“Child Victims Are Susceptible In The Imposing Atmosphere Of Courtrooms”: J&K High Court Upholds Conviction For Sexual Assault On 4-Year-Old, Cites No Prejudice In Rape Trial
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has upheld the conviction and sentence of an appellant for offences under Sections 376 and 323 of the Ranbir Penal Code (RPC). The Court affirmed the trial court’s judgment which had sentenced the appellant to eight years’ rigorous imprisonment and a fine of ₹5,000 for the offence of rape, and three months’ imprisonment along with a ₹1,000 fine for voluntarily causing hurt. The Court rejected arguments alleging identification errors, procedural lapses, and misapplication of charges, holding that the appellant was clearly aware of the nature of the accusations and that the evidence supported the conviction
The criminal appeal arose from a judgment delivered by the Principal Sessions Judge, Leh Ladakh, on 1 August 2019. The appellant was convicted under Sections 376 and 323 RPC, and sentenced to eight years’ rigorous imprisonment with a fine of ₹5,000 for rape and three months' imprisonment with a ₹1,000 fine for voluntarily causing hurt.
The prosecution case commenced on 23 June 2017 when the Lamberdar of Village Nimo reported to the Police that a labourer had attempted to rape a minor girl. An FIR bearing No. 44/2023 was registered under Sections 376 and 511 RPC. During investigation, the victim was subjected to medical examination. Her clothes were seized, and the appellant was arrested. Witness statements were recorded, including that of the victim, her parents, and other relevant individuals. Medical findings supported allegations of sexual assault, including injuries and symptoms observed on the child.
The prosecution alleged that the appellant enticed the minor to a secluded area and attempted to rape her, causing visible physical injuries. Upon completion of investigation, the police filed a challan under Sections 376, 511, and 323 RPC. However, the trial court framed charges under Sections 376 and 323 RPC alone. The appellant pleaded not guilty, and the trial proceeded.
Nine prosecution witnesses were examined. The victim testified that the appellant took her to a desolate location, bit her cheeks, and touched her private parts with his finger. The medical examination corroborated these claims, revealing injuries to her vulva and mons-pubis, foul-smelling discharge, and painful urination. Her mother testified that the child returned home crying, holding her pajamas, and wore only one slipper. She narrated the incident to her parents, who immediately reported it to the Lamberdar.
In his statement under Section 342 Cr.P.C., the appellant denied the charges, claiming enmity with the victim's parents due to past altercations. He did not lead any defence evidence. The trial court held that the prosecution had proved the charges beyond reasonable doubt and convicted the appellant accordingly.
On appeal, the appellant argued that the trial court failed to consider discrepancies in witness statements and the absence of a test identification parade. It was submitted that the accused was not previously known to the victim, who had referred to him during the investigation only as “Dilliwala Uncle.” The defence further contended that the evidence on record did not prove rape but at best indicated an attempt to commit the offence. It was asserted that the charges as framed did not justify a conviction under Section 376 RPC, and that the trial court had erred in both law and procedure.
Justice Sanjay Dhar recorded, “assertion of the learned counsel for the appellant/accused that the appellant was not named by the victim during the course of investigation of the case, is correct.” However, the Court observed that the victim's father had testified to knowing the accused previously: “he had previous acquaintance with the appellant/accused.”
The Court noted: “there is enough material on record to conclusively prove that there was previous acquaintance between the appellant/accused and the family of the victim girl.” The victim also identified the appellant in her testimony, stating he had committed a “dirty act” and caused her pain. The Court held: “In these circumstances, there was hardly any requirement for the investigating agency to conduct the test investigation parade.”
Regarding the defence’s argument that only an attempt to rape was established, Justice Dhar stated: “The contention of learned counsel for the appellant… appears to be attractive but… the victim was only four years old at the relevant time.” The Court stated the need to appreciate the testimony of child witnesses differently: “She cannot be expected to depose with perfection and narrate minute details.”
Citing the Delhi High Court’s decision in State vs. Sujeet Kumar, the Court referred extensively to international standards and the psychological challenges child witnesses face: “Children worry about not being believed while testifying, especially those who are victims of sexual abuse.”
Justice Dhar further observed: “She must have also faced the imposing personality of the appellant/accused at the time of her deposition… the fact that she stated in cross-examination that the appellant had only touched her private part may not be of much consequence.”
Referring to medical evidence, the Court stated: “The Doctor has in clear cut terms deposed that there were cuts on the vulva, mons-pubic of the victim… and foul smell was emitting from her vagina.” The findings supported penetration by a foreign object. The Court concluded: “the evidence on record clearly suggests that it is the appellant who inserted his finger inside the vagina of the victim.”
Regarding the appellant's claim of prejudice due to errors in the charge framing, the Court noted: “The learned trial court has clearly mentioned that the appellant has been charged for offence under section 376 RPC.” While the charge sheet reflected ingredients of attempt, the Court applied Section 225 J&K Cr.P.C., holding: “An error in stating offence… cannot be recorded as material unless the accused was, in fact, misled by such error or omission.”
Relying on Main Pal vs. State of Haryana, the Court summarised: “There will be no prejudice… where there was an error in the charge and the accused was aware of the error… Such knowledge can be inferred from the defence.”
The Court concluded: “The record clearly shows that the appellant was all along aware of the fact that he was being tried for offence of rape… it cannot be stated that the appellant was subjected to any prejudice while making his defence.”
Thus, the Court upheld the following components of the sentence originally imposed:
The appellant is to undergo rigorous imprisonment for a period of eight years and pay a fine of ₹5,000 for having committed an offence under Section 376 RPC. In default of payment of fine, the appellant shall undergo a further imprisonment of three months.
Additionally, for the offence under Section 323 RPC, the appellant shall undergo imprisonment for a period of three months and pay a fine of ₹1,000. In default of payment, the appellant shall undergo one month of additional imprisonment.
No modifications were made to the sentence or conviction. The Court concluded that no prejudice had been caused to the appellant by the manner of charge framing, and that the findings of the trial court were legally and factually sustainable. Consequently, the appellate court declined to interfere with either the conviction or the sentence awarded.
Accordingly, the appeal was dismissed in its entirety, and all directions and findings of the trial court were allowed to stand.
“The appellant, who is in jail, shall serve the balance period of sentence.”
Advocates Representing the Parties:
For the Petitioners: Ms. Deepika Mahajan, Advocate with Mr. Atharv Mahajan, Advocate
For the Respondents: Mr. Vishal Sharma, DSGI with Mr. Eishan Dadhichi, CGSC
Case Title: XXX v. UT of Leh and Ladakh
Case Number: Crl A(S) No. 5/2020
Bench: Justice Sanjay Dhar
[Read/Download order]
