JUDGMENT :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This criminal appeal under Section 374(2) Cr.P.C. has been preferred against the judgment and order dated 17.05.1993 passed by the learned Additional District & Sessions Judge, Barmer in Sessions Case No.11/92, whereby the accused-appellant was convicted for the offence under Section 376 IPC and was sentenced to undergo seven years rigorous imprisonment and a fine of Rs.1000/-, in default of payment of which, he was to undergo further three months simple imprisonment.

3. The genesis of the present criminal proceedings lies in a written report lodged by one Bankaram (complainant) on 24.02.1992 before the Police Station, Kotwali Barmer alleging therein that on the preceding day i.e. 23.02.1992, he alongwith his wife (prosecutrix) departed from Dharasar and reached Barmer in the evening at about 07:00 p.m.; from there, both were to reach Dhani Kotda, but due to non-availability of any conveyance, they stayed at the Railway Retiring Room at Barmer.

3.1 It was alleged in the report that at that time at about 08:30 p.m. the present accused-appellant arrived at the Railway Retiring Room and requested the complainant and his wife to accompany him to his room, to which request, after some hesitation, they acceded to, more particularly, in view of the fact that they belonged to the same community.

3.2 The complainant and his wife stayed at the room of the present accused-appellant in the night on 23.02.1992; it was alleged that on 24.02.1992 in the morning, the accused-appellant asked the complainant to accompany him to Krishi Mandi for the purpose of loading some grains (dhaan) in the vehicle, and the complainant did so. Learned Senior Counsel further submitted that thereafter, the present accused-appellant asked the complainant to stay at Krishi Mandi itself, while telling him that he (accused-appellant) would be back within half an hour, but the accused-appellant did not return back.

3.3. Subsequently, one Megha Ram Saran informed the complainant, that the accused-appellant had gone to visit his (complainant’s) wife (prosecutrix) and committed rape upon her, whereupon, the complainant rushed back to his wife, and was told that his wife was subjected to the forcible sexual intercourse by the present accused-appellant.

4. Mr. J.S. Choudhary, learned Senior Counsel assisted by Ms.Sampatti Choudhary, appearing on behalf of the accused-appellant submitted that on the basis of the aforementioned report, a case bearing No.41/92 was registered against the present accused-appellant for the offence under Section 376 IPC; after investigation, a charge-sheet for the offence under Section 376 IPC was filed; the accused-appellant denied the charge and claimed trial; during the course of trial as many as 12 prosecution witnesses were examined, and the prosecution also exhibited 13 documents in support of its case, which were also examined by the learned court below.

4.1 Learned Senior Counsel further submitted that the testimony of the concerned investigating officer of the case was of much significance as he had conducted the whole investigation, prepared site map/report and filed the charge-sheet, but despite being called for repeatedly, he did not put in appearance before the learned court below to render his evidence and statement, and accordingly, his evidence was closed; thus, in absence of any testimony of the investigating officer, the accused-appellant could not be held guilty for the alleged offence.

4.2 Learned Senior Counsel also submitted that PW-2 Tejgiri, PW-3 Rajesh, PW-5 Megha Ram and PW-11 Heera Ram did not support the prosecution case, which factum also falsifies the finding of guilt against the present accused-appellant.

4.3 Learned Senior Counsel further submitted that PW-1 Dr. Vandana Jain and PW-9 Dr. M.M. Pur