HON’BLE SRI JUSTICE K.G.SHANKAR CRL.R.C.No. 1389 of 2005 O R D E R: This is a very unfortunate case. The accused allegedly committed rape upon the victim by name Telluri Bhulaxmi on 29.1.1997. It is an unfortunate case in the sense, the victim Telluri Bhulaxmi died about three months after the incident of rape. The family had further misfortunate when her father also died subsequently. The prosecution, consequently, examined the mother of the victim as PW.1. The prosecution tried to mark Sec.161 Cr.P.C. statement of the victim under Ex.P5 as the dying declaration but, the trial court and appellate court rejected Ex.P5. However, the trial court considered that the offence u/Sec.376 (2)(f) IPC was made out and sentenced the accused to rigorous imprisonment for a period of seven years. The appellate court dismissed the appeal. Assailing the Judgment of the trial court and the appellate court, the revision is laid by the accused. 2. Smt.Barkha, learned counsel for the sole accused contended that the prosecution failed to establish that the accused was responsible for the rape of the victim. 3. The brief facts of the case are: i) Telluri Bhulaxmi, victim in this case was 11 years old by 29.1.1997. She was a student of III Class. P.W.1 was her mother. P.W.2 was her aunt. ii) On 29.1.1997 PW.1 left for labour work along with her husband during the morning hours of the day. The victim remained at the house without going to the school as she was not doing well. iii) At about 3.00 p.m. on 29.1.1997 the accused went to the house of the victim, took her to the house of his maternal grand mother and had sexual intercourse on her against her wish. P.W.1 thereafter, allegedly returned home. iv) At about 7.30 p.m. on the same day, when P.W.1 returned home, she found bleeding from the private parts of the victim and then P.W.1 came to know about the incident. v) On the advice of P.W.2, a complaint was lodged with the police and the same was registered as Ex.P4-FIR. P.W.6 was the Inspector of Police at that time. On 11.2.1997 he arrested the accused and sent him for potency test. Later charge sheet was laid against the accused. vi) This is the gist of the prosecution case. 4. The case of the learned counsel for the accused is that there is no evidence to show that the accused is the person, who raped the victim. P.W.3 is the lady doctor, who examined the victim. P.W.3 deposed that the victim was subjected to rape. From the evidence of P.W.4 and Ex.P7-FSL report it is clear that the accused was capable of performing sexual intercourse. 5. The prosecution tried to show from the fact that the accused was capable of performing sexual intercourse that it was the accused, who committed rape upon the victim. As rightly submitted by the learned counsel for the accused, there appears to be no nexus between the capacity of the accused to perform sexual intercourse and forcible carnal acquaintance with the victim. The prosecution must show that the accused was the person, who committed rape upon the victim and that therefore, the accused deserved to be convicted. 6. Smt.Zareena Afsar, learned counsel representing the Public Prosecutor placed reliance upon the evidence of P.W.6, who is the Investigating Officer and upon the evidence of P.W.4, Doctor, who examined the accused together with Ex.P7, FSL report and contended that the prosecution fairly established the guilt of the accused and that there could be no contrary evidence and hence, the accused deserves to be convicted for the offence u/Sec.376(2)(f), IPC. I am afraid that the contention of the learned counsel representing the public Prosecutor cannot be countenanced. 7. The prosecution is expected to establish the guilt of the accused beyond reasonable doubt. While so, what the prosecution established is that a) the victim was subjected to rape; and b) the accused was capable of performing coitus. 8. The prosecution did not produce any evidence to show that the accused was the person, who committed rape on the victim. Consequently, the offence of rape against the accused was not made out. 9. The learned counsel for the accused correctly pointed out that the prosecution could have established the case against the accused by conducting DNA test with the blood samples of the accused on the smears collected from the private parts of the victim. The prosecution did not make any attempts to do so. The prosecution merely assuming that the accused was guilty of the offence in view of the representation of the victim. The trial court and the appellate court also proceeded on the same assumption. 10. I am afraid that the assumption of the trial court and the appellate court in appreciating the evidence of the prosecution witnesses is erroneous. There is absolutely no legal evidence to link the accused with the offence proper. I therefore, consider that the prosecution failed to establish the guilt of the accused for the offence u/Sec.376(2)(f) IPC muchless beyond all reasonable doubt. The accused is liable to be acquitted of the offence levelled against him. 11. In the result, the revision is allowed. The revision petitioner is acquitted for the offence punishable u/Sec.376(2)(f) IPC. His bail bonds shall stand discharged. _____________ K.G.SHANKAR, J Dt. 16.09.2011 Mjl/*