IMPORTANT POINT : Non-examination of Investigating Officer may cause dent in prosecution case.

ORDER :

1. This appeal is directed against the judgment dated 15.12.2012 passed by the court of learned Principal Sessions Judge, Samba (hereinafter to be referred as the trial Court) in File No.70/Sessions titled “State Vs. Harjinder Singh and others” whereby the respondents have been acquitted of charges for commission of offences under Sections 366, 376, 109 RPC in FIR No.114/2006 registered with Police Station, Samba.

2. The judgment has been impugned on the ground that the learned trial Court has not appreciated the evidence in right perspective, as such, the judgment is required to be set aside.

3. Mr Ravinder Gupta, learned AAG argued that the learned trial court has not rightly appreciated the evidence and has erroneously disbelieved the testimony of the prosecutrix.

4. Per contra, Ms. Pallavi Thakur, Advocate appearing vice Ms. Meenakshi Salathia, Advocate vehemently argued that the learned trial Court has passed the judgment on the basis of evidence brought on record by the prosecution and there is no perversity in the judgment impugned.

5. Heard and perused the record.

6. The facts necessary for disposal of the present appeal are that a written complaint was filed by the prosecutrix on 27.08.2006 at Police Station, Samba, wherein it was stated that on 26.08.2006 at about 7.00 P.M. while she was waiting for Matador at Bus Stand, Samba, the respondent No. 2 came and told her that respondent No. 3 is also coming from Jammu and she has to go to her house and she(prosecutrix) should wait for her. At about 7.30 P. M. the respondent No. 3, who happens to be the aunt of the prosecutrix came in a white Van in which two unknown persons were also accompanying her. The prosecutrix also sat in the Van. When the said Van reached near Bun Tanki, it was stopped. There were shrubs on both sides of the road and it was raining and dark. She was asked to sign one blank paper and one paper on which something was written but she refused and they started beating her with legs and fist blows. When she raised an alarm, her mouth was gagged with her Dupata and she was laid down before the front tyre and threatened that she would be killed in case she did not sign the papers. In the meanwhile, a Scooterist came from Samba side and those persons again put her in the Van and after the said Scooter passed through, they turned the Van towards Samba and continued threatening her that in case she did not sign the papers, she would be killed. When the Van reached an isolated place near the Khad near Bhat, she was forcibly brought out of the Van and asked that there was nobody to save her and in case she did not sign the papers, she would be killed. The prosecutrix signed those papers in the Mobile light of the respondent No. 3. Thereafter, the respondent No. 3 told those persons that as the prosecutrix had bothered them a lot, so she should be punished. The prosecutrix was forcibly taken to the shrubs where the respondent No. 3 caught hold of her hands and one person raped her and thereafter when second person started raping her, she became unconscious. When she regained consciousness on 27.08.2006, the sun had arisen and she found herself in a Pury De Khad in naked condition. She slowly and steadily came on road and informed her family members on telephone and at about 12.30 P.M. her mother reached there and took her to Samba Hospital for treatment.

7. On the complaint of the prosecutrix, FIR No. 114/2006 was registered in Police Station, Samba for commission of offences under Sections 376, 366, 109 RPC. During the investigation, the identification parade was also conducted by the ASI along with the prosecutrix, wherein the prosecutrix identified one person i.e. the respondent No. 1 in the presence of Naib-Tehsildar, Executive Magistrate 1st Class, Samba. The prosecutrix could not identify the other person during the identification parade and also the respondent No. 1 did not disclose anything. After the completion of the investigation, the challan