M.Y.KAWOOSA, J. - (1.) BY way of this Criminal Revision, Petitioner prays for setting aside the order of discharge passed by learned Sessions Judge, Kathua on 03.02.1998.
(2.) THIS revision petition emanates from a criminal case under Section 302 and 376 R. P. C. registered against respondent -accused. On the allegations that the deceased Ram Piary, aged about 32 years, a house wife from Village Khanthu of Tehsil Billawar had taken meals from her home for her husband, who was working at his Garath on 27.08.1997. While returning back after serving meals to her husband, she allegedly has been assaulted by the accused/ respondents gang raped and thereafter murdered her. Report was lodged to the Police, who found the other day the body of the deceased covered under bushes towards the Garath side. At a distance of 3 feet, her Shilwar and ear rings were also found on the ground in accordance with the disclosure statement made by the accused. Shilwar and earrings were seized by the police at the instance of accused. After the case was committed to the Sessions Court for trial, Sessions Judge framed charge under Section 302 read with Section 34 of the R. P. C. only against the accused -persons, but they were discharged for the offence under Section 376 RPC.
(3.) STATE has questioned the judgment to the extent of discharging the accused -persons under Section 376 RPC, Heard learned counsel for the parties and I have gone through the file. Learned Government Advocate has forcefully contended that the accused could not have been discharged merely on the ground that the postmortem report shows no internal and external injury on the hymen of the deceased and no semen was found.;