1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Dharam Singh S.B.CR. APPEAL NO. 61/1994. DATE OF JUDGMENT :- 11th July, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr B.K.Sharma, Public Prosecutor, for the State. Mr V.S.Gurajar, for the respondent. BY THE COURT The challenge in this appeal is to the judgment dated 19th December, 1992 whereby the learned Additional Sessions Judge, Karauli has acquitted the accused-respondent Dharam Singh in the offence under Section 376 of I.P.C. 2. The prosecution story is that on 30th September, 1990, the complainant PW/2 Shankar filed a written report Ex.P/1 in Police Station KelaDevi stating that on 28th September, 1990 at 4.00 PM, his daughter PW/3 Lali @ Halki had gone to reap the grass. When she was cutting the grass, accused Dharam Singh ravished his daughter and fled from there. His daughter came to house weeping and narrated the incident. The police registered FIR, Ex. P/2 and commenced investigation. 3. During the course of investigation, the Investigating Officer recorded the statement of 2 the witnesses, prepared the site plan Ex.P/3, seized one Peticot of the prosecutrix vide Memo Ex.P/10, arrested the accused Dharam Singh vide memo Ex.P/11, got both the prosecutrix and the accused medically examined and after usual investigation, filed the charge sheet against the appeallant in the Court. The prosecution has examined as many as 10 witnesses to prove its case. The accused has claimed innocence in his statements under Section 313 Cr.P.C. On completion of trial, the accused was acquitted in the offence under Section 376 IPC as indicated hereinabove. 4. Heard the learned Public Prosecutor appearing for the State, the learned counsel for the accused -respondent and perused the impugned judgment of the lower court along with the relevant material available on record. 5. The learned Public Prosecutor while reiterating the grounds of the appeal has contended that the offence under Section 376 IPC is very well proved from the statements of prosecutrix PW-3 Lali @ Halki. She has stated on oath that the accused suddenly came and caught hold of her while she was cutting grass and thereafter forcibly ravished her after dragging her to grass field. She did her best to come out of his clutches but of no avail. The 3 accused left the place only when he succeeded in satisfying his wild lust. Thereafter, she cried and told the incident to her mother and brother. The learned Public Prosecutor has further submitted that the evidence of prosecutrix alone is sufficient to convict the accused. There is no reason to disbelieve her statements. The evidence of the prosecutrix is very well supported by the statements of PW/7 Dr. Dashrath Singh Rajawat who has found one injury on her right cheek, abrasion on left leg, pain in heart and pain in private parts of her body. The learned Public Prosecutor has further submitted that the lower Court has not properly appreciated the evidence of the prosecutrix nor critically analyzed the evidence of other prosecution witnesses. Hence, the judgment of the lower court be set aside and the accused respondent should be convicted in the offence under Section 376 IPC. 6. Per contra, the learned counsel for the accused respondent has simply urged that the judgment of the lower court is cogent, just and proper. There is no infirmity in the judgment of the lower Court also and the same does not call for any interference, as such, the appeal should be dismissed. 7. Having reflected over the submissions 4 advanced by the learned Public Prosecutor and the learned counsel for the appellant, it is found that the occurrence of this case took place on 28th September, 1990 at 4.00 P.M., whereas the report Ex.P/1 has been submitted by the complainant PW/2 Shankar on 30th September, 1990 at 6.30 PM i.e. after delay of approximately 50 hours. The distance of Police Station KelaDevi from the place of occurrence is 16 Kms. The complainant in his cross- examination has stated that KelaDevi Police Station is two to two and half Koas (about 5 Kms.). He has also stated that Prabhu S/o Girdhari, Ramcharan S/o Ratan, Loharai, Halku and Nathuva asked him not to report the matter in police. Second day also, these persons stopped him from reporting the matter but except PW/8 Nathuva, no other person has been examined by the prosecution. PW/8, Nathuva has simply stated that police prepared site plan Ex.P/3 in his presence. He has nowhere stated that he refrained the complainant Shankar from going to Police Station for lodging the report. Thus, the prosecution has failed to furnish a reasonable and satisfactory explanation of delay of 50 hours in lodging the FIR. 8. In Thulia Kali Vs. State of Tamil Nadu, AIR 1973 SC 501, the Hon'ble Apex Court has held: 5 “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.” 9. 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. But in the instant case, the delay in filing the FIR after 50 hours of the incident is found to be fatal to the prosecution as the delay has not been satisfactorily explained by the prosecution. 10. The prosecution case solely rests on the 6 evidence of prosecutrix Lali @ Halki. She has deposed on oath that on the date of occurrence, she went to reap the grass. The accused Dharam Singh came, caught her by neck, dragged her near Birbira, made her to lie on the grass, lifted her Peticot and in a hurried heat, ravished her by penetrating his penis into her vagina. She endeavored to push him but did not succeed. When she cried, the accused gagged her mouth by Swafi (a thin towel like cloth). He attacked on her chin by fist, as a result of which she sustained injuries on her lips and teeth. He kept on doing sexual intercourse for a long time and after fulfilling his erotic sortie fled from there. The prosecutrix in her cross-examination has given altogether contradictory statements to the statements given before the police. She has stated that she came to Police Station KelaDevi after three days of the occurrence. She was accompanied by Hari Singh, Prabhu and her mother, father and brother but she has nowhere stated that she was refrained from going to Police Station, KelaDevi for lodging the report. 11. The Investigating Officer has not recovered the broken bangles from the spot. The Petikot of the prosecutrix was seized but on chemical examination, no semen was detected thereon. The Chemical Examination report Ex.P/12 does not support the prosecution case. 7 The prosecutrix was examined by Dr. Dashrath Raj on 1st October, 1990. He found only two healed abrasions, one below lips and another on left leg. Her hymen was old torn. She was complaining of tenderness of her genital but there was no evidence of any recent intercourse or any rape having committed upon her. According to Dr. Dashrath Raj, he wrote the history in medical examination report Ex.P/4. As per the report of prosecutrix, she had married one Ramesh three years back. In his cross-examination, he has stated that no injury was found on the private parts of the prosecutrix. Had there been any forcible intercourse against her will and without her consent then the injuries on her private parts, back and at other places must have come but no injury as such was found on her person. 12. 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. 8 13. The learned Sessions Judge has critically examined the material and properly appreciated the evidence of the prosecution witnesses. The statements of prosecutrix neither stand corroborated by the evidence of any other person nor by any circumstancial evidence. The evidence of prosecutrix does not inspire any confidence and in the facts and circumstances of the case her evidence is not found to be reliable. The learned trial Court has incorporated many contradictions in his judgment which have crept into the statement of witnesses. All these grounds are in addition to the ground of delayed F.I.R., which to my mind is pivotal in this case. 14. 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. 15. For these reasons, the criminal appeal filed by the State is found to be totally devoid of merits and thus, stands dismissed. (MAHESH BHAGWATI),J /gandhi