CHAUHAN, J. - (1.) THE appellant has challenged the judgment dated 31. 7. 85 passed by the Sessions Judge, Jhunjhunu whereby the learned Judge has convicted the appellant for offences under Sections 376 and 457 of Indian Penal Code (`ipc' for short ). For offence under Section 376 IPC, the appellant has been sentenced to four years of rigorous imprisonment and has been imposed with a fine of Rs. 100/- and to further undergo one month's rigorous imprisonment in default thereof. For offence under Section 457 IPC, he has been sentenced to two years rigorous imprisonment and has been imposed with a fine of Rs. 100/- and to further undergo one month's rigorous imprisonment in default thereof.
(2.) IN a nutshell, the facts of the case are that for an incident that allegedly took place on 10. 3. 84, the prosecutrix (PW. 1) lodged a written report at Police Station Pilani on 14. 3. 84 wherein she claimed "that her husband is serving in the Army. She lives alone with her two children in her farm. Her father-in-law and her uncle-in-law both live near her house. On Saturday, the 10th of March, 1984, while she was sleeping in her room, after having bolted the door from inside, around 11. 30 p. m. , someone sat on her chest and closed her mouth. He lifted her `lehanga' (petticoat ). The man started having sexual intercourse with her against her wish. When she tried to scream, he put his hand on her mouth. As soon as man was finished with her, she shouted for help. IN the light, which was on in the room, she noticed that the man was Dilip Singh S/o Godha Ram. She pushed him and she started shouting. Dilip Singh got up and started running. When he was about to run off, she caught hold of his sweater. The sweater came off and Dilip Singh ran away. At that time, Hari Singh Chamar, Basti Ram, Munni and Rajendra came to her rescue. They tried to catch hold of Dilip Singh, but they could not succeed. She, therefore, sent her brother-in-law to fetch her father-in-law. He father-in-law told them to send a telegram to her husband and to ask him to come immediately. " On the basis of this report a formal FIR, FIR No. 19/84 was chalked out for offence under Section 376 IPC. Subsequently, the appellant was arrested on 20. 3. 84. The appellant was charged for offence under Section 376 and 457 IPC. IN order to substantiate its case, the prosecution examined nine witnesses and submitted ten documents. The defence examined two witnesses and submitted a few documents. After going through the oral and documentary evidence, the learned trial Court convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. Mr. S. S. Sunda, the learned counsel for the appellant, has raised the following contentions : firstly, although the incident is said to have taken place on 10. 3. 84, the FIR was not lodged till four days later i. e. on 14. 3. 84. This inordinate delay in lodging of the FIR has not been explained by the prosecution. Secondly, the testimony of the prosecutrix is repleat with contradiction. Thus, she is not a witness of sterling worth. Thirdly, the testimony of the prosecutrix is not corroborated by the medical evidence. According to her medical report, she has not suffered a single injury either on her body, or in her private parts. Fourthly, that the facts narrated and the evidence produced probablise the case of the defence that it is a case of consent rather than of rape. Lastly, that the prosecution has failed to prove its case beyond a reasonable doubt. On the other hand, Mr. Arun Sharma, the learned Public Prosecutor, has contended that the delay has been explained by the prosecution witnesses. Once the delay has been explained, it is not fatal to the prosecution case. Secondly, in cases of rape since the honour of the woman and that of the family is involved, it is not unusual if some delay does occur before a FIR is lodged. Thirdly, the contradictions pointed by the learned counsel for the appellant, in the prosecutrix's testimony, are minor absence of injuries does not lead to the conclusion that it is a case of consent and not of rape. The learned Public Prosecutor has vehemently argued that the testimony of the prosecutrix should be accepted almost as a gospel truth. The prosecutrix can no longer be treated as an accomplish to a crime. But, she has to be treated as a victim. Therefore, even if, her testimony is not corroborated by other independent evidence, even then a conviction can be based on the sole testimony of the prosecutrix. Lastly, that other witnesses, such as Ramkaran Singh (PW. 2) Reshmi (PW. 3), Umaram (PW. 4) and Basti Ram (PW. 5), have corroborated the testimony of the prosecutrix. Hence, the prosecution has well established its case. We have heard the learned counsel for the parties, have perused the impugned judgment and have examined the record. In catena of cases, the Hon'ble Supreme Court has held that delay in lodging of the FIR, in case of rape, is not fatal. For, in a case of rape, the honour of the woman, the prestige of the family is intrinsically involved. Both, the woman, and her family members may debate and discuss whether the offence should be brought to light or not. Thus, inevitably some delay may be caused before the FIR is lodged. In the case of Dildar Singh vs. State of Punjab (2006) 10 SCC 531), the Apex Court has observed that, "that Court has observed in several decisions that the courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. A girl in a tradition-bound non-permissive society would be extremely reluctant even to admit that any incident, which is likely to reflect upon her chastity, had occurred, being conscious of the danger of being ostracised by the society or being looked down by the society. Her not informing anyone about the incident in the circumstances cannot detract from her reliability. In normal course of human conduct an unmarried girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Thus, delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Delay has the effect of putting the court on guard to search if any explanation has been offered for the delay and, if offered, whether it is satisfactory. " In the present case, the prosecutrix and other witnesses have explained the delay by stating that initially a Panchayat was called in the village to settle the dispute. It is only when the Panchayat failed to reach a conclusion, the prosecutrix went and lodge the report. Thus, the prosecution has satisfactorily explained the delay. Therefore, the first contention raised by the learned counsel for the appellant is rejected.
(3.) UNDOUBTEDLY, the offence of rape is a dasteredly act not only against the victim, but also the society at large. Unquestionably the offence leaves the victim psychologically scared and emotionally shattered. But, the conviction in a criminal case cannot be based on the heinousness of the crime. A conviction has to be based on the objective assessment of the evidence produced by the prosecution. The objectivity of a judicious mind cannot be blinded by the fact that the prosecutrix alleges that her honour has been defiled. Thus, while examining the evidence, a holistic view of the evidence is essential. Many a times, the prosecutrix is the sole eye-witness in the crime of rape. After all, rape may be committed where other eye- witnesses are unavailable. Of course, she is not an accomplice in a crime. In fact, she is the victim. But nonetheless, her testimony being an evidence of a sole eye-witness has to be examined carefully. She should be a witness of sterling worth. Her testimony, if of stearling worth, can be used to convict the accused. But, if her testimony is weak, or improbable, then the court should look for corroboration from other independent evidence [ref. to Ramdas vs. State of Maharashtra (2007) 2 SCC 170] The intrinsic value has to be deduced by meticulously examining her testimony. The court is required to consider whether her testimony is studed with contradictions, exaggerations, improbabilities or not. The truthfulness of a testimony also has to be examined on the touchstone of other evidence produced by the prosecution. Hence, the court must objectively and meticulously examine the entire evidence produced by the prosecution. According to the prosecutrix, her husband was serving in the Armed Force in Kashmir at the relevant time. Her father-in-law, mother-in-law and the brother-in-law were living separately in their own houses. She was living with her two children separately and away from her in-laws. She further claims that the third child was born after the incident. She tells us that the incident took place about 13-14 months back and 5 to 7 days after the festival of Holi. According to her she was fast asleep. She had closed the door, but had not locked it from inside. Around 10. 30 at night, the appellant entered her room and started raping her. He threw a piece of cloth over her face and then he proceeded to perform the same function, a man would do with his wife. She further claimed that after throwing the cloth on her face, he pressed her down and threatened her with a knife. Therefore, she could not scream for help. Her petticoat was soiled. When the appellant fled from the place, he left the cloth on her face which was in her custody. She further tells us that this cloth was the sweater worn by the accused. After he left the room, the prosecutrix claims that she shouted for help. Upon hearing her hue and cry, her two sister-in-laws, her father-in-law and Hari Singh Chamar rushed to her rescue. These persons saw the foot prints of the appellant. She further claimed that she sent Hari Singh Chamar to fetch her brother-in-law, Ramkaran, but Ramkaran was not at his house. Next day, her brother-in-law, Ramkaran, came between 10 and 11 in the morning. She told Ramkaran about what had happened. Her brother-in-law called a Panchayat. But, the Panchayat could not reach any decision as her husband was working in the Army. Subsequently, they went to Pilani to lodge a report. She handed over her petticoat to police and she identified the petticoat in the Court. ;