ORDER :

1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.

2. The present criminal appeal under Section 374(2) has been preferred claiming the following relief :

“It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused-appellant may be acquitted of all the charges levelled against him.”

3. The matter pertains to an incident which occurred in the year 1991 and the present appeal has been pending since the year 1993.

4. Vide impugned judgment dated 20.08.1993, the learned Sessions Judge, Churu in Criminal Case No.154/92 though acquitted the accused-appellant for the offence under Section 376 IPC, but convicted him for the offences under Sections 448, 376/511 IPC and for the offence under Section 376/511, he was sentenced to undergo two years’ R.I., along with a fine of Rs. 500/-, in default of payment of which he was to further undergo one month’s R.I.; for the offence under Section 448 IPC, he was sentenced to undergo one month’s R.I., alongwith a fine of Rs.100/-, in default of payment of which, he was to further undergo seven days’ R.I. The offences under Sections 448 IPC is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.1000/-. The offences under Sections 376/511 IPC is punishable with imprisonment of either description for a term which (shall not be less than ten year, but which may extend to imprisonment for life, and shall also be liable to fine).

5. Learned counsel for the accused-appellant submits that at the time of occurrence of the alleged incident, the accused-appellant was 16 years, and therefore, below 21 years of age, on the date of the commission of the alleged incidents, and that he neither of them has any criminal antecedents to his discredit.

6. Learned counsel for the appellant submits that the incident reported is alleged to have taken place on 11.02.1991. Learned counsel further submits that a FIR was registered under Sections 376 & 450 IPC. Learned counsel also submits that after thorough investigation, the challan was filed under Sections 448 & 323 IPC. Learned counsel further submits that thereafter, the learned Magistrate added Section 376 IPC and committed the case to the court of Sessions. Learned counsel also submits that thereafter, the conviction has been made by the learned Sessions Court under Sections 448 & 376/511 IPC awarding sentence of two years rigorous imprisonment and a fine of Rs.500/-.

7. Learned counsel further submits that on bare reading of the statement rendered by the prosecutrix in the capacity of PW-1, in which, she has clearly deposed that the accused is her nephew and they were not on talking terms as both the families were having dispute, however, she has deposed rape too. Learned counsel also submits that there was an effort of compromise between the parties, which could not succeed.

8. Learned counsel further submits that the independent witnesses, who are DW-1 Panna Lal and DW-2 Sita Ram, have not supported the prosecution story and have rather supported the compromise. Learned counsel also submits that the medical report indicates that there was no injury on the lower part of the body. Learned counsel has also pointed out that there is a delay of 28 hours in lodging the FIR.

9. Learned counsel for the appellant further submits that the appellant do not have any criminal antecedent to his discredit.

10. Learned counsel for the appellant also submits that the sentence awarded to the appellant(s) was suspended by this Hon’ble Court vide the order dated 20.09.1993, passed in S.B. Criminal Misc. Bail No. 344/1993, and thus, he is on bail.

11. Learned counsel for the accused-appellant however, makes a limited prayer that the accused-appellant may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (h