1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT The State of Rajasthan vs. Mukund Singh (S.B. CRIMINAL APPEAL NO. 524/1998) DATE OF JUDGMENT ::: December 15, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. B.K. Sharma, Public Prosecutor for the State. None present for the accused-respondent. BY THE COURT: Challenge in this appeal is to the judgment dated 17 June, 1995 rendered by Special Judge (Sati Niwaran) and Additional Sessions Judge, Jaipur City, Jaipur, whereby the accused- respondent Mukund Singh was acquitted in the offence under Section 376 of IPC. 2. The prosecution version as unfolded during trial is as follows:- That the complainant Kailash Kanwar was residing in a rented house B-103 and 104 of Shimbhu Singh situated in Nityanand Nagar. The sister and mother of the accused-respondent Mukund Singh were also residing in the same house on rent. It is alleged that on 17th June, 1994 at about 3.30 pm, the complainant Kailash Kanwar had gone out of the house and her daughter Sannu aged 6 years was sleeping in a room. On return to her house, she found her daughter weeping. Her daughter told that Mukund Singh had come, taken of her panties and ravished her. She was 2 complaining pain on her vagina. The complainant looked at the panties she was wearing and found that it was blood stained. She found her vagina also bleeding. The complainant submitted a written report Ex.P/1 in police station Vaishali Nagar, Jaipur whereupon police lodged FIR Ex.P/2 and commenced investigation. 3. The Investigating Officer prepared site plan Ex.P/3, recorded the statements of the witnesses under Section 161 of Cr.P.C., seized the panties of the prosecutrix vide memo Ex.P/4, arrested the accused Mukund Singh vide memo Ex.P/6, got both the prosecutrix and the accused medically examined and after usual investigation submitted the police report under Section 173(2) of Cr.P.C. in the Court. 4. The accused-respondent was indicted for the offence under Section 376 of IPC, who pleaded not guilty and claimed trial. The prosecution examined as many as 8 witnesses to prove its case. In his explanation under Section 313 of Cr.P.C., the accused claimed innocence and submitted that he had enmity with Kailash Kanwar with regard to a house and due to this enmity she falsely implicated him in this case. He has produced four witnesses in defence. On completion of trial, the learned trial court acquitted the accused-respondent as indicated hereinabove. 5. None is present on behalf of the accused-respondent, hence, heard submissions advanced by the learned Public Prosecutor appearing for the State and scanned the relevant material available on record. 6. Having reflected over the submissions and scanned the relevant evidnce, it is noticed 3 that the prosecutrix Sannu was only 6 years of age on the date of occurrence. PW-8 Dr. Nalini Shekhawat examined the prosecutrix on 18th June, 1994 and found the following injuries on her person:- “Examination was painfull. Vulva- Swellon and tender. Hymen – Hymen tear at 5'clock position. Vagina – Inflamed and tender. There was blood on touch. Duration of tear was 1-2 days.” Findings of Doctors were consistent with penetration of hard object like erected male organ through hymenical orifice. 7. At the same time, on 20th June, 1994 PW- 5 Sheetal Jain examined he accused-respondent Mukund Singh who, though found one abrasion 1cm x 1cm with soft scars present and multiple overlapping bruises of size 6cm x 6cm. 2Cmx4cm4cm red in colour but did not find any injury on the penis as deposed by him before court during trial. 8. In the light of the prosecution and defence evidence as led by both the parties, the most crucial question emerging for adjudication is that as to whether it was the accused- respondent who voluntarily ravished the prosecutrix against her will and without her consent? 9. Now, adverting to the statements of PW- 2 Sannu, it is found that on the date of occurrence, she was 6 years of age and studying in First standard. She deposed that on the hapless day, her mother had gone out of the house and only she and her younger brother were present there. She further stated that the accused got the door of the house opened and thereafter, entered in. He took of her panties 4 and fell upon her. It is alleged that when the accused ravished her, she screamed loudly. On her screaming and crying loudly, the accused left her and ran from there. She found that her vagina was bleeding. Thereafter, her mother came whom she narrated the whole incident. 10. It is to be noticed that whole prosecution case rests upon the sole testimony of prosecutrix PW-2 Sannu. So far as the PW-1 Kailash Kanwar, the mother of the prosecutrix is concerned, she was not present in the house at the time of occurrence. Her statement is based on the story as narrated by the prosecutrix to her. The startling feature with regard to the identity of the accused which has emerged in the court is the statement given by the prosecutrix in her cross-examination, wherein she stated that the name of Mukund Singh was told by her murder. She did not know Mukund Singh from earlier. Mukund Singh had come in her house for the first time on that day only. Prior to that day, he never came over there. Whereas, just contrary to this statement, PW-1 Kailash Kanwar stated that her daughter Sannu disclosed that Mukund Singh had taken of her panties and fell upon her. She also told that Mukund Singh had ravished her as a result of which her panties got blood stained. This witness tangibly stated that she did not know the accused Mukund Singh prior to this incident but one day before this occurrence he came to meet in her house. The statements given by the complainant PW-1 Kailash Kanwar in her examination-in-chief and cross- examination reveal that at one point of time she stated that she had not known the accused from earlier and she came to know about him on the day of occurrence only and at other point, she stated that one day prior to the occurrence, the accused had come to meet in her house. At some 5 places she also stated that the mother and sister were residing on rent in the same building and the Mukund Singh used to come to meet them frequently. 11. So far as the prosecutrix is concerned, she is a girl of very tender age. On the date of occurrence she was only 6 years old. As per her statement she saw accused for the first time on that day only. But with regard to the identity of the accused, she stated in the cross- examination that his name Mukund Singh was told by her mother only because she did not know him from earlier. Though, the prosecutrix understood all the questions which were posed to her during cross-examination by the court but at the same time it cannot be ruled out that she did not possess that intellect and that common sense which was required to give statements in a rape case. When the prosecution case solely rests on the testimony of the prsecutrix, the duty is cast upon the court to shift the prosecution evidence very cautiously and carefully. PW-1 Kailash Kanwar is not the eye witness of this case and her evidence is based on the story as narrated to her by her daughter. Thus, the evidence of Kailash Kanwar is found to be hearsay evidence, on the basis of which no accused can be convicted in a criminal case. 12. From the statements of PW-2 Sannu and her medical examination report Ex.P/8, it is very well proved that she was raped by some person but it is not proved from the prosecution evidence that it was the accused Mukund Singh only who committed rape upon her. 13. With regard to the identity of the accused, there are contradictions in the statements of PW-1 Kailash Kanwar and PW-2 Sannu in material particulars. It has not come out 6 unanimously from the statements of both these witnesses that they knew Mukund Singh from earlier and there was no doubt about his identity. When the prosecutrix had seen the accused for the first time on the day of occurrence only, it was the duty of the prosecution to get the identification parade conducted and get the accused identified from the prosecutrix. Had the identification parade been conducted by the police and the prosecutrix identified the accused, it would have been easier for the court to arrive at a just and safe conclusion with regard to the identity of the accused. But since the statements of both PW-1 Kailash Kanwar and PW-2 Sannu are frazile and do not inspire confidence in this regard, it is not found safe to convict the accuse basing upon their testimony. Their evidence is not found worthy of credence and trustworthy with regard to the identity of the accused. The explanation, furnished by the accused under Section 313 of Cr.P.C. that there was an enmity between them with regard to one house and due to this reason he was implicated in this case, cannot be blushed aside. 14. The learned trial court has critically examined the evidence of prosecution witnesses at length and appreciated the same in its right perspective. The impugned judgment of the lower court is cogent and well meritted which suffers from no infirmity. Before parting with, it would be relevant to stress that the occurrence of this case took place at 3.30 pm on 17th June, 1994 and the FIR Ex.P/2 was lodged after a delay of 18 hours at 9.30 am on 18th June, 1994, whereas, the distance between the place of occurrence and the police station is only two kilometers. The police station is situated at Vaishali Nagar, Jaipur City, Jaipur and there 7 should not have been any problem for the complainant to report the matter in the police station soon after the occurrence. The prosecution has not given any reasonable and satisfactory explanation of this inordinate delay in lodging the FIR as the FIR has been lodged after a delay of 18 hours. 15. 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 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.” 16. 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 8 complaint has been filed in the police station after a delay of 18 hours of the occurrence and the prosecution has miserably failed to furnish satisfactory and reasonable explanation of this delay which to my firm view, is found to be fatal to the prosecution. 17. In the ultimate analysis, the prosecution has utterly failed to establish the offence under Section 376 of IPC against the accused-respondent and learned trial court has rightly arrived at the finding of acquittal with which I fully concur and to my firm view the impugned judgment calls for no intervention. 18. For these reasons, the State appeal being bereft of merits stands dismissed. The accused-respondent is on bail. His bail bond stands discharged. (MAHESH BHAGWATI),J. Mak/-