Premchand Vs. the State of Madhya Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/1050061
CourtMadhya Pradesh High Court
Decided OnAug-06-2013
AppellantPremchand
RespondentThe State of Madhya Pradesh
Excerpt:
1 cr.a. no.664/2007 high court of madhya pradesh at jabalpur single bench: hon’ble shri justice subhash kakade criminal appeal no.664 of 2007 appellant : premchand s/o jhabbu aged about 22 years, r/o bichchhukhan, p.s. amala, district betul (m.p.) versus respondent : the state of madhya pradesh, through p.s. amala, district betul (m.p.) --------------------------------------------------------------------------------- shri pushpendra dubey, advocate for the appellant. shri akshay namdeo, panel lawyer for the respondent /state --------------------------------------------------------------------------------- judgment reserved on :20. 06.2013 judgment delivered on :06. 08.2013 (judgment) by means of filing the present appeal under section 374 of the code of criminal procedure, 1973, appellant premchand has assailed the order of conviction dated 12.02.2007 passed by the learned additional sessions judge (ftc) tahsil multai, district betul is sessions trial no.47 /2006 (state of m.p. through p.s. amala vs. premchand). by the judgment under challenge, the learned trial judge convicted and sentenced appellant premchand as follows:- s.n. conviction sentence 1 u/s 376 of ipc r.i. for 10 years and fine of rs.1000 / - in default of payment of fine, further to suffer six months additional r.i. 2 u/s 506- b of ipc r.i. for 1 year and fine of rs.500 /, in default of payment of fine, further to undergo 3 months' additional r.i. 2 cr.a. no.664/2007 02. the case of the prosecution in short is that on the date of incident 16.01.2006 in village bucchu khan p.s. amala in house of accused/appellant premchand preparatory activities for “makar sankranti”. festival were going on. mid- night at about 01:00 a.m. subratibai, wife of appellant came to residence of prosecutrix and asked her mother phoolabai to come along to help “pudi”. preparation for festival. phoolabai and prosecutrix went to the house of appellant. prosecutrix, subratibai and suklu were prepared “pudi”. upto 02:00 a.m. then prosecutrix alone left for her house. as soon she reached near the house of ojha, appellant came there and caught her and dragged towards hut situated in his fields. she tried to cry for help, but, appellant gagged her mouth and forcibly committed rape on her twice. appellant also threatened, if she will narrate this incident to her parents or anybody in the village then he will cut and throw her. prosecutrix came to house, narrated incident to mother phoolabai and bhabhi budhiyabai brother's wife. on dated 21.01.2006 matter was reported at police station amala, which set criminal law in motion. investigating officer recorded statements of the prosecutrix and managed to sent her to hospital where lady doctor examined her. for age verification, she was referred to the radiological examination. in furtherance of investigation, officer recorded statements of other witnesses, arrested appellant and after completion of investigation, a challan was submitted in the competent committal court, which in turn committed the case to 3 cr.a. no.664/2007 the court of session, betul and from where it was received in the learned trial court for the trial. 03. the learned trial court framed the charges against appellant for commission of offence punishable under sections 376(1) and 506- b of ipc. appellant pleaded not guilty therefore, he was put to trial. 04. prosecution examined 11 witnesses including prosecutrix and also produced documents ex.p-1 to p-16. during statement under section 313 of cr.p.c., the appellant denied all prosecution witnesses put forth against him and pleaded his innocence on the ground that he is falsely implicated in money matter. bate (dw /1) is examined as defence witness. 05. on conclusion of trial, learned trial court vide impugned judgment convicted the appellant for the offence and imposed the sentence as referred to hereinabove, hence, this appeal. 06. shri pushpendra dubey, learned counsel for the appellant has submitted that while passing the impugned judgment, the learned trial court committed grave error, because it completely failed to appreciate the evidence regarding age of the prosecutrix and as per available evidence ignored this fact that the prosecutrix is major lady and was consenting party. he has further submitted that prosecution failed to prove the case beyond reasonable doubt, first information report was delayed after long 5 days and no sufficient explanation is given by the prosecution. thus, the appeal deserves to be allowed. 07. shri akshay namdeo, learned panel lawyer for the state has opposed the appeal vehemently contending that the appellant has 4 cr.a. no.664/2007 rightly been convicted believing the testimony of the prosecutrix. the finding so recorded by the learned trial court does not warrant any interference, thus, this appeal is liable to be dismissed. 08. i have considered the rival submissions made by learned counsel for the parties and perused the impugned judgment and available record. 09. the distance between two places, place of incident and place from where prosecutrix dragged, is not mentioned in first information report (ex.p-1), not it is explained by any witness. this lacuna is important.10. in the first information report ex.p-1 prosecutrix had stated that she was raped twice. if this specifically mentioned fact is not supported by prosecutrix herself, then definitively it will itself created doubt about truthfulness of prosecutrix. it is pertinent to mention here that prosecutrix did not uttered a single word regarding this important fact during her court evidence.11. in examination- in- chief prosecutrix categorically stated when she reached at house in the night first of all she narrated the incident to her bhabhi budhiabai then to her mother. it is pertinent to mention here that nearest relative budhiyabai (pw/5) were declared hostile because, she stated that prosecutrix did not narrate her any fact about the incident and also contradicted her police statement ex.p-5. budiyabai (pw/5) also admitted that from the date of incident to date of her deposition 22.06.2006 both are living in the same house, having same kitchen but, prosecutrix never narrated her regarding this incident. this contradiction is fatal. 5 cr.a. no.664/2007 12. prosecutrix narrated that with parents she went to village kotwar and explained him regarding the incident, phoolabai (pw/2) fully supported this version of prosecutrix. prosecutrix further stated as mentioned in foregoing para 11 that first of all she narrated the incident to the kotwar in the night itself at 3:00 a.m. because, he resides in front of her house and kotwar narrated this incident to all other persons.13. but, kotwar bhoju (pw/6) denied all above facts, therefore, he was declared hostile. during leading questions, he further stated that prosecutrix never told him that appellant raped her. he categorically denied this fact that he had never given any such statement during his police statement ex.p-6. kotwar bhoju (pw/6) narrated new fact in these words that prosecutrix told him that appellant badly beaten her, but, this statement is not supported by medical evidence or any oral evidence produced by the prosecution.14. prosecutrix claims that kotwar was also with kishori and her mother, who accompanied her upto police station for reporting the matter. she further claims that kotwar narrated all the facts to the police. these claims regarding kotwar bhoju is against the version of prosecution story though, kotwar bhoju (pw/6) did not support the case of prosecution.15. it is specifically mentioned in the first information report ex.p-1 that apart from mother phoolabai, kishori, nanhi and chhoti was also accompanied to prosecutrix while reported the matter at police station, amala. out of these four, nanhi did not examined by the prosecution. 6 cr.a. no.664/2007 16. when village patel kishori korku (pw/7) stated that prosecutrix did not inform anything regarding the incident to him resultantly, this third witness in a row also declared hostile. kishori korku (pw/7) stated that when he accompanied the prosecutrix upto police station she did not narrate anything that rape was committed by the appellant with her, but, prosecutrix authoritatively claims that she narrated kishori that rape is committed with her. kishori korku (pw/7) repeatedly explained that prosecutrix only narrated that appellant misbehaved with her.17. it is pertinent to mention here that kishori korku (pw/7) stated that after 4-5 days “sankranti”. festival phoolabai (pw/2) informed him about the incident. he further admits that in the village there was no rumour about the rape. in this sequence, he also stated that at the time of report prosecutrix was in the police station and with other persons he was waiting outside the police station so, he is not able to say what matter was reported by the prosecutrix?. inspector shri pradeep mishra (pw/10) denied the suggestion that he written the first information report ex.p-1 on his own.18. chhotibai (pw/4) stated that prosecutrix narrated her only that she went to the house of appellant for preparing “pudi”. and nothing else. during leading questions this fourth hostile witness also not support the prosecution story.19. prosecutrix admitted that due to festival in house of appellant ladies and gents were drinking liquor and performing dance also, but, she denied that she performed dance there. it is no.7 cr.a. no.664/2007 mentioned in fir that appellant was drunk, but during her court evidence, first time she narrated that appellant was drunk, but chhotibai (pw/4) also denied this fact.20. during cross examination prosecutrix admitted that when she left the house of appellant his wife subratibai and suklu were present and when she proceeded only 20 steps appellant caught hold and gagged her mouth. in this sequence prosecutrix admitted unbelievable fatal fact that subratibai twice requested appellant leave her but, he did not and nobody came for her rescue. this fact is not part of the first information report ex.p-1 not any other witness including phoolabai (pw/2) supported this fact. this fact is at all not acceptable that when husband caught hold another lady mid- night in presence of his wife and wife will not try to rescue that lady?.21. prosecutrix was medically examined by dr. nisha badhave (pw/8) who did not find any injury mark on the person or private part of the prosecutrix vide her mlc report (ex.p-9). she reported that no definite opinion can be given regarding rape on the prosecutrix. therefore, it is clear that the medical evidence is also not supporting the version of the prosecutrix.22. lady doctor collected vaginal smear, packed and sealed and packet was handed over to the concerned police officer, a.s.i. ramesh raghuwanshi (pw/11) who seized that packets as per seizure memo ex.p-12.23. whether on the date of incident prosecutrix was minor?. to demonstrate that prosecutrix was below 16 years, burden is on prosecution only. to shift the burden, the prosecution has mainly 8 cr.a. no.664/2007 relied on the evidence of dr.nisha badhave (pw/8) and dr. o.p. yadav (pw/3) to prove that on the date of incident prosecutrix was below 16 years of age.24. it was dr. nisha badhave (pw/8) who referred the prosecutrix for determination of her age to radiologist. dr. o.p. yadav (pw/3) on basis of x-ray plate ex.p-2 vide his report ex.p-3 has given the opinion that the age of prosecutrix was about 15 years. but, he also admitted this fact that there may be variation of two years (+) (-) in age of prosecutrix. this way the prosecution fails to discharge his duty by strength of medical evidence beyond doubt that on the date of incident prosecutrix was below the age of 16 years.25. in this sequence, apart from the radiological report, oral evidence of prosecution witnesses is also available to determine the age of the prosecutrix as major.26. when prosecutrix appeared before the learned trial court for evidence she stated her age is 14 years though, learned trial judge recorded her apparent age 15- 16 years. during cross examination she admitted that at police station kotwar narrated her age. she further stated that when police asked about her age she did not narrate her age of 18 years. she also admitted that police tutored her to say that her age is 14 years so she narrated this age to the police.27. phoolabai (pw/2) stated that at the time of birth of prosecutrix, this fact was informed to the kotwar. she is unable to explain year and season of birth of prosecutrix but, repeatedly stated that year must be written by the kotwar. kotwar bhoju (pw/6) stated that the diary related with noting of birth of 9 cr.a. no.664/2007 prosecutrix deposited by him in the police station long back which he did not receive same. he denied the suggestion that to save the appellant he did not bring the diary. in this sequence he stated against the case of prosecution that prosecutrix will be of 17 -18 years of age.28. budhiyabai (pw/5) is of the opinion that this fact is not in her knowledge that whether prosecutrix is of 18 years of age or not.29. therefore, prosecution utterly failed to prove by oral evidence also that the age of the prosecutrix was below 16 years on the date of the incident. on the other hand, oral evidence of prosecution witness going to established that age of prosecutrix on the date of incident was above 18 years.30. it is no doubt true, that conviction can be based solely on testimony of the prosecutrix, but that can be done in a case where the court convinced about the truthfulness of the prosecutrix and there exist no circumstances which caste a shadow of doubt over her veracity. if the evidence of prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony.31. the evidence of prosecutrix is not trustworthy, she has deviated from the case narrated in the first information report ex.p-1. medical evidence is also not supportive to evidence of prosecutrix. phoolabai (pw/2) supported the version of the prosecutrix but, hostility of most important witness budhiyabai (pw/5) who shares the same house in which prosecutrix and her mother phoolabai (pw/2) resides, creating serious doubtful situation. this doubt goes to deep to deepen when other three important prosecution witnesses, chhotibai (pw/4), kotwar bhoju (pw/6) and patel kishori korku 10 cr.a. no.664/2007 (pw/7) were also declared hostile because they did not support the prosecution story.32. shri mishra (pw/10) admitted this fact that when prosecutrix came to lodge first information report ex.p-1, after 5 days she only narrated the reason that appellant threatened her. shri mishra (pw/10) also admitted that apart from this reason, prosecutrix did not narrate any other reason for delay. prosecutrix denied this suggestion that after thought to involve the appellant she lodged report after 4 days. phoolabai (pw/2) explained the reason of delay that for two- three days she was thinking over the matter on this point that appellant is his relative, though, this reason is not part of the first information report ex.p-1. therefore, it is proved that first information report ex.p-1 was reported after lapse of 5 days and no sufficient explanation is given by prosecution for delay is fatal for the prosecution and on this count alone appellant will get the benefit of doubt.33. dr. b.p. chouriya (pw/9) after medical examination of the appellant seized his clothes packed and sealed. the packet was sent to the police station which was seized as per seizure memo ex.p-14 by shri raghuwanshi (pw/11) in presence of witnesses.34. if the entire factual scenario, is tested on the anvil of the evidence of the prosecution and after considering the evidence in a proper perspective manner, it would reveal that no offence is made out against the appellant. above 18 years aged prosecutrix not appearing to be witness of sterling quality on whose sole testimony conviction of appellant can be based. medical evidence not supporting case of prosecution. important witnesses chhotibai (pw/3), budhiyabai (pw/4), kotwar bhoju (pw/5) and patel 11 cr.a. no.664/2007 kishori korku (pw/7) were hostile. above all, first information report (ex.p-1) lodged after delay of 5 days and for this delay no sufficient explanation is given by the prosecution.35. therefore, the conviction under section 376 (1) of ipc cannot be sustained. the appeal is therefore, allowed. conviction of the appellant and sentence awarded to him by the learned trial court is hereby set aside and the appellant premchand is acquitted from the charges under section 376 (1) of indian penal code leveled against him.36. the appellant premchand is on bail, his bail bond stands discharged. (subhash kakade) judge ak/
Judgment:

1 Cr.A. No.664/2007 HIGH COURT OF MADHYA PRADESH AT JABALPUR SINGLE BENCH: HON’BLE SHRI JUSTICE SUBHASH KAKADE CRIMINAL APPEAL NO.664 of 2007 APPELLANT : Premchand S/o Jhabbu aged about 22 years, R/o Bichchhukhan, P.S. Amala, District Betul (M.P.) Versus RESPONDENT : The State of Madhya Pradesh, through P.S. Amala, District Betul (M.P.) --------------------------------------------------------------------------------- Shri Pushpendra Dubey, Advocate for the appellant. Shri Akshay Namdeo, Panel Lawyer for the respondent /State --------------------------------------------------------------------------------- Judgment reserved on :

20. 06.2013 Judgment delivered on :

06. 08.2013 (

JUDGMENT

) By means of filing the present appeal under Section 374 of the Code of Criminal Procedure, 1973, appellant Premchand has assailed the order of conviction dated 12.02.2007 passed by the learned Additional Sessions Judge (FTC) Tahsil Multai, District Betul is Sessions Trial No.47 /2006 (State of M.P. through P.S. Amala Vs. Premchand). By the judgment under challenge, the learned trial Judge convicted and sentenced appellant Premchand as follows:- S.N. Conviction Sentence 1 U/s 376 of IPC R.I. for 10 years and fine of Rs.1000 / - in default of payment of fine, further to suffer six months additional R.I. 2 U/s 506- B of IPC R.I. for 1 year and fine of Rs.500 /, in default of payment of fine, further to undergo 3 months' additional R.I. 2 Cr.A. No.664/2007 02. The case of the prosecution in short is that on the date of incident 16.01.2006 in village Bucchu Khan P.S. Amala in house of accused/appellant Premchand preparatory activities for “Makar Sankranti”. festival were going on. Mid- night at about 01:00 a.m. Subratibai, wife of appellant came to residence of prosecutrix and asked her mother Phoolabai to come along to help “Pudi”. preparation for festival. Phoolabai and prosecutrix went to the house of appellant. Prosecutrix, Subratibai and Suklu were prepared “Pudi”. upto 02:00 a.m. then prosecutrix alone left for her house. As soon she reached near the house of Ojha, appellant came there and caught her and dragged towards hut situated in his fields. She tried to cry for help, but, appellant gagged her mouth and forcibly committed rape on her twice. Appellant also threatened, if she will narrate this incident to her parents or anybody in the village then he will cut and throw her. Prosecutrix came to house, narrated incident to mother Phoolabai and Bhabhi Budhiyabai brother's wife. On dated 21.01.2006 matter was reported at Police Station Amala, which set criminal law in motion. Investigating Officer recorded statements of the prosecutrix and managed to sent her to hospital where lady Doctor examined her. For age verification, she was referred to the Radiological examination. In furtherance of investigation, Officer recorded statements of other witnesses, arrested appellant and after completion of investigation, a challan was submitted in the Competent committal Court, which in turn committed the case to 3 Cr.A. No.664/2007 the Court of Session, Betul and from where it was received in the learned trial Court for the trial. 03. The learned trial Court framed the charges against appellant for commission of offence punishable under Sections 376(1) and 506- B of IPC. Appellant pleaded not guilty therefore, he was put to trial. 04. Prosecution examined 11 witnesses including prosecutrix and also produced documents Ex.P-1 to P-16. During statement under Section 313 of Cr.P.C., the appellant denied all prosecution witnesses put forth against him and pleaded his innocence on the ground that he is falsely implicated in money matter. Bate (DW /1) is examined as defence witness. 05. On conclusion of trial, learned trial Court vide impugned judgment convicted the appellant for the offence and imposed the sentence as referred to hereinabove, hence, this appeal. 06. Shri Pushpendra Dubey, learned counsel for the appellant has submitted that while passing the impugned judgment, the learned trial Court committed grave error, because it completely failed to appreciate the evidence regarding age of the prosecutrix and as per available evidence ignored this fact that the prosecutrix is major lady and was consenting party. He has further submitted that prosecution failed to prove the case beyond reasonable doubt, First Information Report was delayed after long 5 days and no sufficient explanation is given by the prosecution. Thus, the appeal deserves to be allowed. 07. Shri Akshay Namdeo, learned Panel Lawyer for the State has opposed the appeal vehemently contending that the appellant has 4 Cr.A. No.664/2007 rightly been convicted believing the testimony of the prosecutrix. The finding so recorded by the learned trial Court does not warrant any interference, thus, this appeal is liable to be dismissed. 08. I have considered the rival submissions made by learned counsel for the parties and perused the impugned judgment and available record. 09. The distance between two places, place of incident and place from where prosecutrix dragged, is not mentioned in First Information Report (Ex.P-1), not it is explained by any witness. This lacuna is important.

10. In the First Information Report Ex.P-1 prosecutrix had stated that she was raped twice. If this specifically mentioned fact is not supported by prosecutrix herself, then definitively it will itself created doubt about truthfulness of prosecutrix. It is pertinent to mention here that prosecutrix did not uttered a single word regarding this important fact during her Court evidence.

11. In examination- in- chief prosecutrix categorically stated when she reached at house in the night first of all she narrated the incident to her Bhabhi Budhiabai then to her mother. It is pertinent to mention here that nearest relative Budhiyabai (PW/5) were declared hostile because, she stated that prosecutrix did not narrate her any fact about the incident and also contradicted her police statement Ex.P-5. Budiyabai (PW/5) also admitted that from the date of incident to date of her deposition 22.06.2006 both are living in the same house, having same kitchen but, prosecutrix never narrated her regarding this incident. This contradiction is fatal. 5 Cr.A. No.664/2007 12. Prosecutrix narrated that with parents she went to village Kotwar and explained him regarding the incident, Phoolabai (PW/2) fully supported this version of prosecutrix. Prosecutrix further stated as mentioned in foregoing para 11 that first of all she narrated the incident to the Kotwar in the night itself at 3:00 a.m. because, he resides in front of her house and Kotwar narrated this incident to all other persons.

13. But, Kotwar Bhoju (PW/6) denied all above facts, therefore, he was declared hostile. During leading questions, he further stated that prosecutrix never told him that appellant raped her. He categorically denied this fact that he had never given any such statement during his police statement Ex.P-6. Kotwar Bhoju (PW/6) narrated new fact in these words that prosecutrix told him that appellant badly beaten her, but, this statement is not supported by medical evidence or any oral evidence produced by the prosecution.

14. Prosecutrix claims that Kotwar was also with Kishori and her mother, who accompanied her upto police station for reporting the matter. She further claims that Kotwar narrated all the facts to the police. These claims regarding Kotwar Bhoju is against the version of prosecution story though, Kotwar Bhoju (PW/

6) did not support the case of prosecution.

15. It is specifically mentioned in the First Information Report Ex.P-1 that apart from mother Phoolabai, Kishori, Nanhi and Chhoti was also accompanied to prosecutrix while reported the matter at Police Station, Amala. Out of these four, Nanhi did not examined by the prosecution. 6 Cr.A. No.664/2007 16. When village Patel Kishori Korku (PW/7) stated that prosecutrix did not inform anything regarding the incident to him resultantly, this third witness in a row also declared hostile. Kishori Korku (PW/7) stated that when he accompanied the prosecutrix upto police station she did not narrate anything that rape was committed by the appellant with her, but, prosecutrix authoritatively claims that she narrated Kishori that rape is committed with her. Kishori Korku (PW/7) repeatedly explained that prosecutrix only narrated that appellant misbehaved with her.

17. It is pertinent to mention here that Kishori Korku (PW/7) stated that after 4-5 days “Sankranti”. festival Phoolabai (PW/2) informed him about the incident. He further admits that in the village there was no rumour about the rape. In this sequence, he also stated that at the time of report prosecutrix was in the police station and with other persons he was waiting outside the police station so, he is not able to say what matter was reported by the prosecutrix?. Inspector Shri Pradeep Mishra (PW/10) denied the suggestion that he written the First Information Report Ex.P-1 on his own.

18. Chhotibai (PW/4) stated that prosecutrix narrated her only that she went to the house of appellant for preparing “Pudi”. and nothing else. During leading questions this fourth hostile witness also not support the prosecution story.

19. Prosecutrix admitted that due to festival in house of appellant ladies and gents were drinking liquor and performing dance also, but, she denied that she performed dance there. It is No.7 Cr.A. No.664/2007 mentioned in FIR that appellant was drunk, but during her court evidence, first time she narrated that appellant was drunk, but Chhotibai (PW/4) also denied this fact.

20. During cross examination prosecutrix admitted that when she left the house of appellant his wife Subratibai and Suklu were present and when she proceeded only 20 steps appellant caught hold and gagged her mouth. In this sequence prosecutrix admitted unbelievable fatal fact that Subratibai twice requested appellant leave her but, he did not and nobody came for her rescue. This fact is not part of the First Information Report Ex.P-1 not any other witness including Phoolabai (PW/2) supported this fact. This fact is at all not acceptable that when husband caught hold another lady mid- night in presence of his wife and wife will not try to rescue that lady?.

21. Prosecutrix was medically examined by Dr. Nisha Badhave (PW/8) who did not find any injury mark on the person or private part of the prosecutrix vide her MLC report (Ex.P-9). She reported that no definite opinion can be given regarding rape on the prosecutrix. Therefore, it is clear that the medical evidence is also not supporting the version of the prosecutrix.

22. Lady Doctor collected vaginal smear, packed and sealed and packet was handed over to the concerned police officer, A.S.I. Ramesh Raghuwanshi (PW/11) who seized that packets as per seizure memo Ex.P-12.

23. Whether on the date of incident prosecutrix was minor?. To demonstrate that prosecutrix was below 16 years, burden is on prosecution only. To shift the burden, the prosecution has mainly 8 Cr.A. No.664/2007 relied on the evidence of Dr.Nisha Badhave (PW/8) and Dr. O.P. Yadav (PW/3) to prove that on the date of incident prosecutrix was below 16 years of age.

24. It was Dr. Nisha Badhave (PW/8) who referred the prosecutrix for determination of her age to Radiologist. Dr. O.P. Yadav (PW/3) on basis of X-ray plate Ex.P-2 vide his report Ex.P-3 has given the opinion that the age of prosecutrix was about 15 years. But, he also admitted this fact that there may be variation of two years (+) (-) in age of prosecutrix. This way the prosecution fails to discharge his duty by strength of medical evidence beyond doubt that on the date of incident prosecutrix was below the age of 16 years.

25. In this sequence, apart from the Radiological report, oral evidence of prosecution witnesses is also available to determine the age of the prosecutrix as major.

26. When prosecutrix appeared before the learned trial Court for evidence she stated her age is 14 years though, learned trial Judge recorded her apparent age 15- 16 years. During cross examination she admitted that at police station Kotwar narrated her age. She further stated that when police asked about her age she did not narrate her age of 18 years. She also admitted that police tutored her to say that her age is 14 years so she narrated this age to the police.

27. Phoolabai (PW/2) stated that at the time of birth of prosecutrix, this fact was informed to the Kotwar. She is unable to explain year and season of birth of prosecutrix but, repeatedly stated that year must be written by the Kotwar. Kotwar Bhoju (PW/6) stated that the diary related with noting of birth of 9 Cr.A. No.664/2007 prosecutrix deposited by him in the police station long back which he did not receive same. He denied the suggestion that to save the appellant he did not bring the diary. In this sequence he stated against the case of prosecution that prosecutrix will be of 17 -18 years of age.

28. Budhiyabai (PW/5) is of the opinion that this fact is not in her knowledge that whether prosecutrix is of 18 years of age or not.

29. Therefore, prosecution utterly failed to prove by oral evidence also that the age of the prosecutrix was below 16 years on the date of the incident. On the other hand, oral evidence of prosecution witness going to established that age of prosecutrix on the date of incident was above 18 years.

30. It is no doubt true, that conviction can be based solely on testimony of the prosecutrix, but that can be done in a case where the Court convinced about the truthfulness of the prosecutrix and there exist no circumstances which caste a shadow of doubt over her veracity. If the evidence of prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony.

31. The evidence of prosecutrix is not trustworthy, she has deviated from the case narrated in the First Information Report Ex.P-1. Medical evidence is also not supportive to evidence of prosecutrix. Phoolabai (PW/2) supported the version of the prosecutrix but, hostility of most important witness Budhiyabai (PW/5) who shares the same house in which prosecutrix and her mother Phoolabai (PW/2) resides, creating serious doubtful situation. This doubt goes to deep to deepen when other three important prosecution witnesses, Chhotibai (PW/4), Kotwar Bhoju (PW/6) and Patel Kishori Korku 10 Cr.A. No.664/2007 (PW/7) were also declared hostile because they did not support the prosecution story.

32. Shri Mishra (PW/10) admitted this fact that when prosecutrix came to lodge First Information Report Ex.P-1, after 5 days she only narrated the reason that appellant threatened her. Shri Mishra (PW/10) also admitted that apart from this reason, prosecutrix did not narrate any other reason for delay. Prosecutrix denied this suggestion that after thought to involve the appellant she lodged report after 4 days. Phoolabai (PW/2) explained the reason of delay that for two- three days she was thinking over the matter on this point that appellant is his relative, though, this reason is not part of the First Information Report Ex.P-1. Therefore, it is proved that First Information Report Ex.P-1 was reported after lapse of 5 days and no sufficient explanation is given by prosecution for delay is fatal for the prosecution and on this count alone appellant will get the benefit of doubt.

33. Dr. B.P. Chouriya (PW/9) after medical examination of the appellant seized his clothes packed and sealed. The packet was sent to the police station which was seized as per seizure memo Ex.P-14 by Shri Raghuwanshi (PW/11) in presence of witnesses.

34. If the entire factual scenario, is tested on the anvil of the evidence of the prosecution and after considering the evidence in a proper perspective manner, it would reveal that no offence is made out against the appellant. Above 18 years aged prosecutrix not appearing to be witness of sterling quality on whose sole testimony conviction of appellant can be based. Medical evidence not supporting case of prosecution. Important witnesses Chhotibai (PW/3), Budhiyabai (PW/4), Kotwar Bhoju (PW/5) and Patel 11 Cr.A. No.664/2007 Kishori Korku (PW/7) were hostile. Above all, First Information Report (Ex.P-1) lodged after delay of 5 days and for this delay no sufficient explanation is given by the prosecution.

35. Therefore, the conviction under Section 376 (1) of IPC cannot be sustained. The appeal is therefore, allowed. Conviction of the appellant and sentence awarded to him by the learned trial Court is hereby set aside and the appellant Premchand is acquitted from the charges under Section 376 (1) of Indian Penal Code leveled against him.

36. The appellant Premchand is on bail, his bail bond stands discharged. (SUBHASH KAKADE) JUDGE AK/