By M Ahmad
Srinagar- Observing that small discrepancies cannot form ground for discarding testimony of a prosecutrix, the High Court of J&K and Ladakh on Tuesday upheld conviction of two persons held guilty by a trial in 2006 for a woman in Handwara area of north Kashmir’s Kupwara district 34 years ago.
“The only requirement of law is that before placing reliance upon sole testimony of the prosecutrix, the Court should be satisfied that the testimony of the prosecutrix is of sterling nature,” a bench of Justice Sanjay Dhar said while upholding judgment of Sessions Judge Kupwara on 22 November 2006 by which the accused, Ghulam Mohi-ud-Din Dar and Lassa Ganie were convicted for raping a woman in 1989.
However, the court reduced quantum of punishment of both the convicts from ten years to five years and asked them to surrender before the trial court within fifteen days.
“In the instant case having regard to the age of the prosecutrix, who was a grown-up lady at the relevant time and considering the fact that the occurrence has taken place some 34 years back and by now the prosecutrix as well as the appellants must have settled in their life, a lenient view of the matter is required to be taken,” the court said, adding, “We have also to take into account the fact that during this long lapse of time, the appellants (both convicts) must have suffered disrepute and mental agony and having regard to the fact that if the appellants are sent to imprisonment for ten years at this advanced age, when they have already become senior citizens, it may not serve the ends of justice.”
Accordingly, while upholding the conviction of duo for the offences punishable under RPC Section of 366 (kidnapping) and 376 (rape), the court modified the sentence, ordering that the duo shall undergo rigorous imprisonment for a period of five years and pay a fine of Rs.10,000 each.
“In default of payment of fine, the appellants (duo) shall undergo a further imprisonment of similar description for a period of six months,” the court said, adding, “The period during which the appellants have remained in custody during the investigation/trial of the case as also during the pendency of this appeal, shall be set off against the sentence of imprisonment imposed upon them.” The court directed the duo to surrender before the trial court within fifteen days.
According to prosecution, on 27 February 1989, the prosecutrix accompanied by her blind mother for treatment at Handwara hospital, went to purchase certain articles from a shop where Dar and Ganie were also sitting. The prosecutrix asked duo the address of the house of a Forester, as in the event of the prosecutrix and her mother not getting bus to their destination, they intended to stay in the house of the forester.
One of the accused introduced himself as the brother of the forester and offered the prosecutrix to take her to the house of the Forester. On this pretext, the duo led the prosecutrix towards Gogipora in an orchard and took her to a shed over there, where she was repeatedly subjected to forcible sexual intercourse by both of them. Subsequently, police filed the case and ultimately duo was convicted by the Sessions Court.
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