Shivaji Rathore 14-Dec-2025
Jammu, The High Court of Jammu & Kashmir and Ladakh has ruled that where the prosecution fails to prove the very occurrence of the alleged crime through clear, cogent and uncontradictory evidence, the minority of the alleged victim cannot be invoked as a fallback to sustain conviction. While reiterating the settled legal position that consent of a minor is legally irrelevant in rape prosecutions, the Court clarified that such a principle becomes applicable only after the prosecution first establishes that the alleged sexual offence actually occurred.
Justice Mohammad Yousuf Wani made these significant observations while allowing a criminal appeal and setting aside the conviction for gang rape recorded by the Sessions Court, Udhampur.
Background of the Case:- The case arose from an FIR registered at Police Station Udhampur in 2005, alleging that the prosecutrix, a student of Class 8th, had been subjected to sexual assault. According to the prosecution, the prosecutrix had travelled to Udhampur town to meet her sister and was returning home in the evening when she alighted from a matador. It was alleged that she was taken to a secluded place and raped by the accused. After investigation, a charge-sheet was filed for offences under Sections 376(2)(g), 342 read with 34 of the Ranbir Penal Code (RPC).
The Sessions Court, Udhampur, convicted both accused and sentenced them to ten years’ rigorous imprisonment for gang rape along with ancillary punishments. During the pendency of the appeal before the High Court, one of the convicts died, resulting in abatement of proceedings against him. The appeal therefore survived only in respect of the remaining appellant.
Grounds of Challenge Before the High Court:- The conviction was assailed on multiple grounds, including:- Unexplained delay of about eleven days in lodging the FIR Material contradictions in the statements of the prosecutrix recorded at different stages Inconsistency between medical evidence and the prosecution story Non-examination of investigating officers Failure to conclusively prove the age of the prosecutrix through primary school records
Absence of scientific corroboration:- It was also pointed out that despite allegedly knowing one of the accused, the prosecutrix did not name him either in the FIR or in her statement under Section 161 CrPC.
The State defended the conviction by arguing that delay in sexual offence cases is common due to social stigma, that minor inconsistencies are natural, and that conviction can be based on the sole testimony of the prosecutrix, particularly when she is a minor whose consent is immaterial in law.
Court’s Appreciation of Evidence:- After a comprehensive re-appraisal of the evidence, Justice Wani found serious and fundamental infirmities in the prosecution case.
Delay in FIR:- The Court noted that the eleven-day delay in lodging the FIR was not satisfactorily explained. The prosecutrix herself gave varying explanations during trial regarding the delay, leading the Court to observe that such unexplained delay opens the possibility of embellishment and afterthought. The Court reiterated that an FIR, being the earliest version of the occurrence, carries significant evidentiary value.
Contradictions in Prosecutrix’s Testimony:- The High Court found material inconsistencies in the prosecutrix’s versions as recorded in the FIR, during investigation, and at trial. Of particular importance was the fact that although she claimed during trial that the deceased accused was known to her and had raped her, his name did not appear in either the FIR or her statement under Section 161 CrPC.
“The non-mentioning of the name of the said accused No.1 (deceased) in the earlier statements by the prosecutrix raises a reasonable doubt as to the genuineness of the prosecution version of the case,”
the Court observed.
Medical Evidence Not Supporting Prosecution Case:- On examining the medical evidence, the High Court found that it did not support the allegation of forcible sexual assault.
The medical expert testified that:- There were no marks of violence on the body except a minor bruise
No spermatozoa were detected:- Sexual intercourse within a week of examination was unlikely
The Court noted:- “… the prosecutrix deposed at trial that she was forcibly subjected to sexual assault which does not appear to have been proved in light of the medical evidence. There is thus an inconsistency between her statements and the medical opinion.”
Non-Examination of Investigating Officers:- The Court viewed the non-examination of investigating officers as a serious procedural lapse. Justice Wani held that investigating officers are crucial witnesses for unfolding the prosecution case and ensuring fairness of investigation. Their deliberate non-examination justified drawing an adverse inference against the prosecution.
Failure to Prove Age of the Prosecutrix:- On the issue of minority, the Court found that the prosecution failed to produce the best evidence. The witness who issued the date of birth certificate admitted that: The original record was maintained by the primary school
The admission register contained cuttings and overwriting:- In the absence of primary school records, the Court held that the minority of the prosecutrix was not conclusively proved.
Minority Cannot Cure Failure to Prove Occurrence:- Reiterating that a conviction can be based on the sole testimony of a rape victim only when it is of “sterling quality”, the High Court held that testimony riddled with contradictions and unsupported by medical or circumstantial evidence cannot be treated as wholly reliable.
In a crucial observation forming the core of the judgment, the Court held:
“Where prosecution fails to prove the foundational facts of its case and the alleged occurrence becomes doubtful, the minority of the alleged victim cannot be pleaded as a support. Admittedly, the consent of minor victim is immaterial in respect of the prosecution for the offence of rape, but the establishment of the occurrence through clear and un-contradictory evidence is the prior legal requirement.”
The Court clarified that statutory presumptions and legal doctrines relating to consent cannot substitute the prosecution’s primary burden of proving that the crime actually occurred.
Decision
Holding that the trial court had failed to properly appreciate the evidence on record, the Jammu & Kashmir and Ladakh High Court allowed the appeal and set aside the judgment of conviction.
Case Title
Sanjay Kumar & Anr. vs State of J&K
