The Court would be slow in reversing an acquittal unless the judgment is perverse and unreasonable, and caused a serious miscarriage of justice.

ORDER :

K.G. Balakrishnan J. - This is an appeal preferred by the State of U.P. against the acquittal of accused persons in a criminal case. There were five accused before the Sessions Court, Agra, and they were charged for the offences punishable under Sections 376, 147, 323, 109 and 114 Indian Penal Code. Out of the five accused, one was acquitted and four of them were convicted by the Sessions Judge. These accused persons preferred appeal before the High Court and the appeal was allowed. Aggrieved by the same the present appeal is preferred by the State. During the pendency of this appeal one of the respondent Ram Bharosey @ Ram Bharosi died and the present appeal is against the acquittal of two accused viz. Babu Khan and Foran Singh. It seems that the State has not preferred appeal against the acquittal of the other accused Bhima @ Sheodan Singh. We have heard learned counsel for the appellant and learned counsel for respondents.

2. The prosecution case was that a West German lady came to India as a tourist along with her friend. They came to Agra and stayed in a hotel near Taj Mahal. In the evening of 21.7.1980, she went alone from the hotel for a stroll and enroute she met one Ramesh who took her to the Shahjahn Garden to show the statute of Motilal Nehru. It was at about 7 O'clock in the evening. While both of them were sitting on a bench, it is alleged that the five accused persons came near them and forcilbly took the lady to the western side of the park and two of them committed rape on her by turn while others were holding her. It is alleged that Ramesh was assaulted by two accused and he ran away from the place. The victim sustained some injuries on her lips and left eye. She managed to escape from the accused and ran to near by street and reached her hotel. It is alleged that she gave a written complaint on the same day but there is no evidence to prove that fact. She had given complaint on 24-7-1980 and based on that police registered a case against the five accused persons. During the course of investigation an identification parade was conducted in the presence of a judicial magistrate and four of the five accused persons were identified by her.

3. The Sessions Judge after considering the evidence on record held that the prosecution proved the commission of offence by the four accused persons. The High Court in appeal acquitted the respondents mainly on two grounds. The High Court considered the evidence of the victim wherein she stated that she was not hundred per cent sure as to whether the same accused had committed the offence. The learned single Judge also taken note of the fact that the FIR was delayed by three days.

4. The counsel for the State contended that the delay in giving the first information was satisfactorily explained. He submitted that the victim had given a written complaint but the police did not take the matter seriously and registered a case. There are no materials before us to show whether she had given written complaint on 21.7.1980 itself. It appears that the police has committed serious flaws in the matter of investigation of this case. It is very unfortunate that in a case where a foreign lady was allegedly raped in an internationally known tourist place, the police did not take any urgent action and investigated the case with all seriousness. This is a matter to be taken note of by the State Government and do the needful. The negligence and utter callousness on the part of police allowed the accused to escape from the clutches of law.

5. This being an appeal against acquittal, this Court would be slow in reversing the same unless the impugned judgment is perverse and unreasonable and caused serious miscarriage of justice. The High Court has taken a plausible view and it cannot be said that the accused are not entitled to benefit of doubt when the prosecution evidence is not inspiring confidence. The non-examination of Ramesh who was allegedly present at the time of incident also cast a