1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT ::: D.B. Criminal Appeal No.1136/2003 Kalu Ram @ Kalia @ Dilip Kumar. vs. State of Rajasthan Date : 3rd August, 2010 HON'BLE JUSTICE SHRI PRAKASH TATIA HON'BLE JUSTICE SHRI KAILASH CHANDRA JOSHI Mr.KL Joshi, amicus curia, for the appellant. Mr.AR Nikub, PP. Mr.Kisan Bansal, for the complainant. - - - - - BY THE COURT (PER HON'BLE TATIA, J.) : Heard learned counsel for the parties. This appeal is directed against the judgment of conviction and order of sentence dated 25.8.2003 passed by the Court of learned Additional Sessions Judge (FT), Hanumangarh in Sessions Case No.71/2003 by which the learned trial court convicted and sentenced the accused appellant Kalu Ram @ Kalia @ Dilip Kumar as under :- 2 Conviction Sentence Sec.366 IPC 7 years RI & fine of Rs.1,000/- in default to further undergo 1 month RI Sec.342 IPC 1 year RI & fine of Rs.1,000/- in default to further undergo 1 month RI Sec.376 IPC Life Imprisonment & fine of Rs.1000/- in default to further undergo 1 month RI Sec.450 IPC 10 years RI & fine of Rs.1,000/- in default to further undergo 1 month RI Brief facts of the case are that on 18.4.2003 at about 9:30 PM, complainant Smt. Jamna Devi, mother of the prosecutrix, submitted an oral report in Police Station Hanumangarh Junction stating that she had twin daughters – Urmila & Usha who were of the age of 7½ years. On 16.4.2003, when she went to attend marriage in her neighbour's house namely, Ram Lal Huda, her 2 daughters were alone with her blind mother-in-law. Her husband's brother-in-law Krishan Lal had gone to agriculture field. In the night at about 3:00, when she came back, she found that both the girls were in the house and Usha was crying and on enquiries, Usha told her that their neighbour Kalu Ram @ Dalip forcibly took her and committed rape with her and caused injuries on her neck and face also. She also told that after committing offence, he brought her in the house and thrown her in the 3 house. The complainant found the injuries on the private parts of the said minor girl as well as on her face and on neck. She told about this incident to her husband's elder brother Krishan and younger brother Om Prakash and also to the other villagers but as advised, she did not lodged any complaint. She stated that today in the evening, the condition of the said victim became very bad and, therefore, she was taken to Goluwala Hospital and now she has come to lodge the report and she came with Krishan and one Indraj. Upon this oral information, FIR No.270/2003 was registered for offence under Sections 450 and 376 IPC. After investigation, challan was filed against the accused appellant under Sections 376 (2)(f), 366, 342 and 450 IPC. The case was committed to the court of Sessions Judge which was transferred to the Court of Additional Sessions Judge (FT), Hanumangarh where the accused was charged with the above offences for which the accused appellant denied and sought trial. The prosecution examined PW1 Jamna Devi, PW2 prosecutrix Usha, PW3 Krishan, PW4 Maghar Singh, PW5 Dr.Daya Shanker Pareek, PW6 Shri Narayan and PW7 Rahul and produced 15 documents in evidence. The accused statement were recorded under Section 313 Cr.P.C. Wherein the accused stated that the evidence is false and he is innocent. No defence evidence was produced. After hearing the arguments, the learned trial 4 court heavily relied upon the evidence of victim PW2 Usha herself as well as the evidence of PW1 Jamna, PW3 Krishan and PW5 Dr.Daya Shanker Pareek who was member of medical board who examined the victim with the help of lady expert doctor. Learned counsel for the appellant argued that the incident occurred in the midnight of 16.4.2003 whereas FIR was lodged after delay on 18.4.2003 in the night at 9:30 PM and there is no reasonable explanation for lodging the FIR with such delay and that cast serious doubt on the credibility of the complainant as they could not have waited for such a long period for such heinous offence if it was committed by the appellant and they knew it in time about the culprit also. It is also submitted that there are contradictions in the statement of the witnesses as the witnesses at one place stated that the grandmother of the prosecutrix was deaf and blind whereas PW1 Jamna in her statement recorded in Section 161 Cr.P.C. Stated that her mother-in-law's vision was poor. It is also taken as a ground that there was no eye witness. However, learned counsel for the appellant could not seriously assail the credibility in the statement of the prosecutrix PW2 and after going through the statement of PW2, we are of the considered opinion that only statement of PW2 Usha given with clarity itself was sufficient for conviction of the accused for offence for which he 5 was charged. PW2 Usha, who was of minor of the age of 7½ years at the time of recording her evidence in Court on 29.7.2002, was put some questions so as to find out whether she can be a witness to give evidence which she answered properly and thereafter, her statement was recorded. She stated that she was student of Class-II and about 3 months ago, she along with her sister and grandmother were at her home. Her grandmother was blind. Her elder mother went for some “Ratijoga” and her mother was also out for same function but went at different place. When she, her sister and her grandmother were in her home in night, Kalia (Kalu Ram) came in the house and put his hand on her mouth and took her to his (Kalu Ram)'s house. His house is near to the house of the prosecutrix. There the accused committed rape with her for which she narrated the facts in detail in her statement. Thereafter, she was brought by the accused to her house and she was left there by the accused. The appellant threatened the prosecutrix that if she will cry, she will be killed by him. She narrated the events in detail and thereafter, stated that she told the incident to her mother as she was suffering from pain. She also stated that the police came to his house and site map was prepared in her presence as she identified the place of incident. The prosecutrix was cross- examined but nothing came out from the cross 6 examination so as to cast doubt in the statement given by the prosecutrix to implicate the appellant in committing the incident of forcibly taking the prosecutrix by the appellant and his committing the offence of rape with her. The prosecutrix's mother PW1 Jamna Devi fully corroborated the statement of the prosecutrix and in her cross examination also, nothing came out so as to cast any doubt upon the credibility of the statement given by PW1. PW3 Krishan saw the prosecutrix when he was told by the victim and her mother about the incident and found injuries on the face of the prosecutrix. He stated that we avoided to lodge FIR to save the family honour. However, when the condition of the prosecutrix became bad and she was taken to the hospital, then they decided to lodge FIR. This way, the prosecution witnesses explained the reason for not lodging the FIR forthwith and in such cases, there may be possibility in some cases of not lodging FIR at all what to say of lodging FIR after delay. However, the evidence of the prosecutrix, as we have already observed, alone was sufficient to hold the accused appellant guilty but her statements are fully corroborated by the other evidence as well as by medical evidence from the statement of PW5 Dr.Daya Shanker Pareek. The medical report fully corroborate the oral statement of the prosecutrix and two of the 7 witnesses who saw the prosecutrix just after the commission of offence. Learned counsel for the appellant also could not assail the other evidence collected by the prosecution and produced for appreciation of the Court. Further, there is no allegation of the accused that the witnesses had any enmity with the accused. In the totality of facts and circumstances of the case, the trial court was fully justified in holding the appellant guilty for committing of the offences referred above and sentencing him accordingly. So far as sentences awarded to the appellant are concerned, as referred above, the sentences are also just and proper in the facts and circumstances of the case. In view of the above, there is no merit in this appeal and the same is hereby dismissed. [KAILASH CHANDRA JOSHI], J. [PRAKASH TATIA], J. S.Phophaliya