BANSAL, J. - (1.) THIS appeal is directed against the judgment and order dated 7. 6. 2000 passed by the learned Additional Sessions Judge, Tonk whereby accused-appellant Shyojiram has been convicted for the offence under Section 376 (2) (f) IPC and sentenced to suffer R. I. for ten years and a fine of Rs. 500/-, in default of payment of fine to further suffer R. I. for one month.
(2.) BRIEFLY stated the facts of the prosecution case are that on 7. 11. 1998 at 4. 30 p. m. , PW1 Sitaram S/o Arjun, by caste-Balai, R/o Hisampur submitted a written report Ex. P1 to SHO, P. S. Devli wherein it was, interalia, stated that yesterday around 2. 30 p. m. his daughter Rajee, aged 10 years had gone to his field to watch the mustered crop. At 6. 00 p. m. she returned to home. She was crying and she told him that Shyoji Uncle (accused-appellant) came in the field and asked her to accompany him to eat `ber' (plum) and thereafter took her to a nearby place where `babool' trees were standing and committed rape on her. It was also stated in Ex. P. 1 that blood was oozing from the vagina of his daughter whereupon he along with his daughter went to village Baghera and contacted Govind Singh, Compounder (PW10), who gave treatment to his daughter. It was further stated in Ex. P1 that Govind Singh, Compounder advised him to report the matter to the police. Today he has come to report the matter. Blood stained clothes which the prosecutrix was wearing at the time of the incident, were also produced before the SHO. On the basis of written report Ex. P1, the SHO registered FIR Ex. P2 and investigated the case. On completion of investigation, a charge-sheet was filed against the accused-appellant in the Court of Chief Judicial Magistrate, Tonk, who committed the case to the Court of Sessions Judge, Tonk. On transfer the file was received in the Court of learned Additional Sessions Judge, Tonk. Learned Additional Sessions Judge framed charge under Section 376 IPC against the accused-appellant who pleaded not guilty and claimed trial. To prove this charge, the prosecution examined as many as 11 witnesses. In his statement recorded under Section 313 Cr. P. C. , the accused-appellant pleaded innocence. However, no witness was examined in his defence by the accused- appellant. The Learned Additional Sessions Judge after hearing the final submissions made by both the parties, convicted and sentenced the accused-appellant as indicated here-in-above. I have heard learned counsel for the accused-appellant, learned Public Prosecutor for the State and have also gone through the record of the case. Learned counsel appearing for the accused-appellant made the following submissions:- (1) There is unexplained delay of 26 hours in reporting the matter to the police. (2) Medical evidence does not lend any assurance to the testimony of the prosecutrix. (3) The prosecutrix is a child witness and there is no evidence on record in support of her testimony and the conviction cannot be based upon the uncorroborated testimony of the prosecutrix. (4) On medical examination no injury or swelling or semen or blood was found on the penis of the accused-appellant. (5) No injury was found on the back and buttocks of the prosecutrix whereas the rape was allegedly committed on the thorny place. (6) In absence of FSL report, the prosecution has failed to prove that blood was found on the place of occurrence and on the clothes of the prosecutrix and the appellant. (7) The prosecutrix sustained injuries on her private parts by fall on the `khunta'. (8) On account of enmity with the father of the prosecutrix, the accused-appellant has been falsely implicated in the instant case.
(3.) LEARNED Public Prosecutor appearing for the State has supported the impugned judgment and submitted that delay in lodging the FIR has been satisfactorily explained by the prosecution, medical evidence corroborates the version of the prosecutrix, the testimony of the prosecutrix stands corroborated by the testimony of his father PW1 Sitaram and mother PW3 Prem and there is nothing on record to prove the previous enmity between the father of the prosecutrix and the accused-appellant and, therefore, the appeal of the appellant be dismissed. I have given my thoughtful consideration to the rival submissions made by both the parties. The Apex Court in Sri Narayan Saha & Another vs. State of Tripura, (2004) 7 SCC 775, has observed as under:- " We wish to first deal with the plea relating to the delayed lodging of the FIR. As held in a large number of cases, mere delay in lodging the FIR is really of no consequence, if the reason in explained. " In this case the incident of rape took place around 3. 00 p. m. on 6. 11. 98. After the incident, the prosecutrix came to her home at 6. 00 p. m. and narrated the incident to her father PW1 Sitaram and monthly PW3 Prem. As per the testimony of PW1 Sitaram, he found blood oozing from the vagina of the prosecutrix. He also stated that he did not get any means of transport and, therefore, he went to Govind Singh, Compounder (PW10), R/o Baghera along with Prem and Badri. As per the testimony of PW10 Govind Singh, Compounder, he had found the blood oozing from the vagina of the prosecutrix. The prosecutrix was brought to him by her father, mother and Badrilal and she was given first-aid. As per formal FIR Ex. P2, distance between village Hisampur and police station Devli is 30 km. Next day i. e. , 7. 11. 98 PW1 Sitaram along with the prosecutrix went to police station Devli and lodged written report Ex. P1 at 4. 30 p. m. Initially the father of the prosecutrix may be hesitant to report the matter to the police because of reputation and honour of his family but on the advise of Govind Singh, Compounder, as stated in written report Ex. P. 1, PW1 Sitaram went to the police station next day and lodged the FIR. PW1 Sitaram has also stated in his deposition that on the date of the incident, because of non- availability of any means of transport, he could not come to Devli. Thus, in my considered view, in the instant case the prosecution has explained the delay in lodging the FIR to the satisfaction of the Court and which is not fatal to the prosecution. ;