JUDGMENT 1. - This criminal appeal is directed against the judgment dated December 22, 1986, passed by the Additional Sessions Judge, Deeg whereby the learned Additional Sessions Judge convicted the appellant for the offence under Section 37b, IPC and sentenced him to undergo 10 years R.I. with a fine of Rs, 500/-in default, to further undergo 3 months R. I. 2. Brief facts giving rise to this appeal are that Smt. Radha Devi w/o Bal Mukand Beghela Thakur, r/o Shroti Mohalla, Town Kama (Bharatpur district) lodged an oral report on 14th February, 1986 at 8 a.m. at police station Kama with these allegations that, on February 13, 1986 at about 7 p m. her daughter, Kumari Kusum aged 6 years told her that she had gone to the house of her AIR 1973 SC 501 Rel. on. Para 19, 20 & 21 brother and sister-in-law (Bhabhi) - after half an hour, Kumari Kusum came weeping back to her house - on this, she enquired into the matter then Kumari Kusum told her that Mahesh has committed rape with her. It was further alleged that Smt. Radha went to the house of Mahesh alongwith Shivram and Budharam. where Mahesh was present and they enquired from him and he admitted his fault. 3. On the aforesaid report, a case for offence under Section 376, IPC was registered against the appellant, and after usual investigation challan was filed for the aforesaid offence The prosecution produced inasmuch as 8 witnesses alongwith certain documents in support of its case The appellant was examined under Section 313, Cr. P.C. who denied the allegations levelled against him by the prosecution witnesses. The learned trial court, after nearing the parties, found the appellant guilty and sentenced him as stated herein before. Hence this appeal. 4. I have heard the learned counsel for the parties. 5. Firstly, Shri Biri Singh, learned counsel for the appellant, contended that in the instant case. Kumari Kusum has not been produced by the prosecution who was the sole witness to prove the genesis of the offence of rape against the appellant Second contention of Shri Singh is that the report had been lodged after inordinate delay which has also not been explained by the prosecution, and in these circumstances, the delay was fatal and on this ground, the appellant was `entitled to get its benefit for acquittal. 6. 6. Next submission of Shri Singh is that the doctor who examined Kumari Kusum, neither in his statement nor in the report prepared by him, has stated that any rape was committed on the person of Kumari Kusum and he merely stated that a laceration was found on genital area and referred bruise of lavia tnineria and vaginal orifice. Shri Singh then contended that the case against the appellant is based on hear say evidence The statement of Smt. Radha Devi (informant) (PW 1) is based on information or on the observance only, and in this view of the matter, according to him, it cannot be said that it is substantial piece of evidence against the appellant Thus, Shri Singh argued that the learned Additional Sessions Judge fell in error in observing that Kumari Kusum was a fire of tender age and she was not in a position to give her statement merely on the basis of the application which had been filed by the learned Asstt. Public Prosecutor before the trial Court, In this connection Shri Singh submitted that the learned trial court did not consider as to whether Kumari Kusum was a Competent witness or not which was essential as per the provisions contained in Section 118 of the Indian Evidence Act. 7. Shri Singh then added that Bansilal (PW 4) and Chandra Prakash (PW 5) are made up witnesses and no reliance can be placed on the testimony of these two witnesses because their names have neither been mentioned in the FIR. tor the same were disclosed by Smt. Radha in her statement taken during investigation. 8. Learned Public Prosecutor, on the other hand, contended that the Bksraed trial Court was justified in convicting the accused-appellant because there evidence against the appellant and which supported the prosecution version. According to the learned Public Prosecutor, the learned trial Court has given hons for not examining Kumari kusum and in these circumstances it cannot be said that any illegality has been committed by the trial Court by non-examination of a witness. 9. I have considered the points raised by both the learned counsel and perused the entire record and gone through the judgment of the learned trial Com. It is all admitted fact that Kumari Kusum has not been examined in this case and she has not been produced by the prosecution. 9. I have considered the points raised by both the learned counsel and perused the entire record and gone through the judgment of the learned trial Com. It is all admitted fact that Kumari Kusum has not been examined in this case and she has not been produced by the prosecution. From a perusal of the record it appears that on 23.9.1986, an application was filed before the trial Court by the Assistant Public Prosecutor wherein it has been mentioned that Kumari Kusum is present in Court and because of her tender age she is not prepared to give statement in Court, but in the order-sheet dated 2.9.1986, the presence of Kumari Kusum has not been recorded and the learned trial court had mentioned that in the application, the incompetence of Kusum has been shown to give statement before the trial Court. 10. In view of the aforesaid circumstances now it is to be seen as to whether the non-production of Kumari Kusum is material or not. 11. Under Section 118 of the Indian Evidence Act. a child is a competent witness, and his incompetency is to be considered by the Court. Unless incompetency is declared by the Court, it cannot be said that the witness is incompetent. Here, it would be useful to reproduce Section 118 of the Evidence Act. "118. Who may testify. - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation. - A lunatic is not in-comments to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them," 12. According to the provisions of Section 118 of the Evidence Act, if a witness is declared incapable of giving evidence owing to insane, or on any other reasons, it is the duty of the Court to record its finding that the witness is incompetent to give his or her statement, and is also incapable of giving answers put to him/her/them. The fact that the witness has become incompetent to testify and so incapable of giving evidence, must be proved strictly. 13. The fact that the witness has become incompetent to testify and so incapable of giving evidence, must be proved strictly. 13. In Purna Chandra v. The State, (AIR 1959 Calcutta p. 306) , their ; Lordships of Calcutta Hight Court observed that the competency of a person to testify as a witness is a condition precedent to the administration to him of an oath or affirmation and is a question distinct from his credibility when he-had been sworn or affirmed. According to the aforesaid authority, the Court is at ' liberty to test the capacity of a witness to depose by putting proper questions, It has to ascertain in the best way it can whether from the extent of his intellectual capacity and understanding, he is able to give a rational account of was the has seen or heard on a particular occasion. If a person of tender years can satisfy those requirements his competency as a witness is established The question whether a witness has intelligence enough to understand the import and significance of questions or to give rational answers is not the same as the competency to testify- The Court has a discretion to form its own opinion whether a child witness has sufficient understanding to be qualified to be a witness. The question of the capacity of the witness to testify is a question for the judge himself to decide and not for the jury although after he has decided in favour of the competency of the witness, it is for the jury to determine the amount of credit to be given to the statements made by such a witness. 14. As stated earlier, in the instant case, it does not appear from the order sheet as to whether Kumari Kusum has appeared before the Court or, whether her competence was adjudged by the Court or, whether Kumari Kusum was tested to give her statement and whether she was in a position to give state- mentor not. In the present case, there was an application having moved on behalf of the Assistant Public Prosecutor wherein it has been stated that the witness (Kusum) is not in a position to give her statement In these circumstances, the learned trial Court was not justified in observing in the impugned judgment that the witness was not competent to give her statement, because according to law. it was to be ascertained by the Court in a best way as it can whether from the extent of his intellectual capacity and understanding, Kumari Kusum was able to give a rational account on what she has seen or observed on the day of incident. 15. In the aforesaid test, the Court has to see whether the witness has intelligence enough to understand the import and significance of questions or to give rational answers. Admittedly, the Court has discretion to form its own opinion whether a child witness has sufficient understanding to be qualified as a witness. Such an opinion can only be formed after the Court so decides after making preliminary enquiry in the matter. 16. In view of the aforesaid circumstances, I am of the opinion that no sufficient reasons were given by the prosecution in not producing Kumari Kusum in court as witness. Learned trial Court in its judgment placed reliance on the statement of Smt. Radha (PW 1) who was not an eye witness to the occurrence. She has narrated the story as given out in the report lodged by her and the facts contained in the FIR are such which have been heard by her from Kumari Kusum Surprisingly, when the learned trial Court found that Kumari Kusum was not competent to give her statement before the Court then I fail to understand as to how it placed reliance on the statement of Smt Radha (PW 1) which was totally based on the information given out to her by Kumari Kusum It is thus clear that at one point of time, the learned trial Court placed reliance upon the story of Kumari Kusum stated by her to Smt. Radha (PW 1) but on the contrary, it declared Kusum as incompetent witness Whatever statement given by PW 1 is nothing but a hearsay evidence and requires strong corroboration from other circumstances specially from the statement of Kumari Kusum. In the instant case, non-production of Kumari Kusum is a materia defect in the prosecution case and because of this infirmity, it cannot be said that the charge is proved against the appellant. 17. Learned counsel for the appellant submitted that in the present case, report has been lodged completely after 14 hours. In the instant case, non-production of Kumari Kusum is a materia defect in the prosecution case and because of this infirmity, it cannot be said that the charge is proved against the appellant. 17. Learned counsel for the appellant submitted that in the present case, report has been lodged completely after 14 hours. In this regard, the learned trial court observed that after the incident, Smt Radha alongwith other witnesses went, to Kama Hospital where it was known that the doctor has gone to Delhi and there was none to attend her daughter, Kusum, then she proceeded to Deeg hospital where also Kumari Kusum was refused to be examined, and it was directed that on the request of police officer. Kusum would be examined for which a letter should be from the police; and as such, she again came to Kama in the night at 4 a m- and then at 10 a.m. went to the police station and reported the matter. Therefore in this view of the matter, according to the trial Court, the S.H.O. has explained the delay in making report at the police station. 18. Looking to the statements of prosecution witnesses, I am of the view that the learned trial Court fell in error in observing that in the present case, the delay in making report is explained because Smt. Radha in her statement admitted that most of the residents of the town knew about the incident and a large number of persons assembled there. According to Smt. Radha, Shivram and Budharam (PW 2) & (PW 3) had accompanied with her. It has further been stated by Smt. Radha that Shivram and Budharam alongwith other residents of Mohallah showed the appellant to the police and in the night the appellant was taken into custody; that, report was lodged at 10 a m on the next day and she stayed at her house from 4 a.m. to 10 a.m. in between night of 13th & 14th February, 1986. Shivram (PW 2) has deposed that they handed over the appellant to the police in the night so that the appellant may not run away; that, the report was lodged at about 8 a.m. on the next day; and that, at the time when they reached the police station, a large number of persons assembled there and at the time when they handed over the appellant to the police, 30-35 persons were there at the police station; and further that, Smt. Radha & Kumari Kusum also accompanied him in the night of 13th February, 1986 upto the police station. Shivram (PW 2) also stated that at the police station, they have also shown blood stained salwar of the prosecutrix, and even then also, the police inspector did not record the report saying that he would do so only after the receipt of injury report on medical examination of Kusum In his cross-examination, Shivram (PW 2) admitted that the inhabitants of Mohalla reached the house of the appellant after hearing about the incident and they also went upto police station alongwith Radha and Kusum. The witness admitted that no report was lodged in the night but it was done in the next morning at 10 a.m. Similar is the statement of Budharam (PW 3) who also admitted that near about 500-700 inhabitants of Mohallah assembled at the residence of the appellant and thereafter they all went to the police station where the appellant was put behind the bars at night, and Kumari Kusum was shown to the police inspector by Smt. Kadha who narrated the happenings of the incident and further showed the blood stained salwar of Kusum. The witness (PW 3) admitted that the police inspector had seen the said salwar. 19. In view of the afore-discussed evidence of these prosecution witnesses (PW 1, PW 2, & PW 3) it is abundantly clear that all these three witnesses had reached the police station on the same day but according to the statement of Roop Narain Sbarma, SHO, (PW7) none from the town including aforesaid three witnesses had come to the police station on 13.2.1986. Roop Narain (PW7) has clearly stated that he came to know about the incident only on 14 2.1986 at 10 a.m. i.e. at the time of lodging the report. Roop Narain (PW7) has clearly stated that he came to know about the incident only on 14 2.1986 at 10 a.m. i.e. at the time of lodging the report. Roopnarain (PW7) denied that Mahesh accused and prosecutrix Kusum had come to the police station before him prior to 8 clock in the morning of 14 2.1986. The witness (PW7) further in his cross-examination deposed that before 8 a.m. of 14.2 1986 in between 13 2.1986 upto 7 p.m., he had not received any report, and that the accused was got arrested at 10.45 on 14.2.1986 from his residence and not at the police station, The witness further denied that in between the night of 13th and the February, 1986 the accused had remained in the police custody. 20. In these circumstances, it cannot be denied that the report was lodged m after inordinate delay of 14 hours. In Ramji Surjya v. State of Maharashtra ( AIR 1983 SC 810 ) their Lordships of the Supreme Court observed that the extra ordinary delay in giving F.I.R. to the police if not explained should be viewed with suspicion. Similarly, in the decision in Thulia Kalia Kali v. State of Tamil Nadu, ( AIR 1973 SC 501 ) , their Lordships of the Apex Court observed as under "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after I thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consolation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consolation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. (Para 12) When an occurrence is not reported for more than hours after the occurrence even though the police station is only two miles from the place of occurrence it is unsafe to base conviction upon the evidence." 21. In view of the aforesaid principles, where the occurrence is not reported early after the incident took place, it is unsafe to pass and base the conviction upon the evidence, 22. Other evidence in this case is of and Budharam who, in their statement have deposed that in the evening of 13th February, 1980, they have been Kumari Kusum with the accused-appellant who took her to his house. As discussed above, it has been admitted by the prosecution witnesses that the incident was known to the inhabitants of Kama town and a large number of persons assembled at the residence of the appellant and also at the police station; the accused-appellant was apprehended and handed over to the police on the same day. In these circumstances, I fail to under stand as to why these two witnesses and the circumstances which have been given out by these witnesses in their statements, have not been mentioned in the FIR alleged to have been lodged on the next day of the occurrence, at 10 a m. The non-mention of these two witnesses is fatal to the prosecution and it cannot be said and ascertained that these two witnesses might have been Kusum in the lamb of the accused-appellant Thus, in my opinion, Budharam (PW 3) and Bansilal (PW 4) are made up witnesses and their evidence is planted during the course of investigation. Hence no reliance can be placed upon the evidence of these two witnesses. 23. Adverting to the evidence of Dr. Gajanand Parashar (PW 8), it may he stated that after examination medically of Kumari Kusum in the medical report (Ex P. 9), Dr. Gajanand (PW8) opined as under:- "There is no visible injury over any part of body except genitalia. Hence no reliance can be placed upon the evidence of these two witnesses. 23. Adverting to the evidence of Dr. Gajanand Parashar (PW 8), it may he stated that after examination medically of Kumari Kusum in the medical report (Ex P. 9), Dr. Gajanand (PW8) opined as under:- "There is no visible injury over any part of body except genitalia. On Genitalia there is slight laceration of the forecheti and red area bruise of lavia minevia and vaginal orifice There is some whitish colour discharge around the orifice collected by a swab and two slides prepared for chemical analysis for presence of semenical stain and supermatoza The reded area of genitalia is suggestive of some force and force has been applied over the genitalia Duration of injury is within 24 hours." Though this doctor witness has mentioned above circumstance but he did not give any definite opinion as to whether rape was committed on the person of Kumarj Kusum or not. Doctor in the statement before the Court failed to express any opinion. I fail to understand, why Dr. Gajanand (PW 8) was not put to a specific question whether there is positive evidence of rape. In these circumstances, on the basis of facts mentioned in the report (Ex P. 9) no opinion can be formed on the question, whether rape was committed on the person of Kusum. Even if it is assumed to be so then too. a question would arise as to who can be held responsible for this act, and for that purpose, the evidence is to lie scrutinised so as to connect some one with the assumed offence of rape But, discussed above, in the instant case, the prosecution completely failed to con not the appellant with the offence for which he was charged, inasmuch as important witness like prosecutrix, has not been produced by the prosecution the benefit of which must be given to the appellant. 24. 24. Another, one of the most important, factor which make the prosecution case doubtful is that as per the contents of the F.I.R., it was the case of the prosecution that Kumari Kusum herself came to her mother, Radha, and narrated the whole incident to her but Radha in her statement before the trial Court has stated that after the incident, she found her daughter, Kumari Kusum playing with other children and at that time the had seen that her Salwat Kusums) was blood stained, on this the witness (Radha) enquired from her (Kusum) as to how her Salwar has been blood stained and on this interrogation, Kusum initially refused to say anything but after being threat and persisted Kumari Kusum informed Smt. Radha (witness) about the alleged incident of rape This is material contradiction which makes the prosecution case very very doubtful. As per the aforesaid statement of Smt. Radha, Kumari Kusum was not prepared to say anything against the appellant but on being persisted, she narrated the alleged incident to the witness. In these circumstances also, it can be said that Smt. Radha have completely changed the prosecution story and her statement is very much doubtful which results in establishment being a creature of afterthought, and no reliance can be placed on her statement. 25. Interview of the aforesaid discussion of the entire evidence, in my opinion, the prosecution failed to prove accusation against the appellant beyond reasonable doubt. 26. In the result, this appeal succeeds and is hereby allowed; the conviction & sentence recorded against the appellant, Mahesh Singh, by the impugned judgment dated 22nd December, 1986, in Sess, Case No. 12/86 passed by the Addl, Sessions Judge, Deeg (Bharatpur) are set aside; and the appellant, Mahesh Singh, is acquitted of the offence charged. The appellant is in jail, He be released forthwith if not required in any other case.Appeal allowed. *******