Jammu and Kashmir and Ladakh High Court: In a spine-chilling case where a girl child of 1 year was raped by her maternal grandfather, the Division Bench of Sanjay Dhar and Rajesh Sekhri*, JJ., upheld the impugned judgment given by the Trial Court convicting the accused-appellant for offence under Section 376(2)(f) of Ranbir Penal Code, 1989 and sentencing him to rigorous life imprisonment. The Bench stated that intense brutality was reflected in the commission of crime,
“Shiver runs down the spine to know that a maternal grandfather has gratified his animated passion and sexual lust by ravishing his one-year-old granddaughter. We do not find any mitigating or extenuating circumstance in the present case, which could dilute the rigor of penal consequences which appellant is bound to bear. It is a case, where the fence itself has eaten the crop”.
Background: In 2011, father of the victim filed a complaint against the accused-appellant for raping his 1-year-old daughter. The victim used to spend most of the time with the accused as he was her maternal grandfather. The accused took victim along to his house in the close vicinity and after some time, the victim was heard crying. One of the prosecution witnesses rushed to the room of the accused and found him lying naked by side of the victim, but he fled away. The child victim was found lying on the bed and bleeding per vagina. As per the prosecution story, the prevailing circumstances suggested that it was the accused who had raped the child victim.
On the completion of investigation, it came to the fore that wife of the accused had deserted him for the last eight years. Accused used to spend his time playing with the victim. On the fateful day, the victim was under the supervision of the accused as her parents left for their routine jobs.
Accused was arrested and since complicity of the accused in the commission of offence was established, investigation culminated into filing of final report under Section 173 CrPC. Accused was charged for offence under Section 376 RPC whereby he pleaded innocence, prompting the trial court to ask for the prosecution evidence. The Trial Court upon examining the prosecution evidence and witness convicted the accused and sentenced him to life imprisonment.
Aggrieved by the impugned verdict of the Trial Court, the accused appealed before the High Court.
Court’s Assessment: The Court took note of the statements given by the prosecution witness and found that their testimonies were coherent on material aspects of the case. Therefore, no material contradiction with respect to the occurrence was found.
The Court further noted that the doctor, who had examined the victim immediately after the occurrence, has stated that in March 2012, she examined one year old victim. On examination, her hymen was found to be torn and there was fresh injury on her genitals. The doctor not only stated that sexual abuse could not be ruled out, but she clarified in her cross examination that given the injuries found on the victim, one could surely say that it was a case of penetration or even an attempt to commit rape and in such type of penetration, there can be a possibility of discharge of sexual assailant.
The Court noted the defence failed to impeach the credibility of the child witness, (who was also the star prosecution witness) upon cross examination. The testimony of the sole eyewitness was also corroborated by the medical expert.
Relying on Modi’s Medical Jurisprudence and Toxicology, the Court pointed out that rape cannot be diagnosed by a medical expert, who can only certify with respect to a recent sexual activity. It is also clear that even an attempt of penetration, with or without emission of semen is sufficient to constitute offence of rape. Rape cannot be diagnosed by a doctor. A medical expert treating a rape survivor can only certify about any evidence of recent sexual activity. Rape is a judicial determination. The Court stated that medical expert has clearly opined that given the injuries found on the victim, was surely a case of penetration. In such circumstances, absence of semen stains pales into insignificance and would not come to the rescue of the accused-appellant.
The Court further stated that in view of unimpeached and credible testimonial potency of star prosecution witness, which was duly corroborated by the medical expert, failure of the prosecution to prove motive in this case pales into insignificance. “In cases related to sexual offences, it is the sexual lust and pervert brain, which, more often than not, would be the motive to drive a man to the sexual brutality, otherwise a saner element would not even think of violating the modesty of his one-year-old granddaughter. The circumstances prevailing, in the present case, would clearly canvass a picture leading to the only conclusion that it is the appellant and none else, who ravished the victim”.
The Court further stated that shortcomings in the investigation become marginal in case where testimonial potency of eyewitnesses to the occurrence inspire confidence and appear creditworthy. An accused cannot be acquitted merely on account of some lapses on the part of the investigating officer.
The Court thus opined that the accused-appellant has failed to point out any illegality or perversity in the impugned judgment passed by Trial Court. It was further pointed out that often sexual offences are committed in utmost secrecy, and it is difficult to find an eye witness to the same. However, in the present case, the star prosecution witness in a way is an eyewitness, if not to the actual act of sexual violence upon the victim, but to the facts and circumstances suggestive of the only inference that it was the accused-appellant alone, who raped his minor granddaughter. “The offence committed by the appellant is gruesome, which normal human being would not even think of. Therefore, we do not find any illegality or perversity in the impugned judgment of conviction”.
The Court grimly observed that the crime committed in the instant case is an outrageous violence of highest order on the private person of a child victim. “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”. The Court further observed that 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.
[Bodh Raj v. State of Jammu and Kashmir; 2023 SCC OnLine J&K 508, decided on 25-07-2023]
*Judgment by Justice Rajesh Sekhri
Advocates who appeared in this case :
For the appellant- Deepali Arora, Adv.;
For the respondent- R.S. Jamwa, AAG.