'Attempt' Became 'Completed Rape': HC Acquits Budgam Man - Kashmir Observer

(MENAFN- Kashmir Observer) Srinagar- The High Court of J&K and Ladakh has overturned the conviction of a man in a 2007 rape case, observing that the prosecution case had evolved from an initial allegation of an attempt to rape into one of completed sexual assault during the course of investigation.

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While allowing an appeal filed by Mohammad Ashraf Ganie, a bench of Justice Sanjay Parihar set aside the October 10, 2023 judgment and November 7, 2023 order passed by the Additional Sessions Judge (Fast Track), Budgam. The trial court had sentenced Ganie to seven years' rigorous imprisonment and a fine of Rs 1 lakh under Section 376 RPC, besides five years' rigorous imprisonment under Section 450 RPC and one year's simple imprisonment under Section 506 RPC, with all sentences directed to run concurrently.

The case arose from FIR No. 309/2007 registered at Police Station Budgam concerning an alleged incident of July 15, 2007. The prosecution case was that the Ganie entered the house when the prosecutrix was alone, threatened her and committed rape. The FIR was initially registered under Sections 376/511 RPC, relating to rape and attempt to rape, but Section 511 was subsequently dropped and Sections 450 and 506 RPC were added after the medical examination.

The Court observed that the earliest version of the case referred to an attempt to commit rape, while the prosecution case later developed into one of completed rape. The Investigating Officer had acknowledged that the statements of the material witnesses recorded during investigation initially referred to an attempt.

The Court said the distinction between an attempted and completed act was not a minor discrepancy but went to the very nature of the principal offence. It held that the subsequent explanation offered by the prosecutrix did not entirely remove the doubt arising from the variation.

The Court also examined the medical evidence, noting that while the doctor found that sexual intercourse had taken place, the medical examination could not establish when the intercourse occurred or identify the person involved. The Court further noted that no biological or forensic material connecting Ganie with the alleged act was obtained.

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The judgment also referred to inconsistencies concerning the timing of the medical examination, the movements of the witnesses, the preparation of the complaint and other circumstances. While holding that individual minor discrepancies would not ordinarily be sufficient to reject a prosecution case, the Court said their cumulative effect had to be considered.

It further held that Ganie's failure to establish his plea of alibi could not be treated as affirmative proof of the prosecution case. It reiterated that the prosecution must succeed on the strength of its own evidence and that a weakness in the defence cannot cure deficiencies in the prosecution case.

“Criminal conviction requires proof beyond reasonable doubt,” the Court observed, holding that the cumulative circumstances created reasonable doubt regarding the prosecution version.

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“Where two reasonably possible views emerge from the evidence, the view favourable to the accused must prevail,” the court said, adding,“The benefit of doubt is not a matter of grace but a necessary consequence of the prosecution's failure to cross the required threshold of proof.
Accordingly, the Court set aside the conviction and sentence imposed by the trial court and acquitted Ganie of the charges under Sections 376, 450 and 506 RPC by extending to him the benefit of doubt.

“On an independent reappraisal of the entire evidence, this Court is unable to hold that the prosecution has established the charges against the appellant beyond reasonable doubt. The findings of the Trial Court, therefore, cannot be sustained.”

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