SARRAF, J. - (1.) THE accused appellant Mohan Lal has filed this appeal against the judgment dated 26. 3. 2004 passed by Additional Sessions Judge, Kekri, district Ajmer in Sessions Case No. 21/2003 whereby he has been convicted under Section 376 IPC and he has been sentenced to rigorous imprisonment for seven years and a fine of Rs. 1,000/- and in default of payment of the fine further rigorous imprisonment for six months.
(2.) THE case arises out of a report (Ex. P. 6) that lodged by Hari Om (PW. 4) at 1. 00 P. M. On 10. 7. 2003 that at about 10. 00- 11. 00 A. M. On 22. 6. 2003 the accused Mohan finding his sister aged about 11 years and a student of class VI alone took her to his house and committed rape on her. She came weeping from there and narrated the whole story to him. He informed his parents who had gone to another village. THEy returned on the next day. He would have gone to report the matter to the police after the arrival of his parents but the people of his community asked him to talk and settle the matter amicably and they also told that the accused had run away and they would inquire when he returned. THE accused returned in the evening of 9. 7. 2003 and when he and his parents met the accused he abused them and threatened them if the matter was reported to the police. THE police station Kekri on the basis of this report registered a case under Section 376 IPC vide FIR No. 222/2003 (Ex. P. 7 ). After completion of the investigation a charge sheet was filed against the accused-appellant and charge under Section 376 IPC was framed against him to which he pleaded not guilty. THE prosecution examined 15 witnesses whereas the accused examined 4 witnesses in defence. After hearing the parties the trial Court by judgment dated 26. 3. 2004 convicted the accused appellant under Section 376 IPC and sentenced him in the manner stated hereinabove. Aggrieved by this judgment the accused appellant has filed this appeal. Heard learned counsel for the accused appellant and learned Public Prosecutor and perused the material and evidence available on the record. Learned counsel for the accused appellant submits that though the evidence of the prosecutrix alone can form the basis of conviction yet in the facts and circumstances of the present case it is clearly indicated that the accused appellant has been implicated falsely because Hari Om (PW. 4), brother of the prosecutrix, did not want to repay Rs. 15,000/- which he had borrowed from the accused appellant. He submits that the receipt of the amount Ex. D. 2 has been proved by the defence witness Ramjeevan (DW. 1) and Hari Om himself has admitted his signatures on Ex. D. 2. He submits that the parents of the prosecutrix returned to the village on the next day of the occurrence but the report has been lodged after a delay of 18 days for which the prosecution has failed to offer any plausible or satisfactory explanation. He submits that not only Dr. Savita Maurya (PW. 1) who examined the prosecutrix for rape on 14. 7. 2003 found the hymen of the prosecutrix intact but the brothers of the prosecutrix Hari Om (PW. 4) and Ramesh Chand (PW. 8), her mother Manbhar (PW. 6) and her sister Kanta (PW. 7) have not stated that they saw any injury on any part of the body of the prosecutrix or that the prosecutrix complained of any injury on her private parts. He submits that there is no evidence to the effect that any blood stains or stains of semen were there either on the private parts of the prosecutrix or on her clothes. He submits that on the facts and in the circumstances of this case learned trial court should not have placed reliance on the uncorroborated testimony of the prosecutrix for convicting the accused appellant especially when the entire prosecution story is doubtful. Learned Public Prosecutor submits that in our tradition bound society a rural girl of tender age would not tarnish or damage her own reputation or image by levelling false allegations against the accused. He submits that there is no reason to disbelieve the evidence of the prosecution and conviction of the accused can be based on uncorroborated testimony of the prosecutrix. He submits that the delay in lodging the first information report in such matters is not always fatal and it does not raise inference that the report is false because the victim and family members are hesitant in bringing the matter to the police. He submits that the offence of rape is well proved against the accused appellant on the basis of the evidence available on the record and the impugned judgment does not require any interference. The prosecutrix who has been examined as PW. 3 has stated in her cross examination:- ***
(3.) THE prosecutrix is around 11 years of age. She says that the accused performed the act of sexual intercourse for about half an hour and he kept his penis inserted into her vagina for 5-7 minutes. However, Dr. Savita Maurya (PW. 1) has stated that when she examined the prosecutrix on 14. 7. 2003 the hymen of the prosecutrix was intact. Not only Dr. Savita Maurya (PW. 1) does not say that the prosecutrix had any injury on her private parts or any part of her body but the brother of the prosecutrix Hari Om (PW. 4) who met the prosecutrix immediately after the occurrence does not say that the prosecutrix complained of any injury on her private parts or any other part of her body. Manbhar (PW. 6) who is mother of the prosecutrix and Kanta (PW. 7) who is sister of the prosecutrix met the prosecutrix on the next day but they too do not say that they saw any injury on any part of her body. Rupture of hymen by all means is not necessary to constitute offence of rape but absence of any injury on labia majora is significant as labir majora are first to be encountered by male organ. The prosecutrix has said that the accused had a discharge and semen came out but no witness has stated that he or she saw any semen stains on her body or on her clothes. It is also significant that the prosecutrix has stated that there were no blood stains on her clothes. ;