Jammu and Kashmir and Ladakh High Court acquits man, says ‘love affair’ not rape

Justice Sanjay Dhar heard the matter on April 24.

The order added that it seems that because of the adamant attitude of the family of the survivor, the love affair between the two young persons culminated in a criminal prosecution against the petitioner.

Considering the closeness in age of the survivor and the petitioner and the fact that she had accompanied him out of her own accord because of her affection for him, putting the petitioner behind bars would be a perversion of justice, Justice Dhar observed.

Case of rape and trial court conviction

The case originated from a 2018 report alleging that the petitioner had kidnapped the survivor. During the investigation, it was alleged that the petitioner had committed sexual intercourse with her, resulting in a pregnancy.

However, the petitioner claimed that the father of the survivor got her pregnancy terminated, regarding which a case has been registered against the survivor and her father, which is pending before the magistrate.

In March 2025, the additional sessions judge (fast track court) convicted the petitioner under Section 376 (punishment for rape) of the Ranbir Penal Code (RPC). The trial court sentenced him to eight years of rigorous imprisonment and a fine, concluding that the survivor was under 18 at the time of the occurrence based on a school certificate, which rendered her consent legally immaterial.

The petitioner has challenged the judgment of conviction and the order of sentence on the grounds that the observations and findings recorded by the trial court are contrary to the evidence led by the prosecution.

It has been contended that there is no cogent and convincing evidence on record to show that the survivor was below 18 years of age at the time of the alleged occurrence.

‘School record no proof of age’

• The answer to the question as to whether the learned trial court is right in concluding that the appellant has committed statutory rape upon the survivor depends upon the determination of the fact relating to her age.
• If it is found from the evidence on record that the survivor was less than 18 years of age at the time of the occurrence, then,
• The question that arises for determination is whether, based on the entry in the school record about the date of birth of a person, it can be stated that the age of such a person is established beyond any reasonable doubt.
• Legal position in this regard is well settled. The entries regarding date of birth contained in the scholar’s register and secondary school examination certificates have no probative value.
  Such entries may be admissible in evidence, but the same cannot be taken as conclusive proof about the age of a person.
• Reliance in this regard may be placed upon the judgment of the Supreme Court in the case of Birad Mal Singhvi v. Anand Purohit.

• Based on a mere entry regarding the date of birth in the school Admission Register or the certificate issued by the school based on such register, it cannot be conclusively established that the particulars regarding the date of birth of such person are correct.
• The correctness or otherwise of the particulars recorded in the school register would all depend upon the basis upon which such entry has been made.

‘She admitted having physical relationship with consent’

• Once it is held that the prosecution has failed to prove that the survivor was a minor at the time of the occurrence, the fact that she had accompanied the petitioner out of her own will and that she had developed physical relations with him out of her free will.
• And volition goes on to show that it was a case of a love affair between the two young persons, which culminated in physical relations between the parties out of their own will and volition. Thus, it cannot be termed a case of statutory rape.
• It is a settled law that the burden is upon the prosecution to prove that the survivor was a minor at the time of the occurrence.
• Like any other ingredient of the offence for which an accused is charged, the ingredient about the age of the survivor has also to be established by the prosecution beyond a reasonable doubt.
• In the present case, the prosecution has not been able to prove beyond a reasonable doubt that the survivor was less than 18 years of age at the time of the alleged occurrence.
• When we test the established facts of the instant case on the touchstone of the afore-quoted factors, it becomes clear that the survivor has admitted having entered into a physical relationship with the appellant with her free consent.

Court’s findings

• In a case relating to sexual assault, the survivor happens to be the most material witness.
  It would be necessary to analyse the statement of the survivor made by her before the trial court, as well as the statement made by her before the magistrate under Section 164A (medical examination of the victim of rape) of the CrPC during the course of the investigation.
• In her statement recorded during the trial of the case, the survivor deposed that the occurrence occurred in the year 2018, and she was in love with the petitioner, and at that time she was studying in class 12.
• At the time of the occurrence, she was studying in 1st year of BA, and she got pregnant after the petitioner had developed physical relations with her.
• Thereafter, the petitioner took her away to Jammu, where they stayed for two days; she was brought back by the a from Jammu, and thereafter, she wanted to enter into wedlock with him, but her family members did not agree to the marriage.
• Her father had already lodged a report against the petitioner, and thereafter the child was born, but the appellant refused to accept the child.