Judgment

1. This appeal has been filed against the judgement dated 28.04.2010, passed by Learned Additional Sessions Judge, Udhampur, (for short “Trial Court”), whereby while acquitting the accused of the charges, the Trial Court has dismissed the challan in which the accused was facing trial for having committed offence punishable under Section 376 RPC.

2. The aforesaid order of acquittal has been challenged by the appellant precisely on the ground that Trial Court has not properly appreciated the evidence produced by the prosecution, inasmuch as there was sufficient evidence in the shape of statement of the victim and that of her mother, which proved the charge against the accused.

3. Heard and considered.

4. The prosecution story, as is coming forth from perusal of the file, is that on 05.12.2005, Smt. Suran Devi, who is the mother of the victim, made a written complaint at police station Rehmbal, in which she alleged that on 04.10.2005 when the victim had gone to school and when she was on her way back, respondent-accused waylaid her and committed forcibly sexual intercourse with her against her wishes and due to act of sexual intercourse of accused, the victim became pregnant which she got terminated after consulting a lady doctor at Udhampur.

5. As per the report, the occurrence which took place on 04.10.2005 was reported to the Police on 05.10.2005 which resulted in registration of FIR No.106/2005 and after completion of investigation by the police, challan was presented against the accused for having committed offence punishable under Section 376 RPC.

6. During the course of investigation, the victim was got medically examined by the doctor and her statement was also recorded by the police before the Magistrate on 25.03.2006 under Section 164 Cr. PC. The report of the doctor who examined the victim was obtained vide EXPW-KG1.

7. The accused was charged for commission of offence punishable under Section 376 RPCon 01.06.2006, to which he pleaded not guilty and claimed to be tried. The prosecution produced complainant –Mst. Soran Devi, mother of the victim, victim – Suman Devi, Payare Lal Goswami, Principal, Dr. Makhan Lal, Dr. Kushal Gupta and I.O - Rajinder Kumar, while as PW Bodh Raj listed as PW - 3 was given up and other witnesses were not produced.

8. PW 1, Soran Devi, mother of the victim, stated that she knew the accused after the occurrence and that her daughter told her about the incident after one month of occurrence. She took her to doctor who told her that her daughter was pregnant. She got her aborted and expenses for the abortion were borne by her. She thereafter made a written report vide EXPW SD-1 that the victim did not appear in the examination due to humiliation. On her examination, she stated that she got her daughter aborted in a clinic and informed the father of the accused about the incident. The accused threatening her of dire consequences, if she gets married to any other person. She informed the father of the accused about the expenses incurred but he did not pay instead threatened her and the victim was detained in the same class for three to four times.

9. PW 2, the alleged victim, stated that she was a student of Badola School and on 04.10.2005 at 1:30 PM, when she was returning back from Kambal Banga to Sanadi, accused came from bushes, gagged her mouth, and took her down from the road about 50/60 feet. He tossed her on the ground, opened her shalwar (Trousers), she cried for help but no one came to her help. He inserted his penis in her vagina and had intercourse with her for 2/3 minutes. Accused warned her not to disclose the incident before anybody. The victim did not disclose till she was taken to doctor for examination by her mother as her menstruation period stopped as she had conceived pregnancy. Doctor gave medicines and got side of the pregnancy. Thereafter, police took her to doctor for examination, got her statement recorded before Magistrate concerned and she admitted her signatu