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Nothing Has Improved Even A Decade After Nirbhaya: Jammu & Kashmir High Court Convicts Grandfather Of Raping Toddler
Basit Amin Makhdoomi
19 Aug 2023 9:00 AM IST
Upholding the conviction of a man accused of raping his one-year-old granddaughter, the Jammu and Kashmir and Ladakh High Court recently expressed its concern that despite over a decade since the heinous Nirbhaya case, little progress has been made in addressing the increasing crimes against women and children. A bench of Justices Sanjay Dhar and Rajesh Sekhri added that women have the right...
Upholding the conviction of a man accused of raping his one-year-old granddaughter, the Jammu and Kashmir and Ladakh High Court recently expressed its concern that despite over a decade since the heinous Nirbhaya case, little progress has been made in addressing the increasing crimes against women and children.
A bench of Justices Sanjay Dhar and Rajesh Sekhri added that women have the right to life, liberty, respect, and equality while urging courts to be more cautious in rape trial proceedings, particularly in the wake of escalating crimes against women.
"Nothing has improved even after more than a decade of “Nirbhaya”. Women also have the right to life and liberty. They also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. Women, in them, have many personalities combined. They are not playthings. Of late, crime against women in general and rape in particular is on the increase. It is a blot on the society and a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. Therefore, courts shoulder a great responsibility while trying an accused on charges of rape."
The case revolved around the brutal rape of a minor child, committed by her own maternal grandfather and his subsequent conviction by the trial court under Section 376 (2) (f) of the Ranbir Penal Code, 1989.
The appellant had contested his conviction on multiple grounds, questioning the evidence presented against him. His counsel argued that the trial court had failed to properly appreciate the evidence, which he claimed was ridden with contradictions and discrepancies. He further argued that there was a lack of proof of motive behind the alleged crime, and the prosecution had failed to establish any attempt of penetration. The defence also pointed out that key witnesses were close relatives of the victim, making them biased and interested witnesses.
Adjudicating upon the matter the bench systematically addressed each contention and reaffirmed the conviction. Highlighting the significance of the victim's statement and medical evidence in determining the truth of the crime bench observed,
"The sole testimony of PW-Kajal, duly corroborated by the Medical Expert, is sufficient to uphold the conviction of the appellant."
Deliberating on the role of medical evidence in cases of sexual crimes the court emphasized that rape cannot be diagnosed by a medical expert, who can only certify recent sexual activity. It stressed that even an attempt at penetration, with or without the emission of semen, is sufficient to constitute the offence of rape and cited observations from Modi's Medical Jurisprudence and Toxicology to reinforce this point.
“A medical expert treating a rape survivor can only certify about any evidence of recent sexual activity. It is none of his business to opine whether rape is committed or not. Rape is a judicial determination. Since rape is crime, it is only for a Court to determine whether rape within the meaning of Section 375 IPC is made or not. Offence of rape can be established even without producing any injury to the genitals or leaving any seminal stains”, the bench underscored.
Addressing the issue of motive and the failure to examine certain witnesses the Court ruled that motive, though important, loses significance when there is direct trustworthy evidence of the crime and the absence of a clear motive did not weaken the prosecution's case in this instance.
Based on these considerations the bench could not find any illegality much less perversity in the judgment of conviction and sentence propounded by the trial court.
The appeal was therefore dismissed as being devoid of merit.
Case Title: BR (name redacted) Vs State of J&K
Citation: 2023 LiveLaw (JKL) 221
