Refusal To Act On Rape Victim's Testimony In Absence Of Corroboration Adds Insult To Injury: JKL High Court Upholds Rape Conviction

While upholding the conviction of a man who raped a minor girl in the year 2011, the Jammu and Kashmir and Ladakh High Court today remarked that in the Indian setting, the refusal to act on the testimony of a victim of sexual assault in the absence of corroboration, as a rule, is adding insult to injury.

The bench of Justice Rajnesh Oswal and Justice Mohan Lal also observed that in rape cases, the victim loses her face, and her value as a person. The Court further emphasized that in our conservative society, a woman and more so a young unmarried woman will not put her reputation in peril by falsely alleging forcible sexual assault.

The case in brief 

The appellant/convict had been held guilty, convicted, and sentenced to undergo rigorous imprisonment for a period of 20 years for commission of offence punishable u/s 376 RPC and was further sentenced to simple imprisonment for a period of 2 years for commission of offence punishable u/s 506 RPC.

The appellant challenged the conviction order on the ground that the prosecutrix had filed an application for registration of FIR after the lapse of more than 08 months from the date of the incident, there has been a delay in the registration of FIR which has remained unexplained

It was also argued that the prosecutrix had never mentioned in her statement recorded before the trial court that the appellant/convict had ever committed rape upon her, and that she had only stated that the appellant/convict committed "Beparadgi" upon her, which by no stretch of imagination can be construed as rape. Further, the accused also questioned the claim of the victim about being a minor.

Court's observations 

At the outset, the Court observed that the delay in lodging FIR in cases under Section 376 IPC would depend upon the facts of each case, regard being had to the trauma suffered by the prosecutrix and various other factors such as fear of social stigma.

"In the case in hand, FIR has been lodged on 04-12-2011 after a laps of about 8 months from the date of occurrence i.e. 04-04-2011. It is admitted case of the prosecution that there is a delay of about 8 months in lodging the FIR. The prosecutrix has satisfactorily explained the delay that she was under the threat of being killed by appellant/convict and therefore when her father came at home from Kashmir and enquired from her regarding her putting on flesh, she told her father that she is having child of accused in her womb," the Court remarked as it noted that the delay in the lodging of the FIR was explained by the victim.

Further, the Court stressed that the evidence of the prosecutrix does not necessarily need corroboration for sustaining the conviction of the accused where the prosecutrix had no motive to falsely implicate the accused risking her own reputation and that a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault.

Against this backdrop, the Court held that the prosecutrix who is minor had no motive to falsely implicate the appellant/accused risking her own reputation in peril by alleging falsely about forcible sexual assault by the appellant.

Adverting to the second argument of the accused, the Court observed that the word "bepardagi" is Urdu vernacular word and it clearly means to undress or make someone nude.

"The prosecutrix has testified the correctness of the contents of her statement recorded u/s 164-A Cr.pc before Judicial Magistrate during the course of investigation which clearly establishes/proves that she was subjected to the act of forcible sexual intercourse/rape by appellant/accused...Arguments advanced by Ld. Counsel for appellant/convict that the word "bepardagi" does not mean rape and the prosecutrix nowhere has stated before the trial court that she was subjected to forcible sexual intercourse/rape, in view of the cogent, credible and sterling quality of evidence led by the prosecutrix, are legally unsustainable, repelled, rejected and discarded." the Court further remarked.

Taking into account the evidence on record, the Court came to the conclusion that the date of birth of the prosecutrix was 12-12-1995 and at the time of occurrence on 04.04.2011 her date of birth when calculated comes to 15 years and about 04 months, and therefore, the prosecutrix/victim (PW-3) at the time of occurrence on 04.04.2011 was minor and under 16 years of age.

Lastly, regarding the quantum of sentence, the Court took into consideration the mitigating circumstances projected by the appellant/convict (34 years of age, married man), and while upholding the conviction, modified the sentence of 20 years rigorous imprisonment imposed upon the appellant/convict to a minimum sentence of 7 years (RI) for the commission of offence of rape u/s 376 RPC without altering the fine component of Rs. 50000/-.

However, the sentence imposed by the trial court for commission of offence u/s 506 RPC for 2 years simple imprisonment and fine component shall remain unaltered, the Court ordered.

Case title - Liaqat Ali v. Union Territory of Jammu & Kashmir and another

Citation :2022 LiveLaw (JKL) 133

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