to why the accused
persons had run away. Due to suspicion, all of them
went towards the bushes, where they found the
victim was lying without clothes in the bushes.
Clothes were blood stained. He lifted the victim from
the spot and brought her home. By then it had
turned dark. The next morning, he took the victim to
the Police Station Arnas to lodge a report. Thereafter,
the police took him and the victim to the Government
Hospital, Arnas , for her treatment and medical
checkup. At the hospital, the victim was
administered injections and medicines to stop the
bleeding. When the victim recovered to some extent,
he and the police personnel asked her about the
incident. The victim told them that while she was
cutting leaves in their land, and had cut three
branches, the accused present in the Court came
there. One of the accused lifted her on his shoulder,
and when she raised an alarm, another accused
gagged her mouth and took her down into the
bushes, where they committed rape upon her. His
statement was recorded at the Police Station, before
the Court, and at the hospital. He admitted the
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contents of application and identified his signature
on the same, whereupon it was marked as EXT-P1.
He also identified his signatures on the FIR and
admitted its contents. It was marked as EXT-P1/1.
He also identified his signatures on his statement
recorded under Section 164-A Cr.P.C. marked as
EXT-P1/2. The police had taken the victim to Reasi
Hospital , where her medical examination was
conducted. During Cross examination, he stated
that he was not carrying any torch with him at that
time. It is correct that, he mentioned in his
statement under Section 164-A Cr.P.C. that, "On the
following day, when his daughter regained
consciousness, she stated that one boy wearing a
black jacket had lifted the victim on his shoulder,
while another had covered her mouth and they had
taken her into the forest and thereafter the victim
did not know what had happened." He reached Police
Station Arnas along with his daughter at about
10:00–11:00 a.m. He, along with the police officials,
took his daughter to the hospital. One SHO, the
Investigating Officer, one Head Constable ( hawaldar )
and one Constable accompanied them to District
Hospital, Arnas. He further stated that when he had
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gone to the Police Station with his daughter at about
10:00–11:00 a.m. on 17.11.2014, he had submitted
the application for registration of the FIR. The
application marked as EXPW-P1 was drafted by one
Bansi Lal, who used to write applications in Arnas
Bazaar. He, along with his daughter and the police,
reached Government Hospital, Arnas at about 12:00
noon as the girl was in a serious condition. It was
correct that the police recorded the statement of his
daughter in the hospital on 17.11.2014. His
statement was also recorded by the police at
Government Hospital, Arnas on 17.11.2014. He
admitted that part of the statement under Section
164-A Cr.P.C. wherein he had stated that, "When his
daughter regained consciousness, she stated that
one boy wearing a black jacket had lifted her on his
shoulder and another had gagged her mouth and
she was taken into the forest, and thereafter she did
not know what had happened to her," was correct;
however, he stated that the statement given by him
before the Court today was not correct. He stated
that he remained with his daughter at Government
Hospital, Arnas on 17.11.2014, and on the following
day, i.e., 18.11.2014, he, along with the police, took
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his daughter to Government Hospital, Reasi. Blood
was oozing from her urinary passage. Even when he
reached Reasi Hospital along with the police, blood
was still coming from her urinary passage. He
further stated that on 18.11.2014 he had reached
Government Hospital, Reasi with his daughter at
about 2:30 p.m. The medical examination of his
daughter at Government Hospital, Reasi took about
2–3 hours. After the medical examination of his
daughter on 18.11.2014, he did not go to Police
Station, Arnas, but instead returned home. On
25.11.2014 the police came to his house and carried
out investigation in his presence. The police
inspected the place of occurrence in his presence on
25.11.2014 and prepared the site plan. Apart from
that, no other proceedings were conducted that day.
Police had also recorded the statements of the
witnesses. Police recorded the statements of PW
Balak Ram, victim. (Member, Panchayat) Sheeda
Bakarwal, Bansi Lal, Rita Devi, Sunita Kumari and
Shani Devi in his presence on 25.11.2014. He
further stated that when his daughter was found, it
was dark and therefore she could not be taken to the
hospital at that time. After about 10–15 days, new
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SHO came on the spot for the purpose of
investigation. The new SHO also visited the place of
occurrence. During investigation, he inspected the
spot, prepared the site plan and recorded the
statements of the witnesses. Apart from that, new
SHO did not conduct any other proceedings in his
presence. He further stated that his daughter had
never told him that the wrongful act had been
committed with her inside any house. She was found
in the forest. He has four daughters, and none of
them has ever instituted any case against any
person. His daughter regained consciousness on
17.11.2014, and throughout the previous night she
had remained unconscious at home. He denied the
suggestion that any of his daughters had filed any
proceedings against any local resident before the
Court at Reasi.
d. PW-03 (Mother of the victim) has stated that
she knows the accused present in Court, who are
residents of her area. Accused Sanjeev is a resident
of Kori village. Accused Rakesh and Rashpal are
residents of Surangi, which is at distance of 4-5
kilometers from her village. Victim is her daughter,
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whose age is about 11 years. She (her daughter)
cannot see with one eye and is dumb. The incident
th th
took place on the 6 day of the 11 month of the
previous year. The function was arranged on the
birth of grandson of Puran Singh. The accused
present in Court had come there at about 11:00 a.m.
to take food. House of Puran Singh is adjacent to her
house, at a distance of 2-3 jareeb . She had seen the
accused from her house taking food at the house of
Puran Singh. Thereafter, she and her husband went
to the shop of Ghulam Rasool Sarpanch , situated at
Judda. They had gone there to purchase household
articles and returned at about 4:00/5:00 p.m. She
(the witness) has four daughters and two sons. On
reaching home, they asked the children about the
victim. They stated that she had gone to baadi to cut
leaves for the goat. They called out for victim, but
there was no sign of her. Thereafter, they went out
in search of her. When they were passing through
their vegetable baadi , they saw three cut branches
of a tree lying on the ground and a cleaver ( paathi )
was also lying there. They thought that she might
have fallen somewhere, and went a little distance
towards the lower side, where they saw the accused
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running away from the bushes. They became
suspicious as to why the accused were running away
after seeing them. Thereafter, she and others
reached the spot wherefrom the accused had fled
and found the victim lying unconscious. She was
lying completely naked, her clothes were stained
with blood, and blood was also scattered on her legs.
Thereafter, she and her daughters went near the
victim and put clothes on her. Later her husband
and son also came to the spot. Thereafter, the victim
was lifted from the spot in an unconscious condition
and brought home. By that time, it turned dark and
therefore the next early morning, they went to Police
Station Arnas and lodged a report, and from there
the police personnel accompanied them and took the
victim to Arnas Hospital. The victim was treated at
hospital, and she regained consciousness at about
10:00-10:30 a.m. Thereafter they asked her as to
what had happened to her, where upon, she stated
that she had gone to bhadi to cut leaves and had cut
three branches, and her cleaver ( paathi ) had fallen
on the ground. When she came down to the ground,
the accused came there. Rakesh Singh lifted her on
his shoulder and when she raised alarm, accused
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Sanjeev closed her mouth. They took her down to a
distance into the bushes and accused Keshu
committed sexual assault upon her, whose name
was Rakesh Singh. The other accused Sanju also
committed sexual assault upon her. She stated that
her statement was recorded by the police. The police
had come to her village. The police inspected the spot
and prepared the site plan at the spot itself. She did
not remember any other proceedings. During cross-
examination , she deposed that she had also stated
in her statement before the police that on the day of
occurrence, a function had been organized at the
house of Puran Singh in connection with the birth of
his grandson, whereas the same has not been
recorded in her statement under Section 161 Cr.P.C.
She had also stated in her statement under Section
161 Cr.P.C. before the police, that she had gone with
her husband to purchase household articles at
about 1:30/2:00 p.m., whereas the time of 1:30 p.m.
has not been mentioned in her statement under
Section 161 Cr.P.C. She had stated the time of
reaching home from the shop as about 4:00 p.m.,
whereas no such time has been mentioned in her
statement under Section 161 Cr.P.C. She had stated
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the name of Ghulam Rasool's shop in her statement
to the police, whereas his name has not been
mentioned in the statement under Section 161
Cr.P.C. She had also deposed, in her statement
under Section 161 Cr.P.C. that when they reached
near the place of occurrence in search of the victim,
the accused looked towards them for five minutes
and thereafter ran away, whereas there is no
mention of this fact in her statement under Section
161 Cr.P.C. She had also deposed, in her statement
under Section 161 Cr.P.C. that they had seen the girl
at the spot drenched in blood and there was also
blood on her legs, whereas there is no mention of
blood-stained clothes in her statement under
Section 161 Cr.P.C. When the girl was brought
home, no conversation took place with her at that
time, and at Arnas Hospital, after regaining
consciousness, the girl told them about the
occurrence and the accused. She had mentioned in
her statement to the police that after the victim
regained consciousness at Arnas Hospital, on being
asked by them, she had told them about the
occurrence and the accused, whereas no such fact
has been recorded in her statement under Section
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161 Cr.P.C. She had also stated in her statement to
the police that accused Rakesh had lifted the victim
on his shoulder, whereas no such fact has been
recorded in her statement under Section 161 Cr.P.C.
She had stated in her statement under Section 161
Cr.P.C. that the victim's mouth was gagged, whereas
this fact is not mentioned in the statement under
Section 161 Cr.P.C. The next morning, they left their
house for the police station while it was still dark
and reached the police station by sunrise. At that
time, her husband, son and daughters accompanied
her. No one else was with them. When they went to
the police station, the police recorded their
statements. During winters, the sun sets at about 6-
7 p.m. They had submitted a written application at
the police station regarding the occurrence, which
was submitted by her husband. First, they went
from the police station to the hospital and thereafter
her husband got the application written and
submitted it at the police station. She does not
remember her date of birth. At present, she does not
remember the date of birth of the victim orally,
whereas the record of the same was maintained at
home. They had also given documentary proof
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regarding the age of the victim to the police. She had
stated in her statement to the police that one eye of
the victim was not normal, and she could not see
with that eye. The place of occurrence where the
victim was lying unconscious was at a distance of 4-
5 jareeb from her house. The house of Puran Chand
was at a distance of about 2-4 jareeb from her house.
They had made inquiries about the victim from the
people residing in the nearby houses.
e. PW-06 (Sister of the Victim) , in her examination
in chief stated that she knew the accused present in
Court. The accused were residents of her village.
th
Last year, on 16 November, there was function in
the house of Puran Singh on the occassion of birth
of his grandson. At about 1:00 p.m. that day, her
parents went to Judda to purchase household
articles. She was cleaning her new house and her
paternal uncle’s daughter (PW-7) was also with her,
whose house was adjoining her house. At about 4:00
p.m. that day, her younger sister (victim) went to
their land adjoining the house to bring leaves for the
goats. When for half an hour, victim did not return
home, they went in search of her. After searching for
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about 10-15 minutes, her parents returned home
and asked whom they were searching for, upon
which she told them that victim had gone to bring
leaves for the goats but had not returned. It was
getting dark. Her parents kept the purchased
provisions in the house and started searching for her
in the land. During search, they saw three branches
of the kainthi tree lying on the ground in the land
and a sickle ( daraati ) was also lying there. They
thought that she might have fallen from the tree and
died, but when they went a little further, there were
thick bushes and found the victim lying
unconscious. Her clothes were soaked in blood. The
accused present in Court were standing in front of
her and, on seeing them, they ran away from there.
Thereafter, they lifted the victim and brought her
home. By then it had turned dark. They remained at
home during the night and in the morning brought
victim to Police Station Arnas. The police personnel
told them that they should bring a written report,
after which action would be taken. Thereafter, her
father got the report written from the market,
brought and submitted it at the police station. From
there, the victim was taken to Arnas Hospital, where
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she was treated. She regained consciousness at
about 10:00 a.m. and thereafter told them that she
had gone to bring leaves for the goats and had just
cut three branches from the tree and thrown them
on the ground, when the sickle slipped from her
hand and fell on the ground. Three boys (accused)
came. Rakesh Singh lifted her on his back and took
her into the bushes. Sanjay closed her mouth.
Firstly, Rakesh committed sexual assault upon her
and thereafter Sanjay also committed sexual assault
upon her, whereafter she became unconscious.
Rakesh Singh had violated the victim. Her statement
was recorded by the police at her house. During
cross-examination , she stated that she had
mentioned in her statement under Section 161
Cr.P.C. that on the day of occurrence, during the
afternoon, there was a feast at the house of Puran
Chand on the occasion of the birth of his grandson,
and the accused present in Court also participated.
There was no mention of this fact in her statement
under Section 161 Cr.P.C. She had stated in her
statement under Section 161 Cr.P.C. that at about
1:00 p.m. her parents had gone to purchase
provisions, whereas there was no mention of this fact
CrlA(S) No.10/2022 Page 26 of 69

in her statement under Section 161 Cr.P.C. She was
present at her house in the afternoon when the feast
was being held at the house of Puran Chand. She
had also gone to the feast at the house of Puran
Chand at about 11:00 a.m. She had got it recorded
in her statement under Section 161 Cr.P.C. that on
that day she, along with (PW-7), was cleaning her
new house, whereas this fact has not been
mentioned in her statement under Section 161
Cr.P.C. She had stated in her statement under
Section 161 Cr.P.C. that when she went in search of
her sister, three branches and one tree were lying on
the ground, whereas there was no mention of this
fact in her statement under Section 161 Cr.P.C. She
had stated in her statement under Section 161
Cr.P.C. that she had searched for victim for about
15-20 minutes before her parents returned home,
whereas there was no mention of this fact in her
statement under Section 161 Cr.P.C. She had stated
in her statement under Section 161 Cr.P.C. that next
day she had gone to the police station along with her
parents and her sister, whereas this fact has not
been mentioned in her statement under Section 161
Cr.P.C. She had stated in her statement under
CrlA(S) No.10/2022 Page 27 of 69

Section 161 Cr.P.C. that the police personnel at
Police Station Arnas had asked her father to get an
application written and thereafter her father got an
application written from somewhere and submitted
it to the police personnel, whereas there is no
mention of this fact in her statement under Section
161 Cr.P.C. She had also stated in her statement
under Section 161 Cr.P.C. that after going to the
police station she had also gone with her sister to
PHC Arnas and, after the victim regained
consciousness at about 10:00 a.m. the following
morning, the victim had informed her about the
occurrence, whereas this fact has not been
mentioned in her statement under Section 161
Cr.P.C. She had stated in her statement under
Section 161 Cr.P.C. that she came to know from the
victim that on the day of occurrence accused Rakesh
Singh was wearing a black jacket, whereas this fact
is missing in her statement under Section 161
Cr.P.C. She had stated in her statement under
Section 161 Cr.P.C. that the victim was lifted on the
back by accused Rakesh Singh and accused Sanjay
had closed her mouth, whereas this fact again was
missing in her statement under Section 161 Cr.P.C.
CrlA(S) No.10/2022 Page 28 of 69

During winters, in the hilly area where she resides,
it gets dark at about 8:00 p.m. When she went to the
place of occurrence, she saw that the victim was
wearing a kurta and her salwar was below her legs,
and the salwar and kurta were soaked with blood.
She had stated in her statement under Section 161
Cr.P.C. that the victim regained consciousness at
Arnas Hospital, and she had got the same fact
recorded in her statement under Section 161
Cr.P.C.; however, in her statement under Section
161 Cr.P.C., it was mentioned that her sister
regained consciousness after she was brought from
the spot. When she went out with her parents in
search of the victim, she and her parents were loudly
calling out the victim. She had stated in her
statement under Section 161 Cr.P.C. that when she
reached the spot along with her parents, the accused
present in Court were standing nearby at the spot
and the accused looked towards her and her parents
for about two minutes. It is correct that when she
went to the police station along with her parents the
next day after the occurrence after bringing the
victim, she had not regained consciousness and was
unconscious. She and her parents came to know
CrlA(S) No.10/2022 Page 29 of 69

about the occurrence for the first time at PHC Arnas
when the victim regained consciousness. Her
statement under Section 161 Cr.P.C. was recorded
by the police 7-8 days after the occurrence.
f. PW-07 (cousin of the victim) stated that she
knew the accused present in Court, who were the
residents of her village. On 6-11-2014, Puran
Chand, had arranged a feast ( Dawat ) at his house,
and the accused also attended the said feast. That
day, at about 2:00 p.m., the parents of the victim
had gone to Judda for purchasing household
articles. She was present at the house of the parents
of the victim, who were related to her as her paternal
uncle and aunt ( chacha, chachi ). They (the witness
and others) sent the victim, to their land near the
house to cut leaves for the goats. When the victim
did not return till about 4:00 p.m., they started
searching for her. At about 5:00 p.m., the parents of
the victim also returned home. They informed her
about the disappearance of the victim, whereafter
they also joined them in searching for the victim.
When they went to the land, they saw three cut
branches of a tree lying on the ground and also
CrlA(S) No.10/2022 Page 30 of 69

found one sickle ( draat ) lying there. They thought
that she might have fallen from the tree. Thereafter,
when they proceeded a little ahead, they saw the
accused present in Court standing in thick bushes.
On seeing them (the witness and others), the
accused ran away from there. Thereafter, when they
went near the bushes, the victim was found lying in
an unconscious condition. Her clothes were soaked
in blood. They lifted her from the spot and brought
her home. Next morning, she along with her paternal
uncle, aunt, Pw-6, brother of the victim and the
victim, went to Police Station Arnas. The police
personnel asked the father of the victim to bring a
written application. The father of the victim got an
application written from somewhere and brought it.
Thereafter, she, along with other witnesses and the
victim went to PHC Arnas, where the victim was
treated and she regained consciousness. On being
asked, the victim told them that she was cutting
leaves for the goats and was sitting on the tree. She
had cut only three branches when her sickle ( Draat )
fell down, and when she came down to pick up the
sickle, the accused came there. Accused Rakesh
Singh lifted her on his shoulder, whereas the other
CrlA(S) No.10/2022 Page 31 of 69

accused-Sanjay closed the victim's mouth with his
hands, and they took her into the bushes. There,
accused Rakesh Singh first committed a wrongful
act with the victim and thereafter accused Sanjay
also committed a wrongful act with her, after which
the victim became unconscious. By wrongful act,
she meant that they had violated the victim. Her
statement was recorded by the police. During cross-
examination , she stated that she had stated in her
statement recorded under Section 161 Cr.P.C. that
on the day of occurrence, there was a feast at the
house of Puran Singh, whereas this fact has not
been mentioned in her statement recorded under
Section 161 Cr.P.C. She had stated in her statement
recorded under Section 161 Cr.P.C. that she had
learnt from the victim that, on the day of occurrence,
accused Rakesh Singh was wearing a black jacket
and had lifted the victim on his shoulder, and that
accused Sanjay had covered the mouth of the victim
with his hand, whereas this fact has not been
mentioned in her statement recorded under Section
161 Cr.P.C. The victim regained consciousness at
about 10:00 a.m. on the following day at PHC Arnas.
When the victim was found by them at the place of
CrlA(S) No.10/2022 Page 32 of 69

occurrence, it had not yet turned dark. During
winters, darkness sets in soon after sunset, though
she could not state specifically at what time it
occurs. She had stated in her statement recorded
under Section 161 Cr.P.C. that, when she went along
with the parents of the victim in search of the victim,
three branches were lying on the ground, whereas
this fact has not been mentioned in her statement
recorded under Section 161 Cr.P.C. The victim had
gone to her land at around 3:00 p.m. to cut leaves.
Had anyone shouted or called out from her land, the
sound could easily have been heard at the place of
occurrence. When she reached the place of
occurrence along with the parents of the victim, the
accused present in the Court fled towards the other
side. She could not state as to who was running
ahead and who was behind, when they fled. At that
time, accused Sanjay was wearing a white-coloured
shirt and black-coloured pyjama (trouser). She had
also stated about the clothes in her statement
recorded under Section 161 Cr.P.C., whereas there
was no mention of the clothes in her statement
recorded under Section 161 Cr.P.C. It was correct
that her parents had reached the place of occurrence
CrlA(S) No.10/2022 Page 33 of 69

along with the parents of the victim, where the victim
was lying naked without clothes on her body, and
blood was coming from the private part of the victim.
When the victim was brought to the hospital, blood
was still coming from her private part. When they
went to the Police Station, blood was still coming
from private part of the girl. They had gone to the
hospital and the Police Station on the following day
of the occurrence.
g. PW-08 Bansi Lal and PW-09 Sheeda turned
hostile and did not support the prosecution. Despite
cross-examination by the learned P.P, no
incriminating material could be extracted.
h. PW-11 Dr Renu Sudha , then consultant Gynecologist
District Hospital Reasi, on examination by Ld. PP, stated
that on 19.11.2014, she was posted as Gynecologist in
District Hospital Reasi and had examined patient
xxxxxxxx, who was referred from CHC Arnas to District
Hospital Reasi for Gynae and obst examination and was
accompanied by her mother and father. On General
physical examination, she was found conscious,
cooperative with left eye blindness, no mark of violence
or injury seen on her body. Breast developed. Local
examination: No mark of violence or injury seen on
CrlA(S) No.10/2022 Page 34 of 69

external genitalia or inner side of the thighs. Hymen
intact, Vaginal introitus did not allow one finger, two
vaginal slides taken from vaginal introitus, sealed,
packed and sent to FSL for presence of human
Spermatozoa. On the receipt of FSL report dated
18.02.2015 it was found that there was no spermatozoa
seen in the vaginal slides. She had also given her final
opinion on the basis of general physical examination,
local examination and FSL report to the effect that there
was no finding suggestive of sexual assault seen on her
at the time of the examination. The medical certificates
dated 19.11.2014 and 30.04.2016 issued by her on the
file, were in her handwriting and bore her seal and
signatures also. The certificates were marked as EXTP-
Dr R and EXTP-Dr R/1. During cross- examination by
defence counsel, she stated that from her findings
recorded in certificate EXTP-Dr. S and Dr.S/1, no case
suggestive of sexual intercourse was made out.
i. PW-No.12 I.A. Malik Scientific Officer
Biology/Serology FSL Jammu , in examination in chief
stated that on 13-12-2014, he had received two sealed
packets through ASI Om Parkash No.826354/EXJ P/S
Arnas in connection with case FIR No.89/2014 U/S
376/109/RPC P/S-Arnas. Packet marked A was sealed
with Nine intact seals Along with the stamp impression
CrlA(S) No.10/2022 Page 35 of 69

of the Naib Tehsildar Executive Magistrate Arnas. On
opening it was found to contain a brick red colour Salwar
which was marked as Exhibit No.M-60/2015. The
exhibit was apparently stained with blood /semen like
stains and when examined under U/V light source
showed fluorescence characteristics of seminal stain.
Packet marked B was sealed with eight intact seals. On
opening it was found to contain a dirty brownish colour
lady’s shirt which was marked as Exhibit No.M-
61/2015. The Exhibit was apparently stained with only
blood like stains and when examined under U/V light
source did not show fluorescence characteristics of
seminal stain. However, the stained portions from the
Exhibit M-60/2015 and suspected portions from the
Exhibit M-61/2015 were subjected to chemical and
microscopical examination for the presence of
semen/human spermatozoa. Both the above-mentioned
Exhibits were also subjected to chemical, microscopical
and serological examination for the presence, origin and
groups of blood.
1. Various chemical and microscopical examinations
revealed the presence of semen /human spermatozoa
in the Exhibit no. M-60/2015 only.

2. Various chemical and microscopical examinations
revealed the presence of Blood in the Exhibits Nos. M-
60/2015 and M-61/2-15.
Result of Serological examination is as under :
CrlA(S) No.10/2022 Page 36 of 69

Exhibit No. Origin Groups
M-60/2015 Human Stain insufficient for Grouping.
Inconclusive due to Presence of
M-61/2015 Human
interfering Substances.
The FSL report was marked as EXTP-12.
During cross-examination by defence counsel, the
witness has stated that he has not mentioned the
description of the seal in his Report with which these
packets were sealed by Police as well as Executive
Magistrate. He does not remember the number of
stains/patches found in Exhibit No. M-60/2015. He
has not mentioned in the FSL report the size and
dimension of the stains found on Exhibit No. M-
60/2015. The packets mentioned above received by
him in FSL were not accompanied by any CFSL Form,
but he had received a letter from SDPO Arnas and the
Authority letter of Executive Magistrate Arnas to break
open the seal for carrying out the desired chemical
analysis. He has not mentioned the colour of the
sealed packets which he received for chemical
examination. He had not received any copy of the FIR
along with above mentioned packets.
j. PW-16 S.I Ranjeet Singh No. 066743/EXJ , presently
posted at In-charge Police Post, Hari Market Jammu, in
his examination in chief, stated that he knew the
CrlA(S) No.10/2022 Page 37 of 69

accused present in the Court. The occurrence was of
November, 2014, when he was posted as SHO, Police
Station Arnas. The occurrence was dated 18-11-2014,
when complainant submitted a written application at
Police Station Arnas. On the basis thereof, FIR No.
89/2014, for offences under Sections 363, 376 and 109
RPC, was registered at Police Station Arnas and
investigation of the case was set into motion. During
investigation, he (witness) seized the clothes of victim
for the purpose of chemical examination, recorded the
statements of the witnesses under section 161 Cr.P.C.
He got the medical examination of the victim conducted
from Reasi Hospital and obtained the medical
opinion/report. He prepared the site plan of the place of
occurrence at the spot and, after making inquiries
regarding the circumstances of the occurrence,
recorded the statements of other witnesses under
Section 161 Cr.P.C. He also made inquiries from the
victim regarding the occurrence and brought the same
into the investigation. During the course of
investigation, all the three accused were taken into
police custody. Thereafter, he went on leave and further
investigation was entrusted to the then SHO, Sanjeev
Gupta. The site plan, seizure memo, seizure memo of
CrlA(S) No.10/2022 Page 38 of 69

shirt and supurdnama of ring are in his handwriting
and bear his signatures. During cross-examination , he
stated that during his investigation, it had not come to
his notice who scribed the application in Urdu for the
complainant. The complainant had come to the Police
Station at about 6:30 p.m. The complainant is a
resident of a far-flung area and a poor person, who was
hesitant to come to the Police Station, due to which
there was a delay in lodging the report. The challan was
presented before the Court by the subsequent
Investigating Officer, although there was no mention of
this fact in the police diary. He had recorded the
statement of complainant under Section 161 Cr.P.C. on
18-11-2014. During his investigation, he had not made
any inquiry from any shopkeeper where the parents of
the victim had gone for shopping on the day of
occurrence. However, from their statements it was
revealed that on the day of occurrence, the parents of
the victim had gone to Judda for purchasing household
articles. His investigation revealed no evidence
indicating that, on the date of the incident, the accused
and the complainant had attended a function at the
house of the complainant's relative. No cut branch or
axe was recovered from the land surrounding the place
CrlA(S) No.10/2022 Page 39 of 69

of occurrence. Accused Rakesh Singh had committed
rape by holding her from legs, while accused Sanjiv
Sharma had covered the mouth of the victim. However,
accused Rashpal son of Nanak Chand was standing at
some distance, which fact had been disclosed by the
victim during the inquiry made from her. When he had
handed over the case file to Inspector Sanjeev Gupta, he
held no discussion with the Inspector regarding this
case. During investigation, he had not got the statement
of the victim recorded under Section 164-A Cr.P.C. It is
incorrect that the words spoken by the victim could not
be understood. According to his investigation, the
commission of rape, as per the site plan and the
statement of the complainant, was found to have taken
place in the bushes. There was no residential house
around the place of occurrence. The place where the
victim had been cutting leaves was at a distance of
approximately 150 feet from the place of occurrence. It
is correct that the victim had gone into the fields to bring
leaves etc. for the goats. He was busy on election duty,
due to which he had deputed Head Constable Mushtaq
to get the medical examination conducted. The medical
examination of the victim was conducted on 19-11-
2014. It is incorrect that the victim and her parents had
CrlA(S) No.10/2022 Page 40 of 69

gone to the Police Station on 17-11-2014 to lodge the
report. While he conducted the investigation of the
present case, he had not taken into possession any
seizure memo relating to any of the accused. During the
course of investigation, from the enquiry regarding the
circumstances of the occurrence and from the
statements of the witnesses, it was found that on the
day of occurrence, the victim was lying unconscious at
the place of occurrence, her salwar was opened and
there were bloodstains on her clothes. He had not sent
the clothes of the victim to the FSL. When the
complainant and the victim had come to the Police
Station, he had not made any inquiry from them
regarding any treatment etc. The complainant had
identified the place of occurrence.
k.
PW-17 Inspector Sanjeev Gupta, No.4745/NGO,
stated that on 15-01-2015, he was posted as In-charge
SHO Police Station Arnas. He obtained a copy of the
statement of PW-1 recorded under Section 164-A
Cr.P.C. from the competent Court and placed the same
on the case file. During cross-examination , the witness
stated that in connection with this case, he had only
obtained the remand of the accused and, apart from
CrlA(S) No.10/2022 Page 41 of 69

that, he had not conducted any proceedings in this
case.
l. PW-18 S.I Ghulam Mohd No.795756/EXJ , in his
examination in chief stated that on 16-11-2014, he was
posted at police station Arnas. He, along with SHO
Sanjeev Gupta came to the court of CJM Reasi to record
the statement of the victim. The victim spoke in a
stammering manner, and the learned Judge could not
understand her. Thereupon, the learned Judge passed
a written order directing that the victim be produced
before the Principal of the Deaf and Dumb School,
Shastri Nagar, Jammu. Accordingly, he produced the
victim before the Principal of the Deaf and Dumb
School. The principal spoke with her, and the next day,
he also accompanied him to the Reasi Court. The Court
then recorded the victim's statement under the
Principals supervision. The victim stated that Rakesh
Kumar, Sanju and Rashpaul had committed rape upon
her. He got the medical examination of the victim
conducted from ENT at Sarwal Hospital and obtained
the physical examination report regarding rape from the
Hospital, Reasi, made part of the case file. The challan
was in his handwriting. He had seen it and it bore his
CrlA(S) No.10/2022 Page 42 of 69

signatures and seal. He identified the same. He had
prepared the challan, on the basis of Annexure, marked
as EXTP-1. During cross-examination , he stated that,
apart from what he has stated in his statement today,
he had not conducted any other investigation. He had
no knowledge about the statement of the victim before
the Court of the learned CJM, as at that time he was
outside the Court. Since the victim spoke in a
stammering manner and neither the learned CJM nor
the police could understand what she was saying, the
learned CJM got her statement recorded in the presence
of the Principal. Application EXTP-1 had been given to
him at the Police Station by the victim and her father.
He did not remember whether this application had been
submitted on 17-11-2014 or not. When this application
was submitted, the victim was admitted in Arnas
Hospital and the same day, she shifted to Reasi
Hospital. He had not enquired as to who drafted the said
application for the victim's father.
Appreciation:
13) It was vehemently contended by learned counsel for the
appellants that the learned Trial Court, while recording the
testimony of the victim, has failed to comply with the
CrlA(S) No.10/2022 Page 43 of 69

mandate of Section 119 of the Evidence Act, as neither was
the statement videotaped, nor were the appellants granted
an opportunity to cross-examine the interpreter. Although
the Trial Court initially allowed the appellants' application to
summon the interpreter for cross-examination and issued a
summons, it subsequently closed the evidence without
recording his statement solely because the witness was
elderly and unable to appear due to personal difficulties. It
was further submitted that the learned Public Prosecutor
had himself moved an application under Section 540
Cr.P.C., thereby admitting to an irregularity in recording the
victim's statement.
14) The record reveals that the victim was initially
examined by a Medical Officer on 19.11.2014, when she was
brought by her parents for a medical examination.
Subsequently, on 05.02.2015, she was examined by the
Chief Medical Officer (CMO), Government Hospital, Sarwal,
who noted that she exhibited stammering speech and
referred her to an ENT Specialist. On 06.02.2015, the ENT
Specialist examined her and opined that she suffered from
dysphonia (difficulty in speaking). She was further examined
on 11.02.2015 by the Audiologist and Speech Pathologist at
ASCOMS Hospital, Sidhra, who opined that while she was
CrlA(S) No.10/2022 Page 44 of 69

not dysphonic, she possessed low intellectual abilities with
borderline intelligence and misarticulated speech. It is
pertinent to note that neither the ENT Specialist nor the
Audiologist was examined as a witness; however, the fact
remains that the victim suffered from speech impairment, as
is evident from the statement of PW-1, PW-3 and PW-18.

15) During investigation of the case, statement of the victim
was recorded before the learned Magistrate in terms of
Section 164-A of Cr.P.C with the assistance of PW Roshan
Bhan, who acted as an interpreter. The learned trial court
has observed that as the victim was minor, deaf and dumb,
therefore, services of the interpreter, Roshan Bhan, Principal
Hearing School, Jammu, were requisitioned as interpreter.
The victim was minor at the time of incident, and she was
not deaf but had speech impairment only. The victim could
not have been labelled as ‘deaf and dumb’ by the learned
trial court.
16) Section 119 of the Evidence Act is extracted as under:
119. Witness unable to communicate verbally . –– A
witness who is unable to speak may give his evidence in
any other manner in which he can make it intelligible,
as by writing or by signs; but such writing must be
written and the signs made in open Court, evidence so
given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate
verbally, the Court shall take the assistance of an
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interpreter or a special educator in recording the
statement, and such statement shall be video graphed
17) In terms of Section 119 (supra), the statement of the
victim was required to be video graphed, which has not been
done in the instant case. The appellants seek rejection of the
testimony of the victim on the ground that neither Section
119 of the Evidence Act was complied with at the time of
recording statement of the victim nor the interpreter, Shri
Roshan Bhan, was allowed to be cross-examined and in fact,
not produced by the prosecution despite the orders passed
by the learned trial court and, as such, the evidence of the
victim becomes doubtful and deserves to be rejected.
18) The record depicts that prior to recording of statement
th
of the victim on 9 July, 2015, Shri Roshan Bhan was
examined by the court, wherein he has deposed about his
qualification, experience and expertise in the education of
deaf and dumb students and he had sworn before the
learned trial court that he would translate statement of the
victim in an impartial manner. After satisfying itself about
the competence of the interpreter, the learned trial court
proceeded to record statement of the victim. Certain
questions were put by the trial court to the victim, which
were duly replied to by her and thereafter the learned trial
court recorded the statement of the victim without
CrlA(S) No.10/2022 Page 46 of 69

administering oath to her on account of her physical
disability. It is not the case of the appellants that the
interpreter was not independent. In her statement before the
trial court, the victim, by pointing towards appellant Rakesh
Singh and other accused Sanjeev Sharma, stated that they
took her to the stream and committed shameful act with her,
though she could not furnish a satisfactory reply with regard
to her statement recorded under Section 164-A of Cr. P. C.
It needs to be noted that the victim was cross-examined only
by accused No.2 and 3 i.e. appellants No.1 and 2 and not by
appellant No.3. She was confronted with her statement
recorded under section 164-A Cr.P.C during cross-
examination that in her statement recorded under Section
164-A of Cr. P. C, it was not mentioned that the victim was
taken to Nallah and that the stream was near the field where
she was cutting leaves and there were no residential houses
near the Nallah.
19) It is pertinent to note that while the victim's statement
was being recorded, no objection was raised by the
appellants regarding any difficulty in cross-examining her.
Furthermore, when the victim's testimony was put to them
during the recording of their statements under Section 342
of the Cr.P.C., they merely stated that she had made a false
CrlA(S) No.10/2022 Page 47 of 69

statement and they had been falsely implicated. Even in the
present appeal, the appellants have nowhere pleaded that
they were unable to properly cross-examine the victim,
thereby causing any prejudice to them.
20) It is true that the victim's statement was not video
graphed by the learned Trial Court; however, the appellants
have failed to demonstrate, either before the Trial Court or
before this Court, that non-compliance with the proviso to
Section 119 of the Evidence Act has resulted in a miscarriage
of justice. Although the victim does not fall strictly within the
category of a 'deaf and dumb' witness, given that she merely
suffered from speech impairment, her statement was
nonetheless recorded with the assistance of an interpreter,
Roshan Bhan.
21) Needless to say, even a 'deaf and dumb' person is a
competent witness, and the testimony of such a witness can
legally form the basis for convicting an accused. In this
context, it would be appropriate to take note of the judgment
of the Hon’ble Supreme Court of India in the case of State
of Rajasthan v. Darshan Singh , (2012) 5 SCC 789 , wherein
the Hon’ble Apex Court has held as under:
26. The object of enacting the provisions of Section
119 of the Evidence Act reveals that deaf and dumb
persons were earlier contemplated in law as idiots.
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However, such a view has subsequently been
changed for the reason that modern science
revealed that persons affected with such
calamities are generally found more intelligent,
and to be susceptible to far higher culture than
one was once supposed. When a deaf and dumb
person is examined in the court, the court has to
exercise due caution and take care to ascertain
before he is examined that he possesses the
requisite amount of intelligence and that he
understands the nature of an oath. On being
satisfied on this, the witness may be administered
oath by appropriate means and that also with the
assistance of an interpreter. However, in case a
person can read and write, it is most desirable to
adopt that method being more satisfactory than
any sign language. The law requires that there
must be a record of signs and not the
interpretation of signs.
27. In Meesala Ramakrishan v. State of A.P. [(1994) 4 SCC
182 : 1994 SCC (Cri) 838], this Court has considered
the evidentiary value of a dying declaration
recorded by means of signs and nods of a person
who is not in a position to speak for any reason and
held that the same amounts to a verbal statement
and, thus, is relevant and admissible. The Court
further clarified that “verbal” statement does not
amount to “oral” statement. In view of the
provisions of Section 119 of the Evidence Act, the
only requirement is that the witness may give his
evidence in any manner in which he can make it
intelligible, as by writing or by signs and such
evidence can be deemed to be oral evidence within
the meaning of Section 3 of the Evidence Act. Signs
and gestures made by nods or head are admissible
and such nods and gestures are not only
admissible but possess evidentiary value.
28. Language is much more than words. Like all other
languages, communication by way of signs has some
inherent limitations, since it may be difficult to
comprehend what the user is attempting to convey.
But a dumb person need not be prevented from
being a credible and reliable witness merely due to
his/her physical disability. Such a person though
unable to speak may convey himself through
writing, if literate or through signs and gestures, if
CrlA(S) No.10/2022 Page 49 of 69

he is unable to read and write. A case in point is the
silent movies which were understood widely
because they were able to communicate ideas to
people through novel signs and gestures.
Emphasised body language and facial expression
enabled the audience to comprehend the intended
message.
29. To sum up, a deaf and dumb person is a
competent witness. If in the opinion of the court,
oath can be administered to him/her, it should be
so done. Such a witness, if able to read and write,
it is desirable to record his statement giving him
questions in writing and seeking answers in
writing. In case the witness is not able to read and
write, his statement can be recorded in sign
language with the aid of interpreter, if found
necessary. In case the interpreter is provided, he
should be a person of the same surrounding but
should not have any interest in the case and he
should be administered oath.
(emphasis added)

22) From the aforementioned judicial pronouncements of
the Hon'ble Supreme Court of India, it is clear that a speech
and hearing-impaired person is a competent witness. If such
a witness is unable to read or write, his/her statement may
be recorded in sign language with the assistance of an
interpreter, if deemed necessary. Where an interpreter is
appointed, he/she should ideally belong to the witness's
local environment or surroundings, have no interest in the
outcome of the case, and be duly administered an oath.
23) In the instant case, the learned Trial Court did not
administer oath to the victim as it was not found feasible.
However, the statement of the interpreter was recorded on
CrlA(S) No.10/2022 Page 50 of 69

oath, and the interpreter was independent having no interest
in the outcome of the trial. Though pursuant to the
application filed by the appellants, PW No.10-Roshan Bhan
was summoned, but could not be examined for the reasons
already mentioned above.
24) It was contended by learned counsel for the appellants
that the prosecution had itself submitted an application
dated 24.03.2022 under Section 540 Cr.P.C. for the re-
examination of the victim along with the interpreter, Roshan
Bhan and since the prosecution itself conceded an infirmity
in the victim's evidence, the Trial Court erred in convicting
the appellants on the basis of testimony that was inherently
doubtful by the prosecution's own admission.
25) A perusal of application filed by the prosecution reveals
that the same was filed on the premise that the evidence of
the victim was not recorded in accordance with the
procedure laid down under Section 119 of the Evidence
Act. It is important to note that neither before the learned
Trial Court nor before this Court have the appellants
demonstrated that the victim's testimony was unintelligible
or that its recording caused them any prejudice. At the risk
of repetition, this Court reiterates that even in their
statements recorded under Section 342 Cr.P.C., the
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appellants raised no plea alleging any prejudice or
procedural irregularity in the recording of the victim's
statement that could affect the merits of the case.
26) The contention of the appellants that they were denied
the opportunity to cross-examine the interpreter is equally
misconceived. An interpreter is not a witness to the facts
constituting the prosecution's case; rather, his sole function
was to interpret the statement made by the victim.
Significantly, the victim was not deaf, but merely speech-
impaired. The learned Trial Court, prior to recording the
victim's testimony, satisfied itself regarding the interpreter's
qualifications and competence, and only after administering
an oath to him did it proceed to record the evidence. In
Shivanarayan Kabra v. State of Madras, 1966 SCC
OnLine SC 36, when the accused raised an issue that
interpreter was not provided to him, Hon’ble Apex Court
observed as under:
“It was said that the evidence of the prosecution
witnesses was given either in Tamil or in the
English Language and the appellant did not know
either of the languages and so he was not able to
take part in the trial. Mr. Naunit Lal contended that
there was a breach of the requirement of Section
361 (1), Criminal Procedure Code and the trial was
vitiated. We do not think there is any substance in
this argument. Even if it is assumed that the
appellant did not know English or Tamil the
violation of S. 361 (1), Criminal Procedure Code
was merely an irregularity and it is not shown in
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this case that there is any prejudice caused to the
appellant on this account. It is pointed out by the
Sessions Judge that the appellant did not make
any objection at the time the evidence was given
and it appears that he was represented by two
eminent advocates-Sri V. T. Rangaswami Iyenger
and Sri R. Krishnamoorthy Iyer-in the trial Court who
knew both these languages and who would not have
allowed the interest of the appellant to be
jeopardised even to the smallest extent. In our
opinion, the irregularity has not resulted in any
injustice and the provisions of S. 537, Criminal
Procedure Code are applicable to cure the defect.”
(emphasis added)
27) Accordingly, this Court is of the considered view that
there is no force in the contention of the appellants that the
testimony of the victim deserves to be rejected on account of
non-compliance of the provisions contained in Section 119
of the Evidence Act.
28) In Patan Jamal Vali v. State of A.P. , (2021) 16 SCC
225 , the Hon’ble Supreme Court has elaborately considered
the heightened vulnerability of women and girls with
disabilities to sexual exploitation, laying down principles
regarding the judicial approach to evaluating and
appreciating the evidence of such witnesses. It would be apt
to take note of the following relevant paras:
C.2. Disability and gender : Twin tales of Societal Oppression
29. For many disabled women and girls in India, the threat
of violence is an all-too-familiar fixture of their lives,
contracting their constitutionally guaranteed freedom to
move freely and curtailing their ability to lead full and active
lives. This threat of violence can translate into a nagging
feeling of powerlessness and lack of control, making the
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realisation of the promises held by Parts III and IV of our
Constitution a remote possibility for women with
disabilities.
30. In saying so, we do not mean to subscribe to the
stereotype that persons with disabilities are weak and
helpless, incapable of charting the course of their lives or to
deprive them of the agency and bodily autonomy that we all
possess and are entitled to exercise. Such a negative
presumption of disability translating into incapacity would
be inconsistent with the forward-thinking conceptualisation
of disabled lives embodied in our law and, increasingly,
albeit slowly, in our social consciousness. As Saptarshi
Mandal notes, in critiquing the fashion in which the Punjab
and Haryana High Court dealt with the testimony of a
mentally disabled and partially paralysed prosecutrix
[ Samitri v. State of Haryana , 2010 SCC OnLine P&H 2245] ,
stamping a prosecutrix with the badge of complete
helplessness, merely on the basis of disability, is an
inapposite course of action. He notes:
“the entire rationale behind the conviction of the
accused turned on sympathy for the helpless
prosecutrix and her inability to physically resist the
aggressor. Even if one agrees with the Judge that there
cannot be a single standard of burden of proof for the
disabled and the able-bodied, a differentiated scale of
burden of proof must be based on the concept of
vulnerability, not victimhood .” [ Saptarshi Mandal,
“The Burden of Intelligibility : Disabled Women's
Testimony in Rape Trials”, Indian Journal of Gender
Studies, 20 No. 1 (2013) : 1-29, p. 20 (“Mandal, Disabled
Women Testimony in Rape Trials”).]
31. Instead, our aim is to highlight the increased
vulnerability and reliance on others that is occasioned by
having a disability which makes women with disabilities
more susceptible to being at the receiving end of sexual
violence. As the facts of this case make painfully clear,
women with disabilities, who inhabit a world designed for
the able-bodied, are often perceived as “soft targets” and
“easy victims” for the commission of sexual violence. It is for
this reason that our legal response to such violence, in the
instant case as well as at a systemic level, must exhibit
attentiveness to this salient fact .
32. As the analysis by the Sessions Judge and the High Court
makes clear, a critical feature of this case is the fact that PW
2 is blind since birth. It would be overly simplistic and
reductionist to reduce her personality to her disability
alone. Equally, however, the Court has to exhibit sensitivity
to the heightened risk of violence and abuse that she was
rendered susceptible to, by reason of her disability. We
would like to utilise the facts of this case as a launching point
to explore a disturbing trend that this case brings into sharp
CrlA(S) No.10/2022 Page 54 of 69

focus and is symptomatic of — that of sexual violence against
women and girls with disabilities and to set in motion a
thought process for how the structural realities resulting in
this state of affairs can be effectively addressed. In this part
of the judgment, we will first highlight the unique reasons
that make these women more vulnerable to being at the
receiving end of sexual violence, with the help of some
illustrations. Thereafter, we will outline some challenges that
are faced by such women in accessing the criminal justice
system generally and the judicial system in particular. We will
then outline some measures that can be taken to lower the
barriers faced by them. We will finally conclude by outlining
the judicial approach which should be adopted for assessing
their testimony.

Testimony of disabled prosecutrix
44. Another feature of the case that we would like to dwell
on relates to the testimony of the prosecutrix, PW 2. In his
judgment, the Sessions Judge noted as follows:
“21. Identification of the accused by the victim girl : It
is needless to say that identifying the accused basing on
the voice is weak type of evidence. Coming to the
present facts and circumstances of the case, PW 2 is
blind by birth as the access of the accused to victim
proved by the prosecution she can easily identify the
accused by hearing his voice. Moreover, PW 1, PW 3,
PW 4 and PW 5 and some others caught hold of the
accused when he opened the door of the house of PW
1, on the date of the incident and the evidence of the
police officials also corroborates with the witnesses
who caught hold of the accused and handed over him
to PW 11 and on the instructions of PW 11, the accused
was taken to Mahanandi Police Station. It was
suggested to PW 2 that her statement that she
identified the accused with his voice is false. In view of
the categorical evidence of PW 1, PW 3 and PW 4, so
also the admission made by the accused in Section
313CrPC examination that he used to visit the house of
PW 1 to call the brothers of the victim for doing coolie
work, the above suggestion has no legs to stand. The
above evidence would amply prove that the victim has
successfully identified the accused and her evidence
cannot be doubted simply because she is a blind girl.”
45. In the High Court, the defence sought to cast doubt on the
testimony of the prosecutrix by arguing that she would have
been unable to identify the accused due to her disability.
While the above plea was not pressed by the appellant in this
Court, we would like to take this opportunity to affirm the
CrlA(S) No.10/2022 Page 55 of 69

conclusion of the Sessions Judge and to clarify the position of
law on this point.
46. There have been instances where the testimony of a
disabled prosecutrix has not been considered seriously and
treated at an equal footing as that of their able-bodied
counterparts. One such instance is the judgment of this Court
in Mange v. State of Haryana [ Mange v. State of Haryana ,
(1979) 4 SCC 349 : 1979 SCC (Cri) 985] , where the testimony
of a thirteen-year-old girl who was deaf and mute was not
recorded and the conviction was confirmed on the account of
an eyewitness and supported by medical evidence. This Court
in affirming the conviction noted that the non-examination of
the prosecutrix was not a major infirmity in the prosecution's
case “apart from being a child witness, she was also deaf and
dumb and no useful purpose would have been served by
examining her”. (SCC p. 350, para 2) We are of the considered
view that presumptions of such nature which construe
disability as an incapacity to participate in the legal process
reflect not only an inadequate understanding of how
disability operates but may also result in a miscarriage of
justice through a devaluation of crucial testimonies given by
persons with disabilities. The legal personhood of persons
with disabilities cannot be premised on societal stereotypes
of their supposed “inferiority”, which is an affront to their
dignity and a negation of the principle of equality.
47. A survey and analysis of the High Court judgments by
Saptarshi Mandal indicates that the testimony of the disabled
witnesses is devalued by not recording the testimony of the
prosecutrix at all; or recording it without adherence to correct
legal procedure, thereby rendering it ineffectual; dismissal of
the testimony for its lack of intelligibility or for not being
supported by the condition of her body. [ Saptarshi Mandal,
“The Burden of Intelligibility : Disabled Women's Testimony
in Rape Trials”, Indian Journal of Gender Studies, 20 No. 1
(2013) : 1-29, p. 6 (“Mandal, Disabled Women Testimony in
Rape Trials”).]
48. This kind of a judicial attitude stems from and
perpetuates the underlying bias and stereotypes against
persons with disabilities. We are of the view that the
testimony of a prosecutrix with a disability, or of a disabled
witness for that matter, cannot be considered weak or
inferior, only because such an individual interacts with the
world in a different manner, vis-à-vis their able-bodied
counterparts. As long as the testimony of such a witness
otherwise meets the criteria for inspiring judicial
confidence, it is entitled to full legal weight. It goes without
saying that the court appreciating such testimony needs to
be attentive to the fact that the witness' disability can have
the consequence of the testimony being rendered in a
different form, relative to that of an able-bodied witness. In
the case at hand, for instance, PW 2's blindness meant that
CrlA(S) No.10/2022 Page 56 of 69

she had no visual contact with the world. Her primary mode
of identifying those around her, therefore, is by the sound
of their voice. And so PW 2's testimony is entitled to equal
weight as that of a prosecutrix who would have been able
to visually identify the appellant.
(emphasis added)

29) It was next contended that the victim in her deposition
before the Court had shown the place of occurrence to be a
stream, whereas in her statement under Section 164-A of
Cr.P.C, she had stated that the occurrence took place on the
roof of a house. The perusal of the site plan prepared by the
Investigating Officer would reveal that the place of incident
has been shown as an open space surrounded by bushes
and trees. This Court cannot lose sight of the fact that the
victim is having low intellectual abilities with borderline
intelligence, as is evident from the report dated 11.02.2015.
The victim in her cross-examination before the Court
admitted that she was taken to Nallah where the act of
shame was committed with her, but it was not found
mentioned in her statement recorded under Section 164-A
of Cr. P. C. She also admitted that the nallah was near the
field from where she was cutting the grass and there were no
residential houses near the Nallah, but there were trees and
plants. She also stated that there was no water in the Nallah.
PW-1 also has stated that the incident took place in the land
where there were thick bushes. Victim also stated when the
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shameful act was committed with her, she had pain in her
abdomen and there was bleeding also. The pain continued
till next day and no bleeding occurred from any place other
than her abdomen. She also stated that Keshu (Rakesh
Singh) and Sanju (Sanjeev Sharma) used to talk to each
other and that is why she knew their names. It would be
apposite to take note of the judgment of the Hon’ble Apex

Court in State of H.P. v. Asha Ram , (2005) 13 SCC 766,
and the relevant para is extracted as under:
5. We record our displeasure and dismay, the way the
High Court dealt casually with an offence so grave, as in
the case at hand, overlooking the alarming and shocking
increase of sexual assault on minor girls. The High
Court was swayed by the sheer insensitivity, totally
oblivious of the growing menace of sexual violence
against minors much less by the father. The High
Court also totally overlooked the prosecution
evidence, which inspired confidence and merited
acceptance. It is now a well-settled principle of law
that conviction can be founded on the testimony of
the prosecutrix alone unless there are compelling
reasons for seeking corroboration. The evidence of a
prosecutrix is more reliable than that of an injured
witness. The testimony of the victim of sexual
assault is vital, unless there are compelling reasons
which necessitate looking for corroboration of her
statement, the courts should find no difficulty in
acting on the testimony of a victim of sexual assault
alone to convict an accused where her testimony
inspires confidence and is found to be reliable. It is
also a well-settled principle of law that
corroboration as a condition for judicial reliance on
the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence
under the given circumstances. The evidence of the
prosecutrix is more reliable than that of an injured
witness. Even minor contradictions or insignificant
CrlA(S) No.10/2022 Page 58 of 69

discrepancies in the statement of the prosecutrix
should not be a ground for throwing out an
otherwise reliable prosecution case.
(emphasis added)
30) The victim has clearly narrated the mode and manner
in which she was kidnapped by appellants Sanjeev Sharma
and Rakesh Singh, as well as the heinous act committed
upon her. Her detailed account of the occurrence
demonstrates that she was intellectually capable of testifying
regarding the illegal acts of the appellants, Sanjeev Sharma
and Rakesh Singh. Notably, she also categorically stated
that a man with a short beard was standing on the roof of
the house but did nothing. Thus, while her testimony
directly implicates the appellants Sanjeev Sharma and
Rakesh Singh, it effectively exonerates appellant Rashpal.
31) 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. In
Wahid Khan v. State of M.P. , (2010) 2 SCC 9, the Hon’ble
Apex Court has observed as under:
20. It is appropriate in this context to reproduce the opinion
expressed by Modi in Medical Jurisprudence and Toxicology
(22nd Edn.) at p. 495 which reads thus:
“ Thus, to constitute the offence of rape, it is not
necessary that there should be complete
penetration of penis with emission of semen and
CrlA(S) No.10/2022 Page 59 of 69

rupture of hymen. Partial penetration of the penis
within the labia majora or the vulva or pudenda
with or without emission of semen or even an
attempt at penetration is quite sufficient for the
purpose of the law . It is therefore quite possible to
commit legally, the offence of rape without
producing any injury to the genitals or leaving any
seminal stains. In such a case, the medical officer
should mention the negative facts in his report, but
should not give his opinion that no rape had been
committed. Rape is a crime and not a medical condition.
Rape is a legal term and not a diagnosis to be made by
the medical officer treating the victim. The only statement
that can be made by the medical officer is to the effect
whether there is evidence of recent sexual activity.
Whether the rape has occurred or not is a legal
conclusion, not a medical one. ”
(emphasis supplied)
32) In Ranjit Hazarika v. State of Assam , (1998) 8 SCC
635 , the Hon’ble Apex Court has held that “ Neither the non-rupture of
the hymen nor the absence of injuries on her private parts, therefore,
belies the testimony of the prosecutrix particularly when we find that in
the cross-examination of the prosecutrix, 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”.
33) It was also contended that seizure of clothes has not
been proved by the marginal witnesses to the seizure memos,
as such, prosecution story has become doubtful. The record
reveals that the red coloured trouser carrying blood and
seminal stains was seized vide seizure memo (Ext P-16/1),
whereas one shirt carrying blood stains was seized vide
seizure memo (Ext P-16/2). Father and Mother of victim
have been cited as marginal witnesses to both these seizure
CrlA(S) No.10/2022 Page 60 of 69

memos. Both Father and Mother of victim, i.e. PW-1 & 3
respectively have deposed nothing about the seizure memos
and neither the seizure memos nor the clothes seized
pursuant thereto were shown to these witnesses. It appears
that the Prosecutor for reason unknown did not examine the
above-mentioned witnesses regarding the seizure of clothes.
He ought to have examined both these witnesses regarding
the seizure of clothes. However, the appellants can't derive
any benefit of this remiss on the part of the Prosecutor. PW-
16 Ranjeet Singh S/o (IO) has proved both the seizure
memos marked as (Ext P-16/2) & (Ext P-16/3). Even
otherwise, the marginal witnesses have not stated that
clothes were not seized in their presence or they have turned
hostile, but they have simply not been examined by the
Public Prosecutor regarding the seizure of clothes. The
appellants also cannot derive any benefit from the statement
of prosecutrix that her clothes were lying in Arnas,
particularly when there is positive statement of PW-16 that
he seized the clothes of victim. It is not the case of the
prosecution that clothes were recovered from the victim.
Rather, the perusal of seizure memos would reveal that
complainant had handed over clothes to IO. The defence did
not cross examine PW-16 regarding the seizure memo of
clothes and as such, his testimony regarding the seizure of
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clothes has remained unchallenged. Therefore, the
appellants cannot derive any benefit of the non-examination
of the marginal witnesses to the seizure memos of clothes.
In this context, it would be apt to take note of the judgment
of the Hon’ble Apex Court in Mallikarjun v. State of
Karnataka, (2019) 8 SCC 359 , and the relevant para is
extracted as under:
23. As pointed out earlier, based on the disclosure statement of
Accused 1, MO 1 dagger which was kept hidden in the haystack
of fodder in the loft of the cattle shed behind the house of
Accused 1 had been seized under Ext. P-9 panchnama in the
presence of panch witnesses PW 8 Chandrappa and PW 9
Mahadevappa Needgera. The said panch witnesses have not
supported the prosecution case and turned hostile. MO 2 dagger
and MO 3 handle of the axe were recovered from the scene of
occurrence under Ext. P-7 spot panchnama. On behalf of the
accused, the learned Senior Counsel contended that the
evidence of PW 17 PSI as to the recovery of MO 1 dagger at
the behest of Accused 1 is doubtful and when PWs 8 and 9
have turned hostile, no weight could be attached to the
alleged recovery of MO 1 dagger. There is no merit in the
contention that merely because the panch witnesses turned
hostile, the recovery of the weapon would stand vitiated. It
is fairly well settled that the evidence of the investigating
officer can be relied upon to prove the recovery even when
the panch witnesses turned hostile. In Rameshbhai Mohanbhai
Koli v. State of Gujarat , it was held as under:
“ 33 . In Modan Singh v. State of Rajasthan, it was observed
that where the evidence of the investigating officer
who recovered the material objects is convincing, the
evidence as to recovery need not be rejected on the
ground that seizure witnesses did not support the
prosecution version. Similar view was expressed in
Mohd. Aslam v. State of Maharashtra [ Mohd. Aslam v. State
of Maharashtra , (2001) 9 SCC 362 : 2002 SCC (Cri) 1024] .
34 . In Anter Singh v. State of Rajasthan , it was further held that:
‘ 10 . … even if panch witnesses turn hostile, which
happens very often in criminal cases, the evidence of
the person who effected the recovery would not
stand vitiated. ’
35 . This Court has held in a large number of cases that
merely because the panch witnesses have turned hostile is
no ground to reject the evidence if the same is based on the
testimony of the investigating officer alone. In the instant
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case, it is not the case of defence that the testimony of the
investigating officer suffers from any infirmity or doubt.
(Vide Modan Singh case [ Modan Singh v. State of Rajasthan , (1978)
4 SCC 435 : 1979 SCC (Cri) 56] , Krishna Gopal case [ State of U.P. v.
Krishna Gopal , (1988) 4 SCC 302 : 1988 SCC (Cri) 928] and Anter
Singh case [ Anter Singh v. State of Rajasthan , (2004) 10 SCC 657 :
2005 SCC (Cri) 597] .)”
PW 17 PSI has clearly spoken about the recovery of MO 1
dagger at the behest of Accused 1 and MO 2 dagger and MO 3
handle of the axe from the scene of occurrence and his
evidence cannot be discarded merely because panch
witnesses have turned hostile.
(emphasis added)
34) It was also contended that in absence of blood
grouping and DNA report, it cannot be conclusively
established that the appellants have committed offence of
rape. FSL report (Ext-P-12) reveals that trouser (shalwar) of
victim had blood and seminal stains, whereas the shirt had
blood stains only. This is true that groups could not be
ascertained and report has not conclusively established the
complicity of the appellants, FSL report, nonetheless,
establishes the presence of spermatozoa on the trouser of
the victim. It is difficult to believe, in the light of evidence
brought on record, that seminal and blood stains on the
trouser of the victim and blood stains on the shirt, were
managed to falsely implicate the appellants.
35) It was also urged that the other witnesses examined by
the prosecution besides the victim have made contradictory
statements and few witnesses have made the statements
with regard to the incident for the first time in the Court. So
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far as the father of the victim, i.e. PW No.1, is concerned, he
has stated that after he was informed by his children about
missing of the victim, he along with others searched for the
victim and he found the appellants running from spot.
Thereafter, he went towards the bushes and found the victim
was lying there with no clothes on her body. During his
cross-examination, he admitted that his statement under
Section 164-A CrPC wherein he had stated that when his
daughter regained consciousness, she stated that one boy
wearing black jacket had lifted her on his shoulder, another
gagged her mouth and took her into forest and thereafter she
did not know what happened to her, was correct statement
and the statement made by him in the Court today that when
the victim recovered to some extent, he and police personnel
asked her what had happened to her, thereafter the victim
told them about the occurrence, is not correct. The
contradiction as pointed out by learned counsel for the
appellants is not of such nature that can be said to have
discredited the statement as a whole made by father of the
victim, in the light of statement made by the victim regarding
the occurrence. It needs to be noted that though at the time
of concluding the cross-examination of father of the victim,
an attempt was made to falsify the prosecution case by
posing a question as to whether any of his daughters had
CrlA(S) No.10/2022 Page 64 of 69

instituted any case against any person of the locality before
the Court at Reasi, which was denied by father of the victim,
but the appellants did not bring any material on record to
probabilize their defence. It would be apt to take note of the
observations made by the Hon’ble Apex Court in State of
Punjab v. Gurmit Singh , (1996) 2 SCC 384, which are
extracted as under:
8. -------- 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. In
cases involving sexual molestation, supposed
considerations which have no material effect on the
veracity of the prosecution case or even discrepancies
in the statement of the prosecutrix should not, unless
the discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the courts should not overlook. The
testimony of the victim in such cases is vital and unless
there are compelling reasons which necessitate looking
for corroboration of her statement, the courts should
find no difficulty to act on the testimony of a victim of
sexual assault alone to convict an accused where her
testimony inspires confidence and is found to be
reliable. Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases amounts
to adding insult to injury. Why should the evidence of a
girl or a woman who complains of rape or sexual
molestation, be viewed with doubt, disbelief or
suspicion? The court while appreciating the evidence of
a prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience, since she is
a witness who is interested in the outcome of the
charge levelled by her, but there is no requirement of
law to insist upon corroboration of her statement to
base conviction of an accused. The evidence of a victim
of sexual assault stands almost on a par with the
evidence of an injured witness and to an extent is even
more reliable. Just as a witness who has sustained some
injury in the occurrence, which is not found to be self-
inflicted, is considered to be a good witness in the sense that
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he is least likely to shield the real culprit, the evidence of a
victim of a sexual offence is entitled to great weight,
absence of corroboration notwithstanding. Corroborative
evidence is not an imperative component of judicial
credence in every case of rape. Corroboration as a condition
for judicial reliance on the testimony of the prosecutrix is
not a requirement of law but a guidance of prudence under
given circumstances. It must not be overlooked that a
woman or a girl subjected to sexual assault is not an
accomplice to the crime but is a victim of another person's
lust and it is improper and undesirable to test her evidence
with a certain amount of suspicion, treating her as if she
were an accomplice. Inferences have to be drawn from a
given set of facts and circumstances with realistic diversity
and not dead uniformity lest that type of rigidity in the
shape of rule of law is introduced through a new form of
testimonial tyranny making justice a casualty. Courts
cannot cling to a fossil formula and insist upon
corroboration even if, taken as a whole, the case spoken
of by the victim of sex crime strikes the judicial mind as
probable. --------”
(emphasis added)
36)
The appellants are correct in their submissions that the
other witnesses i.e. mother (PW-1), real sister (PW-6) and
cousin (PW-7) have made improvements in their statements
before the court but the improvements made by them in
neither deposition before the court cannot wipe out the
statement made by the victim. All the witnesses in one voice
have stated that the victim had gone to the fields to cut the
leaves for goats, when the incident took place. The victim is
blind by one eye. As per the report of ENT specialist, the
victim is having difficulty in speaking but at the same time,
the report dated 11.02.2015 of Audiologist reveals that the
victim is not dysphonic. The fact remains that the victim
suffers from a serious disability, but her disability cannot be
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a disability of the Court to decipher the truth from her
statement. Rejecting her statement merely on account of her
disability would be unjustified, particularly when there is no
material to give even an inkling of false implication, nor any
history of enmity between the appellants and the victim's
father to suggest a false or frivolous case.

37) As already mentioned above, the victim has not made
any incriminating statement against the appellant-Rashpal
Sharma, though the other witnesses have deposed about his
involvement but not in the commission of offence of rape. He
was charged with commission of offence under section
363/109 RPC but has been convicted for commission of
offences under sections 363 and 376 RPC. Appellant
Rashpal was required to be given the benefit of doubt in view
of the statement of the victim.
38) This Court has examined the judgment rendered by the
learned Trial Court and finds that the Trial Court wrongly
categorized the victim as 'deaf and dumb.' She is, in fact, a
minor with partial visual impairment in one eye and severe
stammering, whose speech cannot be understood by an
ordinary person but only by specialists and her family
members. Further, this court finds that the learned trial
court has not properly appreciated the evidence while
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convicting appellant-Rashpal Sharma. Given the unreliable
nature of the evidence and the victim’s own exculpatory
testimony, the appellant-Rashpal ought to have been
granted the benefit of the doubt.
39) The judgments relied upon by the learned counsel for
the appellants are distinguishable. In Ram Singh’s case
(supra) , no blood was detected on the clothes of victim and
also no semen was detected on the Chitai and Baithak,
whereas in the present case, the blood and semen stains
were found as per the FSL report, as such the judgment is
not applicable in the present case. In Munna Pandey v.
State of Bihar (supra), the seized articles were not sent for
Forensic Science Laboratory (FSL) examination, and there
were several other distinguishing circumstances such as the
accused not being named in the FIR and incriminating
material evidence not being put to the accused during
examination. In contrast, the facts of the present case are
entirely distinct. In Dola's case , the accused was identified
by voice even though the victim had no prior acquaintance
with him. Additionally, the victim was forcibly abducted from
a busy area, and the allegations of false implication were
found to be well-founded. Whereas the facts in the present
case are entirely different.
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Conclusion:
40) In view of the above discussion and analysis, the
appeal preferred by the appellants- Rakesh Singh and
Sanjeev Sharma against the judgment of conviction and
order of sentence dated 30.07.2022 is dismissed ,
whereas the appeal preferred by the appellant-Rashpaul
Sharma is allowed and the judgment of conviction and
order of sentence dated 30.07.2022 are set aside. The
appellant-Rashpaul Sharma is acquitted of the charges
and be released forthwith, if not required in any other
case.
(Rajnesh Oswal)
Judge

Srinagar,
31.10.2026
“Bhat Altaf-Secretary”
Whether the judgment is reportable: YES/NO


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