1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Ramvir Singh S.B.CR. APPEAL NO. 317/1993. DATE OF JUDGMENT :::: 22nd August,2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.B.K.Sharma, Public Prosecutor, for the State. Mr.Prashant Sharma on behalf of Mr.Alok Sharma for the respondent. BY THE COURT The challenge in this appeal is to the judgment dated 15th May, 1992 whereby the learned Special Judge, Dacoity Affected Area, Bharatpur has acquitted the accused-respondent Ramveer Singh for the offences under Section 376/511 and 377 of I.P.C. 2. The accused Ramveer Singh is alleged to have attempted to commit rape upon a little girl of the age of 6-7 years on 5th April, 1991 at about 4.00 PM in Mohalla Gopalgarh, Jaghina Gate at Bharatpur. It is alleged that when the accused did not succeed in fulfilling his wild lust by penetrating his penis into the vagina of small girl, he voluntarily committed carnal intercourse. PW/1 Rameshwara Dayal, father of the prosecutrix filed a written complaint Ex.P/1 before the S.H.O. Police Station Kotwali, Bharatpur where upon FIR Ex.P/14 was lodged and investigation commenced. 2 3. The Investigating Officer recorded the statement of the witnesses, got the prosecutrix medically examined in order to ascertain her age and the commission of offence of rape, arrested the accused got him also medically examined and after usual investigation, send the accused for trial to the Court. 4. Having heard the charge of attempt to commit rape and carnal intercourse, the accused pleaded not guilty and claimed trial. In order to further its version, the prosecution examined as many as 17 witnesses. The accused in his explanation under Section 313 Cr.P.C claimed innocence. The accused examined two witnesses DW/1 Bachchu and DW/2 Lakhan Singh in defence. On completion of trial, the accused was acquitted as indicated hereinabove. 5. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, the learned counsel for the accused -respondent and with their assistance scanned the material available on record. 6. The learned Public Prosecutor while reiterating the grounds as enumerated in the memo of appeal assailed the impugned judgment on following three grounds: 3 (i) The evidence of PW/2 Seema is of sterling worthy and there is no reason to disbelieve her testimony. (ii)The evidence of the prosecutrix has been supported by the medical evidence of PW/13 Dr.GC Kapoor who has found tear as 6.00 O'Clock posterior 2cmX1/2cmX1/4cm in order to extending from skin, mucocutaneous junction and rectus meucose. He also found faecal matter around the anus. (iii)PW-9 Dr. I.S. Saluja also has supported the prosecution case. The judgment of the lower court cannot be sustained on the above grounds and deserves to be set aside. The alleged offences are proved against the accused respondent beyond reasonable doubt, as such he should be convicted and sentenced to jail. 7. Per contra, the learned counsel for the accused respondent has contended that the offences under Section 376 and 377 IPC are inconsistent which cannot run together. The impugned judgment is cogent and well meritted and calls for no intervention, as such the state appeal being devoid of force deserves to be dismissed. 8. Having reflected over the submissions advanced by both the parties, it is observed that the occurrence of this case took place at 4 p.m. on 5th April, 1991 whereas the report Ex.P/1 has been lodged by the complainant Rameshwar Dayal on 6th April, 1991 at about 10.30 am. It is pertinent to note that the distance of the place 4 of occurrence and the police station Kotwali, Bharatpur is only 2 kms. The prosecution has not furnished reasonable and satisfactory explanation of this inordinate delay of 18 and half hours in lodging the FIR. 9. In Thulia Kali Vs. State of Tamil Nadu, AIR 1973 SC 501, the Hon'ble Apex Court has held: “First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over-estimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.” 10. In the above case, the occurrence was 5 not reported for more than 20 hours. The delay was found to be fatal to the prosecution and to base conviction upon such evidence was held to be unsafe. In the instant appeal too, the delay in lodging FIR Ex.P/14 after 18 and half hours of the occurrence is found to be fatal to the prosecution as the inordinate delay of 18 and half hours has not been satisfactorily explained by the prosecution. That too, when the occurrence of place is only two kilometers away from the Police Station. 11. Now turning to the evidence of the prosecutrix, it is observed that she was examined at 2.00 pm. on 6th April, 1991. PW-13 Dr. G.C. Kapoor has categorically mentioned in his report Ex.P/4 that when the prosecutrix was brought for medical examination before him, he found that there was no evidence of trauma on her body. He found the hymen intact and observed that there was no redness on genitalia. With regard to the injury found near anus, Doctor has stated that this kind of injury could be caused due to a fall on wood or stone whose surface is smooth or glossy. In the light of medical report Ex.P/4 pertaining to the prosecutrix, it becomes necessary to ponder over the medical examination report Ex.P/11 pertaining to the accused respondent Ramvir Singh also. As per his medical 6 report, no injury or mark of violence has been found on his penis. Learned Public Prosecutor has contended that initially the accused attempted to commit rape upon the small girl and when he failed in his attempt, he voluntarily committed carnal intercourse as a result of which she sustained severe injury on her anus. If for a moment this argument of the learned Public Prosecutor is taken to be true then as per his argument the accused must have undisputedly applied force to penetrate his penis into the small sized vagina of the prosecutrix and further when failed in his attempt to penetrate his penis into the small sized vagina of the prosecutrix he must have made a wild effort to penetrate his penis into the anus of the prosecutrix. In his wild process he must have probably sustained some mark of injury on his penis but alarmingly no such mark of violence or injury has been found on the penis of the accused respondent. The medical report of the prosecutrix Ex.P/4 and the medical report of the accused respondent P/11 are sufficient for this Court to hold that the prosecution has miserably failed to fasten the guilt upon the accused. There is not even a shred of clinching evidence available on record which may lead me to infer that the accused made an attempt to ravish forcibly upon the 7 prosecutrix and when he failed in his attempt he voluntarily had carnal intercourse with her. 12. As in rape so also in an unnatural offence, even the slightest degree of penetration is enough to convict the accused but the prosecution case completely false short of such evidence. 13. The learned trial court has critically analyzed and properly appreciated the statements of the prosecution witnesses. The judgment of the trial Court is cogent and well-merited. It suffers from no infirmity. The finding of acquittal arrived at by the learned trial Court is just and proper with which I am fully concur and in my firm view, the impugned judgment does not call for any interference. 14. For these reasons, the State appeal being devoid of merits stands dismissed. (MAHESH BHAGWATI),J PCG