Background of the Case
The Jammu & Kashmir and Ladakh High Court, in a criminal appeal arising out of the conviction of three persons for offences relating to the kidnapping and sexual assault of an 11-year-old girl, has clarified that the absence of spermatozoa in a medical examination conducted after 72 hours cannot, by itself, be a ground to disbelieve the testimony of a rape victim.
The incident occurred on 16 November 2014, when the minor girl had gone to a field to collect leaves for goats. According to the prosecution, when her father returned home in the evening, he learnt that his daughter had not returned. He, along with other family members, searched for her in the nearby forest.
During the search, the father allegedly noticed three accused persons running away from the bushes. The girl was subsequently found lying unconscious with blood-stained clothes.
After regaining consciousness, the victim narrated that three persons had taken her towards the bushes, where two of them sexually assaulted her while the third was present at the scene.
Registration of FIR and Investigation
On 18 November 2014, the victim's father submitted a written complaint before the Station House Officer of Police Station Arnas, Reasi. Based on the complaint, FIR No. 89/2014 was registered for offences under Sections 376 and 109 of the Ranbir Penal Code (RPC).
During the investigation, the victim's statement was recorded before the Magistrate, and she was subjected to medical examination. Her clothes were seized and sent for forensic examination.
The Forensic Science Laboratory report subsequently detected seminal stains and blood stains on the victim's trouser, while her shirt was found to contain blood stains.
Following the investigation, a chargesheet was filed against the accused persons for offences under Sections 363, 376 and 109 RPC.
Trial Court's Decision
The Principal Sessions Judge, Reasi, by judgment dated 30 July 2022, convicted Rakesh Singh and Sanjeev Sharma for offences under Sections 363 and 376 RPC.
Rashpal Sharma was also convicted, and the trial court imposed sentences in connection with the offences.
Aggrieved by the conviction and sentence, the accused persons approached the High Court.
Arguments of the Appellants
The appellants challenged the conviction on several grounds, questioning the reliability of the victim's testimony and the manner in which the evidence had been recorded.
It was contended that the trial court had failed to comply with Section 119 of the Indian Evidence Act while recording the testimony of the victim. The appellants argued that her statement had not been videographed and that they had not been given an effective opportunity to cross-examine the interpreter who assisted the court in understanding her testimony.
They also questioned the medical evidence, pointing out that the medical examination did not establish the commission of rape, as spermatozoa were not detected during the examination and the hymen was found intact.
The appellants further questioned the delay in lodging the FIR, the alleged improvements in the statements of witnesses and the failure to properly establish the seizure of the victim's clothes.
The prosecution, on the other hand, maintained that the trial court had properly appreciated the evidence and that the victim's testimony, considered along with the other evidence, established the offences.
Absence of Spermatozoa After 72 Hours
Justice Rajnesh Oswal considered the contention concerning the absence of spermatozoa in the medical examination report.
The incident had occurred on 16 November 2014, whereas the victim's medical examination was conducted on 19 November 2014. The Court observed that the absence of spermatozoa after a period of 72 hours was natural and could not be treated as evidence disproving the victim's account.
The Court relied upon the Supreme Court's decision in Wahid Khan v. State of Madhya Pradesh (2010), which clarified that complete penetration or emission of semen is not an essential requirement for establishing the offence of rape.
The Court also rejected the argument that the intact hymen and absence of injuries on the victim's private parts contradicted her testimony.
It observed:
"Neither the non-rupture of the hymen nor the absence of injuries on her private parts, therefore, belies the testimony of the prosecutor particularly when we find that in the cross-examination of the prosecutor, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake."
The Court thus emphasised that medical findings must be considered in the context of the circumstances of the case and cannot automatically override credible testimony.
Victim's Testimony and Section 119 of the Evidence Act
An important aspect of the appeal concerned the victim's ability to communicate her evidence.
The victim had severe stammering and partial visual impairment in one eye. Her speech could not ordinarily be understood by everyone, although her family members and persons familiar with her communication could understand her.
The trial court had initially encountered difficulties in recording her statement. Assistance was therefore obtained from the Principal of a school for deaf and mute children to facilitate communication.
The appellants contended that the procedure adopted by the trial court was defective because the victim's statement had not been videographed and the interpreter had not been examined for cross-examination.
The High Court examined the circumstances surrounding the recording of her testimony and the objections raised by the appellants.
The Court found that the victim had sufficiently narrated the manner in which she had been taken to the bushes and sexually assaulted. Her evidence clearly implicated Rakesh Singh and Sanjeev Sharma.
The Court observed that her testimony was more reliable than that of an injured witness and that minor contradictions or insignificant discrepancies could not justify rejecting an otherwise reliable prosecution case.
It further held that her communication difficulties did not make her incapable of giving evidence. The evidence had to be appreciated by understanding her actual ability to communicate rather than by incorrectly categorising her as deaf and mute.
Delay in Lodging the FIR
The appellants also relied upon the delay in registering the FIR to question the prosecution's version.
The High Court referred to the circumstances in which the victim was found unconscious and the fact that she had to be taken for medical treatment.
Relying upon the Supreme Court's decision in State of Punjab v. Gurmit Singh (1996), the Court reiterated that delay in reporting sexual offences must be examined in the context of the circumstances faced by the victim and her family.
The Court referred to the following observation of the Supreme Court:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her."
The circumstances surrounding the incident and the victim's condition were relevant in assessing the delay.
Seizure of Clothes and Forensic Evidence
The appellants also questioned whether the clothes allegedly worn by the victim had been properly seized and proved during the trial.
The High Court noted that the investigating officer had proved the seizure documents and that his testimony concerning the seizure had remained unchallenged during cross-examination.
The Court relied upon Mallikarjun v. State of Karnataka (2019), recognising that the evidence of an investigating officer can be relied upon to establish a recovery even when independent panch witnesses do not support the prosecution.
The Court also attached importance to the FSL report, which detected seminal and blood stains on the victim's trouser.
The forensic findings, considered along with the victim's testimony and the other circumstances, supported the prosecution case against Rakesh Singh and Sanjeev Sharma.
Different Findings Regarding the Three Accused
While upholding the convictions of Rakesh Singh and Sanjeev Sharma, the High Court found that the evidence against Rashpal Sharma stood on a different footing.
The victim had not made any incriminating statement implicating Rashpal Sharma in the commission of the sexual assault. On the contrary, her testimony indicated that a man with a short beard was standing on the roof of a house but had not participated in the incident.
The Court also noted that Rashpal Sharma had originally been charged under Sections 363 and 109 RPC but had ultimately been convicted under Sections 363 and 376 RPC by the trial court.
Considering the victim's testimony and the deficiencies in the evidence against him, the Court held that Rashpal Sharma was entitled to the benefit of doubt.
Final Decision
The Jammu & Kashmir and Ladakh High Court dismissed the appeals filed by Rakesh Singh and Sanjeev Sharma, thereby upholding their convictions and sentences for kidnapping and rape.
However, the appeal filed by Rashpal Sharma was allowed. His conviction and sentence were set aside, and he was acquitted of the charges. The Court directed that he be released forthwith if he was not required in any other case.
The decision reiterates that the absence of spermatozoa, an intact hymen or the absence of visible genital injuries cannot independently discredit a rape survivor's testimony. The evidence must be assessed as a whole, with particular attention to the credibility of the victim and the surrounding circumstances.
Case Details
Case Name: Sanjeev Sharma alias Sanju and Others v. Union Territory of Jammu and Kashmir
Court: High Court of Jammu & Kashmir and Ladakh
Date of Decision: 31 October 2026
Case Number: CrlA(S) No. 10/2022
Citation: 2026:JKLHC-JMU:3393
Judge: Justice Rajnesh Oswal
