JUDGMENT
Shiv Kumar Sharma, J.
1. Sheo Chand, the appellant herein, was put to trial before learned Additional Sessions Judge (Fast Track) Behror (Alwar), who vide judgment dated December 20, 2002 convicted and sentenced the appellant as under:
Under Section 376(2)(g), IPC:
To suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer simple imprisonment for three months.
Under Section 366-A, IPC:
To suffer rigorous imprisonment for seven years and fine of Rs. 1000/-. in default to further suffer simple imprisonment for two months.
Under Section 363/109, IPC:
To suffer rigorous imprisonment for five years and fine of Rs. 500/-, in default to further suffer simple imprisonment for one month.
The substantive sentences were ordered to run concurrently.
Since co-accused Ashok Kumar was juvenile on the date of offence, his case was sent to the Principal Magistrate, Juvenile Court, Alwar.
2. As per prosecution story informant Mukesh Kumar (PW.1) on April 15, 2001 submitted a written report at Police Station Behror with the averments that on April 12, 2001 around 2 p.m. Sheo Chand and Ashok Kumar took away his sister ‘S’ from the house. ‘S’ was raped by Sheo Chand and Ashok Kumar. On April 13, 2004 ‘S’ came to Narnaul and went to house of her maternal uncle. On that report a case under Sections 366-A and 376, IPC was registered and investigation commenced. The appellant was arrested. Necessary memos were drawn and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track), Behror (Alwar). Charges under Sections 363, 366-A and 376, IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 13 witnesses. In the explanation under Section 313, Cr.P.C., the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein-above.
3. Learned Counsel for the appellant contended that charges against the appellant have not been established beyond reasonable doubt. The prosecutrix travelled many places but she did not raise any alarm. No report of her missing was ever lodged and even the report of offence was filed after three days of the alleged incident. According to statement of prosecutrix herself the appellant did not take her from her house and it was co-accused Ashok Kumar who took her with him and committed rape on her. Since Ashok Kumar stood acquitted by the Principal Magistrate, the appellant could not be held liable for the offence.
4. We have perused the judgment dated January 24, 2004 of the Principal Magistrate, Juvenile Court, Alwar v. hereby Ashok Kumar was acquitted of the charges under Sections 366 and 376, IPC.
5. It is well settled that in a case of rape, statement of prosecutrix is very important. Since in such cases normally direct evidence is not available and the Court is required to draw its conclusions from the attending circumstances. The prosecutrix of sex offence cannot be put at par with accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. In the instant case the prosecutrix ‘S’ is a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. The onus to prove that the accused committed sexual intercourse with prosecutrix without her consent and against her will as laid down in Section 375, IPC is on the prosecution. The points requiring proof are : (1) Sexual intercourse with such woman, (2) Such intercourse was committed against her will, or without her consent, or with her consent but consent had been obtained by putting her in fear of death or of hurt or by deceitfully making her believe that accused is a man to whom she has been lawfully married, or with or without her consent if she was then under sixteen years of age, (3) That if the woman was not under fifteen years of age the accused was not her husband, and (4) That there was penetration.
6. Having closely analysed the material on record, we find that the evidence of prosecutrix ‘S’ could not be shattered in the cross-examination. She has categorically deposed that appellant committed sexual intercourse with her against her will. Delay of three days in filing the FIR is not fatal in the facts and circumstances of the case. The prosecution in our opinion is able to establish the charge under Section 376, IPC against the appellant. Since co-accused Ashok Kumar is acquitted of all the charges and the judgment of Principal Magistrate attained finality, the charge of gang rape is not established against the appellant The prosecution also failed to prove charges under Section 366-A and 363/109, IPC against the appellant.
7. For these reasons, we partly allow the appeal of appellant Sheo Chand and instead of Section 376(2)(g), we convict him under Section 376, IPC. In the facts and circumstances of the case and looking to the fact that co accused Ashok Kumar has been acquitted by learned Principal Magistrate, Juvenile Court, Alwar vide judgment dated January 24 2004 we sentence appellant Sheo Chand to suffer rigorous imprisonment for seven years and fine of Rs. 500/-, in default to further suffer three months’ simple imprisonment. We, however acquit the appellant Sheo Chand of the charges under Sections 363/109 and 366-A, IPC.