IMPORTANT POINTS
(1) Examination-in-chief of a witness cannot be taken into consideration to fasten any liability, unless opposite party is afforded a reasonable opportunity to cross-examine said witness as regards information tendered by him in his examination-in-chief.
(2) Rape – Incomplete statements of prosecutrix and complainant, in absence of their cross-examination, could not be treated as a legal evidence, nor could be relied upon to fasten any criminal liability upon accused.

JUDGMENT

This appeal has been directed against the judgement dated 27.05.2013 passed by learned 3rd Additional Sessions Judge, Jammu (‘trial court’ for short) vide which respondents have been acquitted.

2. The case set up by the prosecution in the trial court, in brief, is that PW-3, Santosh Kumari, mother of the prosecutrix (name withheld) lodged a written report on 17.12.2004, stating therein that she along with her daughter were residing as tenant in the house of a police inspector namely Ajay Gupta at Link Load, Jammu. The prosecutrix used to make quilt covers in the shop of respondent no. 1 situate at Mast Garh. About 7/8 days back, respondent no. 1 asked her to drop the prosecutrix in his shop for night shift. The prosecutrix went to the shop of respondent no. 1, but was not allowed to come back. It was alleged that respondent no. 1 forcibly committed sexual intercourse with the prosecutrix and two boys were accompanying him. It is further allegation of the complainant that she went to police post, Chowk Chabutra and lodged a report. However, after some days, three persons including a police man took her to the said police post, where she was forced to enter into a written compromise with the respondents, in lieu whereof she was paid Rs. 2000/-. The complainant alleged that since her daughter has been sexually assaulted by the respondents, therefore, she did not intend to enter into any compromise. On the receipt of this report, FIR No. 238/2004 came to be registered with Police Station Pacca Danga, Jammu and investigation came into vogue. The investigation concluded that while respondent no. 1 committed rape upon the prosecutrix, respondent no. 2 made an attempt to commit the rape but did not succeed and both the respondents, in order to destroy the evidence, had thrown a bed sheet, a piece of cloth and an underwear in River Tawi on 08.12.2004.

3. Vide order dated 18.02.2005, respondent no. 1 was charged by the trial court for the commission of offences under Sections 376/201 RPC, whereas respondent no. 2 was charged under Section 376/511 RPC, whereby they pleaded innocence and claimed trial, prompting the trial court to direct for the prosecution evidence. For the sake of brevity, instead of giving a detailed resume of the prosecution evidence, it is proposed to refer to the relevant testimonies of the prosecution witness as and when required. The respondents in their statements under Section 342 CrPC have denied the incriminating imputations arrogated to them and refused to enter the defence.

4. Having heard the rival contentions and perused the judgment, I do not find any illegality, muchless, perversity in the findings recorded therein.

5. Before adverting to the merits of the case, it is pertinent to mention that prosecutrix and her mother, the complainant were respectively examined in chief in the trial court on 09.05.2007 and 22.09.2007 however, they could not be cross-examined due to the absence of the defence counsel. Subsequently, respondents filed an application under Section 540 CrPC for recalling of witnesses and learned trial court vide order dated 13.05.2009 allowed the said application and both prosecutrix and complainant were recalled for cross examination. However, it revealed from various reports of the executing agency viz. SHO police sation, Pacca Danga, Jammu that prosecutrix died on 07.05.2010 and death certificate in this respect was also placed on record and complainant PW-3, Santosh Kumari did not appear despite service and later could not be traced at her residential address. So in these circumstances, prosecution evidence came to be closed by the trial court, without cross examination of the prosecutrix and the complainant.

6. Learned trial court, relying upon various provisions of the Evidence Act, has concluded that testimonies of the prosecutrix and the complainant in the absence of their cross-examination can neither be treated as evidence, nor relied upon to sustain conviction of