IMPORTANT POINT
Prosecution version can not be thrown out only on the ground of delay in lodging F.I.R.

JUDGMENT (ORAL)

Dalveer Bhandari, J. - This appeal is directed against the order and judgment dated 8th February, 1991, passed by Shri R.L. Chug, Additional Sessions Judge, Delhi.

2. The brief facts which are necessary to dispose of this appeal are recapitulated as under:

On 7th March, 1987, Bhagwan Dass, brother of the prosecutrix, Usha lodged a First Information Report that on 1.3.1987, he had gone to a marriage with his brother and younger sister leaving other younger sister Usha in the house. Kali Charan, appellant who is resident of Kachchi Jhuggi, Majnukatilla came to his house at about 9.30 P.M. an raped his younger sister who was all alone in the house. He has further slated that Usha wanted to raise an alarm but the accused put his hand on her mouth and threatened to kill her. Out of fear, she did not narrate the unfortunate incident to anyone. When on 7.3.1987, he saw her in a indifferent condition of health and enquired from her as to its cause, only then, Usha narrated the incident to him. Thereafter an F.I.R. was lodged at 11.25 P.M. on 7.3.1987.

3. Sub Inspector, Suraj Pal Singh, P.W. 10 went to the spot and took down the statement of the prosecutrix Usha. He also took her to Hindu Rao Hospital where she was referred to a Gynecologyst for examination and opinion regarding rape and to the Radiologist for X-Rays for determination of her age, Dr. Sandhiya who examined Usha, prosecutrix, found that secondary sex characters were not developed. Local vulva showed redness and swelling. She also found that the cervix and uterus were small and underdeveloped. She took slides for us but did not expect any positive result because, they do not survive after twenty four hours. In this case, the incident took place on 1st March, 1987 and she was examined on 8th March, 1987 almost after 7 days of the incident.

4. Dr. A.P. Sharma, Radiologist, on X-ray examination found that the prosecutrix Usha, had completed 12 years and was less than 14 years of age. She was produced before the Metropolitan Magistrate and her statement u/s 164 of the Code of Criminal Procedure was recorded on 9th March, 1987. In that statement, she has clearly and categorically stated that on 1st March, 1987, when her brother had gone to attend a marriage party, she was alone in her house. At that time, one Kali Charan who lives in her neighbourhood came to her house and he forcibly had sexual intercourse with her. When she tried to raise an alarm, he gagged her and threatened to kill her.

5. In this case, the prosecution has examined prosecutrix Usha, as P.W. 2. Her statement is consistent with her earlier statement under Section 164 of the Code of Criminal Procedure, on 9th March, 1987. The prosecution has also examined Bhagwan Dass, brother of prosecutrix Usha. He has narrated the same version. The prosecution has also examined P.W. 10 Sub Inspector Suraj Pal Singh. He has also fully supported the version of the prosecution. P.W. 4 is Mr. Jaswant Singh, Metropolitan Magistrate recorded the statement of prosecutrix Usha under Section 164 of the Code of Criminal Procedure. P.W. 5 if Dr. O.P. Sharma, who had examine the prosecutrix and gave his opinion to the effect that she was about 12 years and less than 14 years of age. Sub Inspector P.W. 6 deposed about the registration of the first information. In this case, the investigation was entrusted to Women Cell, Headquarter, Delhi and the Investigation was completed by P.W. 7. S.I. Amar Singh, P.W. 7 prepared the site plan Ex. P.W .7/A and recorded the statement of the formal witnesses.

6. On the basis of the creditworthy prosecution evidence, the learned Additional Sessions Judge has convicted the accused for an offence u/s 376, I.P.C. and sentenced him to R.I. for ten years and a [me of Rs. 4000/-. In default of payment of fine, the accused was ordered to undergo S.I. for six months.

7. In this case, the Court had appointed Mr. Akshay Vipin as amicus curiae, for the appellant. Learned amicus curiae pointed ce