1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B.CRIMINAL APPEAL NO.394/1993 (State of Raj. Vs. Ratan) DATE OF JUDGMENT :- July 11th, 2008 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr B.K. Sharma, Public Prosecutor, for the State. Mr B.L.Mandhana, for the respondent. BY THE COURT: The challenge in this appeal is to the impugned judgment dated 11th May, 1992 rendered by the Sessions Judge, SawaiMadhopur whereby the accused respondent Ratan S/o Bhura has been acquitted of the offences under Ss. 376, 323 and 324 of IPC. 2. The nub of the prosecution story as unfolded by the prosecutrix PW/1 Kanchan is stated thus: That on 22.11.1990 at about 10-11 AM, the prosecutrix Smt. Kanchan was taking the food to her field. The accused Ratan S/o Bhura caught hold of her forcibly near the field of Dera Wala and ravished her. It is further alleged that the accused after committing rape, assaulted upon her mouth with a Dantala as a result of which she sustained injuries. The accused is stated to have given a beating on her body by Lathi Danda also. It has been further alleged that the accused extorted a Khangali made of silver from 2 her neck which was weighing 500-600 Grams. One Chotiya r/o Kala Danda Village lifted the prosecutrix to her house where she narrated the entire incident to her husband. PW/2 Shri Ramnath, the husband of the prosecutrix Kanchan took his wife to Police Station, Khandar and submitted a written report Ex.P/1 whereupon the police lodged the FIR Ex. P/2 and commenced investigation.The Investigating Officer prepared the site plan Ex. P/3, recorded the statements of witnesses acquainted with the facts and circumstances of the case, got the prosecutrix medically examined to ascertain the commission of rape and after usual investigation, submitted charge-sheet against the accused Ratan in the Court. On completion of trial, the learned Sessions Judge, SawaiMadhopur did not find the accused respondent guilty and acquitted him in the offences mentioned hereinabove. 3. Heard the learned Public Prosecutor appearing for the State as also, the learned counsel for the accused respondent, considered the submissions made at the Bar and scanned the prosecution evidence as also the relevant material available on record. 4. It is found that the occurrence of this case took place on 22nd November, 1990 at 10-11 AM and the report of the incident has been lodged on 23rd November, 1990 at about 6.00 A.M., in the police. The distance between the place of occurrence and Police Station, Khandar is only 21 3 Kms. But the prosecution has not satisfactorily explained the delay of 32 hours in loding the F.I.R. 5. From the perusal of medical examination report Ex.P/5, the statements of prosecutrix PW/1 Kanchan and PW/5 Dr. Mohd. Akram, it is revealed that soon after the so-called occurrence of rape, PW/1 Smt. Kanchan reached at Primary Health Centre, Khandar where she was medically examined on her personal request by the Medical Officer Dr. Mohd. Akram. PW/5, Dr. Akram found 8 simple injuries on the person of Smt. Kanchan. He has deposed before the Court during the cross- examination that the prosecutrix did not disclose before him that she was raped. On 22nd November, 1990, the prosecutrix came alone in the hospital and she was not accompanied by any police personnel. PW/2, Ramnath has mentioned in the written report Ex.P/1 that at the time of occurrence, he was on the field from where his father called him. When he came to the house, his wife narrated the entire incident and thereafter, he took her to Khandar. One Chotiya who is said to have taken the prosecutrix from the place of occurrence to her house, has not been examined by the prosecution. No independent witness has been produced by the prosecution to prove its case. 6. The fact-situation emerging in this case can be summarized as under: 4 (i) Medical Examination Report Ex. P/5 proves that on 22.11.1990 at 6.30 PM, the prosecutrix PW/1 Kanchan was in Khandar Primary Health Centre where PW/5 Dr. Mohd. Akram examined her injuries on her personal request. (ii) The prosecutrix PW/1, Kanchan said nothing about the commission of rape at the time of her medical examination to PW/5, Dr.Akram. (iii) If Smt. Kanchan was ravished forcibly by the accused Ratan and she was in Khandar on 22.11.1990, what made her not to lodge the report in the police station about the commission of rape on the same day. The prosecutrix herself has stated in the cross- examination that the injuries she had sustained on her person were not the result of rape committed forcibly upon her by the accused. She has further stated that the accused gave her beatings as a result of which she sustained these injuries. (iv) The prosecutrix is stated to have been ravished on thoroughfare where every person could easily come and go but none is found to have come on the spot. The proseuction has not assigned any reason for withholding the evidence of Chotiya who took the prosecutrix from the place of occurrence to her house. (v) The pieces of bangles have not been recovered from the place of occurrence. The manner in which the story of rape has been narrated by the prosecutrix and her husband PW/2 Ramnath cast doubt about its veracity and truthfulness. (vi) The prosecutrix was very much present in Khandar Hospital on 22.11.1990 and got medical examination of her injuries on her personal request from PW/5, Dr. Mohd. Akram. Neither she apprised the Doctor about the commission of 5 rape nor she went to the Police Station for lodging the report which was situated nearby. On the contrary, she went back to her village and thereafter came with her husband and her husband's elder brother on 23.11.1990 at 6.00 PM in the evening and lodged the report which renders the prosecution case doubtful. The prosecutrix has lodged the report after delay of 32 hours and the prosecution has not furnished any reasonable and satisfactory explanation of this delay. 7. In the case of 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.” 6 8. In the above case, the occurrence was 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 case, the report has been lodged after 32 hours of the occurrence and this unexplained delay is found to be fatal in the facts and circumstances of the case and the appellant deserves to be acquitted on this sole ground. 9. The learned Sessions Judge has critically examined the material and properly appreciated the evidence of the prosecution witnesses. The evidence of prosecutrix does not inspire any confidence. Though the corroboration of the statements of proseuctrix is not sine qua non in the case of a rape if her evidence is trust worthy but if the evidence of the prosecutrix is found to be tainted and coloured, then the corroboration of rape is required for the conviction of the accused. In the absence of a woman's consent, the essential feature of actus rues is rape which is totally wanting in the instant case. The prosecution has miserably failed to establish the charge of rape against the accused and the finding of acquittal of the trial Court, to my mind, is perfectly just, cogent and well-merrited. I am in unison with the finding of acquittal arrived at by the learned trial Court which calls for no interference. 7 10. For these reasons, this State Appeal being devoid of merit stands dismissed. (MAHESH BHAGWATI), J. /gandhi