IMPORTANT POINT
When a major accused outrages modesty of a minor girl child and attempts to rape her, he is not entitled to benefit of probation.

JUDGMENT

Pinaki Chandra Ghose, J.

1. This appeal, by special leave, has been filed by the State of Rajasthan against the judgment and order dated 24.01.2007 passed by the High Court of Rajasthan, Jaipur Bench, Jaipur, in S.B. Criminal Leave to Appeal No.255 of 2003, whereby the High Court rejected the appeal of the State filed against the acquittal of the respondent.

2. The facts of this case, as per the prosecution story, are that on 1.08.2002, Gujarmal son of Sukkan Ram Lali, resident of Baseth, P.S. Kathumar, District Laxmangarh (Rajasthan), submitted a written report at Police Station Kathumar stating therein that on 31.7.2002, at around 10 A.M., his daughter the prosecutrix, aged 12 years, had gone to the jungle to graze buffaloes. Sri Chand son of Madan Lal Saini, whose house is in the jungle, approached his daughter, the prosecutrix and told her that his sister was calling her. By luring her in this way, Sri Chand took his daughter the prosecutrix to his house. No one was there in the house and Sri Chand took his daughter the prosecutrix inside the room, closed the door from inside, forcibly undressed her and made her to lie on the ground and started raping her forcibly. The prosecutrix cried upon which Sri Chand put some cloth in her mouth. Hearing her cries, Bihari Saini, who was passing nearby, reached there and he witnessed the whole incident. Saroj wife of Prahlad also reached at the site. Out of fear, accused Sri Chand fled away from the place of incident.

3. On the basis of the above written report, Case No.116/2002 was registered under Section 376/511 of the Indian Penal Code, 1860 (“IPC”) and investigation started. During the course of investigation, Investigating Officer ASI Heera Lal visited the site and prepared a site map. Statements of complainant Gujarmal, prosecutrix and Bihari Saini were recorded under Section 161 of Cr.P.C. Statement of prosecutrix was also got recorded under Section 164 Cr.P.C. and she was further examined at Alwar to ascertain her age, medical and for X-ray. A report regarding her age was obtained in which the age of prosecutrix was stated as 16 years. Accused Sri Chand was arrested and was got examined regarding his potency to perform sexual intercourse. After the investigation, it was found that accused Sri Chand committed the offence under Section 376/511 of IPC. A charge-sheet was filed in the Court of Judicial Magistrate, Kathumar, and thereafter the case was committed to the Court of Additional District and Sessions Judge, Laxmangarh, for adjudication. Accused Sri Chand was served the charge-sheet and he denied the charges and claimed for trial.

4. Before the Trial Court, the prosecution examined ten witnesses and after analyzing the evidence on record and after hearing the arguments advanced on behalf of the parties, the Trial Court acquitted the accused respondent by granting him probation. The State of Rajasthan preferred an appeal before the High Court, for grant of leave to appeal against the order of acquittal, which was rejected. Aggrieved by the order of the High Court, the State of Rajasthan has preferred this criminal appeal, by special leave, before this Court.

5. We have heard the learned counsel appearing for the State of Rajasthan and the learned counsel appearing for the accused respondent and have perused the judgment rendered by the Additional District and Sessions Judge, Fast Track, Laxmangarh.

6. The Court of Additional District and Sessions Judge, Fast Track, Laxmangarh, noticed in his judgment that though there is a serious charge of attempt to rape against the accused but the First Information Report has been lodged with a delay of about 28 hours for which neither any explanation has been given in the Report nor the complainant has mentioned anything in his statement about the said delay, which makes the prosecution case doubtful. The learned Sessions judge further found that the statement of PW3 Biharilal Saini cannot be doubted as it corroborates the