JUDGMENT
Sunil Kumar Garg, J.
1. This appeal has been preferred by the accused appellant against the judgment and order of conviction dated 28.09.1987 passed by the learned Additional Sessions Judge No. 2, Hanumangarh in Sessions Case No. 92/85 by which the learned Addl. Sessions Judge No. 2 while acquitting accused appellant for offence under Section 376/511 I.P.C., convicted him for offence under Section 354 IPC and sentenced him to one year’s R.I.
2. It arises in the following circumstances :
i) On 21.11.84 P.W.1 Mahendra Singh lodged an oral report (Ex.P/1) with the Police Station Hanumangarh Town stating inter alia that accused-appellant and PW.1 Mahendra Singh used to work in the field of one Charan Singh along with their families and in the night of 08.11.84 children of PW.1 Mahendra Singh were sleeping in a room and rest of the family members were sleeping outside the room. It was also stated in the report (Ex.P/1) that family of accused appellant along with his children was also sleeping in another room. In that night accused appellant tried to commit rape with his daughter PW.2 Murti aged about 12-13 years (hereinafter referred to as “the prosecutrix”) but his another daughter Amarjeet Kaur woke up and raised hue and cry on which PW.1 Mahendra Singh and his wife came there and saw that accused appellant was naked and he was pressing the mouth of PW.2 Murti and on seeing them accused appellant ran away. Thereafter he tried to catch hold of accused appellant but he could not be caught hold of. It was also stated in the report (Ex.P/1) that thereafter Panchayat was called in which PW1 Mahendra Singh was told to do whatever he wanted to do.
ii) That on that report (Ex.P/1), police chalked out regular FIR Ex.P/1 and started investigation.
iii) That during investigation, the accused appellant was got arrested on 11.12.1984 through Fard Ex.P/3.
iv) That after usual investigation, the police submitted challan against the accused appellant for offence under Section 376/511 I.P.C.
3. That on 26.8.86, charge for offence under Sections 376/511 I.P.C. was framed by the learned Additional Sessions Judge No. 2, Hanumangarh against the accused appellant who pleaded not guilty and claimed trial.
4. At the trial, prosecution examined as many as 5 witnesses in support of its case. Accused appellant in his statement under Section 313 Cr.P.C. denied to have committed any offence and no witness was examined by the accused appellant in defence.
5. At the conclusion of the trial, the learned Trial Judge through his judgment and order dtd. 28.9.87 convicted and sentenced accused appellant as stated above, holding that the delay in lodging the FIR was not fatal and further the learned trial Judge placed reliance on the statement of P.W.2 Murti.
6. Aggrieved from the judgment and order dtd. 28.9.87 passed by the learned Addl. Sessions Judge No. 2, Hanumangarh, this appeal has been filed by the accused appellant.
7. That in this appeal following submissions have been raised by the learned counsel for the appellant:
i) That the delay in this case is not minor delay, but substantial delay as the incident took place on 8.11.84 and the report was lodged on 21.11.84 and therefore, there is delay of 13 days and this delay itself throws a doubt on the prosecution story and thus, the accused appellant should be given the benefit of doubt.
ii) That in this case the statement of prosecutrix i.e. P.W.2 Murti does not inspire confidence at all and other witnesses produced by the prosecution are all relative witnesses namely P.W. 1 Mahendra Singh is father of prosecutrix (P.W.2 Murti) and P.W.3 Resham Singh is brother of P.W.2 Murti and P.W.4 Sadhu Singh is cousin brother of P.W.2 Murti and no independent witness has been produced in this case.
iii) That no other corroborative evidence e.g. medical evidence and seizure of cloths etc. has been produced by the prosecution.
iv) That apart, the main witness in this case, namely, Noor Nabi, Sarpanch has also not been produced and, therefore, the findings of conviction recorded by the learned trial Court should be set aside and the accused appellant should be acquitted.
8. Before proceeding further, it may be stated here that there is no dispute on the point that alleged incident took place on 8.11.84 and the report (Ex.P/1) was lodged by P.W.1 Mahendra Singh on 21.11.84.
9. There is also no dispute on the point that no medical examination of P.W.2 Murti was got conducted and thus no injury of any sort was found on the person of P.W.2 Murti.
10. There is also no dispute on the point that P.W.1 Mahendra Singh informed the whole incident to Sarpanch Noor Nabi next day, but he was not produced at the trial.
CRITICAL EXAMINATION OF STATEMENTS OF PROSECUTION WITNESSES
11. P.W.1 Mahendra Singh in his statement has stated that at the time when the accused appellant was trying to molest P.W.2 Murti, he was-not wearing Payjama, but that Payjama was not seen by him even on the spot. P.W.1 Mahendra Singh in cross-examination has admitted that when he entered the room P.W.2 Murti was wearing all her cloths.
12. P.W.2 Murti who is said to be of 13 years of age at the time of incident has admitted in cross-examination that her statement was recorded after two days of the incident, but later on she admitted that her statement was recorded after lodging of the report (Ex.P/1). P.W.2 Murti has further admitted that the incident was narrated to Sarpanch Noor Nabi on the next day. She also admitted in her cross-examination that the accused appellant was trying to open her nara, but she cried and accused appellant ran away.
13. Similar is the statement of P.W.3 Resham Singh and he has further admitted in cross-examination that on the date of incident, he went to the police Station where “Parcha” was given. P.W.4 Sadhu Singh is also relative of P.W. 1 Mahendra Singh and he has also admitted that the whole incident was told to Noor Nabi, Sarpanch. P.W.5 Noor Mohd. is the investigating officer who has clearly admitted in his cross-examination that before 21.11.84, P.W.1 Mahendra Singh did not come to lodge the report, meaning thereby that before 21.11.84 no attempt was made by P.W. 1 Mahendra Singh to lodge the report of the incident which occurred on 8.11.84.
14. The question which arises for consideration is whether in the facts and circumstances of the present case, the findings of conviction for offence under Section 354 I.P.C. against the accused appellant can be sustained or not.
15. In the present case, the case of P.W.1 Mahendra Singh is that he contacted Sarpanch Noor Nabi on the next day and Noor Nabi Sarpanch told him that whatever he wanted to do, he could do, meaning thereby that had the report would have been lodged by 10.11.84 or one day more, in such situation, that delay could not have been said to be fatal, but in this case, the report (Ex.P/1) was lodged on 21.11.84 and the explanation given by P.W.1 Mahendra Singh cannot be said to be satisfactory as he informed Sarpanch Noor Nabi on next and Sarpanch told him to lodge the report, but since the report was not lodged immediately, it creates a doubt whether said incident had taken place or not and the delay in this present case appears to be fatal to the prosecution.
16. Apart from this, the star witness namely, Noor Nabi, Sarpanch to whom the whole incident was narrated was not produced and non-examination of Noor Nabi also casts doubt on the prosecution story. Further more, in this case P.W.1 Mahendra Singh, P.W.2 Murti, P.W.3 Resham Singh and P.W.4 Sadhu Singh are all relative witnesses and, therefore, no independent witness has been produced and from this point of view also, the prosecution case comes under the shadow of doubt if the delay of 13 days is kept in mind. The other corroborative evidence namely, medical evidence etc. has also not been produced in this case and apart from this, there are contradictions in the statements of prosecution witnesses.
17. Thus, delay in lodging the report, no medical examination of P.W.2 Murti, non-examination of material witness Noor Nabi and non-examination of independent witnesses are all such factors which throws doubt on the prosecution story and under such circumstances, it cannot be said that the prosecution has proved its case beyond reasonable doubt.
18. In criminal case the prosecution is under an obligation to prove its case beyond reasonable doubt. Apart from this if evidence is more or less equally balanced, the benefit of doubt must go to the accused and thus the accused appellant is entitled to acquittal after giving him benefit of doubt.
19. For the reasons mentioned above, the judgment and order dtd. 28.9.87 passed by the learned Additional Sessions Judge No. 2 are liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled to acquittal for offence under Section 354 I.P.C.
Accordingly, the appeal of the accused appellant Tan Sukh is allowed and judgment and order dtd. 28.9.87 passed by the learned Additional Sessions Judge No. 2, Hanumangarh are quashed and set aside and the accused appellant Tan Sukh is acquitted for offence under Section 354 I.P.C. after giving him benefit of doubt.
Since accused appellant is on bail, he need not surrender. His bail bonds are cancelled.