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Synopsis

The Jammu and Kashmir and Ladakh High Court has underscored the necessity of thorough scrutiny of a prosecutrix's testimony in rape cases while overturning a conviction in a rape case.

The court, presided over by Justice Sanjay Dhar, observed that “statement of the prosecutrix cannot be treated as one of sterling quality for the reason that she has contradicted her previous statement on a vital aspects and there are inherent improbabilities and contradictions in her statement making it highly hazardous to place reliance upon it,” emphasising that reliance on the testimony of the victim must be predicated on its consistency and credibility.

The court made the observation in response to a criminal conviction appeal filed by the accused / appellant, who had been convicted by the Principal Sessions Judge, Kathua, on charges of kidnapping, wrongful confinement, and rape under Sections 363, 376, and 343 of the Ranbir Penal Code (RPC), receiving a cumulative sentence of 18 years imprisonment and fines totalling Rs. 16,000.

The case originated when the father of the prosecutrix, on February 27, 2018, reported her missing. He suspected kidnapping after she failed to return home. Subsequent investigations led to her recovery and medical examination, revealing her age to be 15/16 years. It was alleged that the accused had taken her to Rajasthan and committed rape multiple times over several days before she was rescued from the clutches of the appellant/accused by her brother.

During the trial, the prosecutrix's testimony before the Magistrate under Section 164-A CrPC differed materially from her statements during the trial. Initially, she claimed to have been in contact with the appellant and traveled with him voluntarily, contradicting her later statement of being abducted and drugged.

The accused, represented by Advocate Jagpaul Singh and Advocate Sourav Mahajan, highlighted these inconsistencies, arguing that the prosecutrix's account was not credible.

Contrarily, the prosecution, led by Dy. AG Dewaker Sharma, asserted that the prosecutrix's testimony alone was sufficient for conviction and that corroboration was not necessary.

The court observed that that the prosecution's case was primarily based on the statement of the prosecutrix, with additional evidence being the medical reports and the claim that the prosecutrix was recovered from the custody of the appellant. However, the medical evidence did not support the prosecution's case, as there was no evidence of recent sexual intercourse, and no spermatozoa were detected in the vaginal smear. Additionally, the recovery of the prosecutrix from the appellant's custody was not substantiated by credible evidence. The statements of the prosecutrix's parents and the investigating officer did not confirm that she was found with the appellant.

The court also noted significant contradictions in the prosecutrix's statements. Her testimony before the court differed materially from her statement recorded under Section 164 CrPC. In her court testimony, she claimed to have been unconscious after drinking a cold drink offered by the appellant and waking up in Rajasthan, whereas her earlier statement indicated she had been in contact with the appellant for a month and traveled with him willingly. This contradiction, along with other inconsistencies, such as the unexplained period of more than four months when she was allegedly with the appellant, undermined the credibility of her testimony.

"The Court should satisfy itself that there is no doubt as to the factum of occurrence, the person involved as well as the sequence of occurrence. It has to be further seen whether the version given by the prosecutrix is consistent with the version given by every other witness and whether it has correlation with the supporting material,” the court remarked.

Given these discrepancies and the lack of corroborative evidence, the court concluded that the prosecutrix's testimony did not meet the standard of a "sterling witness.”

The court emphasised that the trial court's finding that the prosecutrix was recovered from the appellant's custody is unsupported by any evidence. “The trial Court without testing the testimony of the prosecutrix on the touchstone of settled principles of evidence, has proceeded to rely upon the same. The findings recorded by the trial Court to say the least, are perverse being based on no evidence and flawed reasoning. The same deserve to be set aside,” the court stated.

Accordingly, the judgment of conviction and sentence recorded by the trial court was set aside and the appellant was ordered to be released from custody forthwith.

 

Cause Title: Naresh Kumar v UT of Jammu & Kashmir [Crl A(S)No. 1/2024]