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 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. 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 committed a wrong act with his daughter and it was decided in the meeting that since the victim is dumb, therefore she would be taken to the houses situated in the Village and anybody caught by her in any house would be understood as the real culprit; that, when the prosecutrix reached the house of the accused where his mother, two sisters and Bhabi were present, the mother of the accused enquired from the prosecutrix through gestures as to where she is going to, who replied that she is going to identify the person who has committed rape upon her and that prosecutrix described her son as the real culprit. It is further stated that the prosecution witness had lodged a report in the police on 04.03.2002 and an FIR was registered; that on 14.03.2002 Police had visited the scene of occurrence and had recorded his statement also and the Police understood what prosecutrix had stated by gestures. The prosecution witness further stated that the accused was hiding at that time when prosecutrix had visited his house and the prosecutrix had gestured that the culprit wears a cap on head and frequently visits the locality and is studying. 7. In cross-examination, the witness has stated that the occurrence had not taken place in his presence; that the prosecutrix had not disclosed to anyone about the alleged rape committed upon her by the accused during this period of four months before she started vomiting. 7. In cross-examination, the witness has stated that the occurrence had not taken place in his presence; that the prosecutrix had not disclosed to anyone about the alleged rape committed upon her by the accused during this period of four months before she started vomiting. It is further stated in the cross-examination that he had got it written in his complaint that the prosecutrix is deaf and dumb but the complaint only discloses that she was dumb only. The witness further stated that the prosecutrix had disclosed features of the accused in presence of the Panchayat Members. 8. PW- Fulail Singh in his examination in chief stated that he knows the accused person as well as the complainant. He also admitted that the prosecutrix is deaf and dumb; that on 14.03.2002 the Police had visited the scene of occurrence and had recorded his statement; that thereafter, he had visited the scene of occurrence along with the Police and the prosecutrix and the prosecutrix had replied by gestures that 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; that the prosecutrix had complained that she was carrying child of the accused. The prosecution witness further stated that the prosecutrix also identified the house of the accused and she was beaten by his family members. 9. In cross-examination, the prosecution witness stated that his statement was recorded on 14.02.2002. He further stated that the report was lodged by Punjab Singh one or two weeks earlier before his statement; that a Panchayat was also convened in this regard; that the place of occurrence is frequently visited by the people and he had not seen the occurrence. 10. PW- Dr. Pushpa Raina in her examination in chief stated that she was posted in District Hospital, Doda during the month of March, 2002 and on 05.03.2002, Mr. O.P. Sharma, ASI Police Station, Doda brought the prosecutrix D/o Punjab Singh R/o Challa Doda aged 22 years for examination. The witness stated that the prosecutrix was brought by Police who had a scar mark on chin as mark of identification. O.P. Sharma, ASI Police Station, Doda brought the prosecutrix D/o Punjab Singh R/o Challa Doda aged 22 years for examination. The witness stated that the prosecutrix was brought by Police who had a scar mark on chin as mark of identification. During examination, the witness found that the breasts of the prosecutrix bore signs of pregnancy and Foetus heart sounds were present and Foetal parts were felt; that on local examination she did not find any mark of violence, vagina admitted two fingers easily and vaginal smear did not show presence of any spermatozoa dead or alive and she opined that the prosecutrix was habitual to sexual intercourse and was having 24 to 26 weeks of pregnancy. 11. In cross-examination, the prosecution witness stated that she asked the history of the case of the prosecutrix and the history has not been noted in the certificate as the same is not required to be written; that there is no time limit for how long a woman examined by her could have been in this business or trade. The witness further stated that they do not take thumb impression or signature of the woman examined on the certificate. The witness further stated that she examined the woman in the hospital and kept the record of her examination in the hospital. It is further stated that the witness had not seen the woman examined by her in the Court today. It is further stated that the prosecutrix was not married as her father's name has been disclosed on the certificate. When pregnancy starts developing, the menstruation stops six weeks prior the developing of pregnancy and woman's pregnancy can be diagnosed after ten days of cessation of menstruation. 12. PW- Mst. Dhallo, who is the mother of the prosecutrix, stated that the prosecutrix is the daughter of the witness who is deaf and dumb and can understand the things by gestures only. It is further stated that three years ago prosecutrix started vomiting and on being taken to Assar Hospital by her father it was discovered that the prosecutrix was carrying pregnancy. She also admitted that thereafter a Panchayat of the biradari was convened and it was decided that whatsoever is identified by the prosecutrix will be treated as the real culprit. It is further stated that three years ago prosecutrix started vomiting and on being taken to Assar Hospital by her father it was discovered that the prosecutrix was carrying pregnancy. She also admitted that thereafter a Panchayat of the biradari was convened and it was decided that whatsoever is identified by the prosecutrix will be treated as the real culprit. It is further stated that the prosecutrix had not described the features of the accused by gesture; that the prosecutrix delivered a baby who is of two years and is an illegitimate offspring of the accused. 13. In cross-examination the witness has stated that the prosecutrix had not disclosed about the alleged rape before vomiting; that the occurrence had not taken place in her presence nor the prosecutrix had disclosed about it to her or any other member of the Village. The witness further stated that she had not accompanied the prosecutrix and the village people when they had gone to identify the house of the real culprit; that some negotiation were going on for marriage of accused with prosecutrix but when prosecutrix became pregnant the accused refused to marry her. 14. PW-Om Parkash in his examination in chief stated that he was posted in Police Station Doda as S.I. in the year 2002; that the investigation in FIR No. 22/2022 was carried out by him from 04.03.2002 and during investigation he visited the scene of occurrence and recorded the statements under Section 161 Cr.P.C.; that the medical examination of prosecutrix was also conducted and the accused was also arrested after collecting evidence against him. It is further stated that the prosecutrix is deaf and dumb and can convey only through gestures. The witness further stated that at the time of recording her statement she was replying by gestures and her gestures were translated by her mother and the statement of the prosecutrix contains the translated version of her mother. He further stated that he had also recorded the statement of her mother and found that the commission of offence under Section 376 RPC made out during the investigation. 15. In cross-examination, the witness stated that the FIR was lodged on 04.03.2002 and on the said date the investigation was entrusted to him; that the date and time of occurrence was not disclosed by any of the witness to him nor the FIR discloses the date or time of occurrence. 15. In cross-examination, the witness stated that the FIR was lodged on 04.03.2002 and on the said date the investigation was entrusted to him; that the date and time of occurrence was not disclosed by any of the witness to him nor the FIR discloses the date or time of occurrence. The witness further stated that the FIR was registered when the prosecutrix had developed pregnancy and the Doctor had certified her pregnancy and before that the prosecutrix had not made any complaint about any rape in the Police; that the statement of the prosecutrix was recorded under Section 161 Cr.P.C on 14.03.2002 and her statement was recorded according to the translated version of her mother but the C.D. file is silent about this aspect. The prosecution witness also stated that the accused was not present at the time of recording the statement of the prosecutrix, however, the accused was arrayed in the case as a real culprit according to the statement of the mother of the prosecutrix. It is true that only the expert can decipher the gestures and the representation made by deaf and dumb people, but no expert was available. The witness further stated that the C.D. file does not disclose that he had not felt the necessity of seeking the help of any expert nor he was advised by his superiors about this. The witness further stated that he had not got the accused identified by the prosecutrix and without identification he had arrayed him as an accused. The witness further stated that there is no evidence of alleged rape apart from the description of the accused by the prosecutrix, which was done in the present case; that the prosecutrix had not made any complaint of rape before her examination by the Doctor; that DNA test of the prosecutrix and the accused was not conducted during the investigation, nor this DNA test was necessary in his opinion, although the DNA test could have provided clear proof; he had not felt necessity of getting the accused identified by the prosecutrix and the FIR was lodged at the instance of the father of the prosecutrix. 16. After closure of prosecution evidence the statement of the accused under Section 342 Cr.P.C was recorded. The accused denied incriminating circumstances appearing in the prosecution evidence. 16. After closure of prosecution evidence the statement of the accused under Section 342 Cr.P.C was recorded. The accused denied incriminating circumstances appearing in the prosecution evidence. The accused sought to produce evidence in defence, but after availing some opportunities did not prefer to lead evidence and accordingly, the file was fixed for final arguments. 17. As per the prosecution story after the pregnancy of the prosecutrix was detected when she was taken to BMO Assar for examination. A meeting of the elders of the Village was convened to make an effort to identify the real culprit and the victim along with the witnesses including PW- Punjab Singh, the father of the victim, was taken to the houses in the locality, who identified the real culprit when she identified the house of the accused and had gestured that the culprit wears a cap on his head and is frequently seen in the locality and is studying also. 18. Admittedly, during visit of the prosecutrix to the house of the accused, the accused was not in his house and at that time prosecutrix had identified his house and given the description of the accused as real culprit. The prosecution witness Om Parkash, the I.O of the case, has stated in his deposition that the accused was arrested on 25.03.2011 when the investigation was almost complete. The I.O further deposed that he has not got the accused identified by the prosecutrix and without identification he had arrayed him as an accused and he had not felt the necessity of getting the accused identified by the prosecutrix. However, we cannot understand as to why the I.O did not feel it proper to get the accused identified by prosecutrix, particularly when she is stated to be dumb and seeks to establish the identity of the real culprit of the alleged crime through his features from the gestures of the prosecutrix. It is surprising that the I.O arrayed the respondent as an accused without getting him identified by the prosecutrix in an offence of rape which if proved attracts severe punishment under law. As per the prosecution, the prosecutrix made gestures which were allegedly deciphered by her parents that the accused wears a cap, frequents the area and is studying also. It is surprising that the I.O arrayed the respondent as an accused without getting him identified by the prosecutrix in an offence of rape which if proved attracts severe punishment under law. As per the prosecution, the prosecutrix made gestures which were allegedly deciphered by her parents that the accused wears a cap, frequents the area and is studying also. However, there is no evidence placed on record to indicate as to how many persons living in the locality of the victim and accused wear cap and are studying and whether the accused is the only person in the locality who wears a cap and is studying. All these things have remained in realm of conjectures and surmises. We are also of the opinion that the I.O either because of inefficiency or designedly after the arrest of the accused has not held the identification parade and got the accused identified by the prosecutrix so as to establish the involvement of the accused in the alleged crime. 19. The testimony of the prosecution witness Fulail singh cannot be accepted though he has deposed about the occurrence as allegedly disclosed by the prosecutrix to him through gestures. The witness is not an expert whose statement can be relied upon as to what he understood through gestures of the prosecutrix, of course, he has no knowledge of the occurrence. The learned trial court has rightly placed no reliance on the testimony of this witness. The statements of the PWs Punjab Singh and Dhallo can also be not relied upon by the Court, though they are parents of the prosecutrix. These witnesses have also deposed purportedly on what was deciphered by them on the gestures of the prosecutrix long time after the alleged occurrence took place. It is not safe to go by the statements of the aforesaid witnesses, who too are not witnesses to the occurrence, which allegedly took place months before it came to the knowledge of parents of the victim. 20. The prosecution witness Dr. Pushpa Raina deposed in the Court that nothing can be commented about rape and that the woman examined by her was habitual in sexual intercourse. The statement of the Doctor by itself cannot bring home the guilt against the accused. 21. The prosecution has miserably failed to get the accused identified by the prosecutrix either during investigation or during the trial. The statement of the Doctor by itself cannot bring home the guilt against the accused. 21. The prosecution has miserably failed to get the accused identified by the prosecutrix either during investigation or during the trial. No attempt was made by the prosecution during the investigation or the trial to seek assistance of an expert to decipher the gestures of prosecutrix and for recording her statement in the Court. The non examination of the prosecutrix in the court, though available, is indeed fatal for the prosecution. The disability of the prosecutrix, if any, could be made up by requisitioning the services of an expert but that was not done. 22. The I.O has admitted that there is no evidence of alleged rape against the accused apart from the description of the accused by the prosecutrix. It is not safe to rely upon the depositions of the witnesses. Further, the I.O has admitted that the accused was not found in his house when the prosecutrix identified his house and gave description of the accused as the real culprit. The statement of the I.O itself clarifies that the respondent herein was arrayed as accused mere on assumptions. 23. In view of the evidence placed on record by the prosecution and particularly the failure of the prosecution to produce the prosecutrix and to get the accused identified by the prosecutrix during the trial, a reasonable doubt about the complicity of the accused in the case has arisen. The court is of the considered opinion that the prosecution had failed to prove the case against the accused beyond shadow of doubt. We find no reason to interfere into the judgment passed by the trial court. The judgment of the trial court is upheld. The appeal is without merit and is, accordingly, dismissed. 24. The record of the trial court be sent back.