1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANAT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO.191 OF 1991. State of Rajasthan VERSUS Gopi son of Shri Bholu Date of Judgment : 25th July, 2008. Hon'ble Mr. Justice Mahesh Bhagwati Mr. B.K. Sharma, Public Prosecutor for State. Mr. Mahendra Khandelwal, for Mr. Biri Singh Sinsinwar, for accused-respondent By the Court : Challenge in this appeal is to the judgment dated 09th October, 1990, whereby the Sessions Judge, Tonk has acquitted the accused- respondent Gopi in the offence under Section 376 of the Indian Penal Code. 2. PW-2 Ram Karan submitted one written- report Ex. P/1 to the S.H.O. Police Station Piploo, District Tonk stating therein that on 27th of August, 1989 at about 10.00 PM, he was sleeping in the house. His wife Smt. Rampyari was sleeping in the “saal”. It is alleged that the accused Gopi son of Shri Bholu Balai entered 2 in his house and endeavoured to commit rape upon his wife. His wife cried. Having heard the screams of his wife, Laxmi Narayan and Kalyan Bairwa came there. They all chased him to catch, but ultimately he succeeded in fleeing away. The Police lodged an F.I.R. Ex. P/10 and commenced investigation. 3. During investigation, the Police prepared the site-plan Ex.P/2, recorded the statement of the witnesses acquainted with the facts and circumstances of the case, seized the blouse of the prosecutrix vide memo Exhibit P/3 and “ghaghara” vide memo Exhibit P/4, arrested the accused Gopi vide memo Exhibit P/11, got the prosecutrix as also accused medically examined, and after usual investigation filed a charge- sheet against the accused in the offence under Section 376 of I.P.C. in the Court. The Court framed charge of this offence against the accused, who pleaded not guilty and claimed trial. The prosecution has examined as many as 13 witnesses to prove its case. In the statement under Section 313 of Cr.P.C. the accused has claimed innocence. After completion of trial the accused was acquitted from the charge of the rape, as indicated hereinabove. 3 4. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, the learned counsel for the accused- respondents and with their assistance, scanned the prosecution evidence as also the relevant material available on the record. 5. The only question springing for consideration in this appeal is as to whether the accused Gopi committed sexual intercourse with Smt. Rampyari without her consent and against her will? 6. Vide Exhibit P-7, medical examination report of Smt. Rampyari, PW-7 Dr. Narendra Kumar Chopra has recorded her history as under :- “Patient complaint 4 days back she was sleeping in her house, someone came and sit on her bed. She thought that he was her husband. She told who is there. He did not speak anything. He straightway does intercourse. In which 15-20 minutes took for complete intercourse. She cried to call her husband, who was sleeping outside in 'baramda'. He then come and caught Gopi Balai. No injury on back, no injury on both hands, no injuries on legs- no injury on thigh, no injury found on external genitals, pubic region, genitals 4 already shaved by her 2-3 days back- no injury on labia-majora, no seminal stains on cloths, genitals and on pubic area, no injury, no scratches on labia- majora. No injury on inner aspect of thigh, no bleeding, no redness on vulva opening and near urinary meatus, clitoris. No inflammation, injury, bleeding redness on anterior and posterior vaginal walls, no discharge, no seminal fluid present gait normal. No complaint of pain on walking”. 7. PW-7 Dr. Chopra found two simple abrasions on face and lower left eye and below left eye and one simple abrasion on the left side of breast, but duration of these two injuries was within 5-7 hours of the examination. However, there was no evidence of recent intercourse on the body of Smt. Rampyari. 8. The report Ex. P/1, statement of the prosecutrix PW-1 Smt. Rampyari given on oath before the Court and the medical examination report of Smt. Rampyari, Ex. P/7 are found to be laden with contradictions on material particulars and inconsistencies. The complainant PW/2 Ram Karan has narrated in his written- report Ex. P/1 that accused Gopi endeavoured to ravish his wife and having heard the screams of Smt.Rampyari, Laxmi Narayn and Kalyan came over 5 there and they efforted to catch accused Gopi, but of no avail, whereas the prosecutrix has narrated altogether a different story to Dr. N.K. Chopra who has recorded in Ex. P/7 as mentioned above. As per the history narrated by the prosecutrix to Dr. Chopra, someone came in her room and sat on her bed. She thought as if he was her husband. When she asked as to who he was, he did not speak. Thereafter, straightway he did intercourse with her which took 15-20 minutes to complete. The prosecutrix has further narrated that thereafter she cried to call her husband who was sleeping outside in 'baramda' and he was caught in side the house, but before the Court she has come up altogether with a different chequered version. On oath, she has stated that when a person came and sat on her cot, he put his hands on her breasts. She unveiled her face and having seen some other person than her husband, she cried but that person gagged her mouth and forcibly ravished her. She struggled to protect her chastity, but could not succeed in her efforts. During struggle, her blouse was torn by that person who later on got identified as accused Gopi. In searching cross-examination, the prosecutrix has stated that accused took about half an hour in ravishing her. 6 9. PW-2 Ram Karan, the husband of the prosecutrix, has simply stated in written report Ex.P/1 that the accused made an attempt to commit rape upon his wife, but in the Court while improving his earlier version, he has stated that the accused committed rape upon his wife forcibly. PW-3 Laxmi Narayan and PW-4 Kalyan are the witnesses who are said to have reached on the spot soon after hearing the screams of the prosecutrix. They have deposed that when they reached at the house of Ram Karam, they found that Ram Karan had caught-hold of the accused Gopi. They found Sarpanch Shri Rang Lal and the wife of Ram Karan also present there. They were told by Ram Karan that Gopi had committed rape upon his wife. PW-5 Rang Lal is Sarpanch of the Village who has not supported the prosecution story and has turned hostile. 10. Turning again to the statement of PW-1 Rampyari, it is found that she reported the incident of rape after 4-5 days of the occurrence to the Police. F.I.R. Ex. P/10 reveals that the occurrence took place at about 10-11 PM on 27th of August, 1989 and the F.I.R was lodged at 3.00PM on 29th of August, 1989 i.e. approximately after three-days of the occurrence. The prosecution has not furnished 7 any reasonable or satisfactory explanation of inordinate delay of three-days in lodging the F.I.R. In view of contradictions and inconsistencies creeping in the report Ex. P/1, statements of the prosecutrix and medical examination report, Ex. P/7, on material particulars, the unexplained inordinate delay of three-days is found to be fatal to the prosecution. 11. 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 8 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. But in the instant case, the delay in filing the FIR after 3 days of the incident is found to be fatal to the prosecution as the delay has not been satisfactorily explained by the prosecution. 13. The prosecutrix is not found to have sustained any injury on her genitals and private parts of the body. Having reflected over and ruminated on the prosecution evidence and the relevant material, it is found that either the prosecution was a consenting party to the incident of intercourse between the prosecutrix and the accused appellant or accused did not commit any rape upon her. 14. The statements of the prosecutrix do not inspire any confidence. Albeit, the corroboration of the statements of the prosecutrix is not required when her statements are found to be trustworthy, but if the 9 prosecutrix's evidence is laden with contradictions on material particulars then the corroboration is necessarily required to convict the accused. In the instant case, firstly, an F.I.R. Ex. P/7 is found to have been lodged with an inordinate delay of three-days of which the prosecution has not given any satisfactory explanation and the delay is found to be fatal to the prosecution; secondly, the statements of the prosecutrix do not inspire any confidence and thirdly, there are material contradictions about the incident of rape in the written-report Ex. P/1, medical examination report Ex. P/7 and the statements of the prosecutrix and the husband PW/2 Ram Karan. There is no independent evidence to corroborate the prosecution case. The prosecution has not succeeded in establishing the offence of rape against the accused. 15. The judgment of the learned trial Court is cogent and well merited. 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 impugned judgment does not call for any interference. 10 16. For these reasons, the criminal appeal filed by the State being devoid of merits, stands dismissed. (MAHESH BHAGWATI) J. ASHOK/