The main legal point established in the judgment is that delay in lodging the FIR, material contradictions in evidence, and enmity between the parties can raise doubts about the prosecution's case, and the evidence must inspire confidence to establish guilt beyond reasonable doubt.

JUDGMENT :

1. As per order dated 17.02.2014, this appeal in respect of appellant no.3, Mohan, after his death, has been abated and this appeal has also been abated vide order dated 29.11.2016 in respect of appellant no.1, Prem. Hence, this appeal survives only in respect of appellant no.2, Nand Kishor.

2. Heard Sri Ajeet Kumar, learned counsel for the surviving appellant, Sri Arvind Kumar Singh, learned AGA for the State and perused the record.

3. This appeal has been preferred against the judgment and order dated 01.10.1999 passed by Special Judge (EC Act)/Additional Sessions Judge, Barabanki in ST No.99 of 1994 (State Vs. Prem and others) arising out of Case Crime No.98 of 1992, under Section 376(2)(g) IPC, Police Station Tikait Nagar, District Barabanki to undergo ten years rigorous imprisonment and fine of Rs.2,500/-to each and in default of payment of fine four months rigorous imprisonment to each of the convicts.

(I) Grounds of appeal

4. The appellants had taken grounds that the learned Sessions Judge had committed manifest error in not considering the defence evidence; there was inordinate delay of about 9 days in filing the application before the Judicial Magistrate; no FIR was lodged regarding the alleged incident; the Sessions Judge has committed manifest error of law in not considering the delay and in convicting the appellants without application of mind; there was no public witness of the alleged crime; the appellants have been falsely implicated in the case due to previous enmity; the prosecution witnesses have not supported the prosecution version; there was vital discrepancy in the evidence of prosecutrix and the prosecution witnesses; the eye-witnesses have contradicted the prosecutrix which falsifies the entire prosecution case; there was material contradiction in the statement recorded under Section 161 CrPC and the evidence; the clothes of the prosecutrix were not sent for chemical examination; appellants (Prem and Nand Kishor) both are devar and Mohan is father-in-law of the prosecutrix; the trial court has erred in not appreciating the contradictions in the evidence of all the witnesses; no spermatozoa was found in the private part of the prosecutrix; there was family dispute between the prosecutrix and the appellants; no injury was found on the private part or on the body of the prosecutrix; PW-6, medical officer has deposed that no opinion of rape can be given; the delay in filing the application before the Judicial Magistrate is not explained which creates doubt on the entire prosecution story; the alleged witnesses Chhotka, Bahadur and others who allegedly had seen the occurrence were not examined as a witness deliberately, therefore, the conviction and sentencing passed by the trial court be set aside and the appellant be acquitted.

(II) Brief facts of the case

5. According to the prosecution story, the victim moved an application under Section 156(3) CrPC before the concerned Magistrate that in the night of 09/10.06.1992 at about 12 o'clock when she was sleeping at her door and lantern was lighting and her husband Sohan Lal had gone to the kinship, the accused Prem reached on the spot and started raping with her. She kicked and pushed him, by then Nand Kishor and Mohan caught hold of her. On her noise neighbours reached there and accused persons escaped. She could not go to the police station as her husband was not present, when her husband came, she had gone to the police station. It is, therefore, requested to kindly direct the police station Tikait Nagar to lodge the FIR and investigate the matter.

6. The aforesaid application was moved on 18.06.1992 after eight days of the alleged incident. The case was lodged at Crime No.98 of 1992, under Section 376 IPC. The investigating officer (for short ‘IO’) investigated the matter, prepared site plan Ex.Ka-6 and after recording the statements of the witnesse