1988 Supreme(Raj) 414
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Farooq Hasan, J.
Mahesh Singh - Appellant
Versus
State of Rajasthan - Respondent
S.B. Cr. Appeal No. 20 of 1987 (Against the Judgment dated 22-12-1986 passed by Shri S.L. Shrimali, A.S.J. Deeg, in Ss. case No. 12 of 1986).
Decided On : 21-01-1988
In a rape case, the delay in lodging the FIR, the non-examination of the victim, the evidence of made-up witnesses, the medical evidence, and the contradictions in the prosecution case must be considered in determining the guilt of the accused.
Headnote:
CRIMINAL APPEAL - RAPE - DELAY IN LODGING FIR - NON-EXAMINATION OF VICTIM - INCOMPETENCE OF WITNESS - EVIDENCE OF MADE-UP WITNESSES - MEDICAL EVIDENCE - CONTRADICTIONS IN PROSECUTION CASE - BENEFIT OF DOUBT TO ACCUSED.
Fact of the Case:
The appellant was convicted of rape and sentenced to 10 years' rigorous imprisonment and a fine of Rs. 500/-. The prosecution alleged that the appellant had raped the victim, a 6-year-old girl, on February 13, 1986. The victim's mother lodged a report with the police on February 14, 1986, after a delay of 14 hours. The victim was not examined by the court, and the medical report did not provide a definite opinion on whether rape had been committed.
Finding of the Court:
The court found that the delay in lodging the FIR was not satisfactorily explained and that the victim's non-examination was a material defect in the prosecution case. The court also found that the evidence of two witnesses who claimed to have seen the victim with the appellant was planted during the investigation. The medical evidence did not provide a definite opinion on whether rape had been committed. The court also noted contradictions in the prosecution case, including the victim's mother's statement that the victim was initially reluctant to say anything about the incident.
Issues: 1. Whether the delay in lodging the FIR was satisfactorily explained? 2. Whether the non-examination of the victim was a material defect in the prosecution case? 3. Whether the evidence of the two witnesses who claimed to have seen the victim with the appellant was reliable? 4. Whether the medical evidence provided a definite opinion on whether rape had been committed? 5. Whether there were contradictions in the prosecution case?
Ratio Decidendi: 1. The court held that the delay in lodging the FIR was not satisfactorily explained, as the prosecution witnesses admitted that the incident was known to the inhabitants of the town and that a large number of persons assembled at the appellant's residence and at the police station. 2. The court held that the non-examination of the victim was a material defect in the prosecution case, as the victim was the sole witness to the genesis of the offence of rape against the appellant. 3. The court held that the evidence of the two witnesses who claimed to have seen the victim with the appellant was not reliable, as their names were not mentioned in the FIR and they were not disclosed by the victim's mother during investigation. 4. The court held that the medical evidence did not provide a definite opinion on whether rape had been committed, as the doctor who examined the victim did not state that any rape had been committed and merely referred to a laceration on the victim's genital area. 5. The court held that there were contradictions in the prosecution case, including the victim's mother's statement that the victim was initially reluctant to say anything about the incident.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant.
JUDGMENT
1. - This criminal appeal is directed against the judgment dated December 22, 1986, passed by the Additional Sessions Judge, Deeg whereby the learned Additional Sessions Judge convicted the appellant for the offence under Section 37b, IPC and sentenced him to undergo 10 years R.I. with a fine of Rs, 500/-in default, to further undergo 3 months R. I.
2. Brief facts giving rise to this appeal are that Smt. Radha Devi w/o Bal Mukand Beghela Thakur, r/o Shroti Mohalla, Town Kama (Bharatpur district) lodged an oral report on 14th February, 1986 at 8 a.m. at police station Kama with these allegations that, on February 13, 1986 at about 7 p m. her daughter, Kumari Kusum aged 6 years told her that she had gone to the house of her AIR 1973 SC 501 Rel. on. Para 19, 20 & 21 brother and sister-in-law (Bhabhi) - after half an hour, Kumari Kusum came weeping back to her house - on this, she enquired into the matter then Kumari Kusum told her that Mahesh has committed rape with her. It was further alleged that Smt. Radha went to the house of Mahesh alongwith Shivram and Budharam. where Mahesh was present and they enquired from him and he admitted his fault.
3. On the aforesaid report, a case for offence under Section 376, IPC was registered against the appellant, and after usual investigation challan was filed for the aforesaid offence The prosecution produced inasmuch as 8 witnesses alongwith certain documents in support of its case The appellant was examined under Section 313, Cr. P.C. who denied the allegations levelled against him by the prosecution witnesses. The learned trial court, after nearing the parties, found the appellant guilty and sentenced him as stated herein before. Hence this appeal.
4. I have heard the learned counsel for the parties.
5. Firstly, Shri Biri Singh, learned counsel for the appellant, contended that in the instant case. Kumari Kusum has not been produced by the prosecution who was the sole witness to prove the genesis of the offence of rape against the appellant Second contention of Shri Singh is that the report had been lodged after inordinate delay which has also not been explained by the prosecution, and in these circumstances, the delay was fatal and on this ground, the appellant was `entitled to get its benefit for acquittal.
6. Next submission of Shri Singh is that the doctor who examined Kumari Kusum, neither in his statement nor in the report prepared by him, has stated that any rape was committed on the person of Kumari Kusum and he merely stated that a laceration was found on genital area and referred bruise of lavia tnineria and vaginal orifice. Shri Singh then contended that the case against the appellant is based on hear say evidence The statement of Smt. Radha Devi (informant) (PW 1) is based on information or on the observance only, and in this view of the matter, according to him, it cannot be said that it is substantial piece of evidence against the appellant Thus, Shri Singh argued that the learned Additional Sessions Judge fell in error in observing that Kumari Kusum was a fire of tender age and she was not in a position to give her statement merely on the basis of the application which had been filed by the learned Asstt. Public Prosecutor before the trial Court, In this connection Shri Singh submitted that the learned trial court did not consider as to whether Kumari Kusum was a Competent witness or not which was essential as per the provisions contained in Section 118 of the Indian Evidence Act.
7. Shri Singh then added that Bansilal (PW 4) and Chandra Prakash (PW 5) are made up witnesses and no reliance can be placed on the testimony of these two witnesses because their names have neither been mentioned in the FIR. tor the same were disclosed by Smt. Radha in her statement taken during investigation.
8. Learned Public Prosecutor, on the other hand, contended that the Bksraed trial Court was justified in convicting the accused-appellant because there evidence against the appellant and
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