Srinagar, Nov 3: The Jammu and Kashmir and Ladakh High Court has held that a survivor’s disability cannot be a ground for disbelieving her testimony in a sexual assault case, observing that it is the responsibility of the court to ascertain the truth rather than allow a witness's physical limitations to prejudice the assessment of evidence.
Dismissing appeals filed by two men convicted of rape and kidnapping, the court observed that rejecting the testimony of a survivor merely because of her disability would be unjustified, particularly when there was no material suggesting false implication or any previous enmity between the accused and the victim's family.
However, allowing the appeal of a third accused, the court acquitted him of all charges after finding that the survivor had not made any incriminating statement against him.
Justice Rajnesh Oswal passed the judgment while deciding appeals against the conviction and sentencing order of the Principal Sessions Judge, Reasi, in a case registered under Sections 363, 376 and 109 of the Ranbir Penal Code.
The case dates back to November 2014, when the father of an 11-year-old girl approached police in Arnas after his daughter went missing while collecting leaves for their livestock.
According to the prosecution, the father subsequently found the child unconscious in bushes, with blood-stained clothes. The girl, who had partial vision impairment in one eye and a speech disability, narrated that three men had taken her into the bushes, where two of them sexually assaulted her.
Following an investigation, the accused were charge-sheeted. The trial court subsequently convicted Rakesh Singh and Sanjeev Sharma under Sections 376 and 363 RPC, while Rashpal Sharma was convicted under Sections 363 and 109 RPC.
Challenging the convictions, the appellants argued that the trial court had failed to comply with Section 119 of the Evidence Act, particularly the requirement of video-recording the testimony of a witness unable to communicate verbally. They also questioned the use of an interpreter, medical evidence and the alleged absence of evidence against one of the accused.
Rejecting the principal arguments, the High Court observed that the survivor's statement had been recorded with the assistance of an interpreter after the trial court satisfied itself about the interpreter's competence.
The court acknowledged that the statement had not been video-recorded but held that the appellants had failed to demonstrate how the omission had caused prejudice or resulted in a miscarriage of justice.
Referring to the Supreme Court's judgment in State of Rajasthan v. Darshan Singh (2012), the court reiterated that a person with speech or hearing disabilities is competent to testify, provided the court takes appropriate measures to assess the witness's understanding and ability to communicate.
On the medical evidence, the court noted that the survivor was examined three days after the incident. The absence of spermatozoa in the medical examination could not, therefore, be treated as conclusive evidence against the prosecution. It also took note of the forensic report detecting spermatozoa and blood stains on the victim's trousers.
The court further held that the survivor had clearly described the circumstances of her abduction and assault, directly implicating Rakesh Singh and Sanjeev Sharma.
However, finding no incriminating statement by the survivor against Rashpal Sharma, the court extended the benefit of doubt to him.
Consequently, the High Court dismissed the appeals of Rakesh Singh and Sanjeev Sharma, upholding their convictions and sentences, while allowing Rashpal Sharma's appeal and acquitting him of all charges.