Srinagar: Reiterating that an appellate court interferes with a trial court’s findings only when there are substantial reasons to do so, the High Court of Jammu & Kashmir and Ladakh on Tuesday altered a rape conviction to one of attempted rape, holding that the evidence on record failed to establish the commission of rape beyond a reasonable doubt.
Allowing an appeal filed by Showkat Ahmad Seer, who had been convicted by a trial court for allegedly raping a neighbour in the Qalamabad area of Kupwara in 2016, Justice Sanjay Parihar held that while the evidence was insufficient to prove rape but it unmistakably demonstrated a determined attempt to commit the offence.
“The evidence on record, though insufficient to establish the commission of rape beyond reasonable doubt, unmistakably demonstrates that the appellant had made a determined attempt to commit the offence,” the Court observed.
The High Court set aside the conviction under Section 376 (rape) RPC, holding that the prosecution had failed to prove rape beyond reasonable doubt, primarily because the medical evidence did not establish penetration. Consequently, the trial court’s conviction for rape was found unsustainable.
According to the prosecution, the incident occurred on July 15, 2016, when the victim had gone to nearby agricultural fields for irrigation work. The accused allegedly appeared at the spot, forcibly took her to a nearby forest area and sexually assaulted her. The prosecution further claimed that when the victim failed to return home, her mother went in search of her, heard cries from the forest area and allegedly found the accused on top of the victim before he fled.
The FIR was lodged on July 19, 2016. During investigation, the victim was medically examined and injuries were noted on her body. Police also seized her torn pyjama and later filed a charge-sheet under Section 376 RPC.
However, upon scrutinising the evidence, the High Court held that the prosecution had failed to establish completed rape beyond reasonable doubt. The court noted that although the victim had suffered injuries, the medical examination revealed an intact hymen and did not support a finding of penetration.
Despite rejecting the charge of rape, the court found sufficient evidence to conclude that the accused had taken the victim to a secluded place, torn her pyjama, disrobed himself and committed a sexual assault with the intention of raping her. It accordingly held that the offence punishable under Section 376 read with Section 511 RPC, relating to an attempt to commit rape, stood proved.
The court also observed that the victim’s testimony was not entirely free from inconsistencies and improvements, while the mother’s claim of being an eyewitness did not inspire confidence. At the same time, it held that the four-day delay in lodging the FIR was not fatal to the prosecution case, noting that delays in reporting sexual offences are not uncommon due to social stigma and family deliberations.
The court further observed that the injuries found on the victim indicated a struggle and supported the allegation of sexual assault, though not of penetrative rape. It also noted that the defence had failed to establish any convincing motive for false implication.
While altering the conviction from rape to attempted rape, the court reduced the sentence from 10 years’ rigorous imprisonment and a fine of Rs 50,000 to five years’ imprisonment and a fine of Rs 10,000.
It further directed that the period already spent by the appellant in custody be set off against the sentence.
