The Jammu & Kashmir and Ladakh High Court recently observed that the absence of sperm on the clothes of a rape victim cannot be a ground to disbelieve or discredit her testimony..Justice Sanjay Dhar made the observation while cancelling the bail granted by a trial court to a rape accused. The Union Territory of J&K had filed an appeal to challenge a sessions court's order granting bail to the accused.The Bench found that the trial court had doubted the victim's statement of on "wholly irrelevant" grounds like non-seizure of lighter and muffler used by the accused and absence of spermatozoa on the victim's salwar"If the statement of the prosecutrix otherwise is reliable and she has withstood the rigors of cross examination, merely because lighter and the muffler used by the accused in the commission of crime have not been seized would not discredit the statement of the prosecutrix. Similarly, merely because there was absence of spermatozoa on the seized trouser of the prosecutrix would not make her statement unreliable, if it is otherwise of sterling quality," the Court said..While granting bail to the accused in 2024, a Bandipora court had observed that no spermatozoa were detected on the victim's seized trouser and that the police had failed to seize a lighter allegedly used by the accused to threaten her and a muffler allegedly used to gag her mouth. It had also said that there were discrepancies regarding the place of occurrence and that the accused had remained in custody for about 18 months.However, the State in appeal contended that the trial court critically analysed the evidence on record at the stage of granting bail to the accused, in violation of the settled law..Allowing the State's appeal on June 5, the High Court said that at the time of considering the bail application, the trial court could not have undertaken meticulous analysis of the evidence recorded during the trial."A minor contradiction here and there with regard to the site of occurrence or the actual date of occurrence, particularly in a case where the prosecutrix is an illiterate lady, would not by itself be a ground to throw out her statement, particularly at the stage of considering bail application," the Court added..The Court also said that the trial court had not taken into consideration the fact that the offence alleged to have been committed by the accused is serious in nature carrying maximum punishment of life imprisonment."The learned trial court, while granting bail to the respondent, has not considered the societal impact at all," the Bench said.It, thus, set aside the trial court order and directed the accused to surrender within one month..Advocate Jahangir Dar appeared for the Union Territory of J&K.Advocate Bhat Khursheed appeared for the accused..[Read Order]
