1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T State of Rajasthan vs. Babulal & Anr. S.B. Criminal Leave to Appeal No.331 of 2008 under Section 378 (i) and (iii) Cr.P.C. against the judgment dated 8.10.2007 passed by Shri R.K. Jain, RHJS, Sessions Judge, Jaipur District Jaipur in Sessions Case No.16 of 2007. Date of Judgment :::: 16.03.2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Bhvnish Kumawat, P.P. By the Court: The State has filed this leave to appeal against the judgment dated 8.10.2007 passed by learned Sessions Judge, Jaipur District Jaipur whereby accused respondents Babu Lal and Hari Narayan have been acquitted of the ofence under Sections 457, 376/511 and 323 IPC. The brief facts of the case are that on 13.8.2005 a written report was lodged by Smt. Nangi PW.1 at the police station Jamuwa Ramgarh with the averments that on 10.8.2005 when she was on the floor situated in her house accused 2 respondent Babu Lal came there and tried to commit rape on her. After struggle she got herself relived and narrated the story about this incident to her mother-in-law and sister-in-law. It was then mentioned that on 11.8.2005 when her mother-in-law went to make complaint about this incident to the family members of accused Babu Lal then Babu Lal, Hari Narayan and the ladies of their family came armed with lathies and belaboured them. The police on the basis of this report registered a case under Sections 457, 376/511, 323 and 341 IPC vide FIR No.178/2005. After investigation the police filed challan against both the accused respondents Babu Lal and Hari Narayan. On the basis of the evidence and material collected by the police during investigation the learned trial court framed charges against accused respondent Babu Lal under Sections 376/511, 323 and 457 IPC whereas challan against accused respondent Hari Narayan was framed under Section 323 IPC to which both the accused respondent denied, pleaded not guilty and claimed trial. To prove its case the prosecution examined 16 witnesses and produced some documents. In their statements under Section 313 Cr.P.C. the accused respondent Babu Lal pleaded alibi and stated that on 10.8.2005 he was in Jagran at Dhawan Mata and returned on the next 3 day. On 11.8.2005 there was some altercation between the ladies with regard to the noise of CD Player and Radio about which there was a compromise due to intervention of the villagers. Accused respondent Hari Narayan pleaded that he went to the house of Nangi to make them understood about the altercation which occurred in between the ladies then Nangi's husband inflicted a lathi blow. Ten witnesses were examined in defence. Learned trial court after hearing both the sides and evaluating the evidence produced by the prosecution, acquitted both the accused respondents of all the charges on the ground of delay in lodging the FIR and the altercation in between the parties which occurred on the day of the alleged occurrence. The learned trial court after framing two issues and considering the evidence available on record cam to the conclusion that there are material contradictions about the version given by the prosecutrix and other witnesses and no such offence i.e. attempt to commit rape was committed. On the basis of the evidence produced by the defence the plea of alibi was admitted. Therefore, by the judgment dated 8.10.2007 the learned trial court acquitted both the accused respondents of the 4 charges levelled against them. Against which judgment, the present leave to appeal has been filed by the State Government. Heard learned P.P. and perused the material and evidence available on the record of the case. Learned Public Prosecutor has contended that for the offence of commission of rape corroboration is not required and the statement of the prosecutrix alone is sufficient to connect the accused with the crime if the uncontroverted testimony of the prosecutrix inspires confidence. Learned Public Prosecutor has further contended that the prosecutrix has narrated the incident which occurred with her and has specifically mentioned that accused respondent tried to commit rape on her when she was doing job at her flour machine. The learned trial court should not have taken into consideration the minor discrepancies which have crept in the statement of the prosecutrix. As per learned Public Prosecutor, from the evidence available on record offence under Section 376/511 IPC is established. None appeared on behalf of the respondents. It is an admitted fact that the first information report in the case was lodged after three days of the occurrence. It is a well 5 settled legal proposition that mere delay in lodging the FIR is not by itself fatal to the prosecution. Nevertheless, it is a relevant factor on which the court is obliged to take notice and examine whether any satisfactory explanation has been offered. Else adverse inference may be drawn. However, if delay is properly and satisfactorily explained, prosecution case cannot be thrown out merely on ground of the delay. Explanation has to be considered in the light of the totality of the facts and circumstances of the case. In the instant case from a bare perusal of the FIR (Ex.P.1) it is clear that there is not a single word in it explaining the delay in submitting the report. There is also admitted enmity in between the parties. Though the prosecutrix in her statement recorded under Section 161 Cr.P.C. during investigation has specifically deposed that it was Babu Lal who came at the flour mill and attempted to commit rape on her but it was contradicted during her examination in the Court on various material points. Te defence evidence clearly borne out that the story of the prosecutrix regarding commission of offence by accused respondent Babu Lal is totally fabricated. There are also material contradiction 6 about the injuries on the person of the prosecutrix as she has not stated about the injuries sustained by her during the alleged occurrence. The story about tearing of blouse and petticot is also not believable. There is also no independent witness to support the testimony of the prosecutrix despite the fact that there are houses of other persons situated in the adjoining locality but no one appeared at the scene of occurrence. There are material contradictions in the statements of the other prosecution witnesses. Having regard to the evidence available on record and in absence of any injury on the person of the prosecutrix, in absence of any evidence and proof in respect of tearing of clothes and also the defence evidence, the learned trial court if has given benefit to the accused, has not committed any error of law or any illegality in appreciating the evidence and also in acquitting the accused respondents. No illegality can be found in the impugned judgment. The leave to appeal lacks merit and deserves to be dismissed. Consequently, leave is refused and the leave to appeal is, dismissed. (Bhanwaroo Khan),J. bairwa