JUDGMENT BARIN GHOSH, C.J. (Oral) Teeka Ram (PW1) filed a First Information Report. In that, amongst others, it was alleged that in the evening of 22nd July, 2001, when Babita (PW3) and Isha (PW4) were in the corn-field of PW1, respondent came, offered PW3 and PW4 a ride on his motorcycle, took them on the motorcycle and, thereafter, the respondent raped PW3 and had oral sex with PW4. In course of investigation, pursuant to the said F.I.R., PW3 was taken for medical examination. Dr. Renuka Naithani (PW2) medically examined PW3 and found no sign of rape. She found that her hymen is intact; no blood is coming out from her vagina, no presence of spermatozoa, and that, she was aged between 12 to 14 years. Inasmuch as, the medical report, submitted to the investigation by PW2, did not support rape of PW3, statements of PW3 under Section 164 of the Code of Criminal Procedure were taken. Subsequent thereto, respondent faced trial for offences punishable under Sections 376, 377, 363 and 366 of I.P.C. PW1, though, had no knowledge regarding the allegations made by PW3 and PW4, but, while tendering evidence, he purported to hold out as if he was a witness to the same. Be that as it may, PW2 proved the medical report prepared by her, while tendering evidence and stated that having regard to her findings, she is not in a position to say that PW3 was raped. In the medical report, as would be evidenced therefrom, there was no reporting that PW3 suffered any sort of external injury. Furthermore, PW2, in her cross-examination stated, which statement should be regarded as an opinion, that there was no penetration and there was no attempt to penetrate. PW3, while deposing before the court, stated that the respondent offered a joyride to her and to PW4 on his motorcycle and upon acceptance thereof, he gave a joyride, but before the joyride came to an end, which was promised, at the selfsame corn-field, fromwhere the joyride started, stopped the motorcycle and forced his male organ inside the female organ of PW3. PW4, while deposing, said, she took the joyride, as was described by PW3, from the corn-field and the said joyride ended also in the corn-field and, in the meantime, nothing happened. PW4, while deposing, said, she took the joyride, as was described by PW3, from the corn-field and the said joyride ended also in the corn-field and, in the meantime, nothing happened. In addition to that, she stated that the family of PW3 threatened her and her family to give incorrect and concocted evidence. PW4 was 11 years old at the time of the incident. Therefore, before the court below, while there was an assertion by PW3 as regards penetration, there were two evidences, one in the form of opinion given by PW2 after medically examining PW3 that there was no penetration and that of the evidence of PW4, who stated that there was no such incident at all. In the circumstances, acceptance by the court below of the evidence of PW2 and PW4 and non-acceptance of evidence of PW3 is not interferable. 2. The appeal fails and the same is dismissed. 3. Let a copy of this judgment be sent to the lower court alongwith lower court’s record. 2013 (1) N.C.C. 606 UTTARAKHAND HIGH COURT Hon'ble Mr. Chief Justice Barin Ghosh and Hon’ble Mr. Justice Alok Singh Government Appeal No. 240 of 2008 STATE OF UTTARAKHAND – Appellant Versus JARNAIL SINGH – Respondents Decided on : 19.03.2013 For the Appellant : Mr. Amit Bhatt, Dy. Advocate General (Criminal) (A) Jurisdiction — Superior Court — Judgment of acquittal — Interference — Held — That in an appeal or revision against the judgment of acquittal, appellate or revisional court should not lightly interfere with the reasoning and findings recorded by the trial court, even if two views are possible — The Superior Court may interfere with the judgment of acquittal, only when it comes to a definite conclusion that judgment of acquittal was shocking in the facts and circumstances of the case, or if found that trial court failed to appreciate the evidence in right perspective or if judgment impugned was found to be totally perverse or if concluded that trial court denied fair opportunity to adduce evidence on the ground uncalled for. (Para 6) (B) Rape — Attempt — Charge of — Acquittal — Held — Prosecutrix not medically examined — Delay in lodging the FIR not explained properly — Statement of mother of prosecutrix also not inspired confidence — Consideration — No interference in the view taken by the learned trial judge — Appeal dismissed. (Para 6) (B) Rape — Attempt — Charge of — Acquittal — Held — Prosecutrix not medically examined — Delay in lodging the FIR not explained properly — Statement of mother of prosecutrix also not inspired confidence — Consideration — No interference in the view taken by the learned trial judge — Appeal dismissed. (Paras 7, 8, 10) ¼v½ {ks=kf/kdkj & mPprj U;k;ky; & nks”keqfDr ds vkns’k & gLr{ksi & /kkfjr & fdlh nks”keqfDr ds fu.kZ; ds fo#) vihy ;k iqujh{k.k esa vihyh; ;k iqujh{k.k vnkyr dks vYirk ls ijh{k.k vnkyr ds fu”d”kZ vkSj rdZ ls gLr{ksi ugha djuk pkfg,] Hkys gh nks n`f”Vdks.k laHko gksa & mPprj vnkyr nks”keqfDr ds fu.kZ; esa rHkh gLr{ksi djrh gS tc fuf’pr fu”d”kZ fudys fd rF;ksa vkSj ifjfLFkfr;ksa esa nks”keqfDr dk vkns’k LrCèk djus okyk gks] ;k fQj ijh{k.k vnkyr }kjk lgh ifjizs{; esa lk{;ksa dh foospuk ugha djh xbZ gks & ;k fQj ikfjr vkns’k iw.kZ :i ls rdZ fo#) gksa ;k ijh{k.k vnkyr }kjk vLohÑfr nh xbZ lk{;ksa dks izLrqr djus dh mfpr volj ij vfueaf=r ds vk/kkj ijA ¼izLrj 6½ ¼c½ jsi & iz;kl & vkjksi & nks”keqfDr & /kkfjr fd vfHk;ksftdk dh fpfdRlk tk¡p ugha & FIR ntZ djkus esa foyEc dh O;k[;k ugha & vfHk;ksftdk dh ekrk dk dFku Hkh fo’oLr ugha & fopkj & ekuuh; ijh{k.k U;k;k/kh’k }kjk ikfjr vkns’k esa gLr{ksi ugha vihy fujLrA ¼izLrj 7] 8] 10½ JUDGMENT Per: Hon’ble Alok Singh, J. 1. This is a State appeal challenging the judgment and order dated 17.06.2008 passed by Additional Sessions Judge/1st FTC, Haridwar in Sessions Trial No. 27 of 2004 whereby respondent was acquitted of the charge punishable under Section 375/ 511 IPC. 2. This is a State appeal challenging the judgment and order dated 17.06.2008 passed by Additional Sessions Judge/1st FTC, Haridwar in Sessions Trial No. 27 of 2004 whereby respondent was acquitted of the charge punishable under Section 375/ 511 IPC. 2. Brief facts of the present case, inter alia, are that PW1 has lodged a report on 04.05.2002 with police station Laksar, Haridwar stating that informant had gone to his relative’s place and when he came to his house, his elder daughter Sunita (PW5), younger daughter Chandra Kala (PW9) and her wife Smt. Surti told him that on 01.05.2002 his younger daughter Chandra Kala had gone to the shop of Masoom to purchase some household articles at 11.30 a.m. and when she reached near the house of Ashok, son of Harphool Gujjar, Jarnail Singh, son of Ashok, immediately, caught her and had taken her in his room, after putting his hand on her mouth; he had bolted the room from inside and tried to rape her; meanwhile, Sonu and Sachin could watch from the half opened window of the room that respondent Jarnail Singh was trying to rape Chandra Kala; Sonu and Sachin, immediately, told the incident to PW5 Sunita and PW6 Satbeer; having received the information about the incident from Sonu and Sachin, Sunita and Satbeer immediately rushed to the room of Jarnail Singh and started making a noise, meanwhile, Jarnail Singh, after opening the door of the room managed to escape from the spot. 3. Having investigated the matter, police submitted a charge-sheet against Jarnail Singh for the offence punishable under Section 376/511 IPC. 4. From the side of prosecution, PW1 Mamraj, PW2 Zahid, PW3 Sachin, PW4 Sonu, PW5 Sunita, PW6 Satbeer, PW7 Ramchandra, PW8 Roshan Lal, PW9 Chandra Kala, PW10 Ummed Singh were produced and examined. 5. Learned trial Judge having considered the entire material available on record, came to the conclusion that prosecution has failed to prove the prosecution story and ultimately, exonerated the respondent from the charge levelled against him vide judgment under appeal. 6. We are conscious about the fact that in an appeal or revision against the judgment of acquittal, appellate or revisional court should not lightly interfere with the reasoning and findings recorded by the trial court, even if two views are possible. 6. We are conscious about the fact that in an appeal or revision against the judgment of acquittal, appellate or revisional court should not lightly interfere with the reasoning and findings recorded by the trial court, even if two views are possible. The Superior Court may interfere with the judgment of acquittal, only when the Superior Court comes to a definite conclusion that judgment of acquittal is shocking in the facts and circumstances of the case, or the Superior Court finds that trial court fails to appreciate the evidence in right perspective or if judgment impugned is found to be totally perverse or if the Superior Court comes to a conclusion that trial court denied fair opportunity to adduce evidence on the ground uncalled for. 7. In the present case, prosecutrix was not medically examined. Not only this, prosecutrix has not stated in her statement that respondent had ever tried to take off her clothes or her clothes were torn by him. PW1 informant has stated, on oath, that he received a telephonic call from his house about the incident on 01.05.2002 itself and after reaching home, he had lodged the report on 04.05.2002. Considering the above circumstances, the trial court was absolutely correct while observing that statement of PW1 is not reliable. Father of a young girl, having received such telephone call, in normal circumstances, would not have taken so much time in reaching his house and reporting the matter to the police. 8. We, too, are of the view that delay in lodging the FIR has not been explained properly. Statement of mother of prosecutrix also does not inspire confidence, rather her statement is sufficient to demolish the prosecution story. She has stated that there was a dense population in nearby area of house of Jarnail, however, after hearing the hue and cry, no one had turned up. She has further stated that even the prosecutrix had not received even abrasions. 9. On the other hand, from the side of defence, DW1 Masoom and DW2 Irshad were examined. Masoom has stated that his shop was a half km. away from the house of prosecutrix. He has further stated that in between the house of prosecutrix and shop of Masoom, there were two shops owned by Karanwal and Seetu. 9. On the other hand, from the side of defence, DW1 Masoom and DW2 Irshad were examined. Masoom has stated that his shop was a half km. away from the house of prosecutrix. He has further stated that in between the house of prosecutrix and shop of Masoom, there were two shops owned by Karanwal and Seetu. He has further stated that prosecutrix never came to his shop for purchasing purpose on 01.05.2002, as his shop was closed on 01.05.2002 and on that day, he had gone to main market to purchase sugar. 10. Having considered the entire material available on record, we are unable to take contrary view to the view taken by the learned trial Judge. Even a case, punishable under Section 354 IPC is not made out against the respondent. Therefore, the appeal deserves dismissal and the same is dismissed. 11. Let a copy of this judgment be sent to the court below for information along with lower court record.