ORDER : 1. The judgment passed by the Trial court, whereby the charge-sheet has been dismissed and accused has been acquitted, is being challenged in this appeal by the erstwhile State of J&K (now Union Territory), through police station Mahraj Gungh. 2. I have heard learned counsel for the appellant and have also gone the record on the file. 3. The brief facts of the case are that a complaint was received by police of Police Station, Mahraj Gungh, through Mushtaq Ahmad Khan, wherein it was alleged by him that his daughter (Prosecutrix) was kidnapped by accused on 18.08.2007 by deceitful means for illicit intercourse. FIR No. 62/2007 was registered under section 363 RPC and the investigation conducted. She was recovered from custody of accused on 24.08.2007, on identification of complainant. On completion of investigation, police found offences punishable under section 366 and 376 RPC established against accused and, accordingly, it presented challan before the Court-Chief Judicial Magistrate, Srinagar, wherefrom the case was committed to the court of Principal Sessions Judge, Srinagar. Charges were framed under Section 366, 376 RPC by Trial court. During course of trial, six witnesses were examined, though prosecution had listed nine witnesses. On 15.05.2017, prosecution evidence was closed. As impugned judgment would show that benefit of mandate of Section 273 Cr.P.C. was not given to accused and he was put on defence on 02.08.2017. The accused is said to have failed to lead defence evidence and on 07.12.2017 right to lead defence evidence was closed. Arguments commenced thereafter. Upon consideration of prosecution case, Trial Court vide impugned judgement acquitted the accused/respondent. 4. It is stated by learned counsel for appellant that acquittal of the accused is challenged on the grounds that the Trial court has not properly appreciated the evidence; that there had been sufficient evidence to prove the charge; that the witnesses produced have established that the accused had kidnapped prosecutrix and subjected her to rape but Trial court while acquitting accused has not properly appreciated evidence through order of acquittal and finding recorded by Trial Court is, thus, contrary to evidence produced, therefore, acquittal is required to be reversed and accused convicted. 5. On the other hand, learned counsel for respondent would submit that finding of Trial Court does not call for any interference as it has properly appreciated prosecution evidence. 5. On the other hand, learned counsel for respondent would submit that finding of Trial Court does not call for any interference as it has properly appreciated prosecution evidence. He further submits that there is no sufficient evidence to which Trial Court could have recorded order of conviction against accused. The charges framed against accused on the basis of evidence and proper appreciation have failed to prove charges. As there was no sufficient evidence, therefore, order of acquittal recorded by Trial Court does not call for any interference. 6. Before proceeding further, it would be appropriate to have brief account of witnesses, namely, PWs. Mushtaq Ahmad Khan, Mst. Zubaida, Ms. (prosecutrix), Dr. Umer Sharif Kirmani, Hafiz-ullah Investigating Officer and Feroz Ahmad, (I.O.) produced by prosecution before Trial Court hereinafter: (1) Prosecution witness no. 1, namely, Mushtaq Ahmad Khan, is the complainant. He alleged that his daughter was kidnapped and on his complaint the FIR in question was registered. He deposed that when he returned from duty on 18.08.2007, he was informed by his wife that accused and their daughter are not at their homes and she was perturbed. They went to the house of the accused to know about the whereabouts of their daughter but the family members of the accused informed them that their daughter was that their daughter was not at their home. Complaint was made to the police in writing. His daughter was recovered from the custody of the accused and got her medically examined. His daughter at that time was accompanied by his wife. He had no knowledge as when his daughter had left. He came to know about the same on return from duty in the evening. They went to the places of their relations and also residence of the accused and on 19.08.2007, lodged the report with the police. The application was drafted by brother Haroon and statements were recorded in the police station. (2) Prosecution witness no. 2, namely, Zubaida, is the mother who says that the accused used to harass her daughter and was doing unbecoming things. On the day when her daughter was taken by the accused her elder daughter was sick and she was treating her. She came down called her daughter (prosecutrix), but could not found her, thereafter, she enquired about her neighbours, but did not trace her. On the day when her daughter was taken by the accused her elder daughter was sick and she was treating her. She came down called her daughter (prosecutrix), but could not found her, thereafter, she enquired about her neighbours, but did not trace her. On that she had sent her son to market where accused told him why he was worried. They went to the house of the accused and enquired about her daughter where they were told by the mother of the accused that her son cannot do any wrong. On the same night fled away, father of the accused was apprised. She went to her neighbourers and also asked the Masjid Committed for help who accompanied to police station. Whereafter police recovered their daughter. She told her that father, mother, maternal uncle, aunt and maternal grandfather of the accused were involved in the occurrence and she told her that accused had done wrong with her. Her daughter was taken to the hospital by the police. Her daughter was taken by the accused against her will and after occurrence had not troubled her daughter but abuses her daughter when she went for tuition. They did not file complaint immediately because they thought that accused will hand over her daughter at their own. They had no relations with the family of the accused prior to the occurrence though they are residing in their neighbourhood, On the day of occurrence she had sent her daughter to bring medicines from market. We remained waiting but she did not return. They suspect involvement of the accused because he had asked her son why he was worried. No report was lodged on the date of occurrence. It was lodged on the next date. He does not know under which circumstances and in whose presence the prosecutrix was recovered by the police. She lodged report before the police and on that day she was accompanied by her husband and husband of her sister-in-law Mohd Aslam and their statement was recorded by the police. (3) Prosecution witness no. 3 is Prosecutrix. She in examination-in-chief stated that accused is known to her. He resides in her neighbourhood. A year back when she was cleaning the utensils in her yard, accused came there and told her that he wants to talk to her, but she did not agree to accompany him. (3) Prosecution witness no. 3 is Prosecutrix. She in examination-in-chief stated that accused is known to her. He resides in her neighbourhood. A year back when she was cleaning the utensils in her yard, accused came there and told her that he wants to talk to her, but she did not agree to accompany him. However, he caught her by hand and boarded her in an auto and took her to the house of his maternal grandfather. She did not raise any cry in the auto due to her modesty. It happened in the day at 3 PM. The uncle and aunt and grandfather of the accused were there in the house and she narrated the whole story to them, however, they did not ask anything to the accused, nor they allowed her to move out of the house. She was not knowing the route, though she begged to them. In the evening at 8pm accused returned. She was kept in a room which was bolted from outside. She was kept there for four days and for these four days the accused continuously raped her so many time. She requested the accused to let her go and even wept, but he did not listen to her. She did not raise noise because she apprehended to get defamed. After four days accused wanted to took her to the house of his aunt, but on way police had caught them. After her recovery police took her to hospital for her medical examination. He family members were accompanying her to the hospital. On cross-examination, the prosecutrix stated that the occurrence took place in the day time at 3 PM. Accused resides at three house distance from her. Their houses are located closely, but the neighbours cannot look into the compound of each other house and during day time women are working in the houses. They have relations with their neighbours. However, no one like the accused. She had no acquaintance with the accused prior to the occurrence, nor had she gone with him anywhere. She had no knowledge about the character of the accused. On the day of occurrence mother was at home and if she had called her that accused was calling her to accompany him outside, her mother could have come out. She had no acquaintance with the accused prior to the occurrence, nor had she gone with him anywhere. She had no knowledge about the character of the accused. On the day of occurrence mother was at home and if she had called her that accused was calling her to accompany him outside, her mother could have come out. On the day of occurrence her mother was engaged with his sister at that time as she was ill and that is why she had not called her mother when accused called her and took her away. She at her own went with the accused and did not show any resistance. Accused boarded her in the auto on the road and she did not raise any noise. A number of people were on the road when she was moving in the auto with the accused. She did not raise any noise. When accused reached his grandparent’s house, it was 4.30 PM as she saw at clock on wall and she was taken at 3 PM from her house and it took one and half while reaching there. They crossed so many places and nowhere had she raised any alarm. His uncle, aunt and grandfather were present and she told them that accused had taken her for telling something but they did not say anything to the accused. They offered food to her and they presented her the routine food. She used to sleep in another room and they were not sleeping in that room. She told the members of that family as how she can sleep with the accused as she is not married. She had disclosed before the police about the conduct of these persons, however, she had no knowledge whether police had taken any action against them or not. During those four days she did not feel any problem relating to food. After four days accused shifted her to another place. (4) Prosecution witness no. 7, namely, Umer Sharif Kirmani, has stated in examination-in-chief that on 31.08.2007, he was posted as Radiologist in SMHS hospital, Srinagar. He had examined the X-rays of elbow, shoulder, wrist and knees of the prosecutrix. On examination of the X-rays it was found that epiphysis of the bones were fused and on the basis of this finding he formed an opinion that the bone age of the prosecutrix was more than 18 years. He had examined the X-rays of elbow, shoulder, wrist and knees of the prosecutrix. On examination of the X-rays it was found that epiphysis of the bones were fused and on the basis of this finding he formed an opinion that the bone age of the prosecutrix was more than 18 years. The epiphysis is the growth center of the bones and located towards the ends of the bones. He had come to the opinion that the prosecutrix was major on the day of occurrence. The certificate is on record of the file. It bears his signatures and is in his handwriting. Contents of the same are true and correct. It is exhibited as EXT. P-7. (5) Prosecution witness no. 8, namely, Hafizullah, Inspector (I.O.) stated in examination-in-chief that accused is known to him. From the year 2005 to 2008, he was posted at police post Bana Mohalla which falls under the jurisdiction of Police Station M.R. Gunj. The occurrence is of 21.08.2008 and on that day police post Bana Mohalla received a written complaint from Mushtaq Ahmad Khan to the effect that his daughter had been kidnapped by the accused. The said application is on record of the file which had already been exhibited as Ex. PW-1. A docket was prepared regarding the occurrence by him and same was forwarded to Police Station M.R. Gunj and accordingly FIR No. 62 of 2007 was registered and investigation of the case was assigned to him. Investigation was sued. Site map was prepared. Site map is on record of the file and same is under his hand and signatures. Contents of the same are true and is exhibited as EXT. P-8. He recorded the statements of some witnesses on spot. Thereafter, prosecutrix was recovered from the possession of the accused. Recovery memo on the file is under his hand and signatures, contents of the same are true and correct and is exhibited as EXT. P-8/1. Site map regarding the place of recovery was prepared. Same is on record of the file and is under his hand and signature. Contents of the same are true and correct and marked as EXT. P8/2. Accused was arrested and arrest memo was drafted. It bears his signature and is under his hand. Contents of the same are true and correct and exhibited as EXT.P8/3. Potency test of accused was done. Prosecutrix was also medically got checked. Contents of the same are true and correct and marked as EXT. P8/2. Accused was arrested and arrest memo was drafted. It bears his signature and is under his hand. Contents of the same are true and correct and exhibited as EXT.P8/3. Potency test of accused was done. Prosecutrix was also medically got checked. A docket was addressed to Medical Officer for medical checkup of the prosecutrix. Same is on record of the file. It is under his hand and signatures. Contents of the same are true and correct and exhibited as EXT. P8/4. Prosecutrix was handed over to her father and to this effect memo was prepared. Same is under his hand and bears his signatures. Contents are true and correct and is exhibited as EXT. P8/5. On cross-examination, witness stated that complaint was lodged by the complainant before police post Bana Mohalla. In the application it was written that accused had kidnapped the daughter of the complainant. As complainant had written the name of the accused in his application, that is why he had written the name of the accused in the case. On the identification of the complainant they had started searching the accused and the prosecutrix. He had recovered the prosecutrix from the possession of the accused outside Khankah-i-Mohalla. A number of people were present at the place where from the prosecutrix was recovered from the possession of the accused. No passerby was kept as a witness to the recovery of the prosecutrix or to the arrest of the accused. When prosecutrix was recovered accused was going ahead to the prosecutrix and prosecutrix was also walking side by side to the accused. No weapon was found from the posserssion of the accused. He had recorded when he had recorded his statement, however, same was recorded on spot. He does not remember about the clothes of the accused at the time of his arrest. He had not written on the recovery memo about the clothes of the prosecutrix. Perhaps on the day of recovery prosecutrix was major. He had not recorded any statement of the prosecutrix. He does not remember as to when statements of witnesses under section 161 Cr.P.C. were recorded by him. (6) Prosecution witness no. 9, namely, Feroz Ahmad, Inspector (I.O.) stated in examination-in-chief that the accused is known to him. In the year 2007 he was posted as Incharge Police post Baan Mohalla. He had not recorded any statement of the prosecutrix. He does not remember as to when statements of witnesses under section 161 Cr.P.C. were recorded by him. (6) Prosecution witness no. 9, namely, Feroz Ahmad, Inspector (I.O.) stated in examination-in-chief that the accused is known to him. In the year 2007 he was posted as Incharge Police post Baan Mohalla. He got the statement of prosecutrix record under section 164-A Cr.P.C. and also got the Radiological test of her with regard to her age. Another I.O has conducted investigation in the case before him. As per Radiological report, the prosecutrix was found to be major. A docket to this effect was issued by hi which is on record of the file. It is under his hand and bears his signature. Same is exhibited as EXT. P9. Contents of the same are true and correct. In addition to the statement of complainant, statement of one witness was also recorded under section 164-A Cr.P.C. and also recorded statement of her parents. Offence under section 363 RPC was deleted as prosecutrix was found major and same was replaced by Section 366 RPC. Accused was found involved under section 376 RPC as he had raped the accused. He submitted his investigation in the year 2007 and submitted the same to then SHO P/S Mahraj Gunj. As per medical evidence of prosecutrix and her statement, he proved the offence under section 366/376 RPC against the accused. On cross-examination, witness stated that as per statement of prosecutrix in terms of section 164-A Cr.P.C. accused was found involved under section 376 RPC. He conducted the last limb of the investigation in the case. He did not record statements under section 161 Cr.P.C. because that would have been recorded by his predecessor. He only got recorded statements of witnesses in terms of section 164-A Cr.P.C. and Radiology test was also conducted under his control. Rest of the investigation had already been completed by the first I.O. It is true that as per medical report no mark of violence was found on the body of the prosecutrix. He cannot say whether prosecutrix was habitual to intercourse. 7. In the instant case, the charge framed against the accused is that on 18.08.2007, he had kidnapped the prosecutrix with an intention to rape her and had kept her in his custody for seven days and had raped her. He cannot say whether prosecutrix was habitual to intercourse. 7. In the instant case, the charge framed against the accused is that on 18.08.2007, he had kidnapped the prosecutrix with an intention to rape her and had kept her in his custody for seven days and had raped her. The prosecutrix had been recovered from his custody at Khankahi Moulla Dargah. The accused has been, thus, charged for offences punishable under Section 366 and 376 RPC. From the statements of the witnesses, as reproduced above, it is to be seen as to whether the prosecution has been successful in establishing that the accused had kidnapped the prosecutrix and subjected to her rape. 8. The Trial court has appreciated the evidences and has come with the following conclusion: “9. She has deposed that accused is known to her ad resides in her neighbourhood. She was washing untensils in the yard of her house and accused entered there. He wanted to talk to her but she refused and then he caught hold of her and boarded her in the auto. And in the day time at around 3PM, as she has stated, was taken by accused to his maternal grandmother home. And in the cross-examination she stated that houses in the locality are closely located but neighbours cannot look into the compound of each other and she was having no acquaintance of the accused prior to happening. She attempted to flee from the place where she was kept by the accused, but she was not allowed and door of the room was bolted outside. 10. Few facts that emerge out of this deposition is that one the accused was not known to her at all, how can he dared to enter into the compound of her house and wanted to talk her. If at all he was stranger, how can straightway told her to accompany him and then can go the extent of taking her in auto along against her will. A stranger comes in the house of someone and does this all and there is no voice raised, no resistance, no objection from the well built and major girl, even when her mother, sister are at home speaks she has not called and cried for her rescue is a lynch pin of the case worth to be addressed. 11. A stranger comes in the house of someone and does this all and there is no voice raised, no resistance, no objection from the well built and major girl, even when her mother, sister are at home speaks she has not called and cried for her rescue is a lynch pin of the case worth to be addressed. 11. She is even on record to state in her cross-examination that if she would have raised voice, her mother could have come out. Of course, if this would have happened, the alleged commission of offence would have been avoided. 12. Thereafter, in the broad day light she accompanied the stranger and moved on the roads and streets of the Srinagar where there are enough number of police and security around, but no protest voice is raised against the coercive and involuntary taking of her by the accused. 13. There is no doubt that in evidence law it is mentioned that in a trial of offence of rape, if prosecutrix states that there was no consent for the same, the court will presume it. However, fact remains that this presumption is a rebuttable presumption and same can be well appreciated in the backdrop of her whole conduct. If the conduct, as evident in the evidence, speaks differently to her stand, the court has to consider it while deciding the culpability of the accused. 14. So far as PW-1 complainant is concerned, he was not at home on the alleged date of occurrence. He has stated that what he stated is what was told to him by his wife. He has exhibited the complaint as true and correct, but as per his statement same was drafted by his brother Haroon. However, Haroon has not been kept as witness to prove the fact as he was accompanying the complainant (PW-1) to the police station when the complaint was presented at Police Station as stated by complainant. 15. PW-2 confirms the delay in lodging the report but no explanation in this regard is given. Further she has stated that though police handed over the prosecutrix to her, but who handed over and in whose presence she was recovered, she has no information in this regard. 16. Moreover, the doctor PW-6 has not been produced before the court to confirm the medical evidence with regard to occurrence in question. 17. Further she has stated that though police handed over the prosecutrix to her, but who handed over and in whose presence she was recovered, she has no information in this regard. 16. Moreover, the doctor PW-6 has not been produced before the court to confirm the medical evidence with regard to occurrence in question. 17. The recovery memo of the prosecutrix has not been proved by the independent witness as he has not been produced by the prosecution as witness. Same is proved by the father, who happened to be the complainant and of course the interested witness in the case.” 9. The appreciation so made by the Trial court on basis of the evidence recorded after having been evaluated and considered afresh in my opinion does not suffer from any illegality. The evidence on the record would reveal as is evident from the statement of prosecutrix itself that she had accompanied the accused and did not raise any cry and proceeded with him in an auto then went to his house where again she had not raised any alarm, alleged that she had been kidnapped by the accused. 10. The prosecutrix claims in her statement that accused was not known to her and if he was not known to her then how she could have been accompanying accused and would have gone along with him in an auto and stayed at his home. This conduct appears to be unnatural. The mother of the prosecutrix on the other hand states that accused used to harass her daughter and was doing unbecoming things. The statement of two witnesses who are most crucial witnesses in this case, i.e. mother and prosecutrix, have given two different versions. Had the petitioner been kidnapped against her wishes, firstly she would not have accompanied him, she would not have boarded the auto or proceeded in the auto; secondly, had she been deceitfully taken, she at least would have raised alarm because she was moving with the accused in a public place where people were moving and there was every chance of the prosecutrix to inform them if she was taken forcefully. It is the statement of prosecutrix that they had moved through different roads of different areas of Srinagar city and had it been the case of kidnapping, she would have definitely made hue and cry. 11. It is the statement of prosecutrix that they had moved through different roads of different areas of Srinagar city and had it been the case of kidnapping, she would have definitely made hue and cry. 11. The core issue that arises for consideration in this case, is whether while recording the judgment of acquittal, the prosecution evidence has been properly appreciated in right and proper perspective. The Trial Court has recorded the entire evidence in its breadth and length in impugned judgment and the same does not require to be repeated and reiterated here again. The Trial Court, as is evident from impugned judgment, after taking into consideration the entire evidence adduced by the prosecution, has come to the conclusion that the accused has not committed the crime imputed to them. 12. The well settled law is that the function of the Court in a criminal trial is to find out whether a person arraigned before it as accused is guilty of the offence with which he is charged. For this purpose, the Court scans the material on record to find out whether there is any credible, reliable and trustworthy evidence on the basis of which it is possible to convict the accused and to hold that he is guilty of the offence with which he is charged. The burden to prove the ingredients of the offence is always on the prosecution and it never shifts to the accused. 13. Looking at the instant case from the perspective of what has been stated above, is that prosecutrix is a major, was at home when her alleged abduction took place by accused but she did not raise any alarm at all. She in her statement stated that he was not knowing accused but her mother states that accused used to harass prosecutrix. In these circumstances, the statement of prosecutrix is negated by her own mother. 14. Testing the prosecution case on the touchstone of the evidence of the prosecution witnesses, the impugned judgment is based on the law, reason and logic. It does not call for any interference. The star witnesses, viz. prosecutrix and her mother as discussed above, have not been emphatic in stating that the accused was the architect and the author of the crime. The judicial precedence reported in the case of Prithipal Singh vs. State of Punjab, 2012 (1) SCC 10 , assumes significance on that count. It does not call for any interference. The star witnesses, viz. prosecutrix and her mother as discussed above, have not been emphatic in stating that the accused was the architect and the author of the crime. The judicial precedence reported in the case of Prithipal Singh vs. State of Punjab, 2012 (1) SCC 10 , assumes significance on that count. There it has been held as follows: “This court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in acquitting a person on the sole testimony of a single witness. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphases on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record acquittal. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.” 15. The law that has been settled in the aforesaid judgement is that as a general rule the court can and may act on the testimony of a single witness, provided he is wholly reliable and there is no legal impediment in acquitting a person on the sole testimony of a single witness, but if there are doubts about the testimony, the court will insist on corroboration. It is not number or quantity, but quality that is material and time-honoured principle is that evidence has to be weighed and not counted. So, the test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphases on the value, weight and quality of the evidence, rather than on the quantity, multiplicity or plurality of the witnesses. So, the test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphases on the value, weight and quality of the evidence, rather than on the quantity, multiplicity or plurality of the witnesses. Thus, it is open to a competent court to fully and completely rely on a solitary witness and record acquittal and conversely it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. 16. Applying the ratio of the law laid down, as aforesaid, to the facts of the instant case, the statements of witnesses discussed above are not sufficient to convict the accused. There is infirmity in their statements that render them weak, fragile, incoherent or improbable. 17. The argument of the counsel for accused that there are discrepancies in the statements of the witnesses is an argument when tested on the touchstone of the instant case. Prosecution has failed in discharging its burden to prove that the accused has committed the crime imputed to him. There is no merit in this appeal. It entails dismissal as a consequence of which the same is dismissed and the judgment of acquittal recorded by the Trial Court is maintained and upheld. 18. The record of the trial court be sent down along with a copy of this judgment.