Prosecutrix Testimony In Sexual Assault Case Has To Be Relied Upon: HC  

Sets Aside Acquittal Of Man Accused Of Outraging Modesty Of 6th Standard Girl In 2016 

By Aqib Ahmad

Srinagar- Observing that the prosecutrix in a case relating to sexual assault is the most important witness and her testimony has to be ordinarily relied upon, the J&K and Ladakh High Court on Thursday allowed an appeal against acquittal of a man regarding use of criminal force with intention to outrage modesty of a 6th standard student in 2006.

The accused, S A Khan, who happened to be the cousin brother of the victim, had been acquitted by the trial court, Additional Sessions Judge Srinagar, on 23 February 2017 after remaining in detention for 10 years.

As per the prosecution case, on 5 April 2006, the prosecutrix lodged a report with the police stating that she is a student of 6th class studying School at Rajbagh, and on the day, she was proceeding towards her house at Mehjoor Nagar here when the accused offered to accompany her to home and told her that he has to get some articles from a house belonging to a Sikh gentleman. Accordingly, the prosecutrix accompanied by the accused to the house and at the relevant time there was no occupant in the house. She further said that the accused made her to take off her school uniform and tried to sexually assault her. When she raised hue and cry, the accused tied a rope around her neck and gagged her mouth. Later she raised an alarm and some people came on spot while the accused fled away.  Subsequently, she narrated the entire happenings to the police and a case (FIR No.33/2006) was registered. On 30 December 2006, trial court framed charges for offences under 354, 376/511 RPC and the accused was put to trial. Later on 23 February 2017, the accused was acquitted and the then State government challenged the order before the High Court.

“It is a settled position of law that the prosecutrix in a case relating to sexual assault is the most important witness. It is also a settled position of law that testimony of a victim of sexual assault has to be ordinarily relied upon unless there are compelling reasons necessitating the need for its corroboration,” a bench of Justice Sanjay Dhar, Judge, adding, “If the Court finds that testimony of the prosecutrix in a case relating to sexual assault is reliable, conviction can be based upon it without insisting for corroboration.”

As per the evidence on record, the court said, charge for offence under Section 354 RPC has been established against the accused.

“In the instant case, ….the trial Court has ignored and excluded the relevant material, as such, the judgment of acquittal deserves to be reversed,” the court said and allowed the appeal by holding the accused guilty for offence under Section 354 RPC.

However, having regard to the fact that the convicted person faced trial before the trial court for more than ten years and keeping in view the fact that there was nothing on record to show that he has any criminal background, the court said that he does not deserve to be sentenced to maximum punishment.

While awarding punishment, the court said, it has to be noted that the accused happens to be the cousin brother of the prosecutrix and having regard to their relationship, the prosecutrix had reposed trust and confidence in him and accompanied him to a secluded place.

“By indulging in an abhorrent act of outraging modesty of the prosecutrix, the accused has shattered the trust and confidence of the prosecutrix,” the court said, adding, “Therefore, an adequate and appropriate punishment is required to be awarded against the accused.” Subsequently the court sentenced him to undergo simple imprisonment for a period of four months and to pay a fine of Rs.10,000. “In default of payment of fine, the accused shall undergo a further imprisonment of similar description for a period of two months”.

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