- (1.) HON'ble GARG, J.-This appeal has been preferred by the accused appellant against the judgment and order of conviction dated 28. 09. 1987 passed by the learned Additional Sessions Judge No. 2, Hanumangarh in Sessions Case No. 92/85 by which the learned Addl. Sessions Judge No. 2 while acquitting accused appellant for offence under Section 376/511 I. P. C. , convicted him for offence under Section 354 IPC and sentenced him to one year's R. I.
(2.) IT arises in the following circumstances : i) On 21. 11. 84 P. W. 1 Mahendra Singh lodged an oral report (Ex. P/1) with the Police Station Hanumangarh Town stating inter alia that accused-appellant and PW. 1 Mahendra Singh used to work in the field of one Charan Singh along with their families and in the night of 08. 11. 84 children of PW. 1 Mahendra Singh were sleeping in a room and rest of the family members were sleeping outside the room. IT was also stated in the report (Ex. P/1) that family of accused appellant along with his children was also sleeping in another room. In that night accused appellant tried to commit rape with his daughter PW. 2 Murti aged about 12-13 years (hereinafter referred to as "the prosecutrix") but his another daughter Amarjeet Kaur woke up and raised hue and cry on which PW. 1 Mahendra Singh and his wife came there and saw that accused appellant was naked and he was pressing the mouth of PW. 2 Murti and on seeing them accused appellant ran away. Thereafter he tried to catch hold of accused appellant but he could not be caught hold of. IT was also stated in the report (Ex. P/1) that thereafter Panchayat was called in which PW1 Mahendra Singh was told to do whatever he wanted to do. ii) That on that report (Ex. P/1), police chalked out regular FIR Ex. P/1 and started investigation. iii) That during investigation, the accused appellant was got arrested on 11. 12. 1984 through Fard Ex. P/3. iv) That after usual investigation, the police submitted challan against the accused appellant for offence under Section 376/511 I. P. C. That on 26. 8. 86, charge for offence under Sections 376/511 I. P. C. was framed by the learned Additional Sessions Judge No. 2, Hanumangarh against the accused appellant who pleaded not guilty and claimed trial. At the trial, prosecution examined as many as 5 witnesses in support of its case. Accused appellant in his statement under Section 313 Cr. P. C. denied to have committed any offence and no witness was examined by the accused appellant in defence. At the conclusion of the trial, the learned Trial Judge through his judgment and order dtd. 28. 9. 87 convicted and sentenced accused appellant as stated above, holding that the delay in lodging the FIR was not fatal and further the learned trial Judge placed reliance on the statement of P. W. 2 Murti. Aggrieved from the judgment and order dtd. 28. 9. 87 passed by the learned Addl. Sessions Judge No. 2, Hanumangarh, this appeal has been filed by the accused appellant.
(3.) THAT in this appeal following submissions have been raised by the learned counsel for the appellant: i) THAT the delay in this case is not minor delay, but substantial delay as the incident took place on 8. 11. 84 and the report was lodged on 21. 11. 84 and therefore, there is delay of 13 days and this delay itself throws a doubt on the prosecution story and thus, the accused appellant should be given the benefit of doubt. ii) THAT in this case the statement of prosecutrix i. e. P. W. 2 Murti does not inspire confidence at all and other witnesses produced by the prosecution are all relative witnesses namely P. W. 1 Mahendra Singh is father of prosecutrix (P. W. 2 Murti) and P. W. 3 Resham Singh is brother of P. W. 2 Murti and P. W. 4 Sadhu Singh is cousin brother of P. W. 2 Murti and no independent witness has been produced in this case. iii) THAT no other corroborative evidence e. g. medical evidence and seizure of cloths etc. has been produced by the prosecution. iv) THAT apart, the main witness in this case, namely, Noor Nabi, Sarpanch has also not been produced and, therefore, the findings of conviction recorded by the learned trial Court should be set aside and the accused appellant should be acquitted. Before proceeding further, it may be stated here that there is no dispute on the point that alleged incident took place on 8. 11. 84 and the report (Ex. P/1) was lodged by P. W. 1 Mahendra Singh on 21. 11. 84. There is also no dispute on the point that no medical examination of P. W. 2 Murti was got conducted and thus no injury of any sort was found on the person of P. W. 2 Murti. ;