JUDGMENT
S.C. Jain, J.
(1) The charge against the appellant is that on 16-3-1986, in the afternoon around 5 p m., he committed rape on Urmila Devi wife of Shri Om Parkash in a room in the basement of the building called Items building at Rafi Marg, New Delhi, within the jurisdiction of P S. Parliament Street, New Delhi. He was prosecuted and tried turn an offence under Section 3761PC. The trial court found him guilty for the said offence and convicted him under Section 376 Indian Penal Code and sentenced him to undergo Ri for seven years and to pay a fine of Rs. 10,000.00 and in default to further undergo Si for three months.
(2) Shri Bhatia, learned counsel for Delhi Administration, argued that no lady would involve herself in such a case of rape without any basis or foundation. According to him, the appellant has not given any justification as to why he was given beating by the husband and other relations of the prosecutrix On the point of lodging Fir after four days, Mr Bhatia submitted that as far as possible the relatives of the prosecutrix and the prosetcutrix would not like to lodge a report with the police for such an offence to avoid humiliation and therefore, the delay in lodging Fir cannot be said to be fatal in such cases. Regarding the contradictions in the statement of the prosecutrix, Mr Bhatia stated that she is an illiterate lady and such type of contradictions arc bound to be there in the statement of an illiterate lady. Mr. Bhatia defended the judgment given by the trial court in. this case.
(3) I have gone through the entire case record. There are certain facts which are unassailable. The incident of rape is alleged to have taken place on 16-3-1986at about 5 p.m but the Fir was lodged on 20-3-1986, i e. after four days of the incident. No satisfactory explanation has been given for this inordinate delay. Though the appellant was known to the prosecutrix and her husband and other relatives but no steps were taken to trace him or to lodge the report with the police by naming him as the rapist On her medical examination by the doctor, no marks of violence on her body were detected. Even on her internal examination, no injury was detected on her hymen or vagina. From these facts it is clear that the prosecutrix was not subjected to forcible sexual intercourse. The statement of the prosecutrix Mrs. Urmilla suffers from material defects and it is full of contradictions. No reliance can be placed on the testimony of such a witness. According to her statement in the court, the appellant had entered into her room at 12 O’clock at night and the only person to reach there was Salig Ram. She stated that her husband and her brother-in-law (Devar) bad gone to fetch ration from Paharganj. She was declared hostile and the prosecutor was allowed to cross-examiner her but in the cross-examination also she stuck to her statement that the appellant had entered her room at 12 at in the night and not at 5 p.m. as mentioned in the FIR. In the later part of her statement she stated that both her husband Om Parkash and her Devar bad gone to Paharganj and left her alone in the room. The appellant had sexual intercourse from 8 p m. to 12 p.m. and that she was in her room and the alarm attracted Salig Ram who came to the spot. She stated that Salig Ram removed the appellant from her body when be was doing sexual intercourse with her. She stated that the appellant remained on her body for two hours when Salig Ram separated him.
(4) The trial court should not have believed the statement of such a witness which is a piece of contradiction in itself. The other witnesses examined by the prosecution are Salig Ram, Om Parkash, Prem Parkash, and chowkidar Harcharan Singh but they are not believable in view of the contradictory nature of their statements. Chowkidar Harcharan Singh, who is the only independent witness has not supported the case of prosecution. He stated that the appellant might have tried to have sexual intercourse but be might have done so. No reliance can be placed on the testimony of such witnesses for convicting the appellant for an offence under Section 376 IPC. Allowing a person to lie on her body for two hours exhibits that she was a consenting party. No mark of violence or injury was found on her body. Her action indicates that she was a consenting party if at all there was any sexual intercourse with her. The alleged statement of the appellant before the doctor who examined him after four days cannot be said to be voluntary statement inasmuch as he was in police custody when be was produced before the doctor for examination. It was not the duty of the doctor to record the confessional statement of the accused, who was produced before him for medical examination. This type of confession cannot be said to be voluntary and no reliance should be placed on such a statement.
(5) Regarding receiving injuries on 20-3-1986 by the appellant at the hands of the husband and other relations of the prosecutrix it has been explained that the appellant had advanced Rs. 1200.00 to the husband of the prosecutrix which he was not repaying. On the night 0119-3-86 the appellant bad demanded the money which he bad advanced to Om Parkash and on his refusal scuffle ensued and the appellant received injuries in that scuffle. Police was called and be was arrested and taken into custody and be was falsely imp leaded in this case on the false allegation of committing rape on Urmilla Devi four days ago. Though no evidence has been produced to prove this version by the appellant but it is the prosecution who basic stand on its own legs to prove the guilt of the accused. It cannot take any benefit from the failure of the accused to prove his defense. In the cross-examination of Om Parkash It hag been put by the counsel for the appellant that the quarrel was on account of non-payment of money which Om Parkash owed. to the appellant. It is not that the appellant has made out his defense at a later stage. From the very beginning his case is that he was falsely implicated in this case when he demanded money from Om Parkash husband of the prosecutrix which the appellant had advanced to him. Though the prosecution has failed to establish the guilt against the appellant beyond reasonable doubt, even otherwise if it is presumed that the appellant had sexual intercourse with Urmilla who was major and matured married lady it was with her consent. In view of my findings above, I accept this appeal and set aside the judgment and order dated 31-7-87 and 1-8-87 passed by the court below and acquit the accused on the said change and order that the appellant Raghunath be released from jail immediately.