1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Bhagirath Singh (S.B. Criminal Appeal No.433/1994) S.B.Crimnal Appeal under Sec.378 of the Cr.P.C. against the judgment and order dated 18.4.1994 in Session Case No.5/91 (4/94), by Shri K.L. Jain, RJHS, Special Judge (S.C./S.T.) (Prevention of Atrocities Act) Sawai- Madhopur. DATE OF JUDGMENT: September 5, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. BK Sharma, Public Prosecutor for the State. Mr. GS Gautam for the accused respondent. BY THE COURT : Challenge in this appeal is to the judgment dated 18th April, 1994 whereby the Special Judge (S.C./S.T. (Prevention of Atrocities Cases) Sawai Madhopur acquitted the accused respondent Bhagirath Singh S/o Shri Ishwar Singh in the offences under Section 376 of IPC and Section 3 (2) (v) of S.C. & S.T (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act 1989'). 2. The prosecution story is woven like this: “That on 25th August 1990 at about 5.00 PM the prosecutrix was going from her house to purchase some articles at a grocery shop. On the way, the accused Bhagirath Singh suddenly appeared before him near the field of Phool Chand Mahajan and at the point of knife dragged her to the field where the crop of Bajra was standing. It is 2 alleged that the accused laid her on the ground and forcibly ravished her without her consent. She struggled to protect her molesty, resulting in tearing of blouse and breaking of bangles. She cried for help. Having heard her shrieks, the witnesses Prabhatya and Ramprasad Bairwa came on the spot. On seeing the witnesses, the accused Bhagirath Singh fled from there after fulfilling his erotic sortie. The prosecutrix came back to her house weeping and narrated the incident to her mother. On the written complaint Ex.P/1 of the prosecutrix FIR was lodged and investigation commenced. The Investigating Officer recorded the statements of the witnesses under Section 161 of Cr.P.C., seized the blouse of the prosecutrix vide memo Ex.P/2, the broken pieces of bangles from the spot vide memo Ex.P/3, got the prosecutrix medically examined so as to ascertain her age and commission of offence of rape prepared the site plan Ex.P/5, arrested the accused, got the accused also medically examined and after usual investigation sent the accused for trial to the competent court. 3. The accused was indicted for the offence under Section 376 of IPC and Section 3 (2) (v) of Act, 1989 who pleaded not guilty and claimed trial. The prosecution has examined as many as eleven witnesses to prove its case. In his explanation under Section 313 of Cr.P.C. the accused claimed innocence and submitted the plea of alibi stating that on 25th August, 1990 he had gone to attend the Court proceeding at Dausa. The accused examined three witnesses in defence. On completion of trial, the Court acquitted the accused as indicated hereinabove. 4. Heard the learned Public Prosecutor appearing for the State, learned counsel for 3 the respondent and with their assistance scanned the material available on record. 5. Learned Public Prosecutor Mr. BK Sharma has vociferously canvassed that the offence of rape is very well proved from the statements of the prosecutrix which stand corroborated by the evidence of PW/2 Rukmani Devi and PW/3 Prabhtya. The prosecutrix vide medical examination report Ex.P/4 was found to have sustained the following three injuries on her person:- (1) Contusion -Redish Blue 1”X3/4” on left scapular region-simple (2) Contusion-Redish Blue 1-3/4”X3/4” on left forearm outer side, length simple (3) Contusion-Redish Blue 3/4”X3/4” on Back, above the right Iliac Crest- Simple The broken pieces of bangles have been recovered from the spot. He has further stated that there is no reason to disbelieve the testimony of the prosecutrix and the accused respondent can be convicted solely on the basis of her evidence. He has cited the case of B.C. Deva @ Dyava Vs. State of Karnataka reported in 2007 Cr.L.R (SC), 604 in support thereof. 7. Per contra, the learned counsel for the accused respondent has simply urged that the judgment of the lower Court is cogent and well merited. It does not suffer from any infirmity. The lower Court has rightly observed that the statements of the prosecutrix are not trustworthy and it was not safe to base 4 conviction upon her testimony since the prosecution has utterly failed to prove the offence of rape against the accused respondent, as such, the State appeal deserves to be dismissed. 8. Having reflected over the submissions advanced by both the parties, it is noticed that the occurrence of this case took place on 25th August, 1990 at 5.00 PM and the report Ex.P/1 was lodged by the prosecutrix in the Police Station Gangapurcity on 26th August, 1990 at 3.00 PM. The distance from the place of occurrence to the Police Station has been recorded only 15 kilometers in the First Information Report. The prosecution has not satisfactorily explained the inordinate dealy of 22 hours in lodging the FIR. 10. 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 5 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 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 also, the delay in filing the FIR after 22 hours of the incident is found to be fatal to the prosecution as the delay has not at all been satisfactorily explained by the prosecution. 11. Now, adverting to the medical examination report Ex.P/4 of the prosecutrix, she is found to have sustained only three injuries contusion on left scapular region, left fore-arm and on back above the right iliac crest. PW/11 Dr. Prakash Chand Sethi has recorded the duration of all these injuries within 24 hours. Though the prosecutrix in her searching cross examination has stated that when the accused laid her in the field, she sustained injuries on her legs, back, buttocks, shoulders and neck but none of these injuries find any place in the injury report Ex.P/4. The injuries recorded by Dr. P.C. Sethi in Ex.P/4 are superficial in nature. The prosecutrix has stated that she struggled to protect her molesty but neither the prosecutrix sustained any injury nor the accused is found to have sustained any injury on private parts 6 as a result of this struggle or resistance. There is no mark of violence or injury seen in report Ex.P/4 on the genital parts of the prosecutrix also. Had there been any forcible coitus against the will and the consent of the prosecutrix then she would have undeniably sustained some mark of violence or injury on her private parts, back or on buttocks but no such injury was found on her person. The prosecutrix was examined by Dr. Sethi after 25 hours of the occurrence and injuries found on her person were within the duration of 24 hours. Thus the injuries do not correspond to the incident of this case and renders the prosecution case to be doubtful. 12. Further, the prosecution case rests on the statements of prosecutrix and two independent witnesses PW/3 Prabhatya and PW/8 Ramprasad who are stated to have seen the accused committing rape upon the prosecutrix. Though PW/3 Prabhatya in his examination in chief, has stated that he and Ramprasad, having heard the shrieks coming from the field of Phoolji, reached there and found the accused Bhagirath Singh lying upon the prosecutrix who was committing rape upon her. When the accused saw them, he got up and fled from there after satisfying his wild lust, but in the cross examination, he has denied this story and stated that he simply saw the accused going to his village en-route the field of Phool Chand. Further he has stated that he saw the accused running. He has also stated that neither he talked to the prosecutrix nor the prosecutrix told anything to him and Ramprasad. So far as the other independent witness PW/8 Ramprasad is 7 concerned, he has not supported the prosecution case and has turned hostile. Now, there is only one evidence of prosecutrix left to the Court for consideration. 13. 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. 14. The prosecutrix has been subjected to a very lengthy cross examination and she has stated therein that the accused raped her for 5 to 10 minutes. When the witnesses Prabhtya and Ramprasad came there, the accused was lying upon her and the witnesses saw the accused ravishing her. The absence of injury on any part of the body of the victim sometimes probablises absence of any coitus when no mark of injury or violence is found on any vital part of the body. Inspite of having forcibly ravished by the accused and despite struggle and resistance applied by the prosecutrix, there being no mark of lvoilence or injury on genitalia could lead the Court to hold that either the prosecutrix was a consenting party to the act of coitus or no rape was committed upon her. The statements given by the prosecutrix are laden with contradictions in material particulars and also do not stand corroborated by medical evidence. The 8 Investigating Officer of this case has not appeared in the witness box. Neither he has proved the contents of report Ex.P/1 nor the First Information Report of this case. Even the arrest of the accused is also not proved. In the absence of proof of First Information Report, the testimony of the prosecutrix is found to be unworthy of credence and far from truth. 15. The facts of the case of B.C. Deva @ Dyava Vs. State of Karnataka are difference from the facts of the instant appeal. In the case of B.C. Deva, the prosecutrix could not bear the dis-honour and disgrace caused to her reputation by the act of sexual assault of the accused and she jumped into a water tank to commit suicide, the persons nearby the water tank rushed and pulled her out of the water and saved her life. On being questioned, the prosecutrix disclosed to the witnesses that she wanted to commit suicide as she was sexually assaulted by the accused. The facts in the instant appeal are altogether different and the ratio propounded by the Hon'ble Apex Court in this Case does not hold good in the case on hand. 16. In view of above backdrop, the inordinate delay in lodging the FIR has assumed a great significance. Undeniably and undisputedly the prosecution has utterly failed to furnish a satisfactory explanation of this inordinate delay of 22 hours in lodging the FIR and this delay is found to be fatal to the prosecution. There is not even a shred of evidence available on record which may fasten 9 the guilt upon the accused. The statements of the prosecutrix does not inspire any confidence, as they stand uncorroborated. It does not seem to be safe to base conviction of the accused on the uncorroborated and untrustworthy testimony of the prosecutrix. The impugned judgment of the learned trial Court is cogent and well merited and suffers from no infirmity. The finding of acquittal arrived at by the learned trial Court is quite just and proper with which I fully concur and thus the impugned judgment calls for no interference. 17. For th4ese reasons, the State appeal being devoid of merits stands dismissed. The accused respondent is on bail, he need not surrender to Court, his bail bonds stands discharged. (MAHESH BHAGWATI),J PCG