JUDGMENT 1. - This criminal appeal under Section 374(2), Code of Criminal Procedure is directed against the judgment and order dated 11.7.2003 passed by the learned Additional Sessions Judge, Banswara, Camp Kushalgarh (for short, "the trial court") in Sessions Case No. 11/2002, whereby the trial court convicted the appellant for the offences under Sections 342 and 376 IPC and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 2000/- and in default of payment of fine further to undergo one year's imprisonment for the offence under Section 376 IPC; and one year's rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo one month's imprisonment for the offence under Section 342 IPC. Aggrieved by the impugned judgment of conviction and order of sentence, the appellant has preferred the instant appeal. 2. Briefly stated, the facts, to the extent they are relevant and necessary for the decision of this appeal, are that PW 4 Makhla filed a typed-report Ex.P/2 with the Police Station, Kushalgarh on 24.11.2001, on which the police registered the FIR Ex.P/3, wherein it was alleged that on 30.10.2001, at about 3.00 PM while his daughter PW 5 Basanti, aged about 7 years, was coming to her house after grazing the cattle, the accused-appellant wrongfully restrained her and committed rape on her. She came to her house and informed this occurrence to her mother PW 6 Maddi. In the evening when he arrived at his house, he was informed by his wife about the occurrence. PW 5 Basanti could not say anything. It was alleged that two days before lodging the report, Basanti informed that the appellant committed rape on her. When inquired from the appellant, he said to go for compromise. In the FIR, it has specifically been stated that only two days before lodging the report, they came to know about the occurrence. 3. The prosecution examined PW 1 Kamji and PW 2 Gamna, both are witnesses to the site inspection note; PW 3 Java, is said to have been informed of the occurrence by PW 4 Makhla; PW 4 Makhla, the father of the prosecutrix; PW 5 Basanti, the prosecutrix; PW 6 Maddi, the mother of the prosecutrix; PW 7 Nathu Lal Arya, the investigating officer; PW 8 Dr. Laxman Kumar Verma, who medically examined the prosecutrix; PW 9 Dr. Laxman Kumar Verma, who medically examined the prosecutrix; PW 9 Dr. Rajendra Ujjania, who medically examined the accused-appellant; and PW 10 Shyam Lal Meena, another investigating officer. The prosecution produced the documents Ex.P/1 to Ex.P/7. The accused-appellant made statement under Section 313 Cr.RC. and denied the allegations and confronted PW 4 Makhla with his police statement Ex.D/1. On the conclusion of the trial, the appellant was convicted and sentenced as noticed above. 4. I have heard learned counsel for the appellant and the learned Public Prosecutor; perused the impugned judgment and order; and carefully scanned scrutinised and evaluated the evidence on record. 5. It was contended by the learned counsel for the appellant that in the FIR Ex.P/3, complainant PW 4 Makhla stated that he and his wife were informed by the prosecutrix only two days before lodging the report, i.e. 24.11.2001. In the report, the complainant alleged that the occurrence took place on 30.10.2001 and the report lodged almost after about 25 to 26 days of the occurrence, whereas PW 4 Makhla and PW 6 Maddi, the parents of the prosecutrix, stated in their statement before the Court that soon after the occurrence, when the prosecutrix came to the house, she informed about the occurrence to her mother PW 6 Maddi and when her father PW 4 Makhla arrived at the home in the evening, he was informed of the occurrence by his wife PW 6 Maddi as also by prosecutrix PW 5. Thus, according to the learned counsel for the appellant, the statements of the prosecution witnesses run contrary to the contents of the FIR lodged by PW 4 Makhla. It was further contended that the case of the prosecution does not find any corroboration from the medical evidence. It was further contended that the appellant has been falsely implicated in this case on account of enmity between the father of the appellant and PW 4 Makhla related to a land dispute. Lastly, it was contended that on the day of the occurrence, the age of the appellant was between 17 to 18 years and, therefore, the appellant could not be sentenced to jail in view of the provisions of the Juvenile Justice (Care & Protection of Child) Act, 2000, which came into forco w.e.f. 1.4.2001. 6. Lastly, it was contended that on the day of the occurrence, the age of the appellant was between 17 to 18 years and, therefore, the appellant could not be sentenced to jail in view of the provisions of the Juvenile Justice (Care & Protection of Child) Act, 2000, which came into forco w.e.f. 1.4.2001. 6. On the other hand, the learned Public Prosecutor submits that the prosecution has been able to establish a case against the appellant for the aforesaid offences and the impugned judgment of conviction and order of sentence does not require any interference. 7. PW 4 Makhla, PW 5 prosecutrix and PW 6 Maddi are the material witnesses in the case. PW 4 Makhla stated that when he arrived at the home in the evening, the prosecutrix was lying on a cot. He was informed by his wife PW 6 Maddi that the prosecutrix went for grazing the cattle and there the appellant committed rape on her and she was bleeding from her private parts. The prosecutrix informed her father also that the appellant took her to a pit and committed rape. When the prosecutrix informed them, in addition to him and his wife, other family members, including his brother Lalji, were also present. Thereafter he went to Sarpanch Bhura and informed him, who, in turn, said that the matter be informed to Sarpanch Bahadur. Thereafter Bhura and he went to Sarpanch Bahadur. They came to the house of the complainant. The prosecutrix was shown to the doctor at hospital. The appellant threatened the complainant not to lodge the report with the police. He proved the report Ex.P 12. In cross- examination, he stated that on his arrival at home, within half an hour, he was informed of the occurrence by the prosecutrix. Next day, the prosecutrix was given the medicine. She was fully conscious. There was no tearing of her clothes and there was also no visible injury on the person of the prosecutrix. The report Ex. P/2 was got typed through an advocate. There was no compromise between the parties. He was confronted with his previous statement Ex.D/1 regarding the compromise. 8. PW 6 Maddi, the mother of the prosecutrix, stated that the Prosecutrix went for grazing the cattle. She came home weeping. The report Ex. P/2 was got typed through an advocate. There was no compromise between the parties. He was confronted with his previous statement Ex.D/1 regarding the compromise. 8. PW 6 Maddi, the mother of the prosecutrix, stated that the Prosecutrix went for grazing the cattle. She came home weeping. On being asked, she informed that while she was grazing the cattle, the appellant took her to a pit and committed rape which resulted in bleeding. When her husband came home, he was informed of this occurrence by her as well as by the prosecutrix. In cross- examination, she admitted that her husband was informed of the occurrence same day by her and the prosecutrix. 9. PW 5 the prosecutrix, stated that the appellant took her to a pit and made her to lay down on the ground; thereafter he fell on her and committed rape. There was bleeding from her private parts. She came home weeping and informed the occurrence to her mother. Thereafter she was taken to hospital. 10. PW 8 Dr. Laxman Kumar Verma medically examined the prosecutrix on 25.11.2001. In his opinion, the age of the prosecutrix was about 10 years. No visible vaginal injury was detected. In his opinion, there was no recent intercourse. In cross-examination, he admitted that the age of the girl can be 12 years. 11. PW 9 Dr. Rajendra Ujjania medically examined the appellant and found him capable to perform sexual intercourse. He opined the age of the appellant between 17 to 18 years. 12. PW 7 Nathu Lal Arya and PW 01 Shyam Lal Meena, both investigating officers, proved the site map. PW 7 Nathu Lal Arya has stated that the complainant explained the delay in lodging the report on the ground that i the prosecutrix was not feeling well. 13. PW 1 Kamji, the Motbir of the site map, stated that the police came to inspect the site on the next day of the occurrence. PW 2 Gamna, another witness to the site map Ex.P/1, stated that the site map was prepared at the house of complainant PW 4 Makhla. PW 3 Java is not a witness to the occurrence and what he stated is hearsay. He stated that he was informed of the occurrence by Makhla. 14. The accused-appellant produced DW 1 Chhatreng, DW 2, Bhura, DW 3 Bahadur Singh and DW 4 Dr. Mithilesh Sharma. PW 3 Java is not a witness to the occurrence and what he stated is hearsay. He stated that he was informed of the occurrence by Makhla. 14. The accused-appellant produced DW 1 Chhatreng, DW 2, Bhura, DW 3 Bahadur Singh and DW 4 Dr. Mithilesh Sharma. DW 1 Chhatreg has stated that on 31.10.2002, he was going by his vehicle. On the way, Makhla met him. He stopped the vehicle. Makhla was accompanied by a girl. On being asked, Makhla informed that the girl fell down and suffered injury. Thereafter Makhla and the girl were taken in a vehicle to Tambeswara Ayurvedic Hospital. There Makhla informed the doctor that the girl fell down and suffered injury. 15. DW 2 Bhura stated that Makhla called Bahadur at his residence. A dispute arose. Makhla informed that Arjun inflicted stone injury to his daughter, due to which she fell down and suffered the injury by a wooden stick. The matter was compromised for Rs. 3000/- and a sum of Rs. 1000/- was paid to Makhla and Rs. 2000/- were to be paid by the father of the appellant. 16. DW 3 Bahadur Singh stated that on 30.10.2001, Makhla and Bhura Sarpanch both came to him at about 9.00 PM and informed that the cattle entered into the field of the appellant, on which appellant slapped the prosecutrix. Thereafter they went to the house of the appellant and asked him as to why he slapped the girl, on which the appellant stated that the cattle of the complainant entered into his field twice and, therefore, he slapped her. Thereafter the matter was settled and Rs. 1000/- were given to complainant Makhla and remaining Rs. 2000/- were to be given later on, which the appellant did not give and therefore, the case has been lodged against the appellant. 17. DW 4 Dr. Mithilesh Sharma, an Ayurvedic Doctor, stated that he was Incharge of the Ayurvedic Hospital. At that time, the girl, namely, Basanti (aged about 9 years) was brought to the hospital by her father Makhla. Makhla informed that the girl fell down and suffered the injury. He had given medicine to her. 18. I have given my thoughtful consideration to rival contentions raised by the learned counsel for the parties and scrutinised the evidence adduced by the parties. 19. Makhla informed that the girl fell down and suffered the injury. He had given medicine to her. 18. I have given my thoughtful consideration to rival contentions raised by the learned counsel for the parties and scrutinised the evidence adduced by the parties. 19. On close scrutiny of the evidence produced by the parties, it appears that the cattle belonging to the complainant entered in the agricultural field of the appellant more than once and the prosecutrix, who was grazing the cattle, was scolded and slapped by the appellant, on which she started running and fell down. By fall, she suffered some injuries, though the prosecution has failed to prove any injury alleged to have been suffered by the prosecutrix in the occurrence. The matter was settled and the parties arrived at a compromise to the extent that the appellant would pay a sum of Rs. 3000/- towards treatment expenses likely to be incurred for treating the prosecutrix in the presence of various witnesses including DW 1 Chattreng, DW 2 Bhura and DW 3 Bahadur Singh. DW 2 Bhura and DW 3 Bahadur Singh are the Sarpanchs of the area, in whose presence, the compromise was arrived at and a part payment, i.e. Rs. 1000/- was made by the appellant to PW 4 Makhla, father of the prosecutrix and a sum of Rs. 2000/- was agreed to be paid on future date, which, it appears, has not been paid by the appellant and as such 24 days delayed FIR was lodged by the complainant. The explanation given by PW 4 Makhla regarding delayed FIR does not inspire confidence, in as much as PW 4 Makhla stated that the prosecutrix was not well and could not narrate the occurrence for a number of days but narrated the occurrence only two days before lodging the report on 24.11.2001. PW 4 Makhla and his wife PW 6 1 Maddi, when examined before the Court, have categorically stated that soon after the occurrence, PW 6 Maddi was informed of the occurrence by the prosecutrix and in the evening when PW 4 Makhla came, he was also informed of the occurrence by the prosecutrix as well as by PW 6 Maddi. PW 4 Makhla and his wife PW 6 1 Maddi, when examined before the Court, have categorically stated that soon after the occurrence, PW 6 Maddi was informed of the occurrence by the prosecutrix and in the evening when PW 4 Makhla came, he was also informed of the occurrence by the prosecutrix as well as by PW 6 Maddi. If that being the position, then there was no reason to lodge the report after about 24 days : of the occurrence when the occurrence was made known to the parents of the prosecutrix on the very day within few hours of the occurrence. The prosecution has failed to adduce any evidence regarding the fact that the matter was taken to the Panchayat. Thus, the undue delay of 24 days in lodging the FIR has not been satisfactorily explained by the prosecution. Undue delay in lodging the FIR without acceptable evidence has also contributed to the doubt in the prosecution case. In Thulia Kai v. State of Tamil Nadu, AIR 1973 SC 501 , the Hon'ble Apex Court observed that when an occurrence is not reported for more than 20 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. The Apex Court further held that delay in lodging the first information report quite often results in embellishment which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeping of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. 20. The case set up in defence appears to be more plausible and nearer to the truth that the prosecutrix suffered some injury by fall, for which she was taken to DW 4 Dr. Mithilesh Sharma, Incharge, Government Ayurvedic Hospital, Tamesara, who, in turn, gave some pain-reliever, namely Vednanashak on 31.10.2001 and on being asked by the doctor, PW 4 Makhla informed him that his daughter fell down and suffered injury. The statement of DW 4 Dr. Mithilesh Sharma, Incharge, Government Ayurvedic Hospital, Tamesara, who, in turn, gave some pain-reliever, namely Vednanashak on 31.10.2001 and on being asked by the doctor, PW 4 Makhla informed him that his daughter fell down and suffered injury. The statement of DW 4 Dr. Mithilesh Sharma further finds corroboration from the statement of DW 1 Chhatreng, who stated that on 31.10.2001, he was going by his cart; on the way PW 4 Makhla met him, who was accompanied by a girl. He stopped the cart and asked Makhla, who informed that the girl fell down and suffered injury. Thereafter they were taken to Tamesara Ayurvedic Hospital and shown to the doctor. PW 4 Makhla informed the doctor that the girl fell down and suffered injury. The statements of DW 1 and DW 4 further find support and corroboration by the statement of DW 2 Bhura, who stated that Makhla called him and Bahadur Singh at his residence and stated that a dispute has arisen. He further stated that the appellant had inflicted stone injury to the girl, whereupon she fell down and suffered a stick injury on thigh. The matter was settled for a sum of Rs. 3000/- for medical expenses, out of which Rs. 1000/-were given on the spot and the remaining amount of Rs. 2000/- was agreed to be paid on subsequent date. DW 3 Bhura and DW 3 Bahadur Singh are the Sarpanchs, in whose presence the matter was settled. DW 2 Bhura, DW 3 Bahadur Singh and PW 4 Dr. Mithilesh Sharma are the independent witnesses. Nothing has been shown as to how they are interested in the appellant. On the contrary, DW 2 Bhura and DW 3 Bahadur Singh, being Sarpanchs of the area and respectful persons, would not come forward with a different story than what had actually happened. So is also the case of DW 4 Dr. Mithilesh Sharma, to whom the prosecutrix was taken on the very next day of the occurrence and he gave pain-relieving medicine to the girl. 21. The prosecutrix was medically examined by PW 8 Dr. Laxman Kumar Verma, who, on having examined the prosecutrix, did not detect any visible vaginal injury. He opined that there is no evidence of recent sexual intercourse. At the time of lodging the report Ex.P/1, the police also did not notice any external injury to the prosecutrix. 22. 21. The prosecutrix was medically examined by PW 8 Dr. Laxman Kumar Verma, who, on having examined the prosecutrix, did not detect any visible vaginal injury. He opined that there is no evidence of recent sexual intercourse. At the time of lodging the report Ex.P/1, the police also did not notice any external injury to the prosecutrix. 22. Thus, the entire prosecution case rests on the statements of PW 4 Makhla, PW 5 prosecutrix and PW 6 Maddi. The statements of these witnesses do not find any support from the medical evidence as also from the statement of the independent witnesses. The prosecution has miserably failed to explain the delay of 24 days in lodging the FIR. The explanation given by PW 4 Makhla falls flat to the ground in view of his own statement before the Court as also the statement of PW 6 Maddi. The statement of these three witnesses, when recorded with the statement of witnesses produced in defence, the irresistible conclusion would be that the prosecutrix suffered injury due to fall and the appellant was held responsible for that injury when the matter was got to be settled in the presence of two Sarpanchs of the area, viz. DW 2 Bhura and DW 3 Bahadur Singh and it was agreed that the appellant would pay the treatment expenses and the appellant paid a sum of Rs. 1000/- out of the agreed amount of Rs. 3000/-. The dispute arose on account of non- payment of remaining amount of Rs. 2000/-. Had the occurrence taken place, as stated by these three witnesses, then three was no reason to inform DW 1 Bhura and DW 3 Bahadur Singh that the girl fell down and received injury on thigh. Thus, the statement of PW 4 Makhla and PW 6 Maddi do not inspire confidence. So far as statement of PW 5 the prosecutrix Basanti is concerned, her statement does not find any corroboration from the medical evidence. She, being a child witness, the possibility of her being a tutored witness cannot be ruled out. In State of Bihar v. Kapil Singh, AIR 1969 SC 53 , the Hon'ble Supreme Court observed that while a child witness can often give out a true version because of her innocence, there is always the danger of her being tutored and influenced. In State of Bihar v. Kapil Singh, AIR 1969 SC 53 , the Hon'ble Supreme Court observed that while a child witness can often give out a true version because of her innocence, there is always the danger of her being tutored and influenced. Moreso, her evidence is not corroborated by the medical evidence and in view of the decision of Hon'ble Supreme Court in Bikha v. State of Gujarat, AIR 1971 SC 1064 , the conviction on the evidence of a child witness without corroboration is generally not proper. 23. In Ota Ram v. State of Rajasthan, 2002(1) Crimes 771 , the appellant was convicted for committing rape on a girl aged about 7 years. The report of the incident was lodged after one month. The statement of child prosecutrix was not supported by medical evidence. The place of the incident was near a well and some ladies were there nearly. In such eventuality, it was held that the conviction of the appellant could not be sustained. 24. Moreso, the prosecution story, as set-up by PW 4 Makhla and PW 6 Maddi, runs counter to the statement of PW 1 Kamji, who stated that the occurrence is of 30.10.2001 and the police came next day of the occurrence and prepared Ex.P/1. PW 2 Gamna stated that Ex.P/1 was prepared at the residence of PW 4 Makhla. Thus, it appears that the matter was brought to the notice of the police regarding fall of the prosecutrix. PW 4 Makhla, in the presence of these two witnesses, showed the site on the very date of the occurrence and the site map was prepared at the residence of PW 4 Makhla and thereafter, it appears that the matter between the parties was settled, as stated by the defence witnesses, for a sum of Rs. 3000/- as expenses towards medical treatment and after having waited for 24 days when remaining amount of Rs. 2000/- was not paid by the appellant, the report Ex.P/1 was lodged. 25. In this view of the matter, in my view, the prosecution has miserably failed to-prove the case against the appellant for the offences noticed above beyond reasonable doubt. On the strength of uncorroborated and unsupported statements of PW 4 Makhla, PW 5 prosecutrix Basanti and PW 6 Maddi, the conviction of the appellant cannot be based and benefit of doubt must go to the appellant. On the strength of uncorroborated and unsupported statements of PW 4 Makhla, PW 5 prosecutrix Basanti and PW 6 Maddi, the conviction of the appellant cannot be based and benefit of doubt must go to the appellant. In Jayantibhai Bhenkarbhai v. State of Gujarat, 2003(1) WLC (SC) Criminal 79 , the Apex Court held that while weighinq the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the court. 26. In the result, the appeal is allowed. The judgment of conviction and order of sentence dated 11.7.2001 passed by the Additional Sessions Judge, Banswara, Camp Kushalgarh, in Sessions Case No. 11/2002 is hereby set-aside. Appellant Arjun S/o Shri Bhura Aadiwasi-Bheel is acquitted of the offences under Sections 342 and 376 IPC. He is in jail. He shall be set at liberty, if not required in any other case.Appeal allowed. *******