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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mr. Pankaj Bhandari, J.
Hamid Khan - Appellant
Versus
State Of Rajasthan - Respondent
Criminal Appeal No. 242 of 2008 Connected with S.B. Criminal Appeal No. 241 of 2008
Decided On : 31-07-2018
RAPE - SECTION 376(2)(G) IPC - DELAY IN LODGING FIR - EXPLANATION - MINOR DISCREPANCIES IN STATEMENT - NO GROUND FOR ACQUITTAL - CONVICTION UPHELD.
Fact of the Case:
Appellants were convicted under Section 366, 376(2)(g) IPC for gang rape. They appealed, arguing that there was an inordinate delay in lodging the FIR, the prosecutrix had turned hostile in the trial of a co-accused, and there was no explanation for the lack of injuries on the prosecutrix.
Finding of the Court:
The court found that the delay in lodging the FIR was explained by the fact that the prosecutrix and her family belonged to a rural background and that there was no enmity between them and the appellants. The court also found that the prosecutrix's statement was consistent and detailed, and that the minor discrepancies in her statement did not detract from its overall credibility.
Issues: 1. Whether the delay in lodging the FIR was fatal to the prosecution's case. 2. Whether the prosecutrix's failure to identify one of the co-accused in a separate trial affected the appellants' case. 3. Whether the lack of injuries on the prosecutrix's person weakened the prosecution's case.
Ratio Decidendi: 1. The court held that the delay in lodging the FIR was not fatal to the prosecution's case, as it was explained by the fact that the prosecutrix and her family belonged to a rural background and that there was no enmity between them and the appellants. 2. The court held that the prosecutrix's failure to identify one of the co-accused in a separate trial did not affect the appellants' case, as her statement in the present trial was consistent and detailed. 3. The court held that the lack of injuries on the prosecutrix's person did not weaken the prosecution's case, as it was possible that the injuries had healed by the time she was examined.
Final Decision: The court dismissed the appeals and upheld the convictions of the appellants.
JUDGMENT
Pankaj Bhandari, J. - Appellants have preferred these appeals aggrieved by judgment and order dated 29.1.2008 passed by Additional Sessions Judge (Fast Track) No.1, Ajmer in Sessions Case No.26/2006 whereby the Court below has convicted appellants under Section 366, 376 (2) (g) IPC and has imposed sentence for 10 years rigorous imprisonment and fine of Rs. 1,000/-. On non payment of fine to further undergo three months simple imprisonment and for offence under Section 366 IPC Court has sentenced the appellants for five years rigorous imprisonment and fine of Rs. 1,000/. On non-payment of fine to further undergo three months simple imprisonment.
2. It is contended by counsel for the appellants that the alleged incident is stated to have been taken place on 29th August, 2005. FIR was lodged on 16.9.2005 after an inordinate delay of 18 days. It is contended that the allegation was against five persons, two of co-accused-Ismail and Shabbir have been discharged. Abdul Rajjak has been acquitted after the present conviction order and Babu Singh and Jibrahim against harbouring the criminals have been acquitted under Section 216 Cr.P.C., 1973
3. It is contended that prosecutrix in trial of Abdul Rajjak has turned hostile and has not identified Abdul Rajjak as a result of which Abdul Rajjak stands acquitted by the trial Court. An application has been filed under Section 391 Cr.P.C., 1973 for taking further evidence on record. Copy of the statement of prosecutrix has been produced with the application. This Court permitted the appellant to argue on statement of the prosecutrix recorded by the Court after disposal of the present Sessions Case. It is contended by the counsel for the appellants that prosecutrix has not identified Abdul Rajjak against whom she has levelled allegation of rape as a result of which Abdul Rajjak stands acquitted. It is contended that there is no explanation for the inordinate delay in filing the FIR, husband of prosecutrix was informed on the same day, he reached the village after ten days but still there was delay in lodging of FIR. It is also contended that in FIR Ex.P6 which is a typed copy, name of present appellants is mentioned, but no details about the offence is mentioned. It is also contended that there is no injury on the person of prosecutrix and she has admitted that after the alleged offence, she stayed with her husband and had cohabited with him. It is argued that the marks of semen on her clothes cannot be considered as she had cohabited with her husband after the alleged incident. It is also contended that Ex.P-40 is the FSL report in which semen was detected on the clothes of the prosecutrix but no semen was detected on "Dari" upon which there is allegation that rape was committed. A ground is also raised that FSL report was not put to the accused in statement under Section 313 Cr.P.C., 1973 and as such the same cannot be considered by the Court as appellants were not provided any opportunity with regard to FSL report.
4. With regard to statement of the witnesses, it is contended that PW-2-Reshmi, who happens to be the neighbour, in her examination-in-chief has stated that the prosecutrix informed her that the present appellants and Abdul Rajjak have committed rape with her, but in cross-examination she has stated that prosecutrix never informed her about the incident and that she has in her examination-in-chief, given evidence as per the wish of her husband.
5. With regard to PW-6, it is contended that she has stated that the report was got typed at the police station whereas complainant, who happens to be the father of prosecutrix, has mentioned that the report was got written by an unkown person on a plain paper. It is contended that PW-15, 16, 17, 19 and 23 have turned hostile.
6. Learned Public Prosecutor has opposed the appeals. His contention is that prosecutrix and the complainant party are belongs to a village. Prosecutrix is an illiterate lady. FIR Ex.P-6 bears her thumb impres
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