J&K HC Upholds 10-Year Rape Sentences For Two Men, Acquits Third The Survivor Did Not Implicate

The prosecution case was that on 16 November 2014, an 11-year-old girl with speech impairment and partial visual impairment was taken from a field and sexually assaulted.

Her father’s written complaint led to registration of FIR No. 89/2014, and the prosecution relied principally on the victim’s testimony, along with medical and forensic evidence; the victim’s trousers tested positive for blood and semen/spermatozoa.

The Sessions Court convicted all three appellants under Sections 363 and 376 RPC and imposed sentences including ten years’ rigorous imprisonment for rape.

On appeal, the appellants challenged, among other matters, the recording of the victim’s evidence without video-graphing under Section 119 of the Evidence Act, inconsistencies in the account of the place of occurrence, and the sufficiency of the medical evidence; appellant Rashpal Sharma separately contended there was no evidence against him.

Section 119 of the Evidence Act permits a witness unable to communicate verbally to give evidence through an intelligible method and, under its proviso, requires the assistance of an interpreter or special educator and video-graphing of the statement; the Court held that non-compliance did not require rejection of the testimony absent demonstrated prejudice.

A witness with a disability is competent, and the testimony of a disabled prosecutrix must not be discounted merely because it is communicated differently; it may receive full evidentiary weight if it inspires confidence (State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789; Patan Jamal Vali v. State of Andhra Pradesh, (2021) 16 SCC 225).

The testimony of a prosecutrix, if reliable, can alone sustain conviction; corroboration is a matter of prudence, not a legal prerequisite (State of H.P. v. Asha Ram, (2005) 13 SCC 766; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384).

Medical evidence does not determine the legal question whether rape occurred: penetration need not be complete, and absence of genital injury or medical findings does not by itself disprove the offence (Wahid Khan v. State of M.P., (2010) 2 SCC 9; Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635).

The Court found that the interpreter’s qualifications and independence had been assessed before the victim testified, and that the appellants neither demonstrated that her evidence was unintelligible nor identified prejudice caused by the failure to video-graph it. The procedural omission therefore did not justify excluding her testimony.

The victim’s account implicated Sanjeev Sharma and Rakesh Singh; the Court considered the discrepancy about the precise location against the site plan, which showed an open area with bushes and trees, and the victim’s communication and intellectual impairments. It also held that the medical findings did not negate her evidence, particularly given the forensic finding of semen/spermatozoa on her trousers.

By contrast, the victim did not incriminate Rashpal Sharma, and the remaining evidence did not reliably establish his participation in the offences; the Court concluded he was entitled to the benefit of doubt.

The appeal of Rashpal Sharma was allowed; his convictions and sentences were set aside, he was acquitted, and the Court directed his release forthwith unless required in another case.