NIKHIL SHARMA Vs. STATE OF J&K
LAWS(J&K)-2023-8-50
HIGH COURT OF JAMMU AND KASHMIR
Decided on August 23,2023

NIKHIL SHARMA Appellant
VERSUS
STATE OF JANDK Respondents




JUDGEMENT

OSWAL,J. - (1.)This appeal arises out of the judgment of conviction dtd. 10/3/2014 and the order of sentence dtd. 15/3/2014, whereby the Court of learned 3rd Additional Sessions Judge, (Fast Track Court), Jammu (hereinafter to be referred as "the trial court') has convicted the appellant for commission of offences under Ss. 363 and 376 RPC and sentenced him to undergo rigorous imprisonment for life and fine of Rs.50,000.00 under Sec. 376 RPC. The appellant has been further sentenced to undergo imprisonment for seven years and fine of Rs.5,000.00 for commission of offence under Sec. 363 RPC. In default of payment of fine, the appellant has been directed to undergo simple imprisonment for six months in case of conviction under Sec. 376 RPC and in default of payment of fine in case of conviction under Sec. 363 RPC, the appellant has been directed to undergo simple imprisonment for two months.
(2.)The judgment has been impugned by the appellant on the ground that the prosecutrix was mentally unsound, which is clearly established from her statement during cross-examination, as such, her statement could not have relied upon by the learned trial court. It is also stated that the statements of other witnesses examined by the prosecution clearly establish that the appellant has been falsely implicated because of the quarrel between the appellant and brother of the prosecutrix. It is also contended by the appellant that the statement of Dr. Poonam Mahajan has ruled out the presence of spermatozoa in the vaginal smears, which clearly demonstrates that the appellant has been falsely implicated. In nutshell, the appellant has assailed the judgment of the trial court on the ground that the learned trial court has not appreciated the evidence in its right perspective and has ignored the material infirmities in the prosecution case.
(3.)Mr. Sunil Sethi, learned senior counsel for the appellant vehemently argued that a bare perusal of the statement of the prosecutrix would reveal that she was of unsound mind and in view of her incoherent statement, the same could not have been relied upon by the learned trial court for convicting the appellant. He further submitted that there are material contradictions between the statement of father of the prosecutrix and statement of PW Nek Ram. It was also argued by Mr. Sethi that the medical evidence does not establish the commission of offence of rape upon the prosecutrix by the appellant.


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