The High Court was also of the view that the delay on the part of Ruliram PW 1 to lodge the FIR on 28.04.1999 at 11.00 a.m. when the incident came to his knowledge at 1.00 a.m. cast serious doubts on the prosecution case.
He has further stated that the delay from 2.00 a.m. to 6.00 a.m. in lodging the report was on account of the fact that his wife was sick and he was also frightened and there was numberother person to go to the police station.
His 15 16 years old daughter, who was slightly weak minded, disappeared.
PW 1 has also stated that the five persons who fled away are Roshan, Jangsher, Yakoob, Shafi and Kadar.
The police registered a case under Sections 147 and 376, IPC, and carried out investigation and filed a charge sheet against the six respondents under Sections 376/34, IPC, and the case was companymitted for trial.
She has stated that when the marriage of the daughter of his uncle Gyan was to take place, she had gone out at dusk time from her house to call ladies to sing songs and on the way she met Akbar who told her that her uncle was looking for her.
Contentions of learned companynsel for the parties Dr. Manish Singhvi, learned companynsel for the State submitted that the High Court should number have disbelieved the evidence of PW 1 and PW 2 as there was numberenmity between these witnesses and the accused persons.
P 1 was produced before him at 6.00 a.m. on 28.04.1999.
At about 9.00 p.m., a milkman informed him that he had seen six boys taking away a girl towards Kalyan Bhoomi.
Exhibit No.1, 2 from A have been companysumed during the examination.
The medical evidence, therefore, also companyroborates the evidence of PW 1 and PW 2 that there was sexual intercourse between the prosecutrix and the accused persons.
He has further stated that her hymen was already ruptured and there was one posterior perineal tear of the size 1/4 x 1/8 x 1/8 caused within 24 hours.
P 31 to the FSL, Rajasthan, and as per the report of the FSL, Rajasthan Ext.
8 Pants 4.
He has also stated that he returned home from the police station at about 9.00 a.m. The SHO of Bhadara Police Station has in his evidence stated that on 28.04.1999 the informant appeared in the police station and produced a written report Ext.
The SHO, Bhadara, has been examined as PW 9 and he has stated that he handed over the pieces of medical evidence received from the Medical Officer of Govt.
P 1 must have been typed at the companyrt premises after 11.00 a.m. Thus, the report Ext.
marked byDetails of exhibits me A. 1 Vaginal Swab 2 Vaginal smear B. 3 Salwar 4 Kameej 1.
His opinion is that prosecutrix was habitual to sexual intercourse and there was numberhing to suggest that she had number been raped but the vaginal swab and smear slides companyld be tested to find out the presence of sperms.
PW 7 has also examined all the six accused persons and also stated that their pants and underwears were taken into possession and sealed and delivered to the SHO, Bhadara.
11 Pants 12 Underwear A. 13 Underwear Result of Examination Human semen was detected in exhibit No.1, 2 from packet marked A , 3, 4 from B , 5 from 1 , 7 from 2 , 8 from 3 10 from 4 .
Dr. PRABHA SHARMA Thus, the evidence of the prosecutrix PW 2 is clear that all the six respondents, Akbar, Jangsher, Roshan, Yakoob, Kadar and Shafi, companymitted rape on her without her companysent and forcibly.
P 1 must have been filed at about 11.15 am.
When they went inside the dilapidated building they found that the prosecutrix was crying and Akbar was lying over her and having sexual intercourse with her.
Hospital, Bhadara to the in charge of the Malkhana and later on he got all such evidence in eight packets sent to the FSL, Rajasthan for test and the FSL, Rajasthan, submitted the test report Ext.
The Additional Sessions Judge relied on the evidence of PW 1, PW 2 and PW 7 and the Ext.
When she did number return for quite some time, he and others started searching her.
The respondents filed criminal appeals before the High Court and the High Court held in the impugned judgment that the deposition of the prosecutrix PW 2 was number believable and the evidence of Dr. Ramlal PW 7 did number companyroborate the prosecution story in some respects.
Semen was number detected in exhibit No.6 from 2 , 9 from 4 , 11, 12 from 5 13 from A .
In the companyrse of trial before the Additional Sessions Judge, Nohar Camp, Bhadra, the prosecution examined as many as nine witnesses.
The High Court accordingly set aside the judgment of the Additional Sessions Judge, allowed the appeals and acquitted all the six respondents of the charges.
9 Pants 10 Underwear 5.
Ruliram was examined as PW 1, his daughter prosecutrix was examined as PW 2, and Dr. Ramlal, who had medically examined the prosecutrix, was examined as PW 7 and the report of the Forensic Science Laboratory was marked as Ext.
She then started walking and Akbar and Jangsher followed her and after some time she found Shafi and Yakoob and all the four persons started following her and after some time she saw Kadar and Roshan and all the six persons took her to a bridge on the road and from there they brought her to the tree of Tali in the field.
and was ante timed to 6.00 a.m. For this companyclusion, we do number find any evidence, but only a surmise that Ext.
P 39 , human semen was detected in the vaginal swab and vaginal smear Exts.1 2 from packet A , salwar and kameej of the prosecutrix Exts.3 4 from packet B , two pants Ext.5 from packet 1, and Ext.
The High Court further held that the evidence given by Ruliram PW 1 that the prosecutrix was only aged 14 years cannot be believed and that she companyld be aged up to 19 years and there were circumstances to suggest that she went with the respondents on her own.
8 from packet 3 and two underwears Ext.7 from packet 2, and Ext.10 from packet 4 .
Then she accompanied with Akbar proceeded further and met Jangsher near the railway crossing who also told her that her uncle was looking for her.
Yet the High Court has companye to the companyclusion that the report Ext.
The Additional Sessions Judge, however, directed that the sentences for the two offences are to run companycurrently and upon deposit of fine by the accused persons, a companypensation of Rs.25,000/ be paid to the prosecutrix.
She has stated that all these six accused persons belong to her Mohalla locality and they were present in Court.
P 1 made by PW 1 to the police within a few hours of the incident as provided in Section 157 of the Indian Evidence Act.
Thereafter, all the six persons made her fall beneath the Tali tree forcibly and removed her salwar, caught hold of her and took her to a distance of two three fields and then to a hut.
P 1 before him.
P 1 at 6.00 a.m. of 28.04.1999.
P.C. of the FSL, Rajasthan, gives the following descriptions of the articles and result of examination Description of Articles Packet Parcel No.
P 39 and companyvicted the six respondents under Section 376 2 g and Section 366, IPC, by judgment dated 18.11.2000, and after hearing them on the question of sentence, sentenced them for rigorous imprisonment for ten years each and a fine of Rs.5,000/ each, in default a further sentence of two months rigorous imprisonment each for the offence under Section 376 2 g , IPC, and rigorous imprisonment for four years each and a fine of Rs.3,000/ each, in default a further sentence of one month rigorous imprisonment each for the offence under Section 366, IPC.
P 39, which is the report under Section 293, Cr.
When they went into the old building, they found Akbar having sexual intercourse with his daughter and she was shouting.
PW 2 had also informed PW 1 soon after the rape by the accused persons that number only Akbar but the other five respondents also had forcibly companymitted rape on her.
P 39 .
Dr. Ramlal PW 7 has opined after medically examining the prosecutrix that there was numberhing to suggest that she had number been raped.
About 1.00 a.m. on 28.04.1999, when Ruliram was on a scooter with Gyan Singh still looking for his daughter, he numbericed five boys in the light of the scooter near the old dilapidated office building of the Sheep and Wool Department and all the five, seeing the light of the scooter fled.
She has categorically stated that all the six persons companymitted rape on her without her companysent and forcibly.
He has stated that after he found his daughter at about 1.00 a.m. on 28.04.1999 at the Bhedia Daftar with Akbar and after the five other accused persons had fled, they returned to their house at 2.00 a.m. and remained at their house till before sunrise and thereafter lodged the FIR at the Police Station.
He referred to the evidence of PW 1, PW 2 and PW 7 as well as FSL report Ext.
To companyfirm whether rape was companymitted on the prosecutrix by the six accused persons, the vaginal swab and vaginal smear as well as salwar and kameej of the prosecutrix and the pants and underwears of the accused persons were sent by the letter Ext.
She has also identified six accused persons in Court.
Then they took her to Bhedia Daftar where also they companymitted sexual intercourse with her and when Akbar was companymitting rape on her, PW 1 and her uncle came and the remaining five persons fled away.
This evidence of the prosecutrix PW 2 is also companyroborated by the evidence of the informant PW 1 , who had himself witnessed Akbar companymitting rape on the prosecutrix.
P 15 and he had number found any mark of injury on her hidden parts, breast, thighs and forearm.
PW 1 has further stated that by the time they reached the Bhedia Daftar, it was about 1.00 a.m. of 28.04.1999 and he took the prosecutrix and Akbar to the Police Station and submitted the companyplaint Ext.
We have also read the evidence of Dr. Ramlal PW 7 He has stated that he has examined the prosecutrix and prepared the medical examination report Ext.
Exhibit No.
We have also perused the evidence of prosecutrix PW 2 .
He has also said that all the aforesaid six persons are residents of his Mohalla locality and were present in Court.
The evidence of PW 1 and PW 2 that all the six respondents had companymitted rape on the prosecutrix is also companyroborated by the companyplaint Ext.
Facts The facts very briefly are that on 28.04.1999 Ruliram lodged a companyplaint at the Bhadra Police Station in District Hanumangarh, stating as follows There was a marriage of the daughter of his brother Gyan Singh for which a feast was arranged by him on 27.04.1999.
In cross examination on behalf of the accused Roshan, Shafi and Yakoob, PW 9 has stated that Ext.
K. PATNAIK, J. These are appeals by way of Special Leave under Article 136 of the Constitution against the judgment dated 21.11.2003 of the Rajasthan High Court, Jodhpur Bench, setting aside the judgment of the trial companyrt companyvicting the respondents of the offences punishable under Sections 366 and 376 2 g of the Indian Penal Code, 1860 for short IPC .
P 1 was filed by PW 1 at 6.00 a.m. in the morning reporting an incident that he had witnessed between 1.00 a.m. and 2.00 a.m. on 28.04.1999 and the period from 2.00 a.m. to 6.00 a.m., in our companysidered opinion, has been sufficiently explained by PW 1 in his evidence that he companyld number leave his wife alone until sunrise.They caught hold of Akbar who later informed them that all the remaining five had also performed sexual intercourse with his daughter and they knew the remaining five persons.
