JUDGMENT 1. - Appellant Sattupuri has been convicted under Section 376(2)(f) and sentenced to ten years' rigorous imprisonment with a fine of Rs. 250/- and in default to undergo one month's imprisonment by learned Sessions Judge, Pratapgarh vide judgment dated 18.4.1998. 2. Briefly stated, Karulal reported to the Station House Officer, Dhamotar on 26.1.1996 that on 21.1.1996 his daughter Pushpa aged about 9-10 years went to Kulmipura in order to graze a goat. He himself thereafter went to sell 'Singharas' and when he reached near Rawli well, he found Pushpa who was weeping. He enquired from her who told that she had fallen down and suffered injury. Then he alongwith his brother's wife took Pushpa to hospital in Pratapgarh where the doctor told that the injury suffered by Pushpa was not due to fall. Thereafter he enquired from Pushpa who told that a boy had committed rape with her. Since honour of his minor girl was at stake he kept silence and was not even willing to get her medically examined. However, the First Information Report did not mention the name of the appellant rather his identity was disclosed as a boy wearing black pant as told by Pushpa. It was further stated in the report that name of the boy would be told by Pushpa. Police registered a case under Section 376 Indian Penal Code and started investigation. Medical examination of Pushpa was conducted and it was found that she was above 10 years but below 12 years of age. There were signs of injury on the vaginal part of duration of 5 to 7 days. It was mentioned in the medical examination report that opinion was reserved till the report of Chief Chemical Analyst was received. Statement of Pushpa was recorded on 27.1.1996 during investigation wherein she named appellant and stated that the accused-appellant called her to offer plums and when she went to him, he took her behind a temple in a field where he committed rape under threat. He had threatened her that in case she would name him she would be killed and, therefore, she told her father and sister that she had suffered injuries because of fall. Statements of other witnesses were recorded. Site plan was prepared. Accused-appellant was arrested. After investigation challan was presented before the Magistrate having jurisdiction who committed the case to the learned Sessions Judge, Pratapgarh. Statements of other witnesses were recorded. Site plan was prepared. Accused-appellant was arrested. After investigation challan was presented before the Magistrate having jurisdiction who committed the case to the learned Sessions Judge, Pratapgarh. Learned Sessions Judge on 19.6.1996 framed charge under Section 376(2)(f), IPC against the appellant. Accused-appellant denied his indictment and claimed-trial. Thereupon prosecution examined 10 witnesses in support of its case. Accused-appellant was examined under Section 313, Cr.P.C. His defence was that the villagers were unhappy with his father and the police officials were also unhappy, therefore, he had been falsely implicated. Three witnesses were examined in defence. Learned Sessions Judge, after hearing both the parties, convicted the appellant and sentenced him as stated above. 3. I have heard the learned Counsel for the appellant as well as learned Public Prosecutor at length and have gone through the record. 4. Learned Counsel for the appellant submitted that the First Information Report was lodged after a period of about a week and there is no satisfactory explanation for the delay. He also submitted that the prosecutrix did not know the accused-appellant and that she did not name the appellant to anybody. He also submitted that the prosecution is not able to prove its case. 5. On the other hand, learned Public Prosecutor supported the judgement of the Trial Court and submitted that the name of the accused-appellant was given by the prosecutrix in her statement under Section 161, Cr.P.C. and then the appellant was arrested whom she identified before the police. He submitted that the prosecutrix was a minor girl and in such cases the parents of the girl rarely involved a person falsely as they are themselves afraid of the honour of their daughters and family. 6. First of all it is to be seen as to what was the age of the prosecutrix. PW 1 Karulal stated that his daughter Pushpa was aged 12 years. PW 6 Dr. N.N. Mathur, who performed the examination of Piishpa, proved after doing X-ray examinations that Pushpa was about 10 years of age but below 12 years. He maintained it even in the cross examination. Thus it is proved beyond doubt that Pushpa was a minor girl. It has also not been challenged by the learned Counsel for the appellant. 7. The question of delay is very material in this case. He maintained it even in the cross examination. Thus it is proved beyond doubt that Pushpa was a minor girl. It has also not been challenged by the learned Counsel for the appellant. 7. The question of delay is very material in this case. PW 1 Kanilal stated that his daughter Pushpa went to graze she-goat at about 8.00 a.m. At about 9.00 a.m. when he was himself going to sell 'Singharas' he found his daughter Pushpa in the way weeping and when he enquired from her she told that she had fallen and suffered injuries. Then Karulal and his brother's wife brought Pushpa to a doctor who told that the injuries could not be caused by fall. Then Karulal and her elder daughter Preen inquired from Pushpa. Thereafter Pushpa narrated that when she was going with her goat to Kulmipura a boy wearing black pant met her and took her to a field where he committed rape with her. She did not tell the name of the appellant at that time. Karulal was cross-examined at length but he has not given the name of the appellant at all. He also did not mention the name in the First Information Report. Pushpa did not tell the name of the appellant to him or to Prem. Preen, who is the elder sister of Pushpa, has not been produced, neither Karulal's brother's wife Smt. Udi, whose name is given in the First Information Report, has been produced. It is this lady who had gone with Pushpa to Pratapgarh for the first time and to whom Pushpa might have or could have disclosed the name. Non-production of this witness means that Pushpa had not told the name. 8. It is clear that Pushpa was taken to hospital immediately after Karulal saw her in bleeding condition. Dr. Chandra Jain PW 4 is the doctor who first examined Pushpa on 21.1.1996. She stated that at about 12.15 p.m. a girl was brought to hospital accompanied by a lady. The girl was bleeding per vagina and the girl told that a person, whom she did not know, committed rape with her. Smt. Jain, referred the matter to the medical jurist. She has stated after seeing the record of the hospital that the girl was examined on the report of police on 21.1.1996 itself. The girl was bleeding per vagina and the girl told that a person, whom she did not know, committed rape with her. Smt. Jain, referred the matter to the medical jurist. She has stated after seeing the record of the hospital that the girl was examined on the report of police on 21.1.1996 itself. She stated in cross-examination that injury which was found on the private part of Pushpa could be caused due to fall on a hard object. Thus three things are proved from the statement of Smt. Chandra, i.e. (1) Pushpa was examined on 21.1.1996 on the basis of police report, (2) Pushpa did not name anybody, and (3) the injury caused to her genitals could be caused by fall. The prosecution is not able to explain as to what happened to the report which was lodged on 21.1.1996 though Dr. Chandra Jain has stated that medical examination of Pushpa was conducted on the basis of report of the police on 21.1.1996. Instead prosecution is saying that the First Information Report was lodged for the first time on 26.1.1996. Suppression of earlier report is fatal to prosecution and makes Ex. P/1 FIR admissible. 9. Learned Public Prosecutor submitted that the First Information Report was lodged on 26.1.1996 and that too after much persuasion to the father of girl. Karulal PW 1 stated that when his daughter met him she was bleeding and was immediately taken to the doctor where she was treated for six days. Then after treatment she was brought back to the village and next day villagers collected. They asked him to take legal action and then he reported the matter to the police. He gives a lame excuse by saying that the report was delayed because the girl was being treated in the hospital and the doctor had not advised to report the matter to police. But this is not correct because he has himself admitted that he knew of the incident on 21.1.1996 itself when Pushpa met him weeping in the way and was taken to hospital and she narrated to Dr. Chandra Jain that she was raped by a boy. Again I would say that the prosecution is not able to explain that when the matter was reported to police on 21.1.1996 how a second report was obtained. Dr. Chandra Jain PW 4 has proved the hospital record Ex. Chandra Jain that she was raped by a boy. Again I would say that the prosecution is not able to explain that when the matter was reported to police on 21.1.1996 how a second report was obtained. Dr. Chandra Jain PW 4 has proved the hospital record Ex. P/15 which is the indoor ticket and which mentions the consent of Karulal who scribed on it that his daughter suffered injury because of fall and that he did not want to take any legal action. Thus it appears that though the matter was reported to police on 21.1.1996 itself and the medical examination of the girl was conducted that day under the instructions of police but thereafter Karulal did not want to proceed with the matter and hence the report of 21.1.1996 was suppressed. Then Karulal was compelled by villagers to lodge the report and he did so in order to fulfil a formality. The report Ex. P/1 does not name the appellant at all. In this report it was left for Pushpa to name the person who had committed rape with her. This makes Ex. P/ 1 admissible and does not explain the deal. 10. This leads me to the statement of Pushpa PW 9. She stated that she was taking her she-goat to Kulmipura in the morning. According to her it was the appellant who invited her so that she and he both may eat plum but instead he took her to a field where he committed rape. After that he advised her that not to narrate the incident to anyone and instead may tell that she suffered injury by a Khapa. She stated that she went back home. On enquiry she told her father that she suffered injury by Khapa. Her father PW 1 Karulal stated that she had met him in the way. But this contradiction is not much material because Pushpa was returning back home. Pushpa stated that first she eased herself and while doing so she suffered injury on vagina by a 'Khapa' (dried root of a plant) and, therefore, she started weeping. Then she went to her house all alone. In the way no villager met her and when her uncle's wife inquired, she told her that she suffered injury by Khapa. She also narrated the same story to her father and to her sister. Then she went to her house all alone. In the way no villager met her and when her uncle's wife inquired, she told her that she suffered injury by Khapa. She also narrated the same story to her father and to her sister. Then she developed the story by stating that she knew Sattupuri very well and told his name to her father. She says that she did not name the appellant to the police. She stated that in the hospital her mother, her father, her aunty were present when she remained in hospital for 4-5 days. She was not under terror of anybody there but even then she did not name the appellant at all. She was suggested that the name of the appellant was tutored to her because of a quarrel between her father and the father of the appellant. She admitted that his father did not want to report the matter to the police but the villagers wanted it and, therefore, the matter was reported to the police. Strangely, though she stated that she knew the appellant from before, she did not name him at all either before the police or to her father or to anybody. Girl of 12 years is definitely a child and the learned Sessions Judge has not administered oath to her as she is not a competent witness. There is clear cut cross- examination that the name of the appellant has been tutored to her by her father. This cannot be ruled out in the circumstances of the case because Karulal did not want to report the matter to police simply because Pushpa was injured by a Khapa but when villagers compelled him, he reported the matter under their influence feeling that villagers were in his favour. The quarrel between the father of the appellant and the prosecutrix is proved by DW-3 Kailashpuri who has gone to the extent of saying that the villagers and the policewalas had threatened him on an occasion when there was a quarrel between him and the police people some time ago. 11. Pushpa though knew the appellant did not name him at all. It was not because of any fear because the report has been lodged after about a week of incident and she stated that she had told the name of the appellant to her father but the report Ex. 11. Pushpa though knew the appellant did not name him at all. It was not because of any fear because the report has been lodged after about a week of incident and she stated that she had told the name of the appellant to her father but the report Ex. P/1 does not name the appellant at all. The scientific investigation does not help the prosecution at all as semen was not detected in vaginal smear of Pushpa. 12. Too many doctors have been produced by the prosecution but none of them says that the matter was reported by any of them to police. Dr. Chandra Jain was the first to examine the girl on 21.1.1996 and she says that she did it so on the basis of a request made by the police. Dr. Smt. Krishna Airan PW 2 examined Pushpa on 27.1.1996 and stated that hymen of Pushpa was torn. But according to Dr. Chandra Jain this could be because of the injury caused due to a hard object. PW 2 Dr. Smt. Krishna Airan stated that hymen of the girl was found torn but she stated that it was a case of attempt and not actually due to rape. 13. PW 5 Zaibunnisa was present when the site was inspected. She stated that a boy came at the time when police collected there and at that time Pushpa told that it was he who had committed rape with her. It is very strange that when police was inspecting site, the accused-appellant would come there and Pushpa would say that this particular boy committed rape when she had not told so to her father, other members of family and the doctors. Even if he had come there as spectator on 29.1.1996 when site was being inspected, he was arrested though according to the police itself name of the accused was known to the police from the statement of Pushpa recorded under Section 161, Cr.P.C. on 27.1.1996, which is not supported by Pushpa herself. PW 5 Zaibunnisa has stated that she met Pushpa when she went to inquire about her health. But Pushpa did not name the appellant at all. She enquired from Pushpa in her father's presence. Arrest of appellant was made by Investigating Officer PW 10 Pratap Singh vide Ex. P/6 which is dated 29.1.1996, the date when site plan was prepared. PW 5 Zaibunnisa has stated that she met Pushpa when she went to inquire about her health. But Pushpa did not name the appellant at all. She enquired from Pushpa in her father's presence. Arrest of appellant was made by Investigating Officer PW 10 Pratap Singh vide Ex. P/6 which is dated 29.1.1996, the date when site plan was prepared. According to PW 5 Zaibunnisa the appellant had appeared at the site on 29.1.1996 and it was for the first time that Pushpa could identify him before the police. Strangely, when name of the accused-appellant had come to the notice of the police on 27.1.1996 itself as it says that Pushpa's statement was recorded on that date, why did the police wait till 29.1.1996 ? Learned Public Prosecutor was again and again asked to reply but he had no explanation. It means that if the appellant was arrested on 29.1.1996 after pushpa identified him at the spot where appellant had suddenly appeared himself, firstly his appearance at the site does not appear to be natural, secondly it means that Pushpa did not know him from before and if it was so then the accused-appellant should have been put to test identification after his arrest. Appellant was actually shown to Pushpa at the time of arrest. No such steps were taken by the Investigating Officer. Even if it would have been taken, it would be of no help to prosecution. 14. In a latest Supreme Court case reported in 1997 Cr.L.R. (SC) page 715 : 111 (1997) CCR 115 (SC), Prahlad Singh v. State of Madhya Pradesh , it has been held that until and unless there is reliable and acceptable evidence to come to a conclusion that it is accused-appellant who committed rape, he cannot be convicted even if the factum of rape on- the prosecutrix is established beyond reasonable doubt. 15. In view of above discussion, the appeal is worth acceptance. It is hereby accepted. Accused-appellant Sattupuri is acquitted from the charge of Section 376(2)(f), IPC. He is in custody and shall be released forthwith, if not required in any other case.Appeal allowed. *******