1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Hanuman S.B.CR. APPEAL NO. 112/1991. DATE OF JUDGMENT ::: 18th 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 P.R.S.Rajawat, for the respondent. BY THE COURT Challenge in this appeal is to the judgment dated 29th October, 1990 whereby the Special Judge, SC/ST (Prevention of Atrocities Cases), Kota has acquitted the accused respondent Hanuman in the offences under Section 3 (2) (V) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to be as the 'Act of 1989') and Section 376 of IPC. 2. The prosecution story succinctly runs as under:- That on 4th February, 1990 at 7.00 PM, the prosecutrix went with her father Ram Narain, PW/7 to Police 2 Station, Sultanpur Distt. Kota and gave a verbal report to the effect that on 2.2.1990 during day hours, she was looking after the crop of chillies in her field. The accused Hanuman belonging to her village came there and caught hold her by neck and dragged to the field where the crop of mustard was standing. It is alleged that the accused made her to lie on the ground and ravished her. The prosecutrix became unconscious. When she came in senses, she found her cloths wet. She also found semen on her vagina. Thereafter, she came to her house and narrated the entire incident to her mother and father. When her father was to proceed for Police Station to lodge the report, Nandlal PW/4, Danmal PW/2 and Kanwar Lal PW/8 and so many persons of village came and persuaded him not to lodge the report under the pretext that his daughter shall for no reason be defamed. It is stated that almost all the residents of his village made him to understand and later on the Panchayat of the village imposed a fine of Rs. 1200/- as cost on accused Hanuman. The next day, the accused again came to his field and not only abused him but assaulted him also as a result of which he sustained a head injury. The police registered the FIR Ex.P/6 and commenced investigation. 3 3. The Investigating Officer recorded the statements of witnesses acquainted with the facts and circumstances of the case, prepared the site plan Ex.P/8, seized 'Gaghara' of the prosecutrix vide memo Ex.P/9, `Chappal' vide Ex.P/10, got the prosecutrix medically examined to ascertain the commission of rape and also to determine her age, arrested the accused Hanuman vide memo Ex.P/5 and after usual investigation, the S.H.O., filed challan against him in the Court. The accused Hanuman was charged for the offences under Section 376 of IPC and Section 3(2)(V) of the 'Act 1989'. The accused denied the guilt and claimed trial. The prosecution examined as many as 13 witnesses to prove its case. The accused in his statement under Section 313 of Cr.P.C., claimed innocence. He has produced two witnesses DW/1 Uda and DW/2 Motilal in defence. On completion of trial, the trial Court having not found the accused- respondent guilty, acquitted him of all the charges. Hence this State Appeal. 4. Heard the learned Public Prosecutor appearing for the State as also the learned counsel appearing for the accused 4 -respondent and perused the impugned judgment of the lower court as also the relevant material available on record. 5. The learned Public Prosecutor has contended that the lower Court has acquitted the accused merely on the basis of assumption, presumption and surmises. In so far as delay in lodging the FIR is concerned, the prosecution has satisfactorily explained the delay but the lower Court has not properly appreciated the reason of delay advanced by the prosecution. The learned Public Prosecutor has further argued that the evidence of prosecutrix has remained unimpeachable throughout and there appears to be no reason to disbelieve her testimony. The Lower Court has also not considered the injury found on the body of the prosecutrix. Thus the impugned judgment is laden with infirmities and the same deserves to be set aside and the accused respondent must be convicted. 6. Per contra, the learned counsel for the respondent has submitted that the judgment of the lower Court is just and proper. The testimony of the prosecutrix is 5 not credible. The report has been lodged after a delay of three days of the occurrence of which no reasonable and satisfactory explanation has been furnished. Hence, the appeal filed by the State deserves to be dismissed. 7. At the very outset, it is relevant to note that the occurrence of this case took place at 5.00 PM on 2nd February, 1990 whereas the FIR Ex.P/6 has been lodged by the prosecutrix at 7.00 P.M on 4th February, 1990. This inordinate delay of 50 hours has not been satisfactorily explained by the prosecution. Albeit, both the prosecutrix and her father PW-7-Ram Narayan have stated that when they were coming to lodge the report to Police Station, PW-4-Nand Lal, PW- 2-Danmal and PW-8-Kanwar Lal along with so many persons of village came and persuaded them not to lodge the report stating that his daughter shall be defamed. Next day, the villagers, assembled in a Panchayat and Panchayat imposed a fine of Rs.1200/- upon Hanuman for his hideous act. This was the reason, they did not lodge the report in time. Having perused the file, it is found that PW-2-Danmal, PW-4 Nandlal and PW-8 6 Kanwar Lal all these three witnesses who are said to have persuaded the complainant Ram Narayan not to lodge the report, have not supported the prosecution story and have been declared hostile. Thus, the explanation which the complainant has furnished for delayed FIR, is not found to be satisfactory nor reasonable and this inordinate delay under the facts and circumstances, is found to be fatal to the prosecution. 8. 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 7 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 50 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 FIR Ex.P/6 has been filed in the police station Sultanpur after a delay of 50 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. 10. The whole prosecution case rests on the testimony of PW-6 Nati Bai. No ocular or circumstantial evidence is found to be in this case. The prosecutrix Nati Bai has deposed that the accused forcibly ravished her without her consent and against her will. She has also stated that while ravishing her the accused told: "मुलिजम ने ऐसा करते समय कहा िक यह तो मीणा जाित की है इसके साथ ऐसा ही करना 8 ” चािहये” 11. The prosecutrix has also stated that though she struggled and endeavoured to stop the accused from her hands and legs but the accused throughout kept on pressing her neck from above as a result of it, she could not cry also. The prosecutrix has been subjected to a very lengthy searching cross- examination. She has stated that her vagina started bleeding and the accused discharged so much semen that her Ghaghari, thighs, pubic hair all got stained. Vide examination report Ex.P/12, the prosecutrix is found to have sustained abrasions on lower part of right breast, lateral surface of neck on right side, front aspect of neck, lateral surface of neck on left side, right knee joint and on the middle of back. There was swelling on the left side of labia majora but scratching or bruises were found on inner aspect of thighs. 12. The learned counsel for the accused respondent has contended that a few months back the cow of accused entered into the field of Ram Narayan. When Hanuman went in the field to take his cow, the prosecutrix Nati Bai abused her and called her by bad 9 names. After few days, when Hanuman was coming from Kota then at about 4.00 P.M. Ram Narayan came armed with Gandasi and assaulted upon his head. This incident was witnessed by Uda, Ramkunwar and Moti Lal. Hanuman lodged the report Ex.D/3 in Police Station, Sultanpur on 3rd February, 1990. To counter his report, Ram Narayan concocted a false story of rape and reported the same in Police on 4th February, 1990 to save himself. The evidence of prosecutrix is not worth relying and the lower Court has rightly acquitted the accused. 13. PW-10 Ramavtar Tyagi is the Investigating Officer of this case who has admitted in his cross examination that the accused Hanuman lodged FIR Ex.D/3 on 3rd February, 1990 where upon he registered the case in the offence under Section 324 of IPC. PW-6-Nati Bai has also admitted in the cross examination that Hanuman lodged the report in police against his father and the police came to arrest him but it was a false report. PW-7-Ram Narayan was also subjected to cross examine on this point. Though, he has accepted that the accused Hanuman lodged a report against him in the police but he has also stated that this report was false. 10 But the medical examination report Ex.D/4 supports the defence of the accused. Vide medical examination report Ex.D/4, the accused Hanuman is found to have sustained a incised wound-1½”x¼”x deep to scalp on left occipital region of scalp. This injury was caused by sharp weapon. Both the prosecutrix and her father PW-7 Ram Narayan have been cross examined on this point at length and they have clearly denied that Ram Narayan caused an injury on the scalp of accused Hanuman but the fact situation emerging from the evidence on record is that on 3rd February, 1990 Hanuman was attacked with an Axe by Ram Narayan as a result of which he sustained incised wound on his scalp. This stands supported by the evidence of DW-1 Uda and DW-2 Moti Lal too. The manner in which the prosecutrix has narrated the incident of rape and the method in which the minute details of sexual intercourse has been depicted leads the Court to hold the evidence of prosecutrix to be false as it inspires no confidence. It is not proved beyond doubt that the accused ravished the prosecutrix Nati Bai without her consent and against her will. This incident of rape seems to have been maneuvered and concocted 11 later on to counter the report Ex.D-3 lodged by Hanuman on 3rd February, 1990 at 5.30 PM in Police Station Sultanpur. 14. In the ultimate analysis, it is held that the prosecution has miserably failed to establish the offence of rape against the accused respondent Hanuman. The prosecution has also failed to prove the offence under Section 3(2) (v) of Act, 1989. Not even a shred of evidence is available with regard to this fact that the accused Hanuman ravished Nati Bai on the ground that she was a member of Scheduled Caste or Scheduled Tribe. The impugned judgment of the lower Court is found to be cogent and well merited. It does not suffer from any infirmity and the finding of acquittal arrived at by the lower Court is just and cogent with which I fully concur and the impugned judgment does not call for any interference. 15. For these reasons criminal appeal filed by the State is found to be totally devoid of merits and thus stands dismissed. (MAHESH BHAGWATI)J. PCG/gandhi