Minor Survivor's Testimony Not Shaken Despite Lengthy Cross Examination: Rajasthan High Court Upholds 33 Yrs Old Attempt To Rape Conviction

The Jaipur bench of the Rajasthan High Court recently upheld a 33-year-old trial court order convicting a man for attempting to rape a minor girl, while noting that the girl's version of the incident had not been "shaken" even though she was subjected to lengthy cross-examination by the defence. 

In doing so the high court underscored that the girl's statement has to be seen in the light of the FSL report and merely because she had not said anything about the actual assault was not enough to conclude that the incident did not take place. 

It was the case of the counsel for the appellant that the entire case of the prosecution was based on the solitary testimony of the minor girl who was not a "trustworthy witness" since there were a lot many contradictions in her statements.

After carefully examining the minor girl's statements, a single judge bench of Justice Anoop Kumar Dhand in its order however said, "This witness was cross examined by the appellant and slight improvement and contradictions were found, from her earlier statements which were recorded before the Police. Slight contradiction and improvements in her version were obvious because when the incident occurred on 07.02.1985 this child witness was of the age of 05 years and when her statements were recorded on 07.06.1990, her age was 11 years. Even though, the statements were recorded after 05 years and 04 months from the date of incident, the evidence of this witness has not shaken". 

The court further affirmed that it was a settled proposition of law that while assessing statement of a child witness, the Court should take into account the vulnerability and susceptibility of the child under imposing atmosphere of the courtroom. Hence, it was observed that the statement of the child had to be appreciated in light of corroborating scientific evidence i.e. FSL reports.

"Thus, merely because the victim has not stated anything about the actual assault does not lead to a conclusion that it has not taken place. Her statement, having regard to her tender age and vulnerabilities, has to be appreciated in the light of FSL report," the court underscored. 

The high court was hearing a man's appeal against a 1991 order of the trial court holding him guilty of attempting to rape the minor girl in 1985 when she was 5-years-old. It was alleged that the accused called the girl to his room, forcibly made her lie down on the bed, undressed her and pressed his genitals against her's and then discharged. As per the FSL report, semen was found on the undergarments of both the girl as well as the appellant.

The high court also observed that the defence was not able to establish as to why such allegations were levelled against the appellant by a 5-year-old child, adding that the appellant had failed to make out a case as to why he has been falsely booked in the present case. 

Furthermore, the Court assessed the difference between an attempt and mere preparation to commit a crime. Reference was made to the Supreme Court's decision in Madan Lal v State of J&K (1998) in which it was held that degree of the act of the accused was notably decisive to differentiate between “preparation” and “attempt” to commit rape. The apex court had held that:

“If an accused strips a girl naked and then making her lie flat on the ground undresses himself and then forcibly rubs his erected penis on the private parts of the girl but fails to penetrate the same into the vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 511 IPC.”

In this background, the High Court held that in light of the available evidences, it was clear that the appellant had done all that was required to "accomplish his evil desire" of raping the minor girl. Finding it a clear cut case of attempt to rape, the high court refused to interfere with the trial court's order finding it well reasoned and well crafted. 

Accordingly, the appeal was rejected and the appellant was ordered to surrender before the trial court within two weeks and serve his remaining sentence.

Citation: 2024 LiveLaw (Raj) 315

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