1 S.B. Criminal Appeal No.360/1982 State VS. Chhotu Ram Dated of Order ::: 30th March, 2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Amit Punia, PP, for the State. None present for the respondent. *** Challenge in this appeal is to the judgment dated 24th September, 1981 whereby the learned Sessions Judge, Sikar acquitted the accused respondent of the offence under Section 376 of IPC. Skipping unnecessary details, the facts of the prosecution case in nub are thus: “That on 5th June, 1981 prosecutrix was sleeping outside of her house situated in village Raghunathpura. Her husband was not in the house. It is alleged that the accused came to her house and caught hold of her and thereafter ravished without her consent and against her will. The prosecutrix PW/2 Smt. Bhagwani reported the matter at 6.00 PM on 6th June, 1981, whereupon one FIR Ex.P/4 came to be registered at Police Station Khatu, District Sikar for the offences under Sections 376 and 323 of IPC. The police, during the investigation of the case, recorded the statements of the witnesses under Section 161 of Cr.P.C., got the prosecutrix medically examined, prepared site- plan Ex.P/5, arrested the accused vide memo Ex.P/6 and got him also examined and after completion of investigation filed the charge- sheet against the accused.” 2 The accused respondent was indicted for the offence under Section 376 of IPC, who pleaded not guilty and claimed to be tried. In order to further its version, the prosecution examined only six witnesses. On being asked to explain the circumstances appearing against him, the accused-respondent in the statement recorded under Section 313 of Cr.P.C. claimed himself to be innocent and submitted that he was falsely implicated in this case. After completion of the trial, the accused-respondent was acquitted for the alleged charge, as indicated hereinabove. Heard the learned Public Prosecutor appearing for the State and carefully perused the relevant material on record. None is present for the accused respondent-Chhotu Ram. Learned Public Prosecutor canvassed that PW/2 Smt. Bhagwani has supported the entire prosecution case and there is no ground to disbelieve her testimony. She has unequivocally stated that she was caught hold of by the accused from all sides and gagged her mouth by one hand, as a result of which, during coitus, she could not shout. It is true that although the evidence of the prosecutrix does not stand corroborated by medical evidence as also by any independent evidence, but the conviction can be based 3 solely on the testimony of the prosecutrix. Since the prosecutrix has supported the prosecution case, hence, the appeal may be allowed and the accused respondent be convicted for the offence under Section 376 of IPC. Having reflected over the submissions made by the learned Public Prosecutor appearing for the State and carefully scanned the evidence of prosecutrix and other relevant material, it is noticed that the time and the date, when the offence of rape is alleged to have been committed is not definitely known. FIR is found to have been lodged at 6.00 PM on 8th June, 1981. It is mentioned in the FIR Ex.P/4 that the occurrence took place during night about three days prior to the date of lodging the report, whereas the perusal of medical examination report Ex.P/7 prepared by PW/7 Dr. Smt. Madhu Mathur reveals that she was ravished on 4th June, 1981. This date is found to have been incorporated by Dr. Smt. Madhu Mathur as per the date declared by the prosecutrix herself. Totally contrary to the aforesaid dates, prosecutrix PW/2 Smt. Bhagwani deposed before the Court that the occurrence took place in the night of Amavashya. The learned trial Court having ascertained the date found that Amavashya fell on 2nd June, 1981. Thus, from these contradictory statements, it is not ascertained as to on what date commission 4 of the offence of rape occurred. However, it is candid from the entire evidence that the occurrence of rape is alleged to have taken place three or four days prior to 8th June, 1981 when the FIR was lodged by prosecutrix. The prosecution has not furnished any reasonable, satisfactory explanation of this inordinate delay. In the case of 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.” 5 Since the prosecution has utterly failed to furnish satisfactory explanation of this inordinate delay of four days in lodging the FIR, in the facts and circumstances of the case, this inordinate delay is found to be fatal to the prosecution. Secondly, the statement of prosecutrix do not stand corroborated by any independent evidence. Even the medical report does not support the occurrence of rape as no injury was found on the genital parts of the prosecutrix. Learned Trial Court observed in the impugned judgment that had the prosecutrix been caught hold of by the accused respondent from all four sides, the prosecutrix must have resisted and raised objection, but no mark of injury is found to have been sustained by her. There is no mark of injury on the back or thighs or other parts of the body. Two contusions, of course, were found to have been on her person, but these injuries came on the body of the prosecutrix on account of the fact that she was beaten by the accused on the next date of the occurrence. It is true that the conviction can be based on the sole testimony of the prosecutrix, but it can be done so only when the testimony of the prosecutrix is found to be trustworthy, credible and worthy of credence. The manner in which the offence of rape is alleged to have 6 been committed by the accused respondent and the delay which has been caused in lodging the report, casts doubt about the veracity of the testimony of the prosecutrix. The statement of the prosecutrix do not inspire any confidence. The learned trial court has rightly observed that the statement of the prosecutrix was not worthy of credence and the conviction could not be based on the sole testimony of the prosecutrix. The impugned judgment of the learned trial Court seems to be just and proper, based on cogent reasonings. It does not suffer from any infirmity. I am in full unison with the finding of acquittal arrived at by the learned trial Court and the same warrants no intervention. For the reasons stated above, the criminal appeal filed by the State being bereft of any merit, stands dismissed. (MAHESH BHAGWATI)J. Pcg