Repeated Sexual Activity With 9 Yr Old Child Not Possible Sans Any Injury In Vaginal/ Genital Area: JKL HC Sets Aside Rape Conviction

Observing that repeated sexual activity on a 9 year old child is not possible without any injury in the vaginal /genital area, the Jammu and Kashmir and Ladakh High Court recently set aside the conviction order of the trial court passed against a rape accused.

Finding that the prosecutrix may have been tutored to make the statement for implicating the appellant falsely, the Bench of Justice M. A. Chowdhary set aside the conviction order passed against one Ishfaq Ahmad Khan by Additional Sessions Judge, Anantnag under Section 376(2)(i) RPC convicting the appellant/rape accused.

The case in brief 

Appellant had moved the High Court challenging his conviction under Section 376(2)(i) RPC on the ground that he had been falsely implicated in the case by the father of the prosecutrix for dispute over some payments between them.

It was further his case that the trial court had relied upon the statement of prosecutrix, though her statement did not inspire confidence to base conviction; that the prosecution had examined most of the witnesses from the family of the prosecutrix only, and their statements are of no corroboration with that of the statement of prosecutrix.

On the Other hand, it was the prosecutrix version that during the night hours, appellant/accused molested her younger sister, who told her about this incident and she shifted her younger sister towards other side and slept herself on the side of the appellant.

Thereafter, she alleged that the accused/appellant focused torch on her, took her to his bedding, gagged her mouth with a muffler and took off his and her lowers with the help of his legs and arms and then raped her.

Court's observations 

On consideration of whole of the gamut of the prosecution evidence, the Court observed that the case mainly revolved around the deposition of the prosecutrix who was only 9 years of age.

Further, the Court noted that though accused could be held guilty for the commission of offence of rape based on the solitary evidence of the prosecutrix, however the same must inspire confidence and should appear to be absolutely trustworthy, unblemished and should be of sterling quality.

Now against this backdrop, when the Court analysed the deposition of the prosecutrix, it found that there was total variation in her version from what was stated in the complaint and what was deposed before the court at the time of trial.

"It is not understandable as to how the prosecutrix, who was apprehensive with regard to her sister who was younger to her being molested who in her own statement had not said anything with regard to her alleged molestation, and instead of informing her younger sister about the incident the prosecutrix should have informed her maternal uncle or her brother who too were sleeping in the same room, and how without any protest she was shifted to the bedding of the appellant by the appellant and then after having sexual activity went back to her own bedding...It cannot be possible that the child of the age of only 9 years, who even had not reached the age of menarche could be ravished three times repeatedly without any pain, protest or resistance which may not have been noticed by the other persons sleeping in the same room", the Court noted as it found the desposition of the prosecutirx unbelievable.

The Court also osberved that the contention of the prosecutrix was belied to the extent that the statement of the medical expert who had clearly stated that there was no injury on the private parts of the prosecutrix.

"The repeated sexual activity on such a person of tender age cannot be possible without any injury in the vaginal /genital area...it is clear that presence of almost all the witnesses- parents, maternal uncle and siblings- elder brother and younger sister, was in the house and except parents all others in the room, where the prosecutrix is alleged to have been raped by the appellant, conduct of the parents to sleep in the upper floor, leaving the children including prosecutrix in the ground floor, where the beddings of the daughters were claimed to have been laid just besides that of appellant who was a stranger, is not understandable," the Court remarked as it found the prosecutrix's statement to be not sterling, and thus, it allowed the appeal of the accused.

Case title - Ishfaq Ahmad Khan v. State of J&K & Ors. [CrlA(S) No. 8/2019-CrlM No. 914/2019]

Case citation: 2022 LiveLaw (JKL) 62

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