Srinagar, Sept. 29, KDC: Setting aside a trial court conviction and a seven-year rigorous imprisonment sentence, the High Court of Jammu & Kashmir and Ladakh has acquitted a Budgam resident of rape, house-trespass, and criminal intimidation charges, observing that the police impermissibly converted an initial allegation of “attempt to rape” into a case of completed offence without any independent forensic corroboration.
Allowing a criminal appeal, Justice Sanjay Parihar set aside the judgment of conviction dated October 10, 2023, and the order of sentence dated November 7, 2023, passed by the Additional Sessions Judge (Fast Track), Budgam. The court directed that the appellant, Mohammad Ashraf Ganie, a resident of Kach Harran in Beerwah, who was lodged in Central Jail, Srinagar, be released forthwith.
The criminal proceedings originated from FIR No. 309/2007 registered at Police Station Budgam. According to the prosecution, on July 15, 2007, when the prosecutrix was alone at home in a Budgam village while her adoptive parents were away for work, the appellant allegedly barged into the kitchen, bolted the door from inside, gagged her, and sexually assaulted her.
Significantly, the original written complaint lodged by her adoptive father and the initial statements recorded under Section 161 of the Code of Criminal Procedure described an “attempt to commit rape” under Sections 376 and 511 of the Ranbir Penal Code (RPC).
However, following a medical examination conducted at the District Hospital, Budgam, which revealed that the prosecutrix was not a virgin and that sexual intercourse had taken place, the investigating agency dropped Section 511 RPC and framed charges for completed rape under Section 376 RPC, along with Sections 450 (house-trespass) and 506 (criminal intimidation).
The Trial Court convicted Ganie in October 2023, sentencing him to seven years of rigorous imprisonment for rape, five years for house-trespass, and one year for criminal intimidation.
Appearing for the appellant, Senior Advocate S. T. Hussain, assisted by Advocate Nida Nazir, contended that the prosecution case suffered from irreconcilable contradictions. Counsel argued that the shift from an alleged “attempt” to a “completed rape” was a deliberate improvement, the medical report did not connect the accused to any specific act, no biological or forensic samples were collected, and there was an unexplained delay of five days in conducting the medical examination.
Opposing the appeal, Deputy Advocate General Hakim Aman Ali argued that the sole testimony of a prosecutrix does not require mechanical corroboration, and that minor variations in statements given by rural witnesses ought not to dismantle an otherwise credible account of sexual violence.
Re-evaluating the evidence, Justice Sanjay Parihar observed that while an FIR is not substantive evidence, an unexplained departure affecting the very nature of the crime cannot be overlooked:
“The Investigating Officer acknowledged that the witnesses had initially spoken of an attempt, whereas at trial PW-1, PW-2 and PW-3 asserted a completed act. The medical opinion could establish, at the highest, that the prosecutrix had previously experienced sexual intercourse; it could neither determine when such intercourse had occurred nor identify the person involved. Consequently, the medical opinion could not, by itself, convert an uncertain initial allegation into proof beyond reasonable doubt of the completed offence alleged against the appellant,” the Court said.
The High Court noted that the medical officer found no external marks of violence on the body of the prosecutrix. Due to the victim menstruating at the time of examination, no vaginal smears or slides could be prepared, resulting in a total absence of biological or forensic evidence connecting the appellant to the alleged act.
Addressing the defence plea of alibi, wherein the appellant claimed he was working as a cook in Srinagar on the day of the incident, the court noted that the appellant had failed to substantiate his claim by not examining his co-worker. However, Justice Parihar made it clear that weaknesses in the defence cannot bridge deficiencies in the state’s case:
“Failure of the appellant to prove the alibi, however, cannot be converted into affirmative proof of the prosecution case. The prosecution must succeed on the strength of its own evidence and not upon the weakness of the defence. The same principle applies to the alleged monetary dispute. Even if the appellant fails to establish a motive for false implication, that failure does not relieve the prosecution of its burden to prove the charges beyond reasonable doubt,” the Court held.
The Bench held that because the allegations of house-trespass and criminal intimidation formed part of the same disputed transaction, it would be unsafe to selectively uphold those convictions once reasonable doubt clouded the core charge of sexual assault.
Ruling that the benefit of doubt is a matter of legal entitlement rather than grace whenever the prosecution fails to establish guilt beyond reasonable doubt, the High Court set aside the conviction and acquitted Ganie of all charges. (KDC)
