Inordinate delay in lodging FIR, prior complaint of blackmailing, and lack of evidence to establish the offence of rape led to the acquittal of the appellant.

JUDGMENT

1. The appellant has preferred the instant appeal aggrieved by the judgment and order dated 2.6.2016 whereby the appellant has been convicted for offence under Section 376 of IPC and sentenced to 7 years rigorous imprisonment with fine of Rs.10,000/-, and to further undergo 3 months rigorous imprisonment on non-payment of fine.

2. Briefly stated the facts of the case are that an FIR was lodged through a complaint by Hemant Kumar Yadav, husband of the victim stating therein that on 20.4.2010, the accused clicked obscene photographs and made obscene video clips of his wife and committed rape with her, while she was unconscious.

Thereafter, on the threat of making the video clips public, he raped her at Karan Restaurant, Nehru Bazar, Jaipur; Milan Guest House, Janta Store, Bapu Nagar and at various other places. Prior to the present complaint, the accused filed a complaint alleging therein that he is being blackmailed by the prosecutrix and a compromise was arrived at between the parties and the SIMs of the accused as well as complainant's wife were destroyed. The present complaint was filed on 11.1.2011 and FIR was registered on 19.1.2011. The police, after due investigation, submitted the charge-sheet on 22.6.2013. The accused was charged for offence under Section 376 IPC. On behalf of the prosecution, 10 witnesses were examined as PW-1 to PW-10 and Exhibit-P1 to Exhibit-P13 documents were exhibited. Explanation of the accused was recorded under Section 313 Cr.P.C. in defence. Exhibit-D-1 to Exhibit-D-3 were exhibited. The trial Court after hearing the arguments, has convicted and sentenced the accused as aforesaid, aggrieved by which, the present appeal has been filed.

3. It is contended by learned counsel for the appellant that as per the FIR, first instance took place on 20.4.2010. The complaint was lodged on 11.1.2011 i.e. after an inordinate delay of more than 8 months. It is also contended that earlier, a complaint was lodged by the appellant against the complainant's wife with regard to blackmailing, in which a compromise took place between the parties and the SIMs were broken. At that time also, the victim did not make any complaint with regard to rape.

4. It is also contended that from the document Exhibit-P11 - call details, which is produced on behalf of the prosecution, it is evident that number of calls were made by the victim to the accused and the duration of call is also for about 20 minutes per call. It is further contended that in the complaint (Exhibit-D-2), which was lodged by the appellant, there was specific allegation that the victim is blackmailing and demanding Rs.10,000/-. As many as 85 WhatsApp messages were also sent by the victim to the appellant. It is contended that the fact that WhatsApp messages were sent and received by the appellant is admitted by the complainant and the victim.

5. It is contended that present complaint has been lodged to extort money. It is also contended that except statement of the victim, there is no other evidence to establish that the victim was raped by the appellant. It is further contended that no obscene material has been recovered or produced before the Court below to establish the fact that the victim was raped on the threat of making the obscene photos public. It is further contended that neither any record from the hotel was seized nor any witness was produced to establish that the victim stayed with the appellant at the hotel. It is contended that the medical of the victim, which was done after one year of the incident, does not establish commission of the offence of rape. In support of his arguments, learned counsel has placed reliance on Anita Versus State of Rajasthan: 2013 (3) Cri.L.R. (Raj.) 1624 and Amit Kumar @ Vicky Versus State of Punjab (P&H): 2014 (3) R.C.R. (Criminal) 579.

6. I have considered the contentions and perused the record as well as the statement of the witnesses.

7. Complainant - husband of the victim - PW-9 is an important witness, who h