Prosecutrix's Testimony Concerning Factum Of Occurrence & Persons Involved Ought To Be Scrutinized Before Basing Conviction On It: J&K High Court

A bench of Justice Sanjay Dhar added,

“.. 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 made these observations while hearing a Criminal Conviction appeal of Naresh Kumar, a resident of Village Duggan, Tehsil Bani, District Kathua, who was convicted by the Principal Sessions Judge, Kathua, for kidnapping, wrongful confinement, and rape under Sections 363, 376, and 343 of the Ranbir Penal Code (RPC). Kumar was sentenced to a total of 18 years of imprisonment with fines amounting to Rs. 16,000.

The case began when Simru Ram, the father of the prosecutrix, reported her missing on February 27, 2018. He suspected that his 15-year-old daughter had been kidnapped. Following this, the prosecutrix was recovered and alleged that Kumar had taken her to Rajasthan, confined her, and repeatedly raped her.

Assailing his conviction Kumar through his counsel Mr. Jagpaul Singh and Mr. Sourav Mahajan, had argued that the trial court had failed to properly appreciate the evidence. He highlighted contradictions in the prosecutrix's statements, questioning her credibility and the prosecution's inability to prove her minority at the time of the incident. He also submitted that the sexual activity, if any, was consensual and that the prosecutrix was not recovered from his custody.

On the other hand, the prosecution, represented by Mr. Dewaker Sharma, Dy. AG, maintained that the testimony of the prosecutrix was sufficient for conviction and that corroboration was unnecessary.

Upon meticulous examination of the evidence and the inconsistencies in the victim's statements Justice Dhar noted that the prosecution failed to establish crucial aspects of the case, such as the recovery of the victim from Kumar's custody. Additionally, the investigating officer did not examine the victim's brother, who allegedly rescued her, or the person who supposedly helped him locate her and these crucial omissions further weakened the prosecution's case, the bench underscored.

Justice Dhar emphasized the principle that a victim's statement, while critical, needs to be internally consistent and supported by corroborating evidence. In this case the court noted that the prosecutrix initially claimed she was drugged and taken to Rajasthan, but her statement under Section 164 CrPC mentioned prior acquaintance with Kumar and a planned trip.

The court also noted that the prosecutrix had mentioned a confinement of 5-6 days, yet the record showed she was missing for over four months, leaving a significant unexplained gap. Furthermore, there was no evidence to support the claim that the prosecutrix was recovered from Kumar's custody, with key witnesses like the victim's brother, who allegedly rescued her, or the person who supposedly helped him locate her were not examined by the investigationg officer.

“It is a mystery as to how the prosecutrix could be recovered from a large State like Rajasthan without there being any clue about her exact location. Perhaps, the brother of the prosecutrix Mukesh and the person who allegedly recovered the prosecutrix (Rattan Chand) could have thrown some light on this aspect of the matter, but unfortunately, the Investigating Agency has neither examined these witnesses during investigation of the case, nor has it cited them as witnesses in the challan”, the bench remarked.

Concluding that the prosecutrix's testimony was not of sterling quality due to its inconsistencies and contradictions the court criticised the trial court for not addressing these issues and relying on flawed reasoning.

Consequently, the court set aside the conviction and ordered Kumar's immediate release if not required in any other case.

Case Title: Naresh Kumar Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 149

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