UT OF J&K v. SHABIR AHMAD DAR & ANR.

The learned trial court after hearing the parties and after appreciating the evidence on record, came to the conclusion that the prosecution has been unable to bring home the guilt of the accused beyond reasonable doubt and, accordingly, the accused were acquitted by virtue of the impugned judgment of acquittal. 7) The appellant-State has challenged the impugned judgment on the ground that the learned trial court has not appreciated the evidence in its proper perspective. It has been contended that the impugned judgment is cryptic in nature. It has been further contended that the prosecutrix has clearly supported the prosecution case and her sole statement/testimony was enough to convict the accused. It has also been contended that the prosecutrix was minor, therefore, her consent was immaterial but the trial court has raised doubt about the testimony of the prosecutrix on the ground that there were no marks of violence present on her body.

8) I have heard learned counsel for the parties, perused the impugned judgment, the grounds of challenge and the evidence available on the trial court record. CrlA (AS) No.15/2021 9) As already noted, the charge against respondents/accused is that they had kidnapped the prosecutrix and thereafter wrongfully confined her. It is also alleged that accused Shabir Ahmad Dar has committed repeated sexual assaults upon the prosecutrix during two nights and that accused Shabir Ahmad Kuchay has aided and assisted accused No.1 in this process. 10) In order to prove the charges, the prosecution, besides examining the prosecutrix, has also examined the complainant who happens to be the father of the prosecutrix and the doctor who examined prosecutrix. Besides this, the Investigation Officer of the case has also been examined. 11) The first question that is required to be determined is as to whether the prosecutrix was minor at the time of the incident because the age of the prosecutrix in a case like present one becomes significant for determination as to whether or not the sexual intercourse committed by the accused upon the victim would come within the definition of ‘rape’. If it is found that the prosecutrix was minor at the relevant time, her conduct as to whether she was a consenting party to the alleged act would become immaterial.

CrlA (AS) No.15/2021 12) As per the prosecution case, the age of the prosecutrix at the relevant time was 13 years. Along with the challan the prosecution has placed on record a copy of the certificate issued by Government Middle School, Bugroo Khansahib, wherein date of birth of the prosecutrix is shown as 15.03.1992. The prosecution has also placed on record of the challan school leaving certificate which also depicts date of birth of the prosecutrix

15.03.1992. Unfortunately, prosecution has not examined any witness to prove these certificates, nor the relevant record to support these certificates has been summoned. In fact, no witness has been cited in the challan to prove these documents nor the Investigating Officer has examined any witness in support of these certificates during investigation of the case. When confronted with this position, Investigating Officer in his cross-examination has stated that he simply trusted the certificates issued by the school authorities. 13) In the absence of proof of the age certificates of the prosecutrix, the contents thereof relating to her age cannot be relied upon. There is no other evidence on record as regards the age of the prosecutrix. In fact, when the prosecutrix was cross-examined by the defence CrlA (AS) No.15/2021 to ascertain her age, she expressed her ignorance about the same. On top of it, the prosecution did not even examine her on this aspect of the case.

The complainant, who happens to be father of the prosecutrix, also could not state anything about age of the prosecutrix when he was cross-examined by the defence in this regard and no question regarding age of the prosecutrix was put to him by the prosecution. 14) 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 probabilities. Therefore, unless prosecution establishes that the prosecutrix was minor at the time of the alleged occurrence by leading cogent and convincing evidence in this regard, it cannot be stated that the prosecutrix was minor at the relevant time. The burden of proving that the prosecutrix was minor at the time of alleged occurrence was upon the prosecution, which it has miserably failed to discharge. 15) Having held that the prosecution has failed to establish that the prosecutrix was minor at the time of alleged occurrence, let us now proceed to analyze her statement which is crucial to the prosecution case.

Before doing so, it would be apt to notice the legal CrlA (AS) No.15/2021 position as regards the evidentiary value of a victim of rape. It is a settled law that conviction in a rape case can be based upon the solitary statement of a victim and it is not necessary for the Court to look for corroboration of her statement. However, it equally a settled position of law that before placing reliance upon the solitary statement of a victim of rape, the Court has to ascertain as to whether the testimony of the prosecutrix is of sterling quality. 16) The Supreme Court in the case of Ganesan vs. State, (2020) 10 SCC 573, had an occasion to consider a 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 CrlA (AS) No.15/2021 initial statement and ultimately makes the 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 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.” Kumar Malik v. State

10.2. In Krishan 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.

Whether, sexual harassment, molestation, etc., can there be conviction involving CrlA (AS) No.15/2021 evidence 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 [Stateof 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 lust and, therefore, her another person’s 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.

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 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) injury on It is well settled that a prosecutrix ‘12. complaining of having been a victim of the offence of rape is not an accomplice after the crime. There law that her is no rule of testimony cannot 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 assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.’

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 CrlA (AS) No.15/2021 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 courts should examine the broader probabilities of a case and not get swayed by insignificant discrepancies prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution contradictions statement of CrlA (AS) No.15/2021 case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement 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)

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.

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 in Rameshwar reliance on an earlier v. State Rajasthan, 1951 SCC 1213 : AIR 1952 SC 54] . judgment Rajasthan[Rameshwar v. State

Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.” CrlA (AS) No.15/2021 17) 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: inspires prosecutrix is now well-settled principle of

It law that conviction can be sustained on the sole testimony of 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]] 18) 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:

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 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, CrlA (AS) No.15/2021 sexual assaults. 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 [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).]

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 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 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 (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635: 1998 SCC (Cri) 1725].) throw out an otherwise looking injury. 19) 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 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 CrlA (AS) No.15/2021 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. 20) 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:

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.