The prosecution must establish guilt beyond reasonable doubt, and failure to identify the accused fatally undermines the case.

JUDGEMENT

Tashi Rabstan, CJ (Acting)

1. The appeal in hand is filed against the judgment dated 31.08.2013 passed by the learned Additional Sessions Judge, Doda, whereby the respondent has been acquitted of the offence under Section 376 RPC. The judgment is challenged on the ground that the prosecution had established the case against the respondent by adducing documentary as well as oral evidence, which in ordinary course of nature is sufficient to prove the guilt of the respondent, however, the learned trial Judge has not appreciated the law, resulting in acquittal of the respondent.

2. Mr. Raman Sharma, learned AAG has argued that there is sufficient material on record to convict the respondent but the learned trial Judge has not appreciated the law and facts of the case, which has resulted into acquittal of the respondent, therefore, the accused is liable to be convicted for the offence for which he was charged and the order of acquittal requires to be set aside.

3. Mr. G.S. Thakur, learned counsel for the respondent has, vehemently, argued that there is no error in the judgment of the trial court which may require interference by this Court. The trial court has considered all aspects of the case and after thrashing all the circumstances has ordered the acquittal of the accused.

4. The case in brief is that on 04.03.2002, the complainant Punjab Singh along with his daughter-prosecutrix, who is allegedly a dumb person, presented a written complaint endorsed by the learned CJM, Doda before Incharge, Police Station Doda for registration of a case against the accused Rakesh Kumar S/o Man Singh R/o Chaka and Om Parkash S/o Jagan Nath R/o Chaka for investigation under law with the averments that the daughter of the complainant, who is a dumb person but can hear and reply by gestures, while she was cutting the grass, the accused had appeared and caught hold of her legs and dragged her into bushes and committed rape upon her. On receipt of the written complaint in the Police Station Doda, FIR No. 22/2002 against the accused persons the investigation was started. On completion of the investigation and on the basis of evidence collected by the investigating agency, commission of offence under Section 376 RPC was found made out against the accused Rakesh Kumar, whereas involvement of the other accused Om Parkash was ruled out and challan was accordingly filed before the court of learned CJM, Doda on 05.04.2002 and the accused was accordingly sent for trial for the aforesaid offence. Subsequently, the challan was committed to the court of learned Additional Sessions Judge, Doda as the offence under Section 376 RPC is exclusively triable by the court of Sessions.

5. After hearing preliminary arguments and after being satisfied that prima facie a case is made out for trial of the accused under Section 376 RPC, the court proceeded to frame charge against the accused vide order dated 18.04.2002. The accused pleaded not guilty to the charge framed against him. The prosecution produced and examined the following witnesses during the course of trial:-

PW- complainant Punjab Singh

PW- Fulail Singh

PW- Dr. Pushpa Raina

PW- Mst. Dhallo

PW- Om Parkash

6. PW- Complainant Punjab Singh in his examination in chief stated that he knows the accused person present in Court; that the prosecutrix is daughter of the witness, who is deaf and dumb and can understand the things by gestures and reply accordingly; that she is 22 years of age and is unmarried. It is further stated that on 28.02.2002 it was discovered by him that prosecutrix had started vomiting and his wife had suspected some ailment and thereafter prosecutrix was taken to a Doctor at Assar Hospital on 28.02.2002 and on examination by the BMO Assar, they were told that the prosecutrix is not having any ailment but she is carrying a pregnancy of four months; that thereafter, a meeting of the elders of the Village was convened to make efforts to identify the culprit as he had complained that someone had commi