ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

Rule. Learned Advocate, Mr. Dagli, waives service for Respondent No.1 and though served, none has put-in appearance on behalf of Respondent No.2.

1. Present application is filed, seeking leave to appeal, with the following prayer;

“(7) …

(a) YOUR LORDSHIPS may be pleased to grant leave to prefer an appeal against judgment and order of acquittal dtd.

26.7.2022 passed by the court of learned Addl. Sessions Judge & Special Judge (Atro.), Jetpur at Rajkot in Special (Atro.) Case no. 8/2018, acquitting opponent No.1 for the offence under sec. 376(2)(J)(L) of IPC and sec. 3(1)(W), 3(2)(5) of the Prevention of Atrocities Act, 1989; ”

2. Learned APP, Mr. Jayswal, submitted that according to prosecution case on 14.05.2018 at village Khirsara, Taluka: Jetpur, prior to five months from the date of incident though it was within knowledge of accused that daughter of complainant, aged about 30 years is mentally disable and not able to speak has been sexually abused by accused by taking benefit of her loneliness and made her pregnant while she was going to bring water from the Vadi of present respondent and thereby outraged the modesty of a woman belonging to Scheduled Caste Community and committed the offence punishable under Sections 376(2)(J)(L) of IPC and Section 3(1)(W) and 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in brief, ‘Act of 1989’). Therefore, on 14.05.2018, a complaint, in this regard, came to be lodged by the original complainant being C.R. No. I-31 of 2018, under Section 376(2)(J)(L) of IPC and Section 3(1)(W), 3(2)(5) of the Act of 1989 before Jetpur Taluka Police Station.

2.1 On completion of the investigation, the concerned IO filed the charge-sheet before the Court of learned Additional Sessions Judge & Special Judge, Jetpur at Rajkot (‘trial Court’, herein after), which came to be numbered as Special (Atro.) Case No. 8 of

2018.

2.2 At the end of the trial, the trial Court acquitted Respondent No.1-original accused for the offence, as referred to herein above, vide order dated 26.07.2022. Hence, the present application.

3. Learned APP, Mr. Jayswal, submitted that the trial Court failed to appreciate the cumulative effect of the evidence of the witnesses.

3.1 It was, further, submitted that the trial Court failed to appreciate the evidence of PW-5-Maganbhai Danabhai Rathod, Exhibit-26, whose evidence indicate that the complaint was filed against unknown person and that the accused was not named in the FIR.

3.2 It was also submitted that the trial Court also failed to take into consideration the evidence of PW-12-Dr. Zalak Vinaybhai Karena, Exhibit-36, who stated that, since, the victim was unable to give reply, the history of the offence was given by her father.

3.3 It was submitted that the trial Court ought to have appreciated the evidence of PW-13- Dr. Mukehbhai Jayantilal Samani, Exhibit-44, according to whom the I.Q. of the victim is very poor and that she is mentally unstable.

3.4 It was submitted that the trial Court also failed to take into consideration the evidence of PW-14-Dr. Manishaben Madhavlal Parmar, Exhibit-46, who had collected the DNA sample of the victim and had sent the same to FSL.

3.5 It was submitted that, as per the evidence of PW-20 – Timirkant Jentilal Takwani, Exhibit-70, the victim was unable to read and see time in a watch and thereby, he came to the conclusion that I.Q. of the victim is very poor and the said aspect is overlooked by the trial Court.

3.6 It was submitted that the trial Court ought to have appreciated that, as per the evidence of PW-21 – Jyotsnaben Lalitbhai Rathod, Exhibit-71, as the victim is mentally disabled, she could not reply.

3.7 By making the above submissions, it was prayed that this application be allowed.

4. Heard. The facts of the case on hand, indicate that the victim, who is deaf and dumb, was allegedly raped by Respondent No.1-accused. From the evidence as well as findings