SANDEEP MEHTA, J. - (1.) Heard learned counsel for the parties.
(2.) The present appeal has been filed by the appellant Sitaram challenging the judgment dated 8.1.2008 passed by the learned Additional Sessions Judge (Fast Track) No.1, Udaipur in Sessions Case No.72/2007 whereby the appellant was convicted for the offence under Section 376 I.P.C. and sentenced to seven years' R.I. and a fine of Rs. 2,000/-, in default of payment of fine, to further undergo 6 months' R.I.
(3.) Succinctly stated the facts of the case are that the prosecutrix Mst.M (PW6) lodged a written report Ex.P/10 at the P.S. Gordhan Vilas, Udaipur on 5.4.2007. As per the allegation levelled in the report, the prosecutrix had gone to graze her goats in the grazing ground near the water park. It is alleged that while she was grazing the goats, in the afternoon at about 3:00 PM, Mohan Lal s/o Bhaboota, Sitaram s/o Panna Lal (appellant herein) and Jagdish s/o Sunder, all by caste Gameti, came there. Sitaram called her and allegedly told that he and her brother Tulsi Ram had quarrelled and as to whether she was aware of this fact. As soon as the prosecutrix reached near the accused, Sitaram caught hold of her in his arms and took her towards the big water pipes lying nearby. It was further alleged that she was thrown down and her clothes were lifted. The accused opened his pant and thereafter forced himself on to her. She resisted saying that she should not be subjected to rape and that she would complaint about this after going back to her home but the accused did not relent and committed rape upon her. In the meantime, Mohanlal also came there and tried to misbehave her but Sitaram (appellant) told that he should not have intercourse with the prosecutrix. On this, Mohanlal did not subject the prosecutrix to rape. Jagdish also did not commit rape with the prosecutrix. It was further alleged that she started to shout on which Sitaram threatened her not to disclose this fact to anybody at her home. She reached home with difficulty and thereafter she lost her speech and became unconscious. It was further alleged that she allegedly regained consciousness in the previous evening and thereafter, she told about the incident to her brother and uncle. Thereafter, these persons took the prosecutrix to the police station for filing report. The prosecutrix disclosed her age to be 17 years in the police enquiry. On the basis of this report, an FIR No.113/2007 was registered and investigation commenced. The accused was apprehended. The clothes of the prosecutrix as well as the accused were seized. The prosecutrix was subjected to medical examination and as per the medico-legal report (Ex.P/7), her hymen was found to be old torn. No opinion was given regarding rape. As per the age examination report of the prosecutrix, she was found to be above 16 years and below 17 years of age. After completing the investigation, a charge-sheet was laid against the appellant for the offence under Section 376 I.P.C. and against Mohanlal for the offences under Sections 376, 342 and 354/120B I.P.C. The accused Jagdish was charge-sheeted in the Juvenile Court being under 18 years of age. The case was committed to the Court of Additional Sessions Judge (Fast Track) No.1, Udaipur for trial. Charge was framed against the appellant for the offence under Section 376 I.P.C. whereas co-accused Mohanlal was charged for the offences under Sections 376, 342 and 354/120B I.P.C. Both pleaded not guilty and claimed trial. The prosecution examined nine witnesses in support of its case. The appellant in his statement under Section 313 Cr.P.C. denied the allegations of the prosecution but did not choose to lead any evidence in support of his defence. The learned subordinate court at the conclusion of the trial, whilst acquitting the co-accused Mohanlal, proceeded to hold the appellant guilty of the offence under Section 376 I.P.C. and sentenced him as above. Hence, this appeal. Learned counsel for the appellant vehemently contended that the whole story as set up by the prosecution is totally false. He contended that the FIR was filed belatedly after more than five days of occurrence and there is no plausible justification available on the record for the delay in filing of the FIR. He further contended that the testimony of the prosecution witnesses regarding the delay in filing the FIR is highly vacillating and contradictory. PW2 Khuman, the uncle of the prosecutrix, claimed that after the prosecutrix was subjected to rape, she lost her speech and she was treated at the hospital of Bakhtawar Lal. He submitted that no such person named Bakhtawar Lal was examined during investigation. He further submitted that as per the FIR, the prosecutrix had lost her senses and that she regained senses after three days and thereafter, the FIR was filed. Learned counsel submitted that it is apparent that the prosecutrix did not state in the FIR that she was subjected to any treatment before the filing of the FIR. Referring to the cross examination of the prosecutrix, he argued that the prosecutrix in her cross examination, admitted that she had been taken to Dr.Bakhatawar Lal where the doctor gave her a drip of Glucose. Learned counsel for the appellant pointed out the admission made by the prosecutrix that she did not tell the doctor about the rape allegedly having been committed upon her. Learned counsel further submitted that the Investigating Officer PW9 Sobhagya Singh also admitted that he did not make any investigation about the doctor who allegedly treated the prosecutrix during the five days preceding the filing of the report. Learned counsel for the appellant thus contended that the case as set up by the prosecution is totally false and the accused is entitled to an acquittal. He further contended that the learned subordinate court discarded the prosecution story so far as accused Mohanlal is concerned and thus, the appellant also deserves to be acquitted. Per contra, the learned Public Prosecutor vehemently opposed the submissions raised on behalf of the appellant. She argued that the prosecutrix was a young girl of 17 years and the accused has not been able to bring on record any reason as to why a false case of rape was foisted by the prosecutrix against him. Learned Public Prosecutor thus contended that the appeal is liable to be rejected. Heard and considered the arguments advanced at the bar and perused the impugned judgment as well as the record of the case. For the sake of convenience, a brief summary of the prosecution evidence is noted hereunder :- PW1 Raju Gameti was a witness regarding the seizure of the clothes of the accused as well as prosecutrix and the arrest of the accused. He turned hostile and did not support the prosecution case. PW2 Khuman is the uncle of the prosecutrix. He alleged that the prosecutrix had been raped by Sitaram, Mohanlal and Jagdish. Thereafter, she lost her voice and she was treated at the hospital of Bakhtawar Lal. He further alleged that the prosecutrix had received an injury on her tongue but still she told them about the incident of rape which had been committed with her. He further alleged that the prosecutrix told that Sitaram committed rape with her whilst the other co-accused caught hold of the pipe. In cross examination, the witness admitted that he came to know about rape having been committed with the prosecutrix five days after the incident. He further alleged that the prosecutrix had become unconscious after the incident and regained senses after four days. He further admitted that after coming to know of the act, he went to the house of Sitaram and made an enquiry from him and also talked about compromise. When confronted with his police statement, Ex.D/1, the witness admitted that the fact regarding the prosecutrix being unconscious was not mentioned in the said statement. He further admitted that Sitaram's mother and Kalu were called for settling the issue but they did not agree and that is why, the case was filed. PW3 Kishan was projected to be an eye witness of the incident but he turned hostile. He alleged that Sitaram called the prosecutrix to the pipe and was trying to force himself on her. He, however, stated that Sitaram did not do anything in his presence. PW4 Chainram was also claimed to be an eye witness of the incident. He alleged that Sitaram took the prosecutrix to the pipe and fell on the top of her. In cross examination, he admitted that he did not see what was happening inside the pipe. He also admitted that after the incident, he and the prosecutrix took food together. He also admitted that he did not tell anybody about the incident for three days. PW5 Dr.Kishan Dhanak conducted the medical examination of the prosecutrix regarding her age and found her age to be between 15 to 17 years. He also stated that the medico legal examination of the prosecutrix regarding rape was conducted by Dr.Sangeeta Sen and the report Ex.P/7 was proved by the witness. PW6 the prosecutrix alleged that she had gone to graze her goats near the water park. There, the appellant, Mohanlal and Jagdish came. The appellant Sitaram called her telling that he want to say something to her. Thereafter, when she went near the accused, he caught hold of her arms and Jagdish held her legs. Sitaram opened his pant and lifted her petticot and committed rape with her. Mohanlal also tried to do the same but Sitaram prevented him from committing rape upon the prosecutrix. She further alleged that she kept on shouting but the accused did not desist from the foul act. After the incident, she went back to her home slowly and told about the incident to her uncle and aunt after three days. She alleged that the police took her to the place of occurrence and prepared the documents. In her cross examination, she admitted that the pipe was not wide enough for anybody to enter in the same in a standing position. She further alleged that Sitaram had forcibly dragged her. She further alleged that she did not receive any abrasion or any injury on her body except the tooth mark on her tongue. She admitted that the entry in the pipe was possible only in a reclining position. She further alleged that Sitaram was related to her and, therefore, used to come to her house. She was also given a suggestion that she knew Sitaram from before and wanted to marry him. She also admitted in her cross examination that after she had been subjected to rape, she did not tell anybody at her house about the incident. She further admitted that her uncle took her to the doctor on the next day for treatment and there she was given a drip of Glucose. She did not tell the doctor about the alleged act of rape which took place with her. She also admitted that after the act of rape, she collected her goats and came back to her home. She also admitted that Kishan and Chainram were watching the act by hiding themselves. She also admitted that despite having been dragged in the pipe, she did not receive any abrasion anywhere on her body. She also stated that the clothes which were worn by her at the time of incident, were washed by her mother. PW7 Gamer Lal was a constable posted at P.S. Gordhan Vilas who carried the articles from Malkhana at Udaipur to F.S.L. PW8 Mohammed Mustak was a Head Constable posted at P.S. Gordhan Vilas and was Malkhana Incharge and he handed over the clothes to PW7 Gamer Lal. PW9 Sobhagya Singh was the S.H.O., P.S. Gordhan Vilas, Udaipur who investigated the case. In his cross examination, the witness admitted that no investigation was done regarding the treatment provided to the prosecutrix for five days after the incident and before the FIR was filed. He further admitted that no marks of the incident having taken place were found at the scene of occurrence. PW10 Dr.Rajni Somani was also examined for proving the medico legal age of the prosecutrix. The most significant fact which goes to the root of the matter is that the FIR in this case has been filed after more than five days of the incident. Different reasons have been given for the delay in filing of the FIR but the reasons are far from convincing. Whereas in the FIR, it has been alleged that the prosecutrix became unconscious and regained senses after three days, on the other hand, PW2 Khuman did not state that the prosecutrix was unconscious after the incident. The prosecutrix herself stated that after the incident, she collected her goats and walked back to her home. Thus, the theory that the prosecutrix was unconscious for five days and, therefore, the report could not be filed in time, is a cooked up theory. PW2 Khuman and the prosecutrix have both admitted that the prosecutrix was treated by Dr.Bakhatawar Lal on the next day of the incident. Dr.Bakhatawar Lal has not been examined in this case. Furthermore, the prosecutrix in her cross examination admitted that when she was taken to Bakhatawar Lal's hospital for treatment, she did not tell him about the incident of rape which had allegedly taken place with her. It is, therefore, apparent that the non-disclosure of the fact regarding rape allegedly having been committed with the prosecutrix at the earliest makes the testimony of the prosecution witnesses suspicious. The another significant fact which is of great importance is the place where the act of rape was allegedly committed. The prosecutrix alleged in the FIR and her statement that the accused had dragged her to the pipe meant for carrying water and forcibly threw her inside the same and thereafter committed rape on her. The Investigating Officer while preparing the site plan did not mention the dimensions of the pipe. The prosecutrix, however, in her cross examination stated that the width of the pipe was so narrow that the entry in the same was only possible in a reclining position. Therefore, the possibility of the prosecutrix having been dragged into the pipe without receiving any abrasions or any kind of injury is virtually non-existent. If at all, the prosecutrix and the accused had entered into the pipe, it was only possible voluntarily. Another significant fact which has been stated by the prosecutrix is that when the act of intercourse was going on, the young boys Chainram and Kishan were watching the same by hiding themselves. This statement gives rise to a reasonable probability that the prosecutrix and the appellant were establishing voluntary relations and the small boys saw them doing so. It appears that the word thereafter was spread by the boys in the village and that precipitated the filing of the report. A specific suggestion has been given to the prosecutrix regarding her inclination to marry the appellant. She has admitted that the accused often visit her house. The lack of any injury on the person of the prosecutrix at the time of her medical examination is also of great insignificance. The medical officer, who examined the prosecutrix and prepared her medico legal report Ex.P/7, has not stated that the prosecutrix was having any mark of violence or sexual assault on her person. In this background of the matter, this Court is of the opinion that it is clearly a case wherein the relations, if any, which were established between the prosecutrix and the accused were consensual. It appears that the word of the physical tryst was spread in the village by the young boys Chain Ram and Kishan and thereafter no option was left but to report the matter to the police. The delay in filing of the FIR, the non-existence of the injuries on the person of the prosecutrix and the non disclosure about the alleged sexual assault to Dr.Bakhatawar Lal, to whose hospital the prosecutrix was allegedly taken immediately after the occurrence, are reasons significant enough to discard the prosecution case that the prosecutrix was subjected to forcible rape by the accused. The prosecutrix disclosed her age to be 17 years when she was examined by the police after filing of the FIR and the medical officer has also given her age to be above 16 years. The doctor who examined the prosecutrix for rape was not examined at the trial but the medical examination report Ex.P/7 was proved by Dr.Kishan Dhanak PW5. A bare reading of the report shows that the prosecutrix was habituated to sexual intercourse and no signs of any forcible sexual assault were found on her body. The subordinate court has discarded the prosecution story regarding the co-accused Mohan Lal and rightly so. The prosecution case does not inspire the confidence of this Court regarding the appellant as well. In this view of the matter, the conviction of the appellant as recorded by the learned subordinate court cannot be sustained. Resultantly, this appeal deserves to be allowed and is hereby allowed. The conviction of the appellant as recorded vide judgment dated 8.1.2008 passed by the learned Additional Sessions Judge (Fast Track) No.1, Udaipur is set aside. The appellant is acquitted of the charges levelled against him. The appellant is in custody. He shall be set at liberty forthwith if not needed in any other case. Final Result : Allowed ;