1. This criminal appeal aims at and seeks setting aside of the judgment dated 9th May, 2006, hereinafter for short impugned judgment, by virtue of which the respondents have been acquitted of the charges levelled against them in case titled State v. Shabir Ahmad Khan and others, bearing FIR No. 41/2001 of police station Maisuma, for the commission of offences punishable under Sections 376/109, of the Ranbir Penal Code, for short RFC.

BRIEF FACTS

2. Police Station Maisuma, after having registered a report, lodged by PW1, to the effect that during the intervening night of 14th/15th May, 2001, when she was staying in a houseboat at Srinagar along with her brother-in-law, PW no. 2, some unknown persons, who were later identified as respondents, made their entry into her room and respondent no. 1, forcibly, gagged her mouth and raped her. She fell unconscious and regained consciousness only in the morning, therefore, cannot say whether all the accused raped her or not.

3. Police, on registering said report as FIR No. 41/2001, investigated the matter, which resulted in filing of a final report in terms of Section 173 of the Code of Criminal Procedure, for short as Cr.P.C., before the court of learned Principal Sessions Judge, Srinagar, who transferred the same to the trial court. The accused no. 1 was charged for the commission of offences punishable under Section 376 of RFC, while as the other accused were chargesheeted for the commission of offences punishable under Section 109 of RFC. Accused pleaded not guilty and claimed to be tried.

4. Prosecution, in support of its case, produced and examined PWs Ghulam Rasool, Mushtaq Ahmad Sheikh, Prosecutrix, Ghulam Hassan Mir and Dr. Nuzhat.

5. PW Ghulam Rasool, Investigating Officer, has deposed that Mushtaq Ahmad Sheikh, houseboat owner informed the police about the incident and investigation was conducted and ultimately Challan was presented against the accused. The medical evidence on the file has made the investigating agency to present challan against accused No. 1, Shabir Ahmad, for the commission of offences punishable under Section 376 RFC and against rest of the accused under Section 109 RFC.

6. Statement of the accused was recorded in terms of Section 342 of Cr.P.C.

7. PW Mushtaq Ahmad Sheikh, has deposed that prosecutrix and her brother-in-law, Ghulam Hassan, had taken a room on 15th May, 2001, on rent. The male member i.e. Ghulam Hassan Mir, informed him that accused had raped her. In cross examination, he has stated that the room was rented out to prosecutrix, PW 1 and PW 2 Ghulam Hassan Mir and they were registered as husband and wife and not as brother-in-law and sister-in-law.

8. Prosecutrix has deposed that accused No. 1 raped her and other accused were also inside the room and she lodged a report in the police station. In cross-ex#31;amination she has stated that in the year 1990, she was a student of 9th class and was residing in the house of her brother-in-law. She was being medically treated. On the fateful night she had come to Srinagar for medical treatment and stayed in the houseboat. She is unmarried and she has had no such sexual intercourse till the\date of occurrence. She has not reported the matter to anyone but has straightway gone to police to lodge the report. Further she has stated that after being raped by accused no. 1, she fell unconscious and regained her consciousness in the morning, therefore, cannot say as to whether she was raped by other accused also.

9. PW Ghulam Hassan Mir, brother-in-law, of the prosecutrix, though shown as her husband in the houseboat records, stated that they had stayed in the houseboat, hired one room. Police had come on spot and at the relevant point of time and arrested the accused.

10. PW Dr. Nuzhat has stated that she has examined the prosecutrix. The prosecutrix was aged between 18 to 20 years. That there was no mark of violence on any part of the body and no spermatozoa was found. In cross examination she has stated that prosec

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