The prosecution has the burden of proving beyond a reasonable doubt that the accused committed the offence charged. In the absence of direct evidence, the court cannot convict the accused based on conjectures and surmises.

1. This is an appeal filed by Joginder Singh son of Pritam Singh resident of village Mohra, tehsil and district Ambala, against the judgement dated 19th October, 1972, of the Sessions Judge, Ambala, by which he convicted him under Section 376, Indian Penal Code, and sentenced him to three years rigorous imprisonment. He also convicted him under Section 452, Indian Penal Code, and sentenced him to two years rigorous imprisonment. Both the sentences were ordered to run concurrently.

2. The facts of this case are that Smt, Daya prosecutrix is the wife of Amar Nath (P.W. 4) who is a resident of village Mohra, district Ambala. Smt. Daya is mentally deranged. Amar Nath is running a shop at village Mohra which adjoins his house. The prosecution story is that on 5th April, 1972, at about 2.00 P.M. Amar Nath P.W. went to Shahbad, to make purchases leaving his wife Smt. Daya at the house. He returned from Shahbad at about 6-00 P.M. and found the door of the compound of the house bolted from inside. The boundary wall of the compound of his house is only 4 feet high and while standing in the street he saw Joginder Singh committing sexual intercourse with his wife on a charpai in the verandah. On seeing this he went to the flour mill of Yasin P.W. which adjoins his house where he found Yasin P.W. and his nephew Ved Parkash (P.W. 2). He told the aforesaid facts to them and then all the three persons came to the house of Amar Nath and saw the accused committing the sexual intercourse with Smt. Daya over the boundary wall. They jumped over the wall in the compound of the house and on seeing them the accused went on the roof of the house through a wooden stair-case and then jumped on the other side of the house in a khola.

3. Amar Nath lodged a report with the police at 8-00 P.M. Daryai Lal Assistant Sub-Inspector, who was then posted at Police Station Sadar Ambala went to the village reaching there at 9-30 or 10-00 P.M. and recorded the statements of the witnesses. After completion of investigation the accused was challaned and he was committed to stand his trial in the Court of Sessions and was convicted and sentenced as mentioned above. Feeling aggrieved Joginder Singh has filed this appeal alleging that the decision of the lower Court is wrong and incorrect and it may be set aside and he may be acquitted.

4. Dr. B.D. Goyal, Medical Officer. Civil Hospital, Ambala City examined Joginder Singh accused on 10th April, 1972, at 12-20 P.M. at the request of the police and he found that his genital organ was fully developed and healthy and there was nothing to disable him from committing sexual intercourse with a girl or a woman.

5. Dr. (Mrs.) Kamlesh Datta Civil Hospital, Ambala (P.W. 3), examined Smt. Daya prosecutrix on 6th April, 1972, at 12-45 P.M. and she found no external injury on her person. In her opinion Smt. Daya was a married woman for the last about 8 years and she was habitual to sexual intercourse. She could not say whether rape had been committed on her or not. The two vaginal swabs were taken and were sent for semen examination to the Chemical Examiner, Karnal. After seeing the report of the Chemical Examiner the Lady Doctor opined that Smt. Daya had intercourse.

6. Dr. Sita Ram Goyal (P.W. 3) Civil Hospital, Ambala City, examined Smt. Daya on 20-7-1972, at the request of the police and he found that she was suffering from chronic schizophrenia which is a form of unsoundness of mind. According to him she had no reasoning power and could not understand the consequences of acts. She could not make a statement properly. His reports are Exhibits P.W. 6/A/1, and P.W. 6/A/2.

7. In the instant case the prosecution examined only two witnesses to prove its case and they are Amar Nath P.W., the husband of the prosecutrix and, Yasin (P.W. 5), who are the eye-witnesses of the occurrence. Ved Parkash (P.W. 5) who was the third eye-witness of the occurrence was simply tendered for cross-examination and he did not make any statement in