JUDGMENT
1. The abovenamed accused appellant has preferred this appeal against the judgment and order dated 16-8-1999 passed by the learned Judge. Special Court, SC/ST (Prevenion of Atrocities) Cases, Jodhpur in [CASE NUMBER] by which he convicted accused appellant under [SECTION] [ACT] and sentenced to undergo 7 years Rigorous Imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo one month RI.
2. The foots giving rise to this appeal in short, are as follows :-
PW6 [ENTITY] on 16-6-1998 at about 3.00 PM lodged a report Ex. D/2 before PW8 [ENTITY], SHO Police Station Luni. District Jodhpur inter-alia stating that on 15 of 1998 at about 3.00 PM when she was coming from the field lonely, on the way, accused appellant met her and as soon as she passed the Dhani of [ENTITY], accused appellant pursued her on his cycle and, thereafter, he surrounded her and insisted upon to go to his Dhani and on refusal by her, he followed her. It is further alleged that as soon as he came to know that the place is lonely one, he left his cycle there and he caught her from the back side through his hands and took her to the nearby bushes and sitting on his stomach closed her mouth with [ENTITY] and after holding her legs, he committed rape on her. It is further stated that when she tried to cry, he closed her mouth and threatened that in case she cries, he would kill her. It is further stated in the report that after that incident, when she was going to her house in the state of wailing, PW2 [ENTITY] met her and both reached the house and at that time since her husband was not there, no report was lodged on that day. It is further stated that on the next day, her husband came and PW2 [ENTITY] told the incident to her husband and then, her husband instructed that report be lodged and thus, the report has been lodged.
On this report, police registered the case and chalked out regular police FIR Ex. P/7. During investigation, through Ex. P/3, [ENTITY] of the prosecutrix was seized, site plan Ex. P/2 was prepared and accused appellant was got medically examined by PW4 Dr. [ENTITY] and his medical report is Ex. P/4. PW6 [ENTITY] was also got medically examined by PW5 Dr. [ENTITY] and her medical report is Ex.P/5. The accused appellant was arrested on 17-6-1998 and his arrest memo is Ex. P/1.
After usual investigation, police submitted a challan against the accused appellant in the Court of Magistrate and thereafter, the case was committed to the Court of Session.
The learned Special Judge framed charge for the offence under [SECTION] [ACT] on 9-11-1998 against the accused appellant, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 9 witnesses and some documents were got exhibited. No evidence in defence has been produced, but four documents have been produced by the accused appellant in defence.
After conclusion of trial, the learned Special Judge by his judgment and order dated 16-8-1999 convicted the accused appellant under [SECTION] [ACT] and sentenced in the manner as stated above, holding inter-alia that in this case, the statement of prosecutrix PW6 [ENTITY] is corroborated by the statement of PW2 [ENTITY] and PW3 [ENTITY] and further by the medical evidence, hence, the prosecution has proved its case beyond reasonable doubt against the accused appellant for the offence under [SECTION] [ACT].
Aggrieved from the said judgment and order dated 16-8-1999, the learned Special Judge, SC/ST Cases, Jodhpur, the present appeal has been filed by the accused appellant.
3. In this appeal, the following submissions have been made by the learned counsel for the accused appellant :-
1. That the medical evidence in this case does not corroborate to the statement of PW6 [ENTITY].
2. That the mouth of prosecutrix was tied by [ENTITY], but this fact is missing in the report Ex. D/2.
3. That Ex. D/2 report has been lodged with delay of 24 hours and this delay is fatal to the prosecution case and hence, the prosecution case should be thrown on this ground alone.
4. That at the most a case of free consent may be treated and thus, accused appellant should be acquitted of the charge under [SECTION] [ACT].
4. On the other hand, the learned Public Prosecutor has supported the impugned judgment and order passed by the learned Special Judge, SC/ST Cases, Jodhpur.
5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
6. Before proceeding further, first medical evidence in this case should be seen.
7. In this respect, the statement of PW5 Dr. [ENTITY] may be referred to. He states that on 17-6-1998 he in the capacity as Medical Jurist examined PW6 [ENTITY] and found the following three injuries on her person :-
1. Abrasions (multiple) each about 5.0 x 0.1 cm on the upper part of Rt. Breast.
2. Abrasions (six) each about 4.0 x 0.1 cm on the upper and outer part of left Breast.
3. Abrasion 6.0 x 0.1 cm middle Lt. Breast He has further stated that hymen of PW6 [ENTITY] was old ruptured one and two fingers could easily go into her vagina and possibility of sexual intercourse with her cannot be ruled out. He has proved the report Ex. P/5.
8. Thus, from the report Ex. P/5 and the statement of PW5 Dr. [ENTITY], it appears that on the day of her medical examination, the prosecutrix PW6 [ENTITY] was having three injuries on her breast.
9. Before proceeding further, something should be said whether corroboration to the statement of prosecutrix is essential in rape cases or not before convicting an accused person.
10. To make answer of the above question, some authorities of the Hon'ble Supreme Court may be referred namely, [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
11. The result of the above authorities is as follows :-
1. The prosecutrix in rape case is not an accomplice;
2. Corroboration of testimony of prosecutrix in rape case is not required as a rule of law.
3. Corroboration in such cases is, however, required as a matter of prudence and this rule of prudence has now almost hardened into rule of law.
4. The rule of prudence which has been hardened into rule of law is that the rule as to corroboration must be present in the mind of judge and must have been incorporated in the judgment.
5. If the evidence of the prosecutrix does not suffer from any basic infirmity, and the probability factor does not render it unworthy of credence, as a general rule, corroboration should not be insisted upon.
6. The corroboration of the prosecutrix evidence may be dispensed with where the circumstances of a case make it safe to do so. But the reasons for dispensing with the necessity of such corroboration should be forthcoming in the judgment.
7. Corroboration may be insisted upon when a woman having attained majority if found in a compromising position and there is likelihood of her having levelled such an accusation on account of instinct of self preservation or when the probabilities factor is found to be out of time.
12. Keeping the above principles in mind, the facts of the present case are being examined.
13. There is no dispute that incident in the present case took place on 15-6-1998 at about 3.00 PM and report was lodged by PW6 [ENTITY] on 16-6-1998 at 3.00 PM i.e. nearabout 24 hours later on. In my opinion, this delay cannot be regarded as delay especially looking to the fact that when PW6 [ENTITY] reached her house on 15-6-1998, her husband was not there and her husband came on next day i.e. on 16-6-1998. These facts have been specifically mentioned in report Ex. D/2 lodged by PW6 [ENTITY] and thus, the socalled delay has been explained in the present case. For that, the latest decision of the Hon'ble Supreme Court in [PRECEDENT] may be seen, where the following proposition of law has been laid down :-
A mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution.
14. Hence, the argument that since there is a delay of one day in lodging the report, the prosecution case should be thrown on this ground alone, is rejected.
15. PW. 6 [ENTITY] in her statement has clearly stated that when she was coming from the field, accused appellant took her to the lonely place and committed rape on her. In her cross-examination, she has admitted the following facts :-
1. That accused appellant was known to her before this incident.
2. That PW. 2 [ENTITY] went upto her house and talked to her mother-in-law.
3. That she did not cause any injury with her nails as her hands were caught hold by accused appellant.
4. That it is correct that when resistance was put, accused appellant tore her clothes.
5. That she gave the clothes to the police which were worn by her at the time of commission of offence of rape by accused appellant on her.
6. That it is also correct that the place where she was put on the ground, stones were there.
7. That when the report was lodged by her, her husband was at her house and he did not come to police station as he was having some injuries on his leg.
8. That she also received injury on her back.
16. P.W. 2 [ENTITY] is another witness, who was just informed by P.W. 6 [ENTITY] after the commission of rape on her by accused appellant. This witness fully supports the statement of PW6 [ENTITY] and he has been cross-examined at length, but nothing has come out from his cross examination, which affects either his testimony or the testimony of PW. 6 [ENTITY].
17. P.W. 3 [ENTITY] is another witness, who is father in law of the prosecutrix PW. 6 [ENTITY]. He states that on the same day i.e. 15-6-1998, PW. 6 [ENTITY] reached the house and she told the whole story to him about the commission of rape on her by accused appellant and when the report was lodged by PW. 6 [ENTITY], he also went to the police station along with her. Thus, this witness also corroborates the statement of PW. 6 [ENTITY].
18. Thus, in the present case, the statement of PW. 6 [ENTITY] inspires confidence. Her statement is further corroborated by the statement of P.W. 2 [ENTITY] and PW. 3 [ENTITY] and apart from this, medical evidence also supports her statement. Though no injury was found around her waist, but it does not mean that no rape was committed with her. She received injuries on her breasts, which were proved by PW. 5 Dr. [ENTITY] and these injuries itself go to show that rape was committed on her. The position of law is that if the evidence of the prosecutrix inspires confidence, then no corroboration is required, but in the present case, though the evidence of the prosecutrix inspires confidence, yet there is another evidence from which corroboration can be sought.
19. Therefore, for the reasons stated above, the findings of the learned Special Judge convicting accused appellant for the offence under [SECTION], [ACT] are liable to be confirmed and the appeal of the accused appellant is liable to be dismissed.
20. Before parting with the file, one more argument of the learned counsel for the accused appellant that it is a case of free consent, cannot be accepted for the simple reason that in the present case, there are injuries on the person of the prosecutrix PW. 6 [ENTITY] and his, treating the present case of free consent would be adding insult to injury to PW. 6 [ENTITY], who has come forward by lodging report and making allegations of rape against accused appellant. Thus, this argument stands rejected.
21. So far as the decision relied upon by the learned counsel for the accused appellant in [PRECEDENT] is concerned, it would not be helpful to the accused appellant as in that case no marks of injury on the body of the prosecutrix were found, whereas the position is different in the present case. The above argument cannot be appreciated in this respect also that whenever resistance is offered, there must be some injury on the body of the victim.
22. Another case relied upon by the learned counsel for the accused appellant in [PRECEDENT] is also not helpful to the accused appellant, in view of the discussion just made above. Similarly, the decision in [PRECEDENT] is also not helpful to the accused appellant, looking to the facts and circumstances of the present case.
In the result, the appeal filed by the accused appellant [ENTITY] fails and is dismissed, after confirming the judgment and order dated 16-8-1999 passed by the learned Judge, Special Court SC/ST (Prevention of Atrocities) Cases. Jodhpur.