Jammu & Kashmir High Court - Srinagar Bench
Farooq Ahmad Khan vs State Of J&K on 16 June, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 08.06.2023
Pronounced on: 16.06.2023
CRA No.09/2010
FAROOQ AHMAD KHAN ...APPELLANT(S)
Through: - Mr. I. Sofi, Advocate.
Vs.
STATE OF J&K ...RESPONDENT(S)
Through: - Mr. Ilyas Laway, GA.
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The appellant has challenged judgment dated 20.12.2010 passed by learned Principal Sessions Judge, Bandipora, whereby he has been convicted for offence under Section 376 RPC. Challenge has also been thrown to order dated 22.12.2010, whereby appellant has been sentenced to undergo seven years rigorous imprisonment and a fine of Rs.10,000/ for commission of offence under Section 376 RPC. In default of payment of fine, the appellant has been directed to undergo further simple imprisonment of two months.
2) Briefly stated, the prosecution case is that on 12.01.1985, Block Medical Officer, Bandipora, addressed a communication to Police Station, Bandipora, stating therein that on 10.01.1985, an unknown lady 2 CRA No.09/2010 came to the hospital complaining of abdominal pain. It was further conveyed in the said communication that on 11.01.1985 at 1.00 a.m., the lady gave birth to a live female baby and left the hospital in the evening. The communication also gave the particulars of the lady and a request was made to the police to handover the baby to the appropriate person. The police on the basis of this report registered FIR No.77/1985 for offence under Section 317 RPC and started investigation of the case During investigating, it was found that it was the prosecutrix who had given birth to the baby and that the prosecutrix, who was aged about 14/15 years at the relevant time, made a statement before the police that the baby was born on account of sexual intercourse committed by the appellant upon her. Accordingly, after investigation of the case, offence under Section 376 RPC was found established against the appellant and the challan was laid before the trial court.
3) On 12.08.1987, charge for offence under Section 376 RPC was framed against the appellant and his plea was recorded. The appellant denied the charges and claimed to be tried. Accordingly, the prosecution was directed to adduce evidence in support of its case.
4) In order to prove its case, the prosecution examined only two witnesses out of four witnesses cited in the challan. Besides examining the prosecutrix, the statement of Dr. Saif-ud-Din Khan was also recorded during the trial of the case After completion of prosecution evidence, the incriminating circumstances appearing in the evidence of the prosecution were put to the appellant for his explanation and his 3 CRA No.09/2010 statement under Section 342 of J&K Cr. P. C was recorded on 24.04.2010. In his statement the appellant termed the allegations levelled against him by the prosecutrix as false and he claimed that he has been falsely implicated in the case. The appellant entered his defence and examined DWs Gh. Mohi-ud-Din Khan, Mohammad Yousuf Khan and Mehda Khan as witnesses in defence.
5) It is pertinent to mention here that during the trial of the case, the prosecutrix had made an application before the trial court seeking her re-examination but the said application was dismissed by the trial court vide its order dated 23.06.2010.
6) The learned trial court, on the basis of the solitary statement of the prosecutrix, came to the conclusion that charge of rape as against the appellant stands established and, accordingly, he was convicted and sentenced in terms of the impugned judgment/order.
7) The appellant has challenged the impugned judgment of conviction on the grounds that in the instant case the prosecutrix has not lodged any report with the police station and, as such, the impugned judgment is not sustainable. It has been further contended that there is a delay of more than six months in lodging of the FIR which has remained unexplained, as such, the impugned judgment of conviction is bad and illegal. It has been further contended that there are major contradictions in the statement of the prosecutrix which have been overlooked by the learned trial court. It has also been contended that material witnesses like I.O and the doctor, have not been examined by 4 CRA No.09/2010 the prosecution during the trial of the case nor any medical record has been produced along with the challan.
8) I have heard learned counsel for the parties and perused the grounds of appeal, the impugned judgment and the trial court record including the evidence led by the parties before the trial court.
9) As already noted, the charge against the appellant is that he committed rape upon the prosecutrix on a number of occasions and that the prosecutrix was minor at the relevant time. The prosecution goes on to allege that as a result of these repeated sexual assaults by the appellant upon prosecutrix, she became pregnant and delivered a female baby in the hospital on 11.01.1985.
10) Only two witnesses have been examined by the prosecution to prove its case. Dr. Saif-ud-Din Khan, who is stated to have addressed a communication to the police informing them that the prosecutrix has left the hospital after giving birth to a child, has stated that he does not remember as to whether he had written any letter to the police. He, however stated that he can depose in this regard only upon refreshing his memory after inspecting the record. However, no such letter was found annexed to the challan. Therefore, the witness did not depose anything as regards the contents of the communication stated to have been addressed by him to the police. This leaves us only with the statement of the prosecutrix.
5 CRA No.09/2010
11) Learned counsel for the respondent-State has vehemently argued that conviction in a rape case can be based upon solitary statement of a victim and it is not necessary for the Court to look for corroboration of her statement. On the other hand, learned counsel appearing for the appellant has submitted that there are glaring contradictions in the statement of the prosecutrix, as such, her sole testimony cannot form basis of conviction of the appellant. He has further contended that the fact the prosecution has withheld material witnesses like doctor and the I.O, would give rise to adverse inference against the prosecution as a consequence whereof, the sole statement of the prosecutrix cannot be relied upon.
12) The Supreme Court in the case of Ganesan vs. State, (2020) 10 SCC 573, had an occasion to consider series of judgements of the said Court on conviction on the sole evidence of the prosecutrix. The relevant observations of the Supreme Court are reproduced as under:
10.3. Who can be said to be a "sterling witness", has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21: (2012) 3 SCC (Cri) 750]. In para 22, it is observed and held as under: (SCC p. 29) "22. In our considered opinion, the "sterling witness"
should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent 6 CRA No.09/2010 with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. 10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] , it is observed in paras 9 to 14 as under: (SCC pp. 195-98) "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : 1990 SCC (Cri) 210] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust 7 CRA No.09/2010 and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) '16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'
10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594 : 2005 SCC (Cri) 780] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) '12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot 8 CRA No.09/2010 be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.'
11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) '8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... 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. ... Seeking corroboration 9 CRA No.09/2010 of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... 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. ...
***
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.' (emphasis in original)
12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri) 1080] , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri) 674] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, 1951 SCC 1213 : AIR 1952 SC 54] .
14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of 10 CRA No.09/2010 credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
13) In State (NCT of Delhi) vs. Pankaj Chaudhary, (2019) 11 SCC 575, the Supreme Court after observing that testimony of the prosecutrix cannot be doubted by court merely on the basis of assumptions and surmises, held as under:
29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283: (2006) 1 SCC (Cri) 217] ]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30 : 2000 SCC (Cri) 898] ]
14) Again, in Sham Singh vs. State of Haryana, (2018) 18 SCC 35, a similar view was taken by the Supreme Court. Paras 6 and 7 of the said judgment are relevant to the context and the same are reproduced as under:
6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without 11 CRA No.09/2010 seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384: 1996 SCC (Cri) 316] (SCC p. 403, para 21).]
7. It is also by now well settled that 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. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635: 1998 SCC (Cri) 1725].)
15) From the foregoing analysis of the law on the subject it is clear that conviction can be based on the sole testimony of the prosecutrix if it inspires confidence and no corroboration is required unless there are 12 CRA No.09/2010 compelling circumstance for the Court to insist upon corroboration of her statement. It is also clear that minor contradictions or small discrepancies cannot form ground for discarding testimony of a prosecutrix. The only requirement of law is that before placing reliance upon sole testimony of the prosecutrix, the Court should be satisfied that the testimony of the prosecutrix is of sterling nature.
16) The Supreme Court in the case of Rai Sandeep vs. State (NCT of Delhi), (2012) 8 SCC 21, had an occasion to consider as to who can be said to be a sterling witness. Para 22 of the said judgment is relevant to the context and the same is reproduced as under:
22. In our considered opinion, the "sterling witness"
should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match 13 CRA No.09/2010 with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
17) From the above quoted ratio laid down by the Supreme Court, it is clear that before placing reliance upon the statement of a prosecutrix, the Court should satisfy itself that she has withstood the cross-
examination of any length, her version of the prosecution and under no circumstances it should give room for any doubt about the occurrence, the person involved and the sequence of events.
18) In the light of the aforesaid position of law, let us now analyze the statement of the prosecutrix. Her statement was recorded on 09.12.21987 and she disclosed her age as 17 years. The occurrence is alleged to have taken place somewhere in the year 1985, that means if the statement of the prosecutrix is accepted, then at the time of occurrence, she was aged about 15 years. There is no cross-examination from the defence on this aspect of the matter. The question that arises 14 CRA No.09/2010 for consideration is whether the Court should accept the age of the prosecutrix, as has been narrated by her at the time of recording of her statement. It is a settled law that burden is on the prosecution to prove that the prosecutrix was a minor at the time of the occurrence. Except the depiction of her age by the prosecutrix in her introduction, at the time of recording of her statement during trial of the case, the prosecution has not produced any evidence worth the name to prove her age.
19) It appears that during investigation of the case, the prosecutrix was subjected to age determination tests by the Radiologist and as per his report, the true copy whereof is on record of the challan, age of the prosecutrix was between 14 and15 years. However, the prosecution has not examined either the Radiologist or any other doctor to prove the report depicting age of the prosecutrix as 14/15 years. Not even the original report of the Radiologist has been annexed to the challan. In the absence of proof of the contents of the report of the Radiologist, the same cannot be taken into consideration. Even otherwise, opinion of a Radiologist regarding age of a person cannot be taken as a proof regarding the exact age of the person and it is always subject to error of plus/minus of two years. The benefit of aforesaid doubt naturally must go in favour of the accused.
20) Learned counsel for the respondent has contended that since the prosecutrix was not cross-examined on the point of her age nor any suggestion was made to her by the defence in this regard, as such, it 15 CRA No.09/2010 would amount to tacit acceptance by the defence of what the prosecutrix stated about her age.
21) In the instant case the prosecution has not produced any school document to prove the age of the prosecutrix nor her parents have been examined as witnesses to prove her age. Even the doctor who has conducted the radiological examination of the prosecutrix has not been examined as witness. Hence there is no direct evidence as regards the age determination of the prosecutrix. It is a settled law that in a criminal trial, the prosecution is bound to prove the charges against the accused beyond reasonable doubt and not by preponderance of probability. Therefore, it cannot be argued by State-respondent that non-cross- examination of the prosecutrix on the point of her age would exonerate the prosecution from the burden of proving age of the prosecutrix beyond all reasonable doubt. The observation of the trial court that in the absence of cross-examination of the prosecutrix on the aspect of her age and in the absence of any suggestion to the contrary by the defence, it has to be presumed that the prosecutrix was minor, is not legally tenable because burden to prove that the prosecutrix was minor was upon the prosecution and it was not for the defence to disprove this fact. In the instant case, the prosecution had failed to discharge the burden to prove that the prosecutrix was less 16 years of age (the age of consent at the relevant time). Thus, it cannot be stated that she had not crossed the age of consent.
16 CRA No.09/2010
22) It has been contended by the appellant that the facts which come to the fore from the analysis of the statement of the prosecutrix show that even if it is assumed that there was sexual intercourse between the prosecutrix and the appellant, the same was consensual in nature.
23) If we have a look at the statement of the prosecutrix, she has stated that she had at least four sexual encounters with the appellant. On the first occasion, the appellant had sexual intercourse with her while she was collecting cow dung. On the second occasion, after about 10-20 days, while she was collecting grass, she has sexual intercourse with the appellant. On the third occasion, after about one month, while she was working in her field, the appellant had sexual intercourse with her. On the fourth occasion, when she was collecting dry leaves, she was again ravished by the appellant. She has gone on to state that on the first occasion, when appellant had sexual intercourse with her, she collected the cow dung and went to her home but did not narrate the incident to anybody. There was no bleeding to her private part. On the second occasion she did not narrate the incident to anybody at home. On this occasion also there was no bleeding. She further stated that after sexual intercourse, she cut one bale of gross and carried it to her home. On the third and fourth occasion also, she did not suffer any injuries and after sexual intercourse, she collected dry leaves and carried the same to her home and she did not narrate this incident to anybody.
24) From the foregoing sequence of events narrated by the prosecutrix in her statement, it is clear that she has been a consensual 17 CRA No.09/2010 partner in the sexual intercourse with the appellant. On each occasion she went on with her normal business after she had sexual intercourse with the appellant and did not narrate these incidents to anybody. In normal circumstances, an unmarried girl, who is subjected to forcible sexual intercourse, would leave her work and rush to the safety of her house. The conduct of the prosecutrix in the instant case clearly shows that she had sexual intercourse with the appellant with her own will and volition, as a result of which she, even after having sex with the appellant, continued with her normal business and did not narrate the incident to anyone at her home even after having been ravished by the appellant on as many as four cases. Therefore, the contention of learned counsel for the appellant that even if there was any sexual intercourse between the prosecution and the appellant, the same was consensual in nature, appears to be well founded. The observation of the trial court that because the defence did not even suggest to the prosecutrix that it was a consensual sexual intercourse, therefore, it is deemed to be a forcible one, is also legally untenable because the burden to prove that sexual intercourse between the appellant and the prosecutrix was forcible in nature, was upon the prosecution and there was no reverse burden upon the defence as per the provisions of the Evidence Act applicable at the relevant time.
25) Another circumstance which comes to the fore from the analysis of the statement of the prosecutrix is that while she has stated that prior to having sexual intercourse with the appellant, she never had any 18 CRA No.09/2010 sexual intercourse with any other person but in the later part of her statement, she has stated that when appellant had sexual intercourse with her for the first time, even prior to that she was pregnant. She has clarified that for the first time the appellant committed sexual intercourse with her about six months prior to delivery of the baby, meaning thereby that her statement that she had not any sexual intercourse with anybody else prior to having sexual intercourse with the appellant, is palpably false. This casts a grave doubt about the veracity of the statement made by the prosecutrix. The version given by the prosecutrix is inconsistent with the prosecution story. While the prosecutrix has stated that she had became pregnant even prior to her first sexual intercourse with the appellant, meaning thereby that someone other than the appellant was responsible for her pregnancy but as per the prosecution story, it was the appellant who had made her pregnant. Therefore, the statement of the prosecutrix fails the test of being termed as a testimony of 'sterling quality'.
26) The prosecution, in the instant case, has not examined the doctor and the I.O. Even the doctor, on the basis of whose communication the FIR has been registered, has not stated anything about the occurrence as the communication allegedly written by him has not been made part of the challan. All these imperfections and lacunae in the case could have been explained by the Investigating Officer but unfortunately, he has not stepped into the witness box to explain the circumstances in this regard. This has caused a severe dent in the prosecution case. 19 CRA No.09/2010
27) All the aforesaid circumstances have not been taken note of by the learned trial court while passing the impugned judgment. The learned trial court has relied upon the sole testimony of the prosecutrix which, as already noted, is not of sterling quality and is full of contradictions and inconsistencies on vital aspects of the case. In such a case it was incumbent for the trial court to look for corroboration without which the statement of the prosecutrix could not have been relied upon. Unfortunately for the prosecution, excepting the statement of the prosecutrix, there is no evidence on record to support the prosecution case. Given the fact that testimony of the prosecutrix in the instant case does not inspire confidence, the appellant could not have been convicted on the basis of her sole testimony.
28) For what has been discussed hereinbefore, the impugned judgment passed by the learned trial court is not sustainable in law and the same deserves to be set aside. Accordingly, the appeal is allowed and the impugned judgment of conviction and the order of sentence are set aside. The bail bonds and surety bonds of the appellant are discharged.
29) The trial court record along a copy of this judgment be sent back to the learned trial court for information.
(Sanjay Dhar) Judge Srinagar 16.06.2023 "Bhat Altaf, PS"
Whether the order is speaking: Yes
Whether the order is reportable: Yes