1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Daya Ram S.B.CR. APPEAL NO. 124/1992. DATE OF JUDGMENT :- 04th 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 S.S.Sunda, for the respondent. BY THE COURT The challenge in this appeal is to the judgment and order dated 31st July, 1991 rendered by Additional Sessions Judge No.2, Alwar whereby the learned Sessions Judge acquitted the accused appellant Daya Ram in the offence under Section 376 and 457 of I.P.C. 2. The prosecution story is woven like this: That on 5th July, 1988 at about 11 in the night, the prosecutrix PW-1 Smt. Banarasi was sleeping in the Chowk of her house. Her two children were also sleeping on a cot lying nearby. It is alleged that the accused Daya Ram S/o Ganesha having jumped the wall committed house trespass and suddenly pressed her down on the cot. It is further alleged that the accused lifted her Lehnga and forcibly penetrated his penis into her vagina. She endeavored to escape and also cried but the accused did not let her loose and pressed her mouth. During resistance, her cloths also got 2 torn. The complainant prosecutrix has further submitted that the accused also bit her cheek as a result of which she sustained the mark of injury. She has further submitted that the accused left her only after fulfilling his erotic sortie. Thereafter, he cried and having heard her screams, the witnesses Lala Ram, Mahaveer and Hari Singh came over there who saw the accused Daya Ram fleeing from the site. The prosecutrix submitted a written report Ex.P/1 in the Police Station Behrod where the police registered the F.I.R., Ex.P/2 and commenced investigation. 3. During the course of investigation, the Investigating Officer recorded the statements of the witnesses under Section 161 Cr.P.C., prepared the site plan Ex.P/4, seized one Lehnga and Shirt of the prosecutrix vide Memo Ex.P/5, arrested the accused Daya Ram vide memo Ex.P/6, got both the prosecutrix and the accused medically examined and after usual investigation, filed the charge sheet in the Court. On completion of trial, the accused was acquitted in the offences as mentioned hereinabove. 4. Heard the learned Public Prosecutor appearing for the State as also the learned counsel appearing for the accused -respondent and perused the impugned judgment of the lower court and the relevant material available on record. 3 5. The learned Public Prosecutor while reiterating the grounds of the appeal has contended that the offence under Section 376 IPC is very well proved from the statements of prosecutrix PW/1 Smt. Banarasi. She has stated on oath that the accused suddenly came and pressed her while she was sleeping on the cot and thereafter forcibly ravished her. She did her best to come out of his clutches but she failed. The accused left the place only when he succeeded in satisfying his wild lust. Thereafter, she cried and the brothers of her husband Lala Ram, Mahaveer and Hari Singh came there who saw the accused fleeing. The learned Public Prosecutor has further submitted that the evidence of prosecutrix alone is sufficient to convict the accused. There is no reason to disbelieve her statements. The evidence of the prosecutrix is very well supported by the statements of PW/13 Dr. Raj Kumar Mishra who has found one injury on the maxillary region of her body. The learned Public Prosecutor has further submitted that the lower Court has not properly appreciated the evidence of the prosecutrix nor critically analyzed the evidence of other prosecution witnesses. Hence, the judgment of the lower court be set aside and the accused respondent should be convicted in the offence under Section 376 IPC. 6. Per contra, the learned counsel for the 4 accused respondent has simply urged that the judgment of the lower court is cogent, just and proper. There is no infirmity in the judgment of the lower Court also and the same does not call for any interference, as such, the appeal should be dismissed. 7. It is very well settled that if evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statements in material particulars. To bring home the case under Section 376 IPC, the prosecution is required to prove that the accused had sexual intercourse with a woman forcibly against her will and without her consent. The prosecutrix has stated on oath that the accused suddenly came and pressed her on the cot. In her written report, the prosecutrix has scribbled that the accused soon after coming pressed her on the cot and removing her Lehnga forcibly penetrated her penis into her vagina but in the Court she has stated on oath that soon after coming the accused pressed her mouth and he efforted to lift her Patikot and endeavored to penetrate his penis into her vagina. She tried to come out of his clutches but she failed and when he was going back after satisfying his lust, the brothers of her husband came there who saw him running. Thereafter, she reported the matter to her husband in the morning who was living on the well situated in his field. The distance from the 5 house of the prosecutirx to the well is said to be half Km. 8. Albeit, PW/4 Lala Ram is not the eye- witness of this case but he has deposed that he saw the accused Daya Ram, running and climbing the wall. As per this witness, he chased Daya Ram but failed to catch him. With regard to the commission of rape, his statement is based on the narration of prosecutrix. PW/3, Mahaveer is the husband of the prosecutrix who has stated that the next day his wife Smt. Banarsi came on the well at 4.00 in the morning and narrated the whole incident. 9. It is relevant to note that the occurrence took place in the night of 5th July, 1988 whereas the FIR has been lodged at 1.05 PM on 6th July 1988. This FIR is found to have been lodged after a delay of around 13 to 14 hours of which the prosecution has not furnished any satisfactory explanation. 10. As per the statement of prosecutrix, she went to her husband early in the morning at 4.00 AM but she did not go to the police station upto 1.05 PM of 6th July, 1988. The prosecution has not given any reasonable and satisfactory explanation of this particular delay of 9 hours which is found to be fatal. 11. In Thulia Kali Vs. State of Tamil Nadu, AIR 1973 SC 501, the Hon'ble Apex Court has held: 6 “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.” 12. 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. Thus, the delay in filing the FIR is found to be fatal to the prosecution. 13. The prosecutrix has also stated in written report Ex.P/1 that she did her best to liberate from the clutches of the accused and raised alarm also but the accused did not leave her. She has also stated the accused gaged her mouth and when 7 she tried to get rid of him or liberate herself, her cloths were torn and her cheeks was fleeced by him as a result of which she sustained mark of violence on her cheek and other parts of the body but the medical report of the prosecutrix does not support her version. PW/13 Dr. Raj Kumar Mishra has stated that he found one minor abrasion on left side maxillary region; 1 x 1/4 long superficial simple but he did not find any external injury, nor any blood, seaman, dust or any type of stain over body and cloths. No tenderness and pain over body. No sign of any injury, tenderness, blood or seaman over hairs of private part was found. There was no tenderness on her vagina. Thus, as per the medical report Ex.P/9 of Mst. Banarasi, no mark of injury or violence has been found on her body and the genital parts; No mark of injury has been found on her cheeks also. There is no evidence about the torn cloths available on record. The manner in which the prosecutrix has unfolded the story of rape in the examination-in-chief and the cross examination, it is found that either no rape has been committed by the accused or if there was any sexual intercourse between these two, it was well with her consent. 14. To prove the offence of rape, it is essential for the prosecution to establish that the accused had sexual intercourse with the prosecutrix forcibly against her will and without her consent. 8 Though the prosecutrix has stated that the accused caught hold and pressed her also on the cot and forcibly penetrated his penis into her vagina and inspite of her full resistance, the accused did not leave her and ultimately left her only after fulfilling his erotic sortie. The circumstances and the evidence which has emerged on record is altogether different from the story as narrated by the prosecutrix. There is not even a shed of circumstantial and surrounding evidence to corroborate the testimony of prosecutrix. In the absence of women's consent the essential feature of actus rues is rape which is totally wanting in the instant case. The manner in which the prosecutrix has deposed is sufficient to infer that either the accused did not commit any rape upon her or if there was any sexual intercourse it was with the consent of the prosecutrix. The testimony of Mst. Banarasi PW/1 does not inspire any confidence and contradictions emerging in the statements of the prosecutrix deposed in the Court in her cross examination ostensibly falsifies the statements of prosecution witnesses including the statements of prosecutrix. The learned trial court has properly analysed the prosecution evidence in detail and the finding of acquittal is found to be cogent and well merited. I am in unison with the finding of the lower court and the impugned judgment of the lower Court calls for no interference. 9 15. For the reasons mentioned hereinabove, the criminal appeal filed by the State is found to be totally devoid of merits and thus stands dismissed. (MAHESH BHAGWATI),J /gandhi