Bal Kishan Vs. State of Himachal Pradesh - Court Judgment

C.K. Thakker, C.J.

1. This appeal is directed against the judgment and order of conviction and sentence recorded by the Additional Sessions Judge (1), Kangra at Dharamshala on 1 lth July, 1997 in Sessions Case No. 6-N/97.

2. The appellant was the original accused in the above Sessions case. The case of the prosecution was that on 5th November 1995 at about 7.30 p.m., near 'Hard Khad' of Kot Palahari, he committed rape on Smt. Nirmala Devi, wife of Karam Chand, resident of Nurpur, Tehsil Nurpur, District Kangra. The allegation of the prosecution was that Smt. Nirmala Devi (hereinafter referred to as 'the prosecutrix') was working as a labourer along with her husband in order to earn livelihood at Nurpur. On 5th November 1995, the prosecutrix along with her two children was going to the house of her parents at village Kot Palahari. By mistake, she boarded a wrong bus, which was from Jassor to Mink-gran enroute Nurpur Chogan. She was to get down from the bus at a place known Bhadwar for going to her parental home, but due to boarding of a wrong bus, she had to get down at Khushi Nagar as the bus was going on a different road. In the meantime, according to the prosecution, a tractor came from the opposite side. It was driven by the accused. The driver was known to the prosecutrix. He offered the prosecutrix to sit in the tractor under the pretext that he would leave her at Bhadwar, upon which the prosecutrix boarded the tractor. She was dropped by the accused at Nagni Bus stand. By that time, it was dark. She had to go to Kot Palahari from Nagni via Rinna Kot Palahari, which was about 4 kms. Where she had to go on foot. The accused, addressing the prosecutrix as 'sister', volunteered to leave her along with her children at Kot Palahari. The prosecutrix agreed to the suggestion and started to proceed towards Kot Palahari. When they reached at a distance of 2 kms. across the Hard Khad, which was a lonely place and was surrounded by a forest, the accused got down the child of the prosecutrix from her back side, left him on the ground where her second child (son) was walking on foot and taking undue advantage of darkness and in spite of her protest, committed rape on her. He also threatened her that if she would disclose the occurrence, he would kill her and her children. The accused thereafter fled away and the prosecutrix along with her children with great difficulty reached the house of her parents. Accused was named in the complaint as Bal Kishan, son of Prem Singh, resident of Tika Ban, Gram Panchayat, Nagni.

3. On reaching the house of her parents, the prosecutrix narrated the incident to her mother Hardei. On the following morning, the prosecutrix, along with her mother, went to the then Pradhan, Gram Panchayat, Kot Palahari, Ramu alias Ram Kumar and narrated the incident to him. With the help of Pradhan, she filed a written complaint, Ex. PW 3/A along with a forwarding note by the Pradhan, which was Ex. PW 4/A to S.H.O. Police Station, Nurpur. On receipt of the complaint, the Sub Inspector/SHO ordered registration of formal FIR vide endorsement Ex. PW 5/B, on the basis of which formal FIR Ex. PW 8/A was registered. During the investigation, the prosecutrix was medically examined by Dr. Ms. Suman Sexana, Medical Officer of Civil Hospital, Nurpur, who issued Medico-Legal Certificate Ex.PWl/B. The shirt, Ex. PI and trouser, Ex. P2 (Salwar) of the prosecutrix were also taken into possession. On 8th November 1995, the accused was arrested. At the request of the police, he was also medically examined. Dr. R. K. Chaudhary, who found the accused fit to perform sexual intercourse and issued Medico-Legal Certificate, Ex. PW 2/B. Underwear of the accused, Ex. P3 was seized by the prosecution at the time of medical examination. The police also visited the spot and prepared a rough site plan Ex. PW 8/C. At the place of occurrence, some pieces of glass bangles were found and seizure memo was prepared at Ex. PW 4/B. On the basis of the report of Chemical Analyst. Ex. PX. Dr. Ms. Suman Saxena opined that possibility of rape could not be ruled out. On completion of the investigation, the accused was sent for trial to the Court of Judicial Magistrate 1st Class, Nurpur, who in turn committed the case to the Court of Sessions Judge, Kangra at Dharamshala by an order dated 7th January, 1997.

4. A charge was framed for an offence punishable under Section 376 of the Indian Penal Code and the accused was asked whether he pleaded guilty. The accused did not plead guilty and claimed to be tried.

5. At the trial, the prosecution examined eight witnesses including two Doctors, PW-1, Dr. Ms. Suman Saxena, who examined the prosecutrix and PW-2, Dr. R. K. Chaudhary, who examined the accused. The prosecution also examined PW-3, Smt. Nirmala Devi (prosecutrix) and PW-7, Sachin Kumar aged about nine years, son of the prosecutrix, who accompanied her. Over and above them, the prosecution examined PW-4 Ram Kumar, the then Pradhan of the village, PW-5 Shrief Mohd. Head Constable, PW-6 Waryam Singh, M.H.C. and PW-8 Jodha Mal, S.I. (Investigating Officer).

6. It may be stated that initially the case of the accused was of denial, but suggestions were made in the cross-examination of prosecution witnesses as also in his statement under Section 313 of the Code of Criminal Procedure 1973, that he had not committed rape on the prosecutrix, but it was an 'arranged programme' and in pursuance of the said arrangement, the prosecutrix had accompanied the accused. Hence, it could not be said that the accused had committed an offence with which he was charged. In support of the said version, the accused had also examined one Tilak Raj as DW-1.

7. The learned Additional Sessions Judge, considering the evidence of the parties, held that it was proved by the prosecution beyond reasonable doubt that the accused had committed an offence of rape punishable under Section 376 of the Indian Penal Code. He, therefore, recorded conviction of the accused. On quantum of sentence, the learned Additional Sessions Judge heard the accused and his counsel. He observed that in the light of 'alarming frequency of crime against women' and keeping in mind the amendment of 1983 by the Criminal Law (Amendment) Act, 1983 (Act 43 of 1983), the case on hand was a fit one in which minimum sentence ought to be imposed on the accused. Accordingly, the learned Additional Sessions Judge directed the appellant/accused to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo further Rigorous Imprisonment for a period of one year. He also ordered that out of the amount of fine, if realized, Rs. 2,000/- would be paid to the prosecutrix as compensation.

8. Being aggrieved by the order of conviction and sentence, the appellant filed an appeal in this Court, which was admitted on 2nd September, 1997. In Cr. M.P. No. 224 of 1997, after hearing the learned counsel for the appellant/accused as also the learned Additional Advocate General, the accused was ordered to be released on bail on the terms and conditions mentioned therein. The matter was thereafter placed for final hearing.

9. I have heard Mr. Y. P. S. Dhaulta, learned counsel for the appellant-accused and Mr. Vivek Thakur, learned Assistant Advocate General for the respondent-State.

10. Mr. Dhaulta raised several contentions. He submitted that the order of conviction and sentence recorded by the trial Court is illegal and contrary to law. Important prosecution witnesses including Hardei, mother of the prosecutrix, were not examined by the prosecution. It was submitted that there was no visible injury on the person of the prosecutrix, which clearly ruled out theory of rape. Reading the evidence as a whole, the theory propounded by the accused that it was an arranged programme was equally possible. The Counsel contended that there was no positive medical opinion about the 'rape being committed' on the prosecutrix and half hearted inference was drawn that the possibility of rape could not be ruled out. It was also submitted that though injury was found on the private part of the accused, as per medical evidence, the injury was possible in case of consented sexual intercourse'. It was also urged that there were omissions,'modifications, variations and contradictions. Though, the prosecutrix was a consenting party, at the time of actual sexual intercourse, some persons witnessed the act and, hence, with a view to save her skin, she had concocted the case of rape by the accused. The counsel also made a grievance that the child witness was tutored and, hence, could not have been relied upon. His evidence was, therefore, could not have been accepted and no conviction could have been recorded against the accused. There was undue and unexplained delay on the part of the prosecutrix in lodging FIR submitted the counsel. There was also delay in recording statements by the police authorities. On all these grounds, the conviction deserves to be set aside.

11. Mr. Thakur, learned Assistant Advocate General, on the other hand, supported the order of conviction and sentence passed by the trial Court. According to him, there was no delay in filing FIR by the prosecutrix. The incident took place at about 7-30 p.m. on 5th November 1995. Immediately, the accused left leaving the prosecutrix all alone in dark in the forest area with her two tender aged children. The prosecutrix had to go on foot thereafter to her parental home where she narrated the incident to her mother. It was in evidence, submitted the learned Assistant Advocate General, that by that time, it was night. Obviously, therefore, the prosecutrix had to wait till next morning. As per the prosecution evidence, at about 8.00 a.m. of the next day, i.e. 6th November 1995, the prosecutrix, accompanied by her mother, contacted the Pradhan and made a complaint. Immediately thereafter, the prosecutrix went to the Police Station in the company of the Pradhan and FIR was lodged. It was also submitted that non-examination of mother did not affect genesis of the prosecution inasmuch as she (mother) was not an eye-witness. The story was narrated by the prosecutrix to her and then to the Pradhan of the village, who had been examined by the prosecution. In any case, when the accused himself in his statement under Section 313 admitted that act of sexual intercourse with the prosecutrix, examination or non-examination of prosecution witnesses was immaterial. It was on the accused to prove that there was consent on the part of the prosecutrix. It was also submitted that after putting certain questions and ascertaining about the level of understanding, the learned judge thought it fit to put questions to child witness Sachin Kumar. And after seeing demeanour of the witness, accepted his evidence by believing him. It cannot be contended that by doing so, any illegality is committed by the Court. Regarding consent, it was stated that apart from First Information Report, in the substantive evidence on oath, the prosecutrix has stated that the accused committed rape on her without her consent and against her Will and also threatened her with dire consequences. The accused told the prosecutrix that if she would disclose the incident, her children would be killed. There was no cross-examination on behalf of the accused so far as that part of the examination-in-chief was concerned. Mr. Thakur also submitted that it is not conceivable that a married woman would enjoy sex with a person in presence of two tender aged children. It was also submitted that normally, an Indian lady would not falsely implicate a person in such matters. On all these grounds, it was submitted that there is neither error of fact not an error of law, which deserves interference and the appeal deserves to be dismissed.

12. My attention was invited by the learned counsel for the parties to prosecution evidence. It is not necessary to deal with all the witnesses, but some of the witnesses, whose evidence is relevant may be discussed.

13. PW-1, Dr. Ms. Suman Saxena stated in her deposition that at the relevant time, she was serving as Senior Medical Officer in Civil Hospital, Nurpur. On 6th November 1996, at about 5.00 p.m. one Asha Devi, Constable brought Smt. Nirmala Devi, wife of Karam Chand (prosecutrix) for medical examination. She had three children, a female child of eleven years of age and male children of eight years and four years, respectively. Her menstrual history was regular and her last menstrual period was on 28th October, 1995. Her body was well developed. There was no evidence of any external injury over any part of the body.

14. On examination of private part, the witness stated :

Examination of Genitalia : Vulva, vagina found to be normal. There was no matting of pubic hairs. Pubic hair cut and sent for chemical examination. Hymen was absent. There was no fresh tear. Two slides from (vaginal smears) taken from vagina.

15. Though final opinion was reserved till the receipt of the report of Chemical Examiner, she stated that 'the possibility of sexual intercourse/rape cannot be ruled out'.

16. After the report of the Radiologist on 24th November, 1995, the prosecutrix was found to be more than 19 years of age, though the prosecutrix had stated her age as 29 years in her statement. The report of Chemical Examiner was received on 2nd May, 1996 and as per the report, no human blood was found on the Salwar, but semen was found on it. No semen was found on shirt. The witness, thereafter, gave her final opinion thus :

Final opinion : After reviewing X-ray report and Chemical Analyst report, possibility of rape, still could not be ruled out. Prosecutrix Nirmala Devi, is present in the Court today, she is the same lady, whom I had medically examined. I issued the medico legal certificate Ex. PW-l/B, which is in my hand and bear my signature.

(Emphasis supplied)

17. Only one question was put to the witness in her cross-examination and she stated that it was incorrect to suggest that she i.e. (witness) based her opinion regarding rape on the basis of information supplied to her by the prosecutrix Nirmala Devi.

18. PW-2, Dr. R. K. Chaudhary, in his evidence stated that he was working as Medical Officer in Civil Hospital, Nurpur at the relevant time. At the request of Police, he examined accused on 8th November, 1995. The accused was aged about 25 years. On physical examination, the accused was found moderately built, fully conscious and mentally alert and attentive. His person was well developed. Male genital organs, penis, Scrotum two well developed testis. The secondary sex characters like change of voice, presence of facial hairs with moustaches, axillary and pubic hair were present. The physical power of the person under examination was normal. According to the Doctor, there was red contusion 1' x 3/4' on the right iliac region 2 x 3/4', medial and below the anterior, superior iliac spine. No other injury was found on his person. Medico Legal Certificate was issued by him at Ex. PW-2/A. In his opinion, there was nothing suggestive that the accused was not capable of doing sexual act. Regarding injury on the person of the accused, in cross-examination, the witness admitted that it could not be ruled out during the consented sexual intercourse.

19. PW-3, Nirmala Devi, prosecutrix is indeed a star witness. She had stated in her evidence that on 5th November, 1995, she along with her two children was going from Nurpur to village Kot Palahari, where the house of her parents was situated. As she boarded a wrong bus, she had to get down at Khushinagar. She got down from the bus because the bus was to turn on a differnt road. In the meantime, a tractor came from the opposite side. It was driven by the accused. Prosecutrix identified the accused in the Court as the same person, who was there. The accused asked her to board the tractor under the promise that he would leave her at a place named Nagni. The house of the parents of the prosecutrix was at a distance of 4 Kms. rom Nagni and accordingly she boarded the tractor. Thereafter, she was to go on foot. On reaching Nagni, the accused again volunteered to leave the prosecutrix along with her children at village Kot Palahari. The prosecutrix agreed and started for village Kot Palahari along with the accused. She stated that her younger son was being lifted by the accused. It was almost night time, but a moon light was there. When the accused and prosecutrix along with children reached near Hard Khad, the accused snatched the younger son, who was being carried by the prosecutrix and started molesting her. It was lonely place, stated the prosecutrix. There was none to hear her cries. The accused thereafter forcibly loosen the string of her Salwar and committed rape on her in spite of protest by her. The prosecutrix had also stated in her evidence that she requested the accused to show pity upon her addressing him as 'Bhai'. But the accused threatened her that he would do away with the lives of her children and he had seen many sisters like the prosecutrix. She stated that both her children started weeping. After committing rape, the accused ran away from the place. She went to the house of her parents and there, she narrated the incident to her mother Hardei. According to her, it had gone late night. On the following morning, she accompanied by her mother, went to Pradhan, Gram Panchayat, Palahari and narrated the entire incident to the Pradhan. Then, in the company of Pradhan, she and her mother went to Bhadwar and got typed a complaint, which was forwarded by the Pradhan to the police. FIR was registered on the basis of the complaint. She was medically examined by the Doctor. On the following day, the police visited the spot at the instance of the prosecutrix and found pieces of broken glass bangles. She identified in the Court the bangles, which according to her, were worn by her at the time of commission of crime by the accused.

20. The prosecutrix was cross-examined at length. It was put to her that it was not true that due to mistake, she had boarded a wrong bus, but she denied. She was also asked that she was knowing the accused since long but she had denied that suggestion. She had stated that she had seen the accused twice or thrice prior to the occurrence, but stated that 'We had never talked with each other'. She was also not knowing that the accused was father of four daughters. She had seen the accused driving the tractor even prior to the occurrence. In reply to a question put to her, she stated; 'It is incorrect to suggest that I had chalked out my programme with the accused to meet at Bus Stand Chogan at 6.00 p.m. after the departure of last bus, which was being plied to the village of my parents'. She also denied that in pursuance of the said understanding, she had accompanied the accused. According to her, it was incorrect that at that time, 2-3 persons were in the tractor. She denied that the accused purchased sweets (Jalebi) and Beeri from a shop and provided Jalebi to her and started smoking Beeri. It was also incorrect that her son Sachin Kumar was given Jalebi. She unequivocally denied the suggestion that 'thereafter we got the children seated by the side of path at some distance and we both started enjoying sex'. She also denied that meanwhile a person came there. It was wrong to suggest, she deposed, that the person disclosed the incident to Pradhan of Gram Panchayat, Kot Palahari and only thereafter she had made allegation against the accused. She emphatically denied that the accused had committed sexual intercourse with her consent.

21. Another important witness is PW-7, Sachin Kumar, son of the rpsecutrix who was with the prosecutrix in the tractor. As observed by the learned Additional Sessions Judge, the witness appeared to be of about nine years. The learned Judge noted that he had ascertained whether the witness was able to understand the sanctity of oath. For the said purpose, some questions were put to him. In the opinion of the learned Judge, the witness was able to understand the questions. At the time of deposition, on 1lth June, 1997, Sachin Kumar was studying in the third standard. The witness was asked whether it was correct to speak truth or to speak lies. The reply of the witness was that it was correct to speak truth and it was 'bad' to tell lie. He was then asked why oath was taken and his reply was that it was in order to speak truth. The learned Judge inquired whether the witness was going to temple and if yes, why. The reply of the child witness was that he used to go to temple for worship. He gave the name of his teacher as Madam Sureshta.

22. In view of the questions and answers, the learned Additional Sessions Judge certified and, in my opinion rightly, that in the light of questions put to the child witness and the answers given by him. Sachin Kumar was able to give rational answers to the questions, which could be put to him. Due to tender age, however, he was not examined on oath.

23. Sachin Kumar stated that the prosecutrix was his mother. On the date of incident, he had gone with her mother and boarded a bus at Chogan. Since wrong bus was boarded, they had to get down from the bus. He frankly admitted that he did not know the name of place where they got down, but he stated that meanwhile, a tractor came there, which was driven by the accused. The witness identified the accused in the Court by pointing his hand, as the same person, who was driving the tractor. He also stated that two other persons were sitting in the tractor. The accused offered lift to them. The tractor then parked at Nagni. The accused then asked 'us' to leave across the Khad falling between Nagni and Kot Palahari. At that time, it was dark. After crossing the Khad, the accused put off the Salwar of his mother (prosecutrix) and 'quarrelled with her'. He also stated that the accused threatened them that he would kill them. The witness deposed that her mother and they (brother) started crying. The 'scuffle' continued for some time. Accused then ran away and the witness along with his brother and mother went to the house of his maternal uncle.

24. The witness was cross-examined by the accused. In the cross, he admitted that on the date of deposition, he had been accompanied by his father. The name of the place was also told by his father. He, however, stated that it was wrong to suggest that whatever he had stated in the Court on that day had been stated by him at the instance of his father. He denied the suggestion that the accused was shown to him by his father outside the Court as the person, who was driving the tractor on the day of occurrence. He asserted that whatever he had deposed in the Court was not taught to him, but he was knowing the same personally. According to him, it was wrong that at the time of the occurrence, the accused and mother of the witness had been talking to each other 'cordially' but there was scuffle. He also stated that at the time of occurrence, no other person had come on the spot. He concluded that it was incorrect to suggest that he was stating whatever had been told to him by two persons sitting outside the Court.

25. Finally, there is evidence of PW-4, Ram Kumar, Pradhan of the Gram Panchayat, Kot Palahari. He stated that in 1995, he was the Pradhan. He was knowing prosecutrix Nirmala Devi. On 6th November, 1995, at about 8.00 a.m. prosecutrix along with her mother Hardei had come to his house. The prosecutrix narrated to the witness the incident of 5th November, 1995 at about 7-8 p.m. that one person of Gram Panchayat Nagni had committed rape on her. He, however, stated that she was not knowing the name of the accused at that time. The witness called his Ward Panch and in the company of prosecutrix and her mother Hardei went to the spot of occurrence. Pieces of broken glass bangles were scattered there. The Pradhan then suggested to the prosecutrix and her mother to give an application to him, which he forwarded to the Police Station, Nurpur. Further proceedings were also taken. Clothes and other articles were seized and sealed.

26. In cross-examination, the witness stated that he had gone in the company of his Ward Panch Hans Raj at the place of occurrence. He also stated that the police visited the spot of occurrence on 7th November, 1995 at about 9/10 a.m. He was also called by the police. He denied that in connivance with police, he had thrown broken pieces of bangles at the place and made a fake seizure of the broken pieces of glass bangles, Ex. P.4.

27. The learned Additional Sessions Judge appreciated the evidence of prosecution witnesses and found the evidence of prosecutrix was reliable and trustworthy. Her evidence, therefore, was relied upon. Moreover, evidence of PW-7 Sachin Kumar, a child witness, son of the prosecutrix was also clear. After considering questions and answers put to him, the learned Judge felt that though oath could not be administered to him, he had reached at the age of understanding. Considering the deposition of PW-7, the learned Judge held that what was stated by the prosecutrix was duly supported by the evidence of Sachin Kumar. He accordingly held that the offence in question was committed by the accused.

28. The learned Judge also dealt with the contentions raised on behalf of the accused regarding non-examination of Hardei, mother of the prosecutrix. In my view, the submission of the learned Assistant Advocate General deserves to be accepted that when she was not an eye-witness, it was not incumbent on the prosecution to examine her. It is settled law that it is not obligatory for the prosecution to examine all the witnesses. It is not the quantity, but the quality, which matters. In the case on hand, Hardei was not an eye-witness and the case was to be decided on the basis of other evidence; i.e. of PW. 3, prosecutrix, PW-7 Sachin Kumar and corroborative evidence. Moreover, the prosecutrix and Hardei contacted Pradhan of the village (PW. 4 Ram Kumar) who was examined by the prosecution. PW. 4 had stated that the prosecutrix and her mother Hardei had come to his residence on 6th November, 1995 at about 8.00 a.m. in the morning and he had asked them to approach the police authorities and accordingly a complaint was drafted and formal FIR was lodged. Non-examination of Hardei, mother of the prosecutrix in these circumstances did not adversely affect the case of the prosecution.,

29. It was also contended by the learned counsel for the accused that no injury was found on the person of the prosecutrix. Relying on Modi's Medical Jurisprudence and Toxicology (22nd Edition) pages 501-520, it was urged that in case of rape, there would be injury on person of the prosecutrix. In my opinion, the argument has no force. The reason is that the accused himself in his statement under Section 313 of the Code of Criminal Procedure had admitted that he had committed sexual intercourse with the prosecutrix. His case, however, was that 'it was arranged programme' and with the consent of the prosecutrix both of them had gone to the place in question and had 'enjoyed sex'. It is also to be appreciated that in the evidence of both the witnesses. PW. 3 prosecutrix as well as PW-7 Sachin Kumar, son of the prosecutrix that threat was administered by the accused. That fact is also mentioned in the FIR it is pertinent to bear in mind that on that point, there was no cross-examination of the witnesses on behalf of the accused. When that part of the evidence was not challenged, it was obvious that in the light of threat, there was no resistance by the prosecutrix. Further, it is also on record that the prosecutrix was a 'fairly built' lady of more than 19 years of age, a married woman having three children. If in the light of these facts, there were no injuries on her person, the said fact will not go to show that what was deposed by her was not correct or could not be relied upon.

30. It was then contended that there was no positive medical opinion about the commission of rape on the prosecutrix. In my view, medical opinion given by PW. 1 Dr. Ms. Suman Saxena could not be said to be defective. She had rightly stated that the possibility of sexual intercourse/rape could not be ruled out. Again, though no blood was found, semen was present on the Salwar of the prosecutrix. The contention of the accused, therefore, cannot detain this Court much.

31. Regarding injury on the person of the accused, PW-2, Dr. R. K. Chaudhary admitted that such injury was possible even during consented sexual intercourse. The above admission, in my opinion, does take matter nowhere. When there was sexual intercourse and the case of the accused was that it was with the consent of the prosecutrix, it was for him to prove such case. I am conscious of the fact that when something is to be proved by the accused, the standard of proof is not that high as is on the prosecution, which is beyond reasonable doubt and if there is preponderance of probability, the accused would be entitled to acquittal by giving benefit of doubt. In the instant case, however, not only that there is nothing to show preponderance of probability, but on the contrary from the substantive examination of PW. 3, Nirmala Devi and PW-7, Sachin Kumar, it was proved that threat was administered by the accused and rape was committed on the prosecutrix.

32. The evidence of prosecutrix Nirmala Devi is straight forward, reliable and trustworthy. She had stated that she boarded a wrong bus and, hence, she had to get down. She had to go to her parental home. When she got down from the bus, she saw the accused. She had seen the accused twice or thrice even before that day. Hence, when he offered a lift, she agreed and boarded the tractor. She also addressed the accused as her brother (Bhai). In my opinion, the learned Additional Sessions Judge was also right in observing had there been an arrangement between the accused and the prosecutrix to enjoy sex, the prosecutrix, an Indian lady would not take her two tender aged children along with her. One of them was able to understand and could appreciate difference between 'good act' and 'bad act'. It is also to be borne in mind that the prosecutrix was a married woman. Similarly, the accused was also a married man having four children. In the circumstances, in case of pre-arranged programme, the accused after having enjoyed sexual intercourse with the prosecutrix, would normally not have left the lady all alone in a forest area at night time. I am therefore, of the opinin that the version of the prosecutrix that by taking undue advantage of the situation, forest area, lonely place and darkness the accused had committed the offence in question is quite natural and deserves acceptance. She had also stated that when the accused started molesting her, she objected and stated that he was like her brother. But the accused told her that he had seen many sister like the prosecutrix. The prosecutrix thus put something in the mouth of the accused and yet there is no cross-examination even on that point by the accused. Considering overall circumstances and the natural way in which the prosecutrix deposed, if the learned Additional Sessions Judge believed her case, by no stretch of imagination, it could be said that by doing so, any error of fact or of law had been committed by him.

33. Regarding evidence of child witness also, in my considered opinion, the learned Additional Sessions Judge was right in placing reliance on his statement. He had reached the age of understanding. He was aware of difference between truth and falsehood. He used to go to temple for worship of God. He stated that there was 'scuffle' between the accused and the prosecutrix (her mother) and they were not talking 'cordially'. He further stated that after scuffling for some time, his mother was weeping and he along with his brother was also weeping. There is no cross-examination on behalf of the accused even on that aspect. In my opinion, therefore, the learned Additional Sessions Judge was wholly justified in accepting the evidence of PW-7, Sachin Kumar. An attempt was no doubt made by the learned counsel for the accused that when PW-7, Sachin Kumar had come with his father and other rwo persons. But, it is important to recall that he had specifically stated that he deposed what he had seen and he was not tutored or asked to state something in the Court by those persons, who accompanied him. In my opinion, therefore, the learned Additional Sessions Judge was right in relying on his evidence.

34. Regarding contradictions and variations, reliance was placed on several decisions of the Supreme Court by the learned counsel for the accused. It is not necessary to refer all the decisions, as the law is well settled. If omissions, variations or contradictions are material in nature, they may go to the root of the prosecution case and the accused would be entitled to benefit of doubt. But, it cannot be overlooked that' witnesses were human beings and rustic witnesses. Human memory has its own limitations. There are bound to be some discrepancies here and there. Hence, unless such omissions and contradictions are on material points, they would not destory the genesis of the prosecution.

35. It was stated that the name of the accused was mentioned in the FIR but PW-4 had stated that the name of the culprit was not given to him by the prosecutrix. In my opinion, however, the question is immaterial. When the accused himself admitted in his statement under Section 313 of the Code of Criminal Procedure that he had enjoyed sex with the prosecutrix, but it was with her consent, everything else is immaterial. Find-Ings of bangle pieces at the place of occurrence though proved and thus supported the case of the prosecution is also of no consequence in view of the admission of the accused.

36. There was no delay in filing FIR as contended by the learned counsel. The incident took place at about 7-30 p.m. on 5th November, 1995. The accused after committing the offence ran away from the place of occurrence and the prosecutrix had to go on foot with her two small children to her parental home. It was late night by that time. She narrated the incident to her mother and on the next day morning, she went to PW-4 Ram Kumar in the company of her mother Hardei. Immediate steps were taken, police authorities were informed and FIR was lodged. Thus, it cannot be said that there was undue or unexplained delay, which was deliberate with a view to falsely implicate the accused.

37. For the foregoing reasons, in my opinion, it cannot be said that by convicting the accused, illegality has been committed by the learned Additional Sessions Judge. The appeal, therefore, deserves to be dismissed and is accordingly dismissed.

38. The appellant/accused is on bail. He will surrender to custody to undergo remaining part of the sentence. Order accordingly.