The delay in lodging the FIR without explanation and lack of corroboration can render the victim's testimony unreliable. Additionally, a court must have jurisdiction over the offence being tried.

JUDGMENT :

Virendra Kumar Srivastava, J.

1. The present jail appeal, under Section 383 Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Code’) has been filed by accused-appellant Sita Ram Sharma (hereinafter referred to as ‘appellant’) through Superintendent of District Jail, Varanasi, against judgment and order dated 22.5.2015 passed by Additional Session Judge (Fast Track Court, Varanasi) in Session Trial No. 181 of 2013, (State vs. Sita Ram Sharma), Police Station (hereinafter referred to as ‘P.S.’) Cantt, District Varanasi, under Section 323/376 I.P.C., whereby, he has been acquitted for an offence under Section 323 I.P.C. and convicted and sentenced for offence under Section 376 I.P.C. for life imprisonment and fine of Rs. 20,000/-. In default of payment of fine, he has further been directed to under go for one year simple imprisonment.

2. The brief facts of prosecution case are that PW-1, victim (name of the prosecutrix is not being disclosed in this judgment, she is being shown PW-1, victim’) is daughter of appellant, who is resident of Village Nimiyatar, P.S. Dugariya, District Gaya (Bihar). PW-1, victim appeared, on 29.5.2013 at 6:30 p.m., at P.S. Cantt, District Varanasi, with Sister Manju (PW-5), Director of DARE Organization (N.G.O.) 2656 C.I.M. Colony, Sikrol P.S. Cantt, and lodged First Information Report (Ex.Ka.1) (hereinafter referred to as ‘F.I.R.’) addressed to Child Welfare Committee (hereinafter referred to as “C.W.C”), alleging that she had left her house in 2006 because appellant, her father, used to commit rape with her and also beat her. He also used to commit rape with her elder sister and when her elder sister happened to pregnant, he got her pregnancy aborted. In F.I.R. it has also been stated that her father, appellant used to beat her mother to such extent that her mother got mentally sick. In view of above fact, she wanted to lodge her father in jail because she did not know that her father had committed how many such offences. It was also been stated that she became so fed up with his father that she fled away, leaving her house, and is away from her house since eight years. She hates her father and wish to get her father punished with severe punishment. Upon such information, Chik F.I.R. (Ex.Ka.6) was prepared by PW-7 Const. Rajesh Kumar and the said information was entered in General Diary (Ex.ka.7). Victim was sent for medical examination and investigation was under taken by PW-4 S.I. Dhakeshwar Singh.

3. PW1-Victim was examined by PW-6, Dr. Krishna Yadav. According to him, secondary sexual character of victim were fully developed. No injury was found either on her body or on her private part; her hymen was torn; vagina admits two fingers easily. She had prepared vaginal smear slides of victim and sent it to pathologist for examination of spermatozoa. According to her, in pathological and radiological test, no dead or alive spermatozoa were found; and as per report of Child Medical Officer (hereinafter referred to as “C.M.O”), Varanasi, victim was aged about 19 years. She prepared Medico Legal Examination Report (Ex.Ka.4/1) and its supplementary report (Ex.Ka.5) but no definite opinion regarding rape could be given.

4. During investigation, S.I. PW-4, Dhakeshwar Singh (I.O.) recorded statement of PW-1-Victim, her sister, Director NGO (PW-5) and statement of appellant-Sita Ram Sharma. Meanwhile, he was transferred and further investigation was handed over to PW-3 S.I. Shivanand Mishra who perused medical report of victim and copied it in case diary. He produced the victim before Judicial Magistrate (ACJM-II), Varanasi, where her statement was recorded under Section 164 of Code. Meanwhile, he was also transferred and investigation was handed over to PW-2 S.I. Triveni Lal who recorded statement and asked the victim for inspection of the place of occurrence but victim did not give her consent. She was not ready to go to her village. On the request of victim, he did not transfer investigati