JUDGMENT
Garg, J.
1. This appeal has been filed by the State of Rajasthan against the judgment and order dated 11.5.1990 passed by the learned Sessions Judge, Bhilwara in Sessions Case No. 42/1989 by which he acquitted the accused respondent of the charge for the offence under Section 376 IPC.
(2). It arises in the following circumstances:
On 6.2.1989 at about 8.45 PM, PW4 Kela lodged a written report Ex.P/7 before the SHO, Police Station Bagour District Bhilwara stating inter-alia that on 6.2.1989 at about 10.30 AM, his daughter PW1 Ku. Manju (hereinafter referred to as the prosecutrix) aged about 11 years went towards the jungle of Moti Dungari after taking goats with her for the purpose of grazing. It is further stated in the report that in the evening at about 6.00 PM, accused respondent Gaharoo brought his daughter prosecutrix on his shouldiers and at that lime, he found that her gagra and lungi were stained with blood and even blood was coming out from her private part. Thereafter, PW4 Kela, father of the prosecutrix, asked her daughter PW1 Manju and upon this, prosecutrix told that when she was grazing goats, two persons on cycle from the side of Gundani came and stopped cycle and out of them, one person took her towards the pit and committed rape on her and, thereafter, they ran away and since she became unconscious, the accused respondent brought her to her house and she further told that she did not know the names of those two persons.
On this report, police registered the case and chalked out FIR Ex.P/8 and started investigation.
During investigation, medical examination of the prosecutrix PW1 Manju was got conducted and her medical examination report is Ex.P./8, where there is a clear cut finding that there was evidence of fresh intercourse and this medical examination report was admitted by the learned counsel for the accused respondent during trial.
Similarly, PW1 Manju was also got medically examined for the purpose of ascertaining her age and on the basis of physical examination and radiological report, the doctor opined that age of PW1 Manju was 12 to 14 years as on 7.2.1989 and her report with regard to age is Ex.P/4. This report was also admitted by the learned counsel for the accused respondent during trial.
Since during investigation it was revealed by the prosecutrix PW1 Manju that rape was committed on her by none except accused respondent and in the beginning as per the threat of accused respondent, she did not reveal his name and thus, the police found the case against the accused respondent and arrested the accused respondent.
During investigation, the accused respondent gave information under Section 27 of the Indian Evidence Act for the purpose of showing the place where the rape was committed on prosecutrix and in pursuance of that information, the place was pointed out by the accused respondent to the police and from the spot, blood stained soil was taken and sent for chemical examination. The accused respondent was also got medically examined about potency and his report is Ex.P/10 and his age was assigned between 19 to 21 years. Though in the charge sheet, it is also mentioned that underwear and dhoti of accused respondent, which were stained with human blood were also seized, but it appears that they have not been got exhibited in evidence.
After usual investigation, the police submitted challan against the accused respondent in the Court of Magistrate, from where the case was committed to the Court of Session.
On 15.4.1989, the learned Sessions Judge, Bhilwara framed charge under Section 376 IPC against the accused respondent. The charge was read over and explained to the accused respondent, who pleaded not guilty and claimed trial.
During trial, the prosecution in support of its case examined as many as six witnesses and got exhibited some documents. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded. One witness was produced by the accused in defence.
After conclusion of the trial, the learned Sessions Judge, Bhilwara vide his judgment and order dated 11.5.1990 acquitted the accused respondent of the charge under Section 376 IPC holding inter-alia:-
1. That at the lime of incident, the age of the prosecutrix PW1 Manju was below 16 years.
2. That there is evidence of fresh intercourse.
3. That in the report Ex.P/7, two important facts are mentioned; (i) PW1 Manju, prosecutrix was being brought to the house of PW4 Kela by accused respondent himself and (ii) on being asked, PW 1 Manju prosecutrix informed her father PW4 Kela that she was raped by other person and not by accused respondent.
Therefore, the learned Sessions Judge did not place reliance on the statement of the prosecutrix Manju recorded as PW1 and on the statement of her father Kela recorded as PW4 in Court, as their statements were contradicted by report Ex.P/7 and thus, he came to the conclusion that prosecution has not been able to prove its case beyond reasonable doubt against the accused respondent and accused respondent was given benefit of doubt by the learned Sessions Judge.
Aggrieved from the said judgment and order dated 11.5.1990 passed by the learned Sessions Judge, Bhilwara, this appeal has been filed by the State of Rajasthan.
(3). In this appeal, it has been argued by the learned Public Prosecutor for the appellant:-
1. That the learned Sessions Judge should have believed the statement of PW1 Manju, prosecutrix as her statement gets corroboration from medical evidence and she has clearly stated in his statement recorded in Court that she was raped by the accused respondent.
2. That because of discrepancies, which have occurred in the report Ex.P/7, which was lodged by PW4 Kela, father of the prosecutrix, the case of the prosecution should not have been thrown away.
3. That the learned Sessions Judge should not have forgotten the fact that because of threat given by accused respondent to PW1, Manju prosecutrix, the prosecutrix PW1 Manju has not mentioned the name of the accused respondent when she was being brought to her house by accused respondent himself and, therefore, her statement recorded in Court should have been believed by the learned Sessions Judge, especially when she has given the same version in her statement Ex. D/1 under Section 164 Cr. P.C. before the Magistrate.
(4). On the contrary, it has been argued by the learned counsel for the accused respondent that the learned Sessions Judge has given cogent reasons in acquitting the accused respondent of the charge under Section 376 IPC and thus, the impugned judgment does not required any interference by this Court.
(5) I have heard the learned Public Prosecutor and the learned counsel for the accused respondent and perused the record of the case.
(6). Before proceeding further and before appreciating the submissions made by the learned Public Prosecutor, it would be worthwhile to state salient features of the report Ex.P/7 lodged by PW4 Kela, father of the prosecutrix PW1 Manju.
Salient features of the report Ex.P/7
1. That accused respondent brought prosecutrix PW1 Manju to the house of PW4 Kela, father of the prosecutrix, on his shouldiers and at that time, blood was corning out from her vagina.
That at that time, prosecutrix PW1 Manju told her father PW4 Kela that two persons came and out of them, one person committed rape on her.
(7). It may be stated here that there is no dispute on the point that on the date of alleged incident, prosecutrix PW1 Manju was below the age of 16 years and she was minor and there is also medical evidence supporting the case of the prosecution that prosecutrix PW1 Manju was raped.
(8). The prosecutrix PW1 Manju in her statement has stated that she was raped by accused respondent and after that, blood came out from her vagina and, thereafter, accused respondent ran away but came later on and since there was severe bleeding, she removed the blood by branches of tree and she started vomiting and, thereafter, accused respondent told her not to narrate this incident to anybody at her house and accused respondent further advised her to tell the story that two persons came and they committed rape on her and after coming over to her house, she told the story to her father PW4 Kela, as per the advice given to her by accused respondent. She was cross-examined at length, but nothing has come out which affects her testimony on the point of rape by accused respondent.
(9). Another main witness in this case is PW4 Kela, father of the prosecutrix. He has admitted that report Ex.P/7 was lodged by him and he has been contradicted in his cross-examination with that report Ex.P/7 on the material point i.e. in report Ex.P/7 it has been mentioned that prosecutrix PW1 Manju was not raped by the accused respondent, but she was raped by some other person.
(10). The question for consideration is whether in the above facts and circumstances, the case of the prosecution should be believed or not or whether reliance can be placed or not on the testimony of the prosecutrix PW1 Manju, who is a child witness in the present case, especially keeping in mind that her statement is fully corroborated by the medical evidence.
(11). The learned counsel for the accused respondent has mainly argued that since first version was given by prosecutrix PW1 Manju to her father PW4 Kela and the same is found in the report Ex.P/7, upon which police started investigation, therefore, if another version is put by the prosecutrix PW1 Manju through her statement, that should not be accepted.
(12). To appreciate this contention, importance of FIR has to be looked into.
(13). It may be stated here that to give information under Section 154 is one of the modes by which a person aggrieved may set the criminal law in motion. And this is usually known as the first information. This information when recorded is the basis of the case set up by the informant. Secondly, it makes available to the judicial officers the materials on which the investigation commence. And, thirdly, it is the safeguard against embellishment or forgetfulness. The principal object of the first information report from the informant’s standpoint is to set the criminal law in motion and from the view point of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The receipt and recording of information report is not a condition precedent to the setting in motion of a criminal investigation. But this information, when recorded, is the basis of the case set up by the informant. It is very useful if it is recorded before there is time-and opportunity to embellish or before the informant’s memory fades.
(14). In this respect, it would be worthwhile to reproduce here the following observations made by the Hon’ble Supreme Court in Baldev Singh and Anr. v. State of Punjab (1):-
“The FIR is not a substantive piece of evidence, it is only relevant in judging the veracity of prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an
“encyclopaedia” of the occurrence. It may not be even necessary to catalogue the overt acts therein. Non mentioning of some facts or vague reference to some others are not fatal.”
(15). It is well settled that FIR is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157 of the Evidence Act or to contradict it under Section 145 of the Evidence Act. It can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate an innocent person.
(16). The prosecution case cannot be thrown out on the mere ground that in the first information report an altogether different version was given by the informant and for that State of Gujarat v. Anirudhsing (2), may be referred to.
(17). If there is convincing corroborative evidence on record, the omission to name the accused in the FIR is not fatal, as held by the Hon’ble Supreme Court in Bharvad Bhikhavalu v. State of Gujarat (3).
Variation between FIR and prosecution case given in evidence
(18). The object of first information being always to obtain the earliest version of the case against the alleged offenders a complete divergence between the story given in the FIR and that given in evidence may give rise to grave suspicion as regards the truth of the prosecution case. (See Mitter Sen v. State of UP (4). When, however, a FIR is not made by an eye witness, minor discrepancies between the statement of the case as given in the FIR and that appearing in the evidence of the eye witnesses are immaterial and of no consequence. (See State of Rajasthan v. Kartar Singh (5). When witnesses are under serious threats from the accused and other villagers and there is nothing to show that the witnesses informed the names of the assailants to the informant, the witnesses cannot be disbelieved on the ground that names of the assailants were not mentioned in the FIR. (See Prahlad v. State of Maharashtra (6). When the main part of the deposition is true, omission to state the name of one of the accused in the FIR is not fatal. (See Gama v. State of UP (7). When the FIR has been given by a rustic lay woman, the mere omission to mention an incidental fact cannot have any effect of nullifying an otherwise prompt report. (See Gurnan Kaur v. Bakshish Singh and Ors. (8).
(19). Keeping the above legal position in mind, the facts of the present case are being examined.
(20). In the present case, it may be stated at the outset that report Ex.P/7 was not lodged by the prosecutrix PW1 Manju herself and no doubt there is no denial of the fact that report Ex.P/7 was lodged by PW4 Kela, father of the prosecutrix, as per the saying of the prosecutrix PW1 Manju, but the prosecutrix PW1 Manju in her statement has nowhere stated that accused respondent did not rape her. Actually, in the statements given by her before police, Magistrate and Court, she has taken up only one stand that she was raped by accused respondent. From her statements, it further appears that she was given threat by the accused respondent that in case she tells the name of the accused respondent, dier consequences would follow and because of such threat on the date of incident, if she has suppressed that truth and stated the story as put forward by accused respondent to her father PW4 Kela and the same has been found in the report Ex.P/7, it does not mean that the version, which has been given in the report Ex.P/7 is the final truth of the fact. But, on the contrary, it transpires that the version, which was given by the prosecutrix PW1 Manju to her father PW4 Kela, was given under threat of the accused respondent.
(21). Not only this, FIR is not an encyclopaedia of all the facts, but lodging of FIR is nothing, but puts the police on motion for investigation of the case and during investigation, the version which has been given by the prosecutrix PW1 Manju in Court, was given by her in the statement recorded by the police as well as the Magistrate
under Section 164 Cr. P.C. and if there was variation in the contents between FIR and the evidence which has been found in the statements of prosecutrix PW1 Manju and PW4 Kela, father of the prosecutrix, that variance can be over looked, especially looking to the fact that from perusing the whole statement of prosecutrix PVV1 Manju right from the beginning upto the end, it does not appear that she in any manner tried to falsely implicate the accused respondent, but on the contrary, her statement appears to be straight forward and inspires confidence that she was telling truth in what manner she was raped by accused respondent on the date of alleged incident.
(22). It is worthy of notice that FIR can discredit only the author of the FIR and no other. The question whether the court is entitled to discard the evidence of eye witnesses wholesale, on the ground that the prosecution version as narrated in FIR at the instance of one of them was in some respects discrepant with the evidence given by those eye witnesses was raised before the Hon’ble Supreme Court in State of UP v. Brahma Das (9), and the Hon’ble Supreme Court replying the question in the negative held that at best the evidence of the maker of the FIR can be tested with reference to the contents of the FIR. But wholesale condemning of the evidence of all the prosecution eye witnesses on the ground of their evidence being discrepant with the FIR was wrong.
(23). From this point of view also, statement of the prosecutrix PW1 Manju cannot
be thrown away in the present case as her first version which was given to PW-1 Kela
and the same is found in the report Ex.P/7 appears to be given under threat and
thereafter, she has specifically stated in the statements recorded by the police, Magistrate and Court that she was raped by the accused respondent and no other person.
In such circumstances, if discrepancy occurred in the present case, it would not affect
the testimony of the prosecutrix PW1 Manju.
(24). It may be stated here that Court is aware that it is well settled principle of law that although legally there is no bar to accepting the uncorroborated testimony of a child witness yet prudence requires that Courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. This was so held by their Lordships of the Privy Council in Mohamed Sugal Esa Mamasan Rer Alalah v. King (10). The same view was taken by the Hon’ble Supreme Court in Rameshwar Kalyan Singh v. State of Rajas than (11), and later on, in so many cases.
(25). A child witness of about 12 years of age can often be expected to give out a true version because of his/her innocence, there is always the danger in accepting the evidence of such a witness that, under influence, she might have been coached to give out a version by persons who may have influence on her.
(26). Similar is the situation in the present case. In the beginning when prosecutrix PW1 Manju was brought to her house by the accused respondent himself, she narrated the story to her father PW4 Kela as she was coached by accused respondent. During investigation, when she was examined by the police and Court, she narrated another story and thus, in the present case, it can be said that at that stage influence of the accused respondent came to an end and she narrated the true version.
(27). Thus, from every point of view, prosecutrix PW1 Manju appears to be reliable witness and her statement that accused respondent committed rape on her appears to be trustworthy and the same is corroborated by the medical evidence. There is no ground to disbelieve her statement.
(28). For the reasons stated above, the learned Sessions Judge, Bhilwara has committed error in not placing reliance on the statement of prosecutrix PW1 Manju and thus, the findings of the learned Sessions Judge acquitting the accused respondent of the charge for the offence under Section 376 IPC are liable to be set aside,
(29). In my considered opinion, the prosecution has proved its case beyond all reasonable doubts against the accused respondent for the offence under Section 376 IPC. Hence, accused respondent is liable to be convicted for the offence under Section 376 IPC.
(30). Before parting with the present appeal, something should be said about the principle of benefit of doubt and conscience of the Court.
Principle of benefit of doubt and conscience of the Court
(31). The Hon’ble Supreme Court in Gurbachan Singh v. Satpal Singh (12), Hon’ble Mr. Justice Sabyasachi Mukharji (as he then was) has observed that the conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence, Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
(32). The above principle has been further approved by the Hon’ble Supreme Court in State of West Bengal v. Orilal Jaiswal and Anr. (13).
(33). Keeping the above principles in mind, in the present case, it does not appeal to the conscience of this Court that accused respondent has not committed the offence under Section 376 IPC and in my opinion, it is not a fit case where benefit of doubt should be given to the accused respondent merely because there is discrepancy between the version given in the FIR and the statement recorded in the Court.
(34). The Court is also aware that in criminal trial, the burden lies on the prosecution to prove its case beyond reasonable doubt and accused is entitled to every benefit of reasonable doubt. In the present case, the evidence which has been led in Court by the prosecution has been able to exclude every reasonable doubt about the innocence of the accused respondent and the present case is not a fit case where benefit of doubt should be given to the accused respondent.
(35). Since in the present case it also appears that seized articles from the accused respondent have not been produced and got exhibited in evidence, the investigation conducted by the police cannot be said to be proper and for this defective investigation, the case of the prosecution should not suffer, especially in rape cases, as held by the Hon’ble Supreme Court in Karnel Singh v. State of M.P. (14).
(36). The net result of the above discussion is that the prosecution has proved its case beyond all reasonable doubt against the accused respondent for the offence under Section 376(1) IPC and thus, accused respondent is liable to be convicted for the offence under Section 376(1) IPC and for the said offence, he is liable to be sentenced accordingly.
(37). In the result, this appeal filed by the State of Rajasthan is allowed and the judgment and order dated 11.5.1990 passed by the learned Sessions Judge, Bhilwara in Sessions Case No. 42/89 are set aside and the accused respondent Gaharoo is convicted for the offence under Section 376(1) IPC and for the offence under Section 376(1) IPC, the accused respondent is sentenced to undergo seven years rigorous imprisonment and to pay fine of Rs. 1,000/- (Rs. one thousand only) and in default of payment of fine, to further undergo three months RI. As per the provisions of Section 428 Cr. P.C., the period of detention, if any, undergone by accused respondent during the investigation or trial shall be set off from seven years RI. Since the accused respondent Gaharoo is on bail, he shall surrender before the trial court immediately and in case accused respondent does not surrender before the trial court, the trial court shall take necessary steps for arresting the accused respondent and sending him to jail to serve out the remaining period of sentence.