No video, no prejudice: Jammu and Kashmir HC upholds rape convictions on testimony of speech-impaired girl

Justice Rajnesh Oswal held that the failure to videograph the evidence of an 11-year-old with a severe speech impairment, as the proviso to Section 119 of the Evidence Act requires, did not vitiate the trial absent prejudice, upheld the ten-year sentences of two men, and acquitted a third whom the girl herself had exonerated.

A trial court’s failure to videograph the evidence of a child who could barely be understood does not, by itself, wipe out that evidence, the Jammu and Kashmir and Ladakh High Court has held. The accused must show the lapse caused them real prejudice.

Justice Rajnesh Oswal, sitting at Jammu, on 31 October 2026 upheld the convictions of Rakesh Singh and Sanjeev Sharma alias Sanju for kidnapping and raping an 11-year-old girl in November 2014. He acquitted the third appellant, Rashpal Sharma, because the girl’s own testimony did not implicate him.

A girl found unconscious in the bushes

On 16 November 2014 the girl went to her family’s fields to gather leaves for the goats and did not return. According to the prosecution, her father and relatives searched, saw the three accused running from thick bushes, and found her unconscious there with blood-stained clothes.

The FIR was registered on 18 November 2014. During investigation her statement was recorded before a Magistrate under Section 164-A of the Code of Criminal Procedure, and her clothes went for forensic examination.

The Forensic Science Laboratory found semen and blood on her salwar and blood on her shirt, though the stains were insufficient or unsuitable for grouping. A gynaecologist who examined her on 19 November 2014 found no injury and no spermatozoa on the vaginal slides.

Rakesh Singh and Sanjeev Sharma were charged under Sections 363 and 376 of the Ranbir Penal Code, and Rashpal Sharma under Sections 363 and 109. Thirteen of 18 prosecution witnesses were examined, and the defence led no evidence.

The first investigating officer told the trial court that the complainant lived in a far-flung area and was a poor man hesitant to approach the police, which explained the delay in reporting.

On 30 July 2022 the Principal Sessions Judge convicted all three under Sections 363 and 376 RPC. Each received ten years’ rigorous imprisonment and a Rs 10,000 fine for rape, and six months with a Rs 500 fine for kidnapping.

The appeal: Section 119 and the interpreter

Mr G.S. Thakur, for Sanjeev Sharma and Rakesh Singh, stressed the trial court’s non-compliance with Section 119 of the Evidence Act. He pointed out that the prosecution itself had applied, under Section 540 CrPC, to re-examine the girl and the interpreter, which he said admitted an irregularity.

He also argued that the medical evidence did not support rape, the seizure of the clothes was not proved, and the girl had named the roof of a house as the place of occurrence in her Section 164-A statement but a nallah in court. Mr Ajay Kotwal, for Rashpal Sharma, said there was no evidence against his client at all.

Mr Sumeet Bhatia, Government Advocate, defended the conviction. He relied on an ENT specialist’s report that the girl had difficulty speaking, and on an audiologist’s report that she was not dysphonic.

Not deaf, but hard to understand

The record showed a chain of assessments in early 2015. An ENT specialist found dysphonia, while an audiologist and speech pathologist found she was not dysphonic but had borderline intelligence and misarticulated speech; neither expert was examined as a witness.

The trial court had treated her as “deaf and dumb” and called in the principal of a school for the hearing impaired as interpreter. Justice Oswal held that label was wrong: she was a minor with severe stammering, whose speech only specialists and her family could follow.

The proviso to Section 119 requires that where a witness cannot communicate verbally, the court take an interpreter’s or special educator’s help and videograph the statement. That was not done.

The defence also complained that the interpreter was never cross-examined. The trial court had summoned him on their application but closed the evidence because he was elderly and unable to appear.

Lapse without prejudice

Before her evidence on 9 July 2015, the trial court examined the interpreter on his training and experience, and he swore to translate impartially. The girl was not put on oath because of her disability, and no one suggested the interpreter was not independent.

The appellants raised no objection while her statement was recorded, the court noted. In their statements under Section 342 they only called her account false, and even in appeal they never pleaded that they could not cross-examine her properly.

The prosecution’s application of 24 March 2022, seeking to re-examine the girl along with the interpreter, was premised on non-compliance with Section 119. But nobody, at trial or in appeal, showed that her testimony was unintelligible or that the way it was recorded caused prejudice, so the absence of video did not show a miscarriage of justice.

The court relied on State of Rajasthan v. Darshan Singh, (2012) 5 SCC 789, which holds that a deaf and mute person is a competent witness who may testify through signs with a disinterested, sworn interpreter.

That ruling prefers written questions and answers for a literate witness, and otherwise sign language through an interpreter with no interest in the case. Here the trial court found it not feasible to put the girl on oath but swore the interpreter, who had no stake in the outcome.

On the interpreter, the court was blunt: “An interpreter is not a witness to the facts constituting the prosecution’s case” (para 26). His only role was to interpret, and the trial court had tested his competence and sworn him first.

The court drew support from Shivanarayan Kabra v. State of Madras, where the Supreme Court treated a failure to provide an interpreter as an irregularity curable in the absence of prejudice. The Section 119 objection was therefore rejected.

Disability does not weaken testimony

Justice Oswal turned to Patan Jamal Vali v. State of Andhra Pradesh, (2021) 16 SCC 225. The Supreme Court there held that the testimony of a disabled prosecutrix cannot be treated as weak or inferior merely because she interacts with the world differently, and is entitled to full weight if it otherwise inspires confidence.

That ruling also disapproved of the approach in Mange v. State of Haryana, where a 13-year-old deaf and mute girl was never examined because it was thought no useful purpose would be served. Treating disability as incapacity, the Supreme Court said, can devalue crucial testimony and cause a miscarriage of justice.

On the place of occurrence, the site plan showed an open space surrounded by bushes and trees. In cross-examination the girl said the nallah was dry, near the field where she was cutting leaves, with trees but no houses around it.

Given her borderline intellectual ability, the court did not treat the variation from her Section 164-A statement as fatal. Following State of H.P. v. Asha Ram, it held that a conviction can rest on the prosecutrix alone where her evidence is reliable.

Her account of how Rakesh Singh and Sanjeev Sharma took her away and assaulted her showed she was capable of testifying about what they did, the court said. She had also explained that she learned their names because they talked to each other.

Medical and forensic gaps explained

The medical examination took place three days after the incident, and the absence of spermatozoa after 72 hours was natural, the court held. Relying on Wahid Khan v. State of M.P. and Ranjit Hazarika v. State of Assam, it said an intact hymen or absence of injury does not belie the prosecutrix.

Her parents, named as witnesses to the seizure memos for her clothes, were never questioned about them by the prosecutor. The investigating officer had proved both memos without challenge, and under Mallikarjun v. State of Karnataka the appellants could not benefit from that lapse.

The semen and blood on her clothes could not be grouped, but the court found it difficult to believe the stains were arranged to implicate the appellants falsely.

The father admitted in cross-examination that his Section 164-A statement, recounting what the girl told him on regaining consciousness, was correct and that part of his court account was not. The court held that this contradiction did not discredit his evidence as a whole.

A defence question suggesting that one of his daughters had filed cases against local residents was denied, and the appellants brought no material to support it.

Her mother, sister and cousin had made improvements in court over their police statements, though all agreed she had gone to cut leaves for the goats. Applying State of Punjab v. Gurmit Singh, the court held those improvements could not wipe out the girl’s own evidence, and there was no hint of enmity or false implication.

Why the third man walks free

The girl named only Rakesh Singh and Sanjeev Sharma. She also said a man with a small beard stood on the roof of a house and did nothing, which the court read as exonerating Rashpal Sharma.

He had been charged only under Sections 363 and 109 RPC, yet the trial court convicted him under Sections 363 and 376. Other witnesses spoke of his presence but not of rape, and the court held that “Appellant Rashpal was required to be given the benefit of doubt” (para 37).

The court distinguished the appellants’ authorities. In Ram Singh v. State of H.P. no blood or semen was detected, in Munna Pandey v. State of Bihar seized articles never went to a laboratory, and in Dola v. State of Odisha a stranger was identified by voice alone.

Order

The appeal of Rakesh Singh and Sanjeev Sharma against the judgment of 30 July 2022 was dismissed, and their convictions and sentences stand.

The appeal of Rashpal Sharma was allowed. His conviction and sentence were set aside, and he was acquitted and ordered to be released forthwith if not required in any other case.