The evaluation of the statement of a deaf and dumb prosecutrix and the medical evidence to determine the voluntariness of her actions and the absence of forcible sexual intercourse.

JUDGMENT :

Sanjay Dhar, J.

1. The instant appeal is directed against the judgment dated 30.04.2014 passed by the learned Sessions Judge, Udhampur, whereby the learned Trial Court while dismissing the charge-sheet arising out of FIR No. 141/2012 for offences under Sections 366 and 376 RPC has acquitted the respondent (hereinafter referred to as the "accused').

2. Briefly stated the case of the prosecution before the learned Trial Court was that on 20.08.2012, the prosecutrix, who happens to be a deaf and dumb girl, was abducted by the accused after taking undue advantage of her innocence and simplicity, whereafter she was subjected to wrongful confinement and repeated forcible sexual intercourse for seven days. The criminal prosecution against the accused was initiated with the lodging of a missing report in respect of the prosecutrix by her father-PW-Dev Raj on 20.08.2012. In the said report, the age of the prosecutrix was given as 16-1/2 years. On 21.08.2012, the complainant again approached the police, informing that the prosecutrix had been allured, enticed and kidnapped by the accused. On the basis of this information, the police registered a case under Section 363 of the RPC and set the investigation of the case into motion. During investigation of the case, mobile cell of the accused was kept under surveillance and as per the tower location, the said cell phone was found to be operational in Gulab Garh area. Accordingly, the police proceeded to said area and on 26.08.2012, the police recovered the prosecutrix from the accused while the two were in a bus, that was lying parked in Gulab Garh Bazar. The said bus was scheduled to proceed to Jammu.

3. Upon recovery of the prosecutrix, she was got medically examined. The accused was also got medically examined. From the certificate issued by the School, where the prosecutrix had studied upto 8 th standard, her date of birth was found to be 25.10.1992, which means that she was about 20 years of age at the time of the alleged occurrence. The investigation also revealed that the prosecutrix had been subjected to wrongful confinement and sexual assault. Thus, offences under Sections 366, 376 & 343 RPC were found established against the accused and the charge-sheet was laid before the Court.

4. On 20.10.2012, charge for offences under Sections 366, 376 and 343 RPC was framed against the accused and he was put to trial. During the trial of the case, the prosecution examined as many as eight witnesses, whereas the accused examined four witnesses in defence. The learned Trial Court after analyzing the evidence on record came to the conclusion that the prosecutrix had eloped with the accused out of her own free will and volition and as such, the charges pertaining to kidnapping, rape and wrongful confinement against the accused are not proved.

5. The appellant-State has called-in-question the impugned judgment of the learned Trial Court on the grounds that the learned Trial Court has not properly appreciated the evidence while recording the judgment of acquittal in favour of the respondents; that the learned Trial Court has taken a hypertechnical approach and ignored the circumstantial evidence on record and that the impugned judgment is against law and facts.

6. We have heard learned counsel for the parties, perused the impugned judgment, the grounds of appeal and the record of the Trial Court.

7. As already noted the case of the prosecution against the accused is that on 20.08.2012, he enticed the prosecutrix to go with him, whereafter he kept her in wrongful confinement for seven days and subjected her to forcible sexual assault. In the cases relating to sexual assault, the victim happens to be the most important and crucial witness. However, in the instant case, the prosecutrix happens to be a deaf and dumb girl, who as per the prosecution case was aged about 20 years at the relevant time. It has been vehemently contended by the learned counsel for the appellant that the fact that victim i