JUDGMENT
O.P. Bishnoi, J.
1. This appeal has been preferred by Lala alias Lal Chand against a judgment dated 2-9-2002 passed by the learned Additional Sessions Judge (Fast Track), Anoopgarh, District Sriganganagar whereby the appellant has been found guilty for the offences punishable under Sections 450 and 376/511 of the I.P.C. For the first offence rigorous imprisonment of 5 years and a fine of Rs. 100/- has been awarded and on account of non-payment of fine, additional rigorous imprisonment for one month has been awarded. Similarly, for the offence punishable under Sections 376/511 of the I.P.C. also, the appellant has been awarded rigorous imprisonment for 5 years with a fine of Rs. 100/- and additional rigorous imprisonment for one month in lieu of non-payment of fine.
2. The incident allegedly took place at about 8.00 p.m. on 16-3-2001 in the township of Suratgarh in the house of P.W. 7 Pancharam. Pancharam lodged a written FIR Ex. P/9 on the next day at 11.30 a.m. at police station, Suratgarh.
3. According to the FIR Ex. P/9, Pancharam was residing in his house situate in Ward No. 10 along with his wife Kamla (PW/11) who was mentally retarded and sister Yashoda (PW/9). Further it was stated that while Pancharam was away from his house and Yashoda had gone out to answer call of the nature, the accused entered the house of the complainant and performed sexual intercourse with Smt. Kamla, who was alone in the house. Suddenly, Yashoda returned and found the two in a compromising position. According to the FIR, FW/3 Dharampal had seen the accused entering the house and other neighbours including Smt. Shanti (PW/1) also reached on the spot after hearing the noise and soon Pancharam also returned to his house, who was informed about the incident. On this report, a case under Sections 457 and 376 of the Indian Penal Code, 1860 was registered and ultimately, the appellant was put to trial for the offences punishable under Sections 450 and 376/511 of the IPC. He pleaded not guilty. Fourteen witnesses were examined by the prosecution and none was examined in defence. The arguments were then heard by the learned trial Court and the judgment was delivered on 2-9-2002 and hence, this appeal.
4. I have heard the learned counsel for the appellant as well as learned Public Prosecutor for the State and I find that the appeal deserves to be allowed. The evidence which has come does not inspire confidence and the conclusions drawn by the learned trial Court are unsustainable. It is argued by the learned counsel for the appellant that according to the prosecution story, the accused was a person of disrepute and was known for passing indecent remarks to the woman folk of the Mohalla. It is further submitted that may be somebody might have entered the house of the complainant but the culprit was not identified and the accused was roped simply on account of his reputation. Further it is pointed out that the FIR was not only lodged with undue delay but admittedly it contained allegations which were untrue to the knowledge of the complainant. It is submitted that as per the FIR which was lodged with a delay of more than 15 hours, the offence of rape took place and sexual intercourse with Smt. Kamla was actually performed. However, when the statement (Ex.-D/l) of the complainant Pancharam was recorded under Section 161 of the Cr.P.C., he denied that any sexual intercourse had taken place. He simply stated that while the accused was preparing to criminally assault Smt. Kamla, Yashoda appeared on the scene and the accused had to run away without performing the sexual intercourse. The learned counsel has taken me through the deposition of PW/9 Yashoda and has argued that Pancharam and Yashoda were otherwise annoyed with the appellant and they had planned to teach the appellant some lesson.
5. I find that as a matter of fact, there is no independent corroboration of the prosecution story. PW/1 Shanti, PW/2 Badri Prasad and PW/3 Dharampal are the persons who immediately appeared on the scene of occurrence. They have stated that a cry was raised by Yashoda that somebody had tresspassed into their house but Yashoda was not able to tell the name of the culprit at that point of time. PW/9 Smt. Yashoda has stated that prior to the incident on the same day at about 5.00 p.m. while she was cooking food the accused appeared on the roof of the house and made an indecent proposal to her on which she retorted that such proposals should be made by the accused to his own mother. She has admitted, in her cross-examination, that this incident was narrated by her to her brother Pancharam and Pancharam assured her that he is going to teach a lesson to the accused.
6. Regarding the alleged incident, the deposition of PW/9 Yashoda is far from satisfactory. In her examination-in-chief she has deposed to the effect that sexual intercourse actually was performed by the accused with Smt. Kamla. However, during cross-examination she had to admit that when she saw the accused for the first time, he was in the process of running away. She has stated that at the time of the incident Smt. Kamla was alone in the room and was watching television. However, the complainant Pancharam has specifically stated that there was no electricity in the room in which the offence took place. He was confronted with the statement Ex. D/1 and he denied that Smt. Kamla was watching television at the time of the incident.
7. Regarding the delay in lodging the FIR, in his statement Ex. D/l, Pancharam has stated that the persons of ‘Mohalla’ were trying to arrive at a compromise and since no compromise took place, the report was lodged next day. Similar is the explanation of Yashoda in her statement Ex. D/2. However, during their depositions both Pancharam and Yashoda have denied that the delay was due to the compromise attempt. They have denied that any effort for compromise was ever made by anybody. In the FIR itself there is a mention to the effect that on 16-3-2001 itself Pancharam went to the Police Station to lodge the FIR after leaving Kamla at the Government Hospital, but the police people did not register FIR and told him to come again after sometime. In this connection, the deposition of PW/9 Yashoda is significant. She has stated that on 16-3-2001 Pancharam did not go to the Police Station and remained at the house during the whole night.
8. In the light of the above discussion, the deposition of PW/4 Dr. R.L. Agarwal is also significant. He has stated that there was no injury of any nature on the person of Smt. Kamla when she was examined on 17-3-2001. The learned Public Prosecutor has drawn my attention towards the FSL Report Ex. P/24 and has argued that there is a finding to the effect that semen was detected on the ‘Salwar’ of Smt. Kamla. I find that this finding in Ex. P/24 is of no consequence. Smt. Kamla is a married woman living with her husband and evidence of semen on her ‘Salwar’ can be attributed to the normal sexual relation which she had with her husband. According to Ex. P/24 there was no evidence of semen in the vaginal swab or the vaginal smear. Moreover, the accused has been found guilty not for rape but for attempted rape.
9. The learned trial Court has found the accused guilty believing the testimony of Pancharam and his sister Yashoda. It may be mentioned here that both in their respective examination-in-chief have deposed that in fact the act of sexual intercourse had been performed with Kamla by the appellant. Needless to say that learned trial Court has not believed this part of the statement and concluded that no sexual intercourse took place and only there was an attempt on the part of the appellant. In view of the infirmities discussed above it becomes more than evident that Pancharam and Yashoda cannot be termed as reliable witnesses and no conviction can be based on their deposition. They have contradicted each other and have deposed against the version recorded in the FIR and their earlier statements recorded under Section 161 of the Cr.P.C.
10. In the result the appeal is allowed. The impugned judgment of the learned trial Court is set aside. The appellant is acquitted of both the charges. The accused is in jail, he shall be released forthwith, if not needed in any other case.