1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR J U D G M E N T Mohd.Sharif son of Shri Hussain Khan, by caste Musalman, resident of Village Sarsop PS Chouth Ka Barwara District Sawaimadhopur. Vs. State of Rajasthan through P.P. S.B.Criminal Appeal No.437/2006 under Section 374 of the Code of Criminal Procedure against the judgment dated 24.4.2006 passed by Sessions Judge, Sawaimadhopur in Sessions Case No.60/2005. Date of Judgment 4th February, 2010 PRESENT HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. Biri Singh for the appellant. Mr. Mahendra Meena Public Prosecutor for State. **** BY THE COURT: This appeal has been filed against the judgment dated 24.4.2006 passed by Sessions Judge, Sawaimadhopur in Sessions Case No.60/2005 by which he convicted accused- appellant-Mohammed Sharif under Section 376 IPC and sentenced to undergo 7 years rigorous imprisonment and fine of Rs.1000/-, in default of 2 payment of fine to further undergo three months simple imprisonment and acquitted-accused-Guddi alisa Santosh under Section 120-B IPC. Brief facts of the prosecution case are that PW9-Rekha gave parcha bayan Ex.P/1 on 9.10.2005 at 11.30 a.m. and alleged that she was studying in 6th Class in Government Girls School, Sarsop. On 6.10.2005 after availing interval she was returning back to school at 1.00 p.m. alongwith Nosin and reached near house of Guddi Jain. Guddi called them then both of them went in the house of Guddi Jain. Guddi told them that she is to go for natural call and they should accompany her so they went with Guddi in the Bada. Guddi bolted door of Bada. Between 1.30 to 2.00 p.m. accused-Sharif came in the Bada from back side and all the of them sat on sand in the room located in Bada. Both of them started crying then accused-Sharif slapped Nosin. Lateron Sharif took her forcibly in the room and removed her Salwar and committed rape with her. Lateron 3 Sharif tried to take Nosin with him then she cried and Guddi also objected. Then Sharif threatened them not to reveal this incident to anyone and returned back. Guddi alongwith Nosin came out of Bada and Guddi asked them to go to school. Next day she informed about the incident to her mother-Geeta. It was further revealed that neither semen passed in her vagina nor any spot was made on her clothes. On this parcha bayan case under Section 376 IPC was registered. After completion of investigation challan under Section 376, 120-B IPC was filed against the accused- appellant and Guddi in the Court of Judicial Magistrate, Sawaimadhopur. Case was committed to the Court of Sessions Judge, Sawaimadhopur. Charge under Section 376 IPC was framed against accused-appellant and under Section 120-B IPC was framed against accused-Guddi to which they denied. During trial prosecution examined 18 witnesses and statement of accused were recorded under Section 313 Cr.P.C. Defence 4 examined three witnesses and after hearing arguments the accused-appellant was convicted and sentenced as aforesaid and accused-Guddi was acquitted of the offence under Section 120-B IPC. Heard learned counsel for the parties and perused the record. Learned counsel for the appellant submitted that there is delay of three days in lodging FIR and no explanation has been given for delay, report has been lodged after due deliberations and under pressure on account of groupism in the village, medical examination and FSL does not support the prosecution story and there are major contradictions in the statements of the witnesses and improvement has been made in their police statement and prosecution has utterly failed to prove offence of rape against the accused, even then, the trial Court has committed error in convicting accused, hence, appeal of the appellant may be accepted and the appellant may 5 be acquitted of the charge levelled against him. On the other hand, learned Public Prosecutor submitted that trial Court has given cogent reasons for convicting the accused and the prosecution has proved its case beyond reasonable doubt, hence, the appeal of the appellant may be dismissed. It is admitted case of the prosecution that as per parcha bayan Ex.P/1 and statements of witnesses occurrence took place on 6.10.2005 in mid-day between 1.00 to 2.00 p.m. whereas parcha bayan Ex.P/1, on which FIR was registered, was given on 9.10.2005 at 11.30 a.m. Thus, there is clear delay of three days and prosecution has not given any explanation for delay in lodging FIR. PW3-Prem Chand has stated that he saw occurrence and informed Mukesh, Rajesh and Madan etc. about the occurrence on the same day and further stated that he informed about the occurrence to the family members of Rekha and Nosin on the same day. PW4-Nosin 6 also admitted in her cross examination that in the evening she narrated whole incident to her father. PW5-Mukesh and PW8-Rajesh have also stated that they got knowledge about the incident on the same day. PW6-Mohammed Saeed, who is father of Nosin, also admitted that Nosin narrated him the whole incident in the evening. PW9-Rekha also stated in her statement that she did not reveal incident to her mother as she was afraid that she would be beaten by her mother, but his brother came to know about the incident on the same day and asked her not to go to Guddi's Bada in future. She also admitted that next day she narrated whole incident to her mother which fact has also been admitted by PW10-Geeta, mother of Rekha. Thus, it becomes clear that inspite of knowledge to the family members of Rekha and Nosin and other villagers of the incident on the same day, report was not lodged for three days. As per Rapat Rojnamcha Ex.P/10 which has been proved by PW11-Deen Dayal, SHO, Police Station, Choth Ka 7 Barwara, received telephone and got information that Sharif has committed rape with a Hindu girl and many persons have assembled in the village. On this information Deen Dayal reached on the spot and recorded parcha bayan. Thus, there is clear three days delay in lodging FIR and no explanation at all for delay in lodging FIR has been given by the prosecution. Learned counsel for the appellant submitted that report has been lodged after due deliberations and under pressure on account of groupism in the village. As per above discussions it becomes clear that family members of Rekha and Nosin and other villagers came to know about the incident on the same day, but report was lodged after delay of three days, that too after due deliberations in the village and under pressure of one group of villagers. Hon'ble Apex Court in Thulia Kali v. The State of Tamil Nadu Criminal Law Journal, 1296 observed as under:- 8 “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 overestimated 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 afterthought. 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.” In the aforesaid case only on account of delay of 20 hours in lodging was acquitted under Section 302 IPC. Thus, it becomes clear that on account of delay in lodging FIR there is every probability of introduction of coloured version and exaggeration or concoction of the story which is apparent in the present case. 9 In 1987 RLW, 750 Kishania vs. State of Rajasthan accused was acquitted under Section 376 IPC on account of unexplained delay of three days in lodging FIR. In the present case it appears that three days time was taken to exaggerate the incident and implicate the accused appellant and Guddi in the offence of committing rape and conspiracy though infact no rape was committed by accused appellant. PW9-Rekha has stated in her statement that she alongwith Nosin went in the Bada of Guddi on her call. Lateron accused-Sharif came there and they all sat peacefully. Lateron she alone was taken by accused in a room and accused removed her clothes and accused also removed his trouser and inserted his penis in her vagina. She cried then accused threatened her. Lateron accused put on his trouser and she also put on her clothes and both of them came outside. She further stated that accused also tried to take Nosin with her, but on Guddi's requests she was 10 left and lateron accused left Bada. She admitted in her cross examination that no semen was discharged in her vagina, but Sharif discharged semen when he took out his penis from her vagina. She also admitted that no injuries were sustained by her on her body. She also admitted that she cannot say whether she tried to push Sharif or not. PW4-Nosin has also stated that she alongwith Rekha went in the Bada of Guddi where accused also came. She further stated that accused took Rekha inside the room and removed his trouser and salwar of Rekha and lateron she saw both in sleeping position for 10 to 15 minutes. She further stated that she narrated these facts in her police statement Ex.D/5, but Ex.D/5 does not contain all these facts. By Nosin's statement it cannot be inferred that accused committed rape with Rekha. PW3-Prem Chand has stated that Mukesh informed him that Guddi took Rekha and Nosin in her Bada. He went in back side of Bada and saw 11 that accused-Sharif was committing rape with a girl whose face could not be identified by him. He further stated that Guddi caught legs of that girl with whom Sharif was committing rape, but he has not seen other girl. He further stated that she stated in his police statement Ex.D/1 that Guudi caught legs of girl with whom accused was committing rape, but this fact does not find place in his police statement. He further stated that he disclosed about the incident to Rajesh, Mukesh and Madan, but this fact also does find place in his police statement. He further admitted that Rajesh and Madan did not go on the spot with him to witness the occurrence. Lateron he stated that Rajesh and Mukesh went to witness the occurrence, but PW5-Mukesh himself has admitted that on his information Prem Chand went to see the occurrence and after witnessing the occurrence revealed him that Sharif is committing rape with Rekha. He has admitted in his cross examination that he has not seen the occurrence. 12 PW8-Rajesh has stated in his statement that he saw Guddi and Nosin sitting outside the room in Bada and heard voice of Rekha and Sharif, but has not seen any occurrence. PW12-Madan Lal has stated that Prem Chand informed him that Guddi, Rekha, Nosin and Sharif are in Bada. Prem Chand did not inform him that with whom rape has been committed. Lateron he improved his statement and stated that Prem Chand informed him that Sharif was committing rape with Rekha. In cross examination he admitted that he has not seen any occurrence and even he has not seen accused- Sharif on the spot. Thus, it becomes clear that Mukesh, Rajesh and Madan Lal have not seen the occurrence. No reliance can be placed on the evidence of PW3-Prem Chand as he himself could not see the girl with whom accused was committing rape and in such circumstances he could not have revealed the fact of committing rape by accused with Rekha to Mukesh and Madanlal. It appears that on account of groupism 13 and enmity in the village story of committing rape has been concocted which is evident from Rekha's medical examination. PW7-Dr.Ashok Rawat, who examined body of Rekha and submitted report Ex.P/5 has stated that no injuries were found on private parts of Rekha. He further stated that no external injury was found on her body. Rekha herself has admitted in her statement that she did not sustain any injury on her body. Dr.Ashok Rawat has further stated that vagina admitted two fingers tightly and Rekha was not habitual to sexual intercourse. In such circumstances, it becomes clear that no rape was committed by accused with Rekha otherwise she must have sustained injuries on her private parts as well as on other parts of body and there must have been found semen either in the vagina of Rekha or on her clothes. FSL report Ex.P/13 also proves that semen was not detected in vagina or salwar of Rekha. Rekha's statement also does not inspire confidence to the extent that accused inserted his 14 penis in her vagina otherwise semen must have been found in her vagina or on her salwar, because as per statement of Nosin, Sharif and Rekha were together in necked position for 10 to 15 minutes. Rekha's statement cannot be believed to the extent that semen discharged out of penis of Sharif after he removed his penis from her vagina. It appears that on account of communal pressure this report has been lodged exaggerating facts. Rekha's statement can be believed only to the extent that accused made an attempt to commit rape with her which fact is corroborated by the evidence of PW4-Nosin also. It appears that accused put off his trouser and salwar of Rekha, but could not insert his penis in the vagina of Rekha, otherwise, in normal course semen must have been found in the vagina or on the salwar of Rekha and injuries must have been found on her body as well her private parts as she was only 13 years old at the time of incident and was not 15 habitual to intercourse though she was married shortly before the occurrence. In Madan Lal v. State of Rajasthan reported in 1987 Cr.L.J., 257 (Raj.) it was observed that : “In this case, the accused has not only untied the Salwar of the girl but he has put off his payjama also. He spread his Khes on the ground and closed her mouth in order to stop her from crying and slept over her in order to commit rape on her. The girl has stated that when the witnsses arrived, the accused stood up from over her whereas the eye-witnesses have stated that they pulled the accused from over the girl i.e. he was pulled while he was sleeping naked below the waist. This shows a determined intention on his part to commit rape on her and if the witnesses have not intervened, he would certainly have committed rape on her and, therefore, all these series of acts performed by the accused with a clear cut, definite and determined intention to commit rape on the girl clearly amounted to an attempt to commit rape on the girl. It was not a case of outraging the modesty of a girl. It cannot be accepted that if on account of the intervention of the witnesses, the accused was not able to make an attempt to penetrate his penis inside the vagina of the girl, the accused cannot be held guilty of the offence under S.376/511 I.P.C.” In the light of aforesaid judgment it becomes 16 clear that accused is guilty of offence under Section 376/511 IPC as he put off his trouser and Salwar of Rekha and slept over her but could not insert his penis inside vagina of Rekha otherwise semen must have discharged and it must have been found in the vagina of Rekha and on her Salwar. In such circumstances accused-appellant is not guilty of the offence under Section 376 IPC, but guilty of offence under Section 376/511 IPC. As far sentence is concerned in Madan Lal's case (supra) sentence of two years was reduced to one year. In Bharwada Bhoginbhai Hiribhai v. State of Gujarat, reported in 1983 Cr.L.R. (SC),396 sentence under Section 376/511 IPC was reduced from 2 ½ years to one year three months. In the present case accused is in custody for more than 4 years three months and in such circumstances I deem it a fit case in which he should be released on sentence already undergone. 17 Consequently, SB Criminal Appeal No.437/2006 is partly allowed and the judgment of the trial Court dated 24.4.2006 is set aside and accused-appellant-Mohd. Sharif son Hussain Khan is acquitted of the offence under Section 376 IPC, but conviction of accused-appellant under Section 376 IPC is altered to Section 376/511 IPC and he is released on sentence already undergone but fine of Rs.1,000/- and sentence in default of payment of fine imposed by the trial Court is maintained. The accused-appellant shall be released forthwith if not wanted in any other criminal case. (K.S.CHAUDHARI) J teekam