Excelsior Correspondent
Srinagar, Jan 27: High Court has set aside the sentence awarded to two persons for abduction and raping of a girl citing that the prosecution has failed to prove the offences as contained in the FIR.
The Division Bench headed by Justice Sanjeev Kumar set aside the sentence of 15 years jail awarded to two persons by the trial court for commission of offences of abduction and rape of a girl. “The Court is convinced that the prosecution has not been able to prove its case against the appellants-accused beyond shadow of doubt for the offences in which the accused have faced trial”, DB said.
Court allowed the appeal filed by accused Rinku Kumar and Kuldeep Kumar whereby trial court verdict was challenged. Court set aside the judgment and order passed by the Principal Sessions Judge Reasi in October 2022.
“The appellants-accused are acquitted of the charges framed against them under Sections 363/376-D/109/34 and are set at liberty. The trial court shall proceed against the other accused under Section 512 CrPC as per law”, the court directed.
The appellants Rinku Kumar and Kuldeep Kumar, faced trial for offences under Sections 366/376-D/109/34 RPC and were found guilty for commission of offence under Section 366/376-D RPC, convicted and sentenced to undergo rigorous imprisonment of 15 years for offence under Section 376-D RPC and rigorous imprisonment of two years for commission of offence under Section 366 RPC along with fine.
The court after hearing the case at length said there is no dispute with the proposition of law that the prosecution case cannot fail only on account of defect in the investigation if the circumstances which are brought on record otherwise do inspire confidence in the court.
Court from perusal of record said that the investigating officer did not seriously make any effort in tracing the vehicle or driver used for the crime. “The whereabouts of the vehicle could be easily known from the arrested accused during the course of investigation but that has not happened in the present case”, the court observed.
The Deputy Advocate General submitted that the statement of the doctor does not rule out the sexual assault on the victim.
The Court however viewed that the statement of the doctor does not support the contention of the prosecution that the victim was raped during the alleged occurrence. The victim alleges that she was raped by the four accused including the appellant-accused. However, the doctor has not found any violence on the body of the victim or genitals.
“No doubt the witness has also stated on being questioned by the court that the absence of spermatozoa does not mean that the victim has not been subjected to sexual assault. This observation of the doctor only refers that even in the absence of spermatozoa the sexual assault cannot be ruled out on a victim of rape”, reads the judgment.
Court said it is unlikely that the victim who had been stated to have been subjected to rape by four persons and that too in a jungle on a hard surface, as per the statement of I.O, the victim will not receive any bodily injury during the course of occurrence.
“No injuries are mentioned in the certificate issued by the doctor though the prosecution witnesses deposed that the victim was having injuries on the body and was bleeding. The medical evidence ruling out the rape upon the victim cannot be brushed aside”, Court recorded.
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