JASRAJ CHOPRA, J. - (1.) THIS is an appeal against the judgment of the learned Sessions Judge, Merta dated 22. 11. 1978 whereby the learned Sessions Judge has held the accused-appellant Narayan guilty of the offences under Ss. 376 and 451 [pc and has sentenced him to two years rigorous imprisonment together with a fine of Rs. 1,000/- and in default to undergo three months' rigorous imprisonment on the first count and to undergo one year's rigorous imprisonment together with a fine of Rs. 500/- and in default to undergo one month's rigorous imprisonment, on the second count. Both the substantive sentences were ordered to run concurrently.
(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are: that Mst. Koyali wife of complainant Tulchharam, on 23. 10. 76 at about 9 A. M. went to her Bada to collect cowdung and to give fodder to the animals. It is alleged that accused Narayan who is the real brother-in-law of Tulchharam's sister entered the Bada and finding Mst. Koyali alone caught bold of her from back and pulled her to the ground and then raised her Ghaghara and committed rape with her. Mst. Koyali cried for help. She caused bite-injuries to him by her teeth and moved her legs and hands for releasing herself from the hold of the accused. It is alleged that on hearing her cries Bherudan Bhambhi and Jogida Bhambhi came there and they pulled the accused from over Mst. Koyali. THE accused then ran away from the Bada of Tulchharam and in the way. when Tulchharam met him, he threw stones on him and ran away, This occurrence happened at about 9 A. M. on 23. 10. 76 but no report of the incident was lodged till 25. 10. 76. However, on 25. 10. 1976, a complaint has been filed in the Court which was forwarded to the Police on 26. 10. 76 for investigation under s. 156 (3) Cr. P. C. It was received by the S. H. O. on 28. 10. 76. A case under Ss. 376, 452, 323, 342 and 147 IPC was registered against the accused-appellant. The Police inspected the site and got Mst. Koyali medically examined. It is alleged that accused Narayan also lodged a report at Police Station, Merta City on 23. 10. 76 but that report has not been produced before the Court but his injury report Ex- P. 2 has been produced. He was medically examined on 23. 10. . 76 itself. Be that as it may, after usual investigation, a case against the accused-appellant was challan in the court of learned Munsif & Judicial Magistrate, Merta City, from where, it was committed to the Court of the learned Sessions Judge. Merta for trial, who after holding trial, convicted and sentenced the accused-appellant as aforesaid. Hence this appeal. I have heard M/s. S. R. Singhi and Suresh Kumbhat, the learned counsel appearing for the accused-appellant and Mr. R. K. Soni, the learned Public Prosecutor appearing for the State and have carefully gone through the record of Che case.
(3.) MR. S. R, Singhi, the learned counsel appearing for the accused-appellant has arged chat the learned lower court has taken a very superficial view of Che evidence on record. According to him, on a clear scrutiny of the evidence on record, the case of the prosecution fail to the ground. He has submitted that in this case, the FIR has been lodged late and the testimony of the eye witnesses is contradictory. He has further submitted that a false case has been foisted against the accused-appellant to wriggle out of the case which was instituted by Che accused-appellant against the complainant Tulchharam on 23. 10. 1976 itself. On the other hand, Mr. R. K. Soni, the learned Public Prosecutor appearing for the State has submitted that it is a fully proved case. Two independent eye witnesses have supported the testimony of the prosecutrix. The case of the prosecution is fully supported by the medical evidence and, therefore, the judgment of the learned lower court is perfectly justified and deserves to be sustained. I have given my most earnest consideration to the rival submissions made at the bar. On a careful reading of the evidence on record, apparently, it appears that the case of the prosecution is very strong and it is supported by two eye witnesses of the same village and, therefore, as per the learned Public Prosecutor, there is no escape from the fact that such an offence has been committed by the accused-appellant specially when the testimony of the prosecution is fully supported by the medical testimony. However,if we critically examine the evidence recorded in the case, we find that the evidence which has been led in the case is snot worth reliance and the judgment of the learned lower court cannot be sustained, ft is alleged that the occurrence took place on 23. 10. 1976 at about 9 A. M. It has taken place in the Bada of Tulchharam. It appears improbable that somebody will choose that hour of the day for committing forcible rape with a lady in a Bada which is just near the public way. It is admitted case of the prosecution that it (23. 10. 1976) was the next day of the Deepawali and on that day, persons of Hindu community go for meeting with each other the houses of each other and, therefore, a lot of movement takes place on that day and so, nobody can commit forcible rape with a lady in a Bada which is situated just near the public way. Mst. Koyali has stated that accused Narayan came to her house only ones and that was before about 6 years of the occurrence. It is inconceivable that a man will come to commit rape with a lady, who is his sister-in-law's sister-in-law after about 6 years without any rhyms or reason and that too in the day hours. It appears highly improbable and against the human conduct that without any prior acquaintance, such a thing can be done in bread-day light specially when the accused and the prosecutrix belong to two different villages and they have not met with each other for the past about 6 years. Village Gwardi is a big village. The occurrence took place on 23. 10. 76 at about 9 A. M. but its report was not lodged before 25. 10. 1976. It has been stated by Tulchharam that the accused stopped him from boarding the bus to report the matter. If that was so, he could have complained about it to the other villagers and could have sou-girt their help to report such a grave occurrence to the police. In his cross-examination, he has stated that he did not tell about it to any village person It is improbable that if a man's wife is raped by his own near relative, he will not tell about it to any person and will remain in village for about 2 days and shall not ask for help of the villagers for lodging report of the incident to the police. He could as well have sent the report with anybody to the Police Station if he was prevented from doing so. ;