The delay in filing an FIR in a rape case is not fatal, and the court must carefully evaluate the testimony of the prosecutrix and look for corroboration when necessary.

SUDHANSHU DHULIA, J.

1. The present two criminal appeals have been filed by the appellants against a common judgment and order dated 24.01.2017 passed by the Additional Sessions Judge, Ramnagar, District Nainital in Sessions Trial No.44 of 2016 “State Vs. Rajesh & another”, whereby the accused/appellants have been convicted under Section 376-D of IPC and have been sentenced for twenty years rigorous imprisonment with a fine of Rs.20,000/- (Rupees Twenty Thousand Only) each and in case of default in payment of fine, they shall undergo six months additional simple imprisonment under Section 376-D of IPC. The accused/appellants have further been convicted under Section 323 of IPC and have been sentenced for six months rigorous imprisonment with a fine of Rs.500/- (Rupees Five Hundred Only) each and in case of default in payment of fine, they shall undergo fifteen days additional simple imprisonment.

2. Both the victim as well as the accused/appellants before this Court are labourers who work in the unorganized sector. Their work is of loading of riverbed material on “buggis”, truck and other carriers. Although they are permanent resident of District Rampur in Uttar Pradesh, but presently they reside at Ramnagar, District Nainital, by making a temporary shed called “Jhopdi”, near their workplace. The alleged incident is said to have been committed by two such labourers who were aged around 18 to 20 years respectively. The victim and her husband are also labourers in the same place. The victim was aged between 35 to 40 years at the time of the alleged crime.

3. The first information report lodged by the prosecutrix on 06.04.2016 at Police Station Kotwali Ramnagar, at 11:33 P.M., says that she works on the bank of Kosi River. Her husband and her children are also engaged in the same work. Two days back i.e. on 04.04.2016 at about 09:00 P.M., when she had gone to answer the call of the nature, the accused Udal and Rajesh caught hold of her, gagged her by a cloth and then raped her repeatedly. One of the assailants was also carrying a knife with which she was threatened.

4. The prosecutrix was also beaten up by the accused persons. It is alleged that they kicked her on her private parts. Meanwhile, Brijesh, who is also a labourer and works in the same area arrived at the scene and saw the prosecutrix being raped by the appellants. He tried to intervene, but was slapped by the two, as a result he ran away from the spot. Thereafter, Pappu who is another labourer, came to the spot and he wanted to physically confront the accused as he was carrying a “Belcha”, but both the accused ran away from the spot, after ravishing the victim. Later, the prosecutrix informed her husband and requested him for medical examination. Later the first information report was lodged.

5. The accused Rajesh was arrested on 08.04.2016 at 09:51 A.M. from the same place, but the another accused, namely, Udal, as per the prosecution, was initially absconding, but later surrendered only on 29.05.2016. Meanwhile, the prosecutrix was medically examined on 07.04.2016 at R.D. Joshi Government Combined Hospital Ramnagar, District Nainital by a lady Doctor.

6. The statement given by the victim to the Doctor at the time of her medical examination was the first statement given by the prosecutrix, which needs to be examined. Her statement recorded in the medical report is as under:-

“According to the victim, she had gone to the river side to answer natures call (sic answer the call of nature) on 4/4/2016 around 8 PM, when two guys (whom she knows by name and live in her village), nabbed her and raped her, one by one. She tried to free herself and cried for help. Hearing her voice a guy named Pappu came to that place, seeing him, those rapists fled away. She went back home, took bath and changed her clothes after that. She informed her husband about the incident who informed the gram pradhan and after three days, today, she complained to the police.”

7. The medical