JUDGMENT 1. - This appeal under Section 383, Cr.PC has been sent from jail by accused-Appellant Ratanlal against the judgment.of conviction and order of sentence dated 7.9.2001 passed by Additional Sessions Judge (Fast Track), Chittorgarh in Sessions case No. 92 of 2001 - State v. Ratanlal , whereby the accused-Appellant has been convicted under Section 333 and 376(2) IPC and sentenced to simple imprisonment for 5 years and fine of Rs. 2000/-, in default of payment to further undergo six months simple imprisonment under Section 363 IPC; and 10 years' rigorous imprisonment with a fine of Rs. 5000/-, in default of payment of fine to further suffer one year's simple imprisonment under Section 376(2) IPC. Both the sentences have been ordered to run concurrently and the accused has been given benefit of set off under Section 428 CrPC. 2. Briefly stated, the facts of the case are that on 29.5.1999 complainant Ramlal submitted a written report at Police Station Begun, inter-alia, stating therein that on 27.5.1999 his whole family was sleeping outside the house in village Jambukadi and there his daughter Leela aged 10 years was also sleeping on a cot. At about 1-2 O'clock in the night, Ratanlal S/o Hariram Bheel and one other person accompanying him took away his daughter Leela alongwith cot in forest, committed an insincere act with his daughter, and when blood started coming out from her urine-Passing place, they left her back weeping at home and thereafter his daughter told the whole episode to him, Devilal, Gopi, Bhagwanlal and others. As the condition of his daughter became worse, the information could not be given a day before. 3. On the aforesaid report, Ex.P/1, First Information Report No. 241 of 1999 under Section 363 and 376 IPC was registered and investigation commenced. 4. During the course of investigation, the I.O. recorded the statements of Ramlal, prosecutrix Leela, Ramibai, Devilal, Gopi and Bhagwanlal. Prosecutrix Miss Leela was got medically examined and her blood smeared cloths were seized. The place of incident was inspected and accused Ratanlal was arrested. Accused was asked about the other persons but he did not inform name of any other person. Slides and seized blood smeared clothes were sent for chemical examination to the FSL, Jaipur. 5. Prosecutrix Miss Leela was got medically examined and her blood smeared cloths were seized. The place of incident was inspected and accused Ratanlal was arrested. Accused was asked about the other persons but he did not inform name of any other person. Slides and seized blood smeared clothes were sent for chemical examination to the FSL, Jaipur. 5. After completion of investigation, finding a case under Section 363 and 376 IPC, a challan for these offences against accused-Appellant Ratanlal was filed in the Court of Additional Chief Judicial Magistrate, Begun, from where the case was committed to the Court of Sessions and ultimately came for trial and disposal before the Additional Sessions Judge (Fast Track), Chittorgarh, who framed charge under Section 363 and 376(2) IPC against appellant Ratanlal and read over to him. The accused denied the charges and claimed trial. 6. In support of its case, the prosecution examined as many as 14 witnesses and produced several documents in evidence. After close of prosecution evidence, accused was examined under Section 313 of the CrPC. He made general denial to the questions put to him however in reply to a question put about witnesses speaking against him, he said that his sister was married in the family of complainant and they gave her in 'Nata' (alliance) in Rampremupura and due to that reason there being annoyance in between them, they have given false statements. No evidence was produced in defence. 7. The learned Trial Judge, after hearing both sides, convicted and sentenced the accused-Appellant as indicated hereinabove. 8. Heard learned counsel for accused-Appellant as well as the learned Public Prosecutor at length and carefully scrutinised the material available on record. 9. Learned counsel for the accused-Appellant submitted that the learned Court below has not properly appreciated the evidence and fallen in error in placing reliance on the version of the prosecution witnesses. He submitted that in this case the report of the alleged incident was not lodged immediately but after two days of alleged incident after consultation. He also submitted that according to report Ex.P/1 there must be more than one persons and had the incident taken place the other person said to be accompanied with the accused at the time of incident would not have been left by the prosecution. He also submitted that according to report Ex.P/1 there must be more than one persons and had the incident taken place the other person said to be accompanied with the accused at the time of incident would not have been left by the prosecution. According to him due to annoyance between the parties on account of accused's sister giving in Nata, he has been involved in a false case. 10. On the other hand, the learned Public Prosecutor supported the impugned judgment and order and contended that the prosecution has been able to prove its case beyond reasonable doubt against the accused-Appellant and as such no interference is called for by this Court in the judgment and order passed by the learned Trial Judge which is based on proper appreciation of evidence. 11. I have considered the submissions made before me and have also carefully gone through the evidence led by the prosecution in this case. 12. The point which requires consideration in the present case is as to whether the prosecution story as put forward is trustworthy and whether the statement of prosecutrix PW 4 Mst. Leela inspires confidence? 13. The prosecutrix PW 4 Kumari Leela in her statement has stated that on the day of incident while she was sleeping on a cot outside her house, the accused, present in Court, accompanied by one other person taken her alongwith the cot to the Bada (a place to shelter cattles), scuffled with her and thereafter sat on her. She has also been stated that a towel was pressed into her mouth and her clothes were flung. Accused Ratan inserted his penis into her vagina due to which blood started coming and thereafter the accused persons fled away and she returned home in the morning and told the incident to her father, who brought her Begun and go her medically examined. She also stated that she knew the accused present in Court from before. In cross-examination, she stated that while she was asleep her eyes were covered with the cloth but as the cloth slipped she could see accused Ratan. She could not recognise the order person but both the persons had scuffled with her. She further stated that as her eyes were wrapped by a cloth she did not know who scuffled with her first. She denied the suggestion that the night was dark. She could not recognise the order person but both the persons had scuffled with her. She further stated that as her eyes were wrapped by a cloth she did not know who scuffled with her first. She denied the suggestion that the night was dark. She further stated that while she was subjected to rape one of her hands was caught by accused Ratan and the other by another person. In the end of cross, while referring to portion 'A' to 'B' of Ex.D/3 the prosecutrix stated that she had told the police about knowing Rataniya from before and said that the police might not have written the same. She also stated that it was wrong to say that at the time of inspection of site she did not go at the spot. She stated that she went there. 14. A perusal of the statement of prosecutrix PW 4 Kumari Leela indicates that on the day of incident in the night she was lifted by two persons and one of them was identified as present accused-Appellant as she could see him while she was being taken on a cot as the the cloth tightened on her eyes slipped. It also appears from her statement that she is a child witness as she has stated her age to be 10 years. As per her statement one of the accused could not be traced out as proper investigation in the matter was not done and he was left completely free. It further appears from her statement that she was raped by the accused-Appellant and on account of that she also sustained injuries. The suggestion put to the prosecutrix that on account of enmity a false case has been made against the accused persons was denied. 15. The oral testimony of the prosecutrix now requires to be examined in the light of medical evidence. 16. PW 8 is Dr. Goru Ram. He has proved Injury Report Ex.P/3. As per his report, he found following injuries on the person of prosecutrix : (1) Multiple abrasions 21 cm x 11 cm on her back starting from supra scapular area to low back. Crusts present. (2) Abrasion 1 cm x 1/2 cm on right 1/2 of upper lip, crust present. (3) Linear abrasions two in number 11/2 cm size each on right cheek near right angle of mouth. Crusts present. (2) Abrasion 1 cm x 1/2 cm on right 1/2 of upper lip, crust present. (3) Linear abrasions two in number 11/2 cm size each on right cheek near right angle of mouth. (4) Laceration 1 cm x 1/2 cm x subcutaneous tissue deep at the junction of labia posteriority. (5) Hymen torned, bleeding on touch, Introitus bruished. 17. On the back of medical examination report, in the opinion part of the report, the doctor has stated that she was between 8 to 12 years of age and in bracket it has been mentioned that she was below 13 years of age. The injuries on different parts of body according to him were of the period more than 24 hours to 7 days from the time of examination. 18. The witness examined the prosecutrix on 29.5.1999. He in his statement before Court has stated that on the basis of examination it was revealed that penetration took place in the vagina of the prosecutrix. He has also stated that accused was also medically examined by him regarding his potentiality to sex. He has proved Ex.P/5 the medical examination report in relation to the accused and in his opinion the accused was competent to perform the act of sex. 19. PW 8 Dr. Goru Ram's statement without any manner of doubt is suggestive of the circumstances that PW 4 prosecutrix was below 13 years of age, penetration took place with her. She suffered injuries on the various parts of body including cheeks, neck, lips and the hymen was found raptured. Thus, the oral testimony of the prosecutrix finds corroboration from the medical evidence. 20. Now, it is to be seen that the certain discrepancies pointed out by the learned counsel in the statement of the prosecutrix and other witnesses, whether creates doubt about the prosecutrix story? 21. Learned counsel for accused-Appellant contended that in the report Ex.P/1 regarding incident lodged with a delay of two days by PW 1 Rama, who is father of the prosecutrix, it has been mentioned that two persons committed rape with his daughter whereas in the statement of the prosecutrix recorded in the Court there is mention of only one person. It was also contended by learned counsel that in the police statement Ex.D/2 of the prosecutrix there is no mention of the accused having been identified by the prosecutrix. It was also contended by learned counsel that in the police statement Ex.D/2 of the prosecutrix there is no mention of the accused having been identified by the prosecutrix. He also pointed out that in other police statements of the witnesses PW 2 Smt. Rami Bai (Ex.D/2) and PW 5 Devilal (Ex.D/4), the name of the accused person does not find place. 22. After carefully examining the contentions of the learned counsel, I am of the view that in rape cases particularly in the present rape case where prosecutrix was lifted from her house while she was sleeping outside the house alongwith her family members and she came weeping in the morning at about 5 AM, definitely the incident gave a shock to the family members and they must have consulted and discussed the matter with its pros and cons and in such a situation, the delay was bound to occur. In such matters, some delay ought not to be considered fatal to the prosecution case to the extent to throw out the case of the prosecution itself as it would not be legally proper and the Courts are required to examine the matter with due care taking into consideration the circumstances responsible for delay and explanation furnished in that behalf. However, it is of course true that while appreciating the evidence of prosecutrix it is required to be seen that her evidence inspires confidence for basing conviction. 23. The Hon'ble Supreme Court has laid down the guidelines regarding appreciating evidence of the prosecutrix in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, [ (1983) 3 SCC 217 ], as under - (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an elements of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. The mental faculties, therefore, cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape - recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess - work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time - sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub - conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. The Court said that it is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex offence. 24. The Hon'ble Supreme Court has further observed as under - "Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. 24. The Hon'ble Supreme Court has further observed as under - "Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to the light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the Court is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well - considered and well-Analysed judgment of the Trial Court on grounds like non - examination of other witnesses, when the case against the respondent otherwise stood established beyond any reasonable doubt was not called for." 25. In the case of Visveswaran v. State, ( 2003 CrLJ 2548 ) the Hon'ble Supreme Court has observed - " the cases are required to be dealt with utmost sensitivity, Courts have to show greater responsibility when trying an accused on the charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved." 26. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved." 26. Regarding delay, the Hon'ble Apex Court in the case of Harpal Singh & Anr. v. State of Himachal Pradesh, ( AIR 1981 SC 361 ) , has observed that as honour of the family was involved, its members had to decide whether to take the matter to the Court or not and said that it is not uncommon that such considerations delay action on the part of the near relations of a young girl who is raped. 27. In the case of State of Rajasthan v. Om Prakash, (2002) 5 SCC 745 , the Hon'ble Court has observed as under - "It is not at all unnatural for the family members to await the arrival of the elders in the family when an offence of this nature is committed before taking a decision to lodge a report with the police. The reputation and prestige of the family and the career and life of a young child is involved in such cases." 28. The Delhi High Court in the case of Kali Charan v. State (Delhi Administration), 1995 CrLJ 663 , while considering the matter of delay has observed as under - "It is a matter of common experience that in our country, people are quite hesitant in reporting such offences to the Police in majority of cases primarily to save honour of the family and the prosecutrix and in small number of cases as and when these cases are reported to the Police, they do so after considerable hesitation and long deliberations. In this view of the matter often there is delay in lodging the FIR. The prosecution version cannot be thrown out only on the ground of delay in lodging the first information report, otherwise in some cases it may lead to serious miscarriage of justice." 29. In view of above legal position, as observed by the Hon'ble Supreme Court, the contention that not lodging the first information report in the case in time is fatal to the prosecution, stands rejected. 30. In view of above legal position, as observed by the Hon'ble Supreme Court, the contention that not lodging the first information report in the case in time is fatal to the prosecution, stands rejected. 30. The non - mentioning of name of accused in the statement recorded by the police is indicative of the fact that in this case proper investigation has not been done because when Ex.P/1 report was lodged mentioning the name of the accused by the father of the prosecutrix as disclosed by the prosecutrix to him then why his name was not mentioned in the statement which was recorded by police Ex. D/1 is best known to the investigating agency. Further, in Ex.D/2, the statement before police of the mother of the prosecutrix, non - mentioning of name of accused by the Investigating Officer is suggestive of the circumstance that the investigation in the matter was done in an arbitrary manner and it can very well be presumed that it was for the reason to spoil the case and to give benefit to the accused.PW 11 Madhav Singh has recorded the statements of the witnesses and he has stated that the statements were recorded on 29.5.1999 and 30.5.1999. It the statements of witnesses were recorded on these two days and the report with regard to the incident was lodged on 29.5.1999, then there was no occasion for the witnesses to have not stated the name of the accused because the same finds place in Ex.P/1. 31. PW 1 Rama the father of the prosecutrix and PW 2 Smt. Rami the mother of the prosecutrix, both have supported the statement given by prosecutrix. The other witness viz., Devilal (PW 5) has also supported the version of the prosecutrix. Though some of the witnesses viz., PW 7 Bhagwanlal, PW 11 Gopi have not supported the prosecution version and have turned hostile in this case but that is not sufficient to discard the prosecution case in view of the discussions made hereinabove, more particularly, when the testimony of the prosecutrix inspires confidence. The contention of the learned counsel that on account of enmity the accused has been involved in the case also does not appear to be convincing for the simple reason that as a matter of rule nobody would be agreeable to involve a person in a case of rape at the cost of his or her daughter. The contention of the learned counsel that on account of enmity the accused has been involved in the case also does not appear to be convincing for the simple reason that as a matter of rule nobody would be agreeable to involve a person in a case of rape at the cost of his or her daughter. 32. I have examined the matter throughly and I am of the opinion that the prosecution in this case has proved by adducing satisfactory evidence that Kumari Leela the prosecutrix was below 13 years of age, she knew the accused before the incident, she was raped and she sustained injuries on her vagina. Her oral testimony could not be impeached in the cross-examination. Her evidence has been corroborated in material particulars by the medical evidence. Therefore, the findings arrived at by the learned Trial Court holding guilty the accused for the offence under Section 363 & 376(2) IPC cannot be said to be illegal, unjust or improper and it appears to be based on proper appreciation of evidence and as such the same does not require any interference by this Court. 33. 1 find that the prosecution has sufficiently proved the charges levelled against the accused by cogent evidence brought on record. The learned Trial Court after discussing the evidence in details has rightly arrived at its conclusion. In recording the conviction, the learned Trial Court relied on the testimony of the witnesses. The contradictions in the statements of prosecution witnesses are of minor nature. The evidence, which has come on record in the case, is clearly suggestive of the fact that for the incident the accused-Appellant was responsible and the learned Trial Court has rightly convicted him under Section 363 and 376(2) IPC. 34. In view of foregoing discussions, I do not find any merit in this appeal and the same deserves to be dismissed. 35. Accordingly, the appeal filed by Ratanlal stands dismissed.Appeal dismissed. *******