R.B. Misra, J.
1. Heard learned Counsel for the parties.
2. The present Criminal Appeal has come up for consideration after the grant of leave to appeal under Section 378(3) of the Code of criminal Procedure in reference to the judgment dated 20.9.1996 passed by the Learned Sessions Judge, Sirmaur District at Nahan, HP in Sessions trial No. 50-N/7 of 1995, under Sections 457 and 376 IPC thereby acquitting the alleged accused/respondent.
3. In order to adjudicate the present appeal, it is necessary to give the factual background of the case that the prosecturix is married woman, aged 30 years was having children of 7 years and 3 years, alleged to have been sexually assaulted by the accused in the absence of her husband, namely Randhir Singh when he was away on 9.6.1994. The accused had allegedly knocked the door in the night of 9/10th June, 1994, but the door was not opened, then accused opened the door with the help of 'Drat' and came inside and sexually assaulted the victim-prosecutrix when she was inside the room with her children. On raising hue and cry by herself and by the children, nobody came to the rescue. When her husband came back on 10.6.1994 in the evening, the incident was narrated to him, who went to the house of accused, however, he was not available in the village. Thereafter, after a gap of 36 hours on 11.6.1994, FIR was lodged. After investigation 'Shirt' and 'Drat' were taken into custody and after the investigation accused was charged for the offence under Section 376 IPC and the case was committed to the Court of Sessions.
4. In order to prove its case, the prosecution examined as many as 8 prosecution witnesses. Whereas, the accused/respondent has denied the prosecution case.
5. DW-1 Kaushalya Devi and DW-2 Kewal Ram have introduced as defence witnesses. PW-3, Prosecutrix-victim in support of the prosecution case, has stated that she was sexually assaulted in the night of 9/10th June, 1994. She further disclosed Rattani Devi, PW-6 about the occurrence and her husband after his return on 10.6.1994 in the evening. Prosecutrix-victim has also further stated that her daughters Sheetal aged 7 years and Shally aged 3 years were sleeping in the room on the day of incidence when the door was knocked many times. During that time, her children were also got up. The door was bolted from inside. Thereafter, the accused opened the door, with the help of sickle, and gave a kick to the door and entered the room, then he firstly caught hold her from breasts and then from the arms. PW-3 further stated that she tried to get freed herself from the accused, but in the tussle her shirt of the left arm was torn. The accused lifted her forcibly to the other bed and sexually assaulted her. Next morning PW-3 disclosed about the incident to Kaushalya Devi, (Jethani) in the village and to Nirmal Devi, wife of the accused who told her that the she would be compensated (the prosecutrix-victim) in terms of money. When the prosecutrix-victim went into jungle for grazing the cattle, on way she disclosed Kesri Devi about the incident. However, on apprizing about the incident to her husband on 10th June, 1994 in the night, her husband accompanied the victim to the Police Station and lodged the FIR Ext PA/1.
6. According to the testimony of PW-3, 50 houses were in the village. The accused was her Devar in collateral-ship and had been visiting earlier to her house. However, his visit was neither objected by her husband nor her husband had suspicion about his bad motive. PW-3 has further stated that the accused on the day of incident, forcibly opened the door and came inside. She along with her daughters made hue and cry, but none came there. After putting off salwar by the accused, she was sexually assaulted. However, PW-3 has further categorically stated that she had not given any scratches with her nails or had not made tooth bite to the accused.
7. PW-4, Randhir Singh, tried to contact the accused and then contacted his brother Brij Mohan and thereafter on 11.6.1994, i.e. after the delay of 36 hours, FIR was lodged.
8. PW-5, Dr. J.P. Sharma had medically examined the accused on 16.6.1994 and found him capable of performing sexual act. He had issued the Medico Legal certificate Ext PW-5/A, where as Dr. (Mrs). Savita Sharma (PW-7) had medically examined the prosecutrix on 11.6.1994 and found her habitual to sexual intercourse. No marks of struggle or injury on any part of forearm, waist, breasts, face, lower part of abdomen, inner part of thighs or genitals on the body of the prosecutrix were found. The prosecutrix was wearing the same clothes, which she was wearing at the time of the alleged occurrence. But these were neither torned nor soiled with mud. Any foreign hair was also not seen on these. However, some whitish stains were found in the front of the salwar of the prosecutrix and thus it was taking into possession in a sealed cover and given to the police for Chemical Examination. However, non-motile spermatozoa was seen in the vaginal smear of the prosecutrix and, therefore, the doctor had opined that the prosecutrix had a sexual intercourse within 72 hours. She had issued the medico legal certificate Ext PD. She has denied if non-motile spermatozoa can be detected 9 to 12 days after the sexual act.
9. PW-6 Rattani Devi, Jethani of prosecutrix-victim was also narrated about the incident by the prosecutrix-victim on next day. PW-8, SI Garka Ram got the prosecutrix-victim medically examined, inspected the spot and prepared the site plan Ext PE. PW-6 has further stated that the prosecutrix-victim produced a Darat Ext P2, which was taken into possession in a sealed parcel vice recovery memo Ext PC. Shirt Ext P1 was also taken into possession in a sealed parcel vide recovery memo Ext PB/1. However, in the medical examination, the accused was found to have capable of sexual intercourse. DW-1, Kaushalya Devi, to whom the prosecutrix-victim is said to have narrated the incident, has denied that she heard any cries and alarm from the house of the prosecutrix-victim in the night on the day of occurrence. DW-1 has, however, not supported the prosecution case, whereas her house was only 10 to 15 feet away from the house of prosecutrix-victim.
10. DW-2 Kewal Ram has stated that on 11.6.1994 Randhir Singh, husband of the prosecutrix-victim had collected the gathering of villagers and told about the incident by saying that somebody had knocked the door of his house in his absence and then went away and it is suspected that the accused has done this. The accused was summoned and an altercation took place between husband of the prosecutrix-victim and the accused DW-2 further stated that husband of the prosecutrix-victim had threatened the accused that he will teach him a lesson.
11. On the scrutiny of prosecution witnesses, we notice that the manner PW-3 has resisted accused while being sexually assaulted, but the occurrence is not corroborated by the medical report as the shirt which the prosecutrix-victim was wearing was also not found torn, on examination, though she was wearing the same shirt which she was wearing at the time of occurrence. In our considered view, learned trial court has found that the testimony of prosecutrix-victim is not reliable as in case of married woman, having children, if an allegation of sexual assault is made, in such case, testimony of such married woman is not be accepted straightaway without the corroboration of independent witnesses and without the support of direct and substantial evidence, in view of the decision of Hon'ble Supreme Court in Ram Murti v. State of Haryana : AIR 1970 SC 1029 and Sheikh Zakir v. State of Bihar : AIR 1983 SC 911.
12. Hon'ble Supreme Court in Tameezuddin @ Tammu v. State (NCT of Delhi) : (2009) 15 SCC 566 has held that though evidence of prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. Therefore, in facts of the case, supporting evidence was said to be essential for prosecution's case in view of fallacies in prosecution version.
13. From the medical examination, no mark of injury or scratch or any sign has been noticed on the body of the prosecutrix-victim. If the grown up lady has been sexually assaulted without her consent, then mark of injury may be noticed as has been observed by the Supreme court in Partap Misra and Ors. v. State of Orissa : AIR 1977 SC 1307.
The Hon'ble Supreme Court in Bibhishan v. State of Maharashtra (2007) 12 SCC 390 has observed that the medical evidence is showing absence of any injury on the body or any sign of semen on private parts of prosecutrix and neither were her clothes torn nor was there presence of hair of accused on the private parts of prosecutrix and the doctor after examining the prosecutrix has certified that the prosecutrix was habituated to sexual intercourse, then the accused was held entitled to benefit of doubt.
14. In the present facts and circumstances, after scrutiny of the prosecution witnesses, we find apparent contradictions and improbabilities, as the FIR was lodged after a delay of 36 hours without any proper explanation, whereas police station was at a distance of 1 Kms away from the house of the prosecutrix-victim.
The Hon'ble Supreme Court in Ramdas and Ors. v. State of Maharashtra : (2007) 2 SCC 170, has observed that in ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the Court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of the evidence and the impact it has on the mind of the Court that is important. No straight jacket formula can be evolved in such matters, and each case must rest on its own facts.
15. The Hon'ble Supreme Court in Radhu v. State of Madhya Pradesh (2007) 12 SCC 57 has observed that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix and her testimony should not be rejected on the basis of minor discrepancies and contradictions. In absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor can be construed as the evidence of consent, nor the opinion of a doctor that there was no evidence of any sexual intercourse or rape sufficient to disbelieve the victim-However, courts should, at the same time, bear in mind that false charges of rape are not uncommon, and there are some rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability, whether there was rape or not would depend ultimately on the facts and circumstances of each case.
16. Analysing the facts and circumstances of the present case in the light of above verdict of Supreme Court, we are of the considered view that the prosecution has failed to bring home guilt to the accused and has failed to prove its case beyond reasonable doubt. The learned Sessions Judge cannot be said to have wrongly given benefit of doubt to the accused. Appeal being devoid of merit, is accordingly dismissed. Bail bonds furnished stand discharged.