JUDGMENT Hon'ble Arvind Kumar Tripathi (II), J. Heard learned counsel for the appellant and Shri Sharad Dixit, learned AGA for the State respondent. 2. This criminal appeal has been filed by the appellant - Ram Sukh Pal challenging the judgment and order dated 21.12.2006 and 22.12.2006 passed by the learned Additional District and Sessions Judge, Room No.4, Sultanpur in Sessions Trial No.431 of 2004 (State v. Ram Sukh Pal), by which the learned court has convicted the appellant and sentenced him to undergo 10 years RI under Sections 376 (1), 313 IPC each and to pay fine of Rs.15,000/- under each sections. 3. Prosecution story, in brief, is that the informant Ram Kishun Pal lodged FIR on 9.9.2004 in Police Chanda, District Sultanpur alleging that about five months prior his daughter - the victim had gone to the field to ease herself where the appellant raped her. However, due to shyness, she did not tell any body about this and she became pregnant. On 31.8.2004, Ram Sukh took her forcibly from out side of the village and forcibly aborted the said pregnancy by admitting her in a hospital at Sultanpur, and left the victim in ailing condition at her home. On this, FIR under Sections 376, 313 IPC was registered on 9.9.2004 at about 11: 50 hours. Thereafter, statement of informant (PW-1), Smt. Usraji and the victim (PW-2) was recorded under Section 161 Cr.P.C. Sub-Inspector Ram Swaroop (PW-7) visited the place of occurrence and prepared site plan and also recorded the statements of prosecution witnesses - Amarnath Pal, Kallu Pal, Abhay Narain Pal, Akhilesh Kumar Upadhyay in the case diary. On 10.9.2004, the accused appellant was arrested and his statement was recorded. The victim was sent for medical examination in Government Hospital, Sultanpur along with constable Shashi Samholi. Dr. Talakjahan (PW-3) medically examined the victim on 10.9.2004 and has given her report (10Ka2). For determination of age x-ray was advised. The victim was also sent to pathalogist and for ultra sound. Pathalogical report is Ex.Ka.2. Ultra Sound report is Ex.Ka.6. On the basis of opinion of Chief Medical Superintendent Lady, Sultanpur (10Ka-2) this witness has prepared supplementary report Ex.Ka.3. As per report, there was incomplete termination of pregnancy, and the age of girl, as per Hystopathological report, was below 18 years. 4. Pathalogical report is Ex.Ka.2. Ultra Sound report is Ex.Ka.6. On the basis of opinion of Chief Medical Superintendent Lady, Sultanpur (10Ka-2) this witness has prepared supplementary report Ex.Ka.3. As per report, there was incomplete termination of pregnancy, and the age of girl, as per Hystopathological report, was below 18 years. 4. The victim was produced before the Magistrate for recording her statement under Section 164 Cr.P.C., and thereafter, she was sent with her father. 5. After investigation, charge-sheet was submitted. After cognizance, case was committed to Court of Sessions for trial. Charge was framed. Accused pleaded not guilty claim to be tried. 6. Prosecution examined Ram Kishun Pal as PW-1, the victim as PW-2, Dr. Talakjahan, Lady Medical Officer as PW-3, Head Constable Shiv Murti Singh as PW-4, Dr. R.C. Gupta, Radiologist as PW-5, Dina Nath Mishra, Investigating Officer as PW-6 and Head Constable Ram Swaroop as PW-7. Statement of accused was recorded under Section 313 Cr.P.C. The accused has denied his involvement in the matter. He has also denied the forcible termination of pregnancy of the victim. He submitted that he has been falsely implicated due to enmity. He submitted that there was dispute as regards money transaction. He submitted that on the fateful day he was deputed as peon in Baba Purshottam Das Inter College, Rampur and he is not aware of the incident. In his support he has also examined Surendra Pratap Singh, Clerk of Baba Purshottam Das Inter College, Rampur (DW-1), who has stated that on 31.8.2004 the accused was present in the college. Certificate regarding his presence in the college was issued by Shri Ram chandra Upadhyay, Principal of the college, which is Kha.2. 7. Learned court below, after hearing the parties and discussing the evidence on record, has convicted and sentenced the appellant, as mentioned above. 8. It was submitted by learned counsel for the appellant that the first information report has been lodged with extraordinary delay and there is no explanation of delay which makes the whole prosecution story false. It was further submitted that there is major contradiction in the statement of P.W.-1, P.W.-2. As the father of the prosecutrix has given statement that after five months her daughter's stomach was swelling, but the alleged first information report was lodged after abortion. This aspect has not been considered by the trial court. It was further submitted that there is major contradiction in the statement of P.W.-1, P.W.-2. As the father of the prosecutrix has given statement that after five months her daughter's stomach was swelling, but the alleged first information report was lodged after abortion. This aspect has not been considered by the trial court. Appellant has proved his presence in the school and there is no evidence of the place of abortion, hence, the judgment and order passed by the trial court is illegal. Statement of P.W.3 is not correct with regard to the period of pregnancy and the trial court has based the judgment on the basis that abortion had taken place in any hospital. This finding is bad in the eyes of law. 9. So far as the delay in lodging of F.I.R is concerned. The Apex Court in the case of State of U.P versus Manoj Kumar Pandey [A.I.R 2009 SC Page 711] has held that normal rule that prosecution has to explain delay lack of prejudice does not apply per se to rape cases. 10. In the instant case, P.W.-3 is the doctor, who has medically examined the victim on 10.9.2004 in the District Hospital, Sultanpur. At about 1.45pm, the doctor has prepared the medical report exhibit Ka2. A perusal of exhibit Ka-2 and statement of P.W.-3 reveals that on examination of the private parts of the victim, the uterus, uterus size was 6 to 8 weeks, the mouth of uterus was dilated and slightly upon push and blood was oozing from it fernices was from tendered. The witness has further submitted that she has also prepared supplementary report on 26.5.2005 after the report of pathologist, radiologist and ultra sound, the victim's age was found about 18 years. From the ultra sound report, there was incomplete abortion. Dr. R.P. Gupta (P.W.-5) is the radiologist and has proved exhibit-Ka6. According to it, the uterus was found bulky in size and shape and antiverted position, endo meterial kanile was dilated, few echogenic dead fetal tissue were seen in the uterine cavity. This shows incomplete abortion. 11. P.W.-4 constable Shivmurat Singh is the person who has prepared the chik F.I.R. which is exhibit-Ka4. He has also proved G.D. entry exhibit Ka5 in the hand writing of constable Vijendra Kumar Tiwari. This shows incomplete abortion. 11. P.W.-4 constable Shivmurat Singh is the person who has prepared the chik F.I.R. which is exhibit-Ka4. He has also proved G.D. entry exhibit Ka5 in the hand writing of constable Vijendra Kumar Tiwari. P.W.-6 Dinanath Mishra was posted as Sub-Inspector in Police Station-Cheda and after lodging of the F.I.R investigation was handed over to him. During investigation, he recorded the statement of witnesses, collected school leaving certificate of the victim from her father. According to which her age was 01.1.1979. After finding, offence proved under Section 376, 313 I.P.C., he submitted charge-sheet in the Court which is exhibit-Ka7. 12. P.W.-7 is Head Constable police Ramrup who was the Investigating Officer before the investigation was handed over to P.W.-6 S.I. Dinanath Mishr, and has investigated the case after lodging of the first information report. He has prepared the site plan exhibit-Ka8 and also arrested the accused-appellant from Cheda Chauraha and also proved G.D. entry of custody of accused exhibit Ka9. P.W.-1 is the father of the victim and P.W.-2 is victim herself. 13. Before entering into the appreciation of the evidence of prosecution witnesses, statement of defence witness Surendra Pratap Singh is to be evaluated. This witness has stated that he is clerk in Babu Purushotam Das Inter College, Rampur, Sultanpur, Ram Sukh Pal is a peon in this school and was present in the school on 31.8.2004. This witness proved a certificate issued by the Principal which is exhibit-Kha1. In this certificate it has been mentioned that Shri Ram Sukh Pal was present in the school on 31.8.2004. These witnesses stated that school peon at about 9: 00am to 5: 00pm was present. This witness further filed copy of attendance register which is exhibit-Kha2. This witness admitted in his cross-examination that if anybody comes late, he puts his signature on the admission register by the permission of Principal and if anybody leaves prior to the school timing, he also leaves with permission of the Principal on written permission. After 5: 00pm there is no need for permission of the principal for leaving the school. It has further been stated that the resident of the accused is about 1.5 kilometres away from the school and there is kharanja road. It has also been stated that the accused comes to the school on his cycle. After 5: 00pm there is no need for permission of the principal for leaving the school. It has further been stated that the resident of the accused is about 1.5 kilometres away from the school and there is kharanja road. It has also been stated that the accused comes to the school on his cycle. He has further stated that he has not seen the accused putting his signature on the attendance-sheet on 31.8.2004. 14. A perusal of the first information report reveals that the allegation of rape has been levelled about five months prior to 31.8.2004. So the statement of this witness D.W.-1 is of no help to the accused regarding his involvement in the offence of rape. 15. The victim (P.W.-2) has stated that the she has given information in time to the examination-in-chief as to what time she was forcibly taken by the accused for abortion. She has further stated that when she reached Sultanpur, it was too dark so she could not say as to what was the time when she reached Sultanpur. In this view, the statement of D.W.-1 is also of no help to the accused because this witness cannot vouch for the accused. As there is no alibi after 5: 00pm the trial court has rightly rejected the testimony of D.W.-1 as to be of no help to the appellant. 16. The statement of Dr. Talak Jahan and Dr. R.P. Gupta clearly establishes when the victim was medically examined on 10.9.2004 there were signs of incomplete abortion. The statements of these witnesses also clearly establish that the victim was pregnant and the pregnancy was medically terminated. 17. In view of the above findings, the statement of P.W.-1, P.W.-2 is to be seen. 18. P.W.-1 is not the eye-witness. He stated that the victim is his daughter. Ram Sukh Pal is his cousin. He has further stated at the time of incident her daughter was raped by accused when she had gone to ease herself out side the village. He has further stated that she was threatened for life to desist her from telling this fact to anybody. After five months when her stomach started swelling the accused took her to Sultanpur and the pregnancy was terminated and after that he left her at her home. He has further stated that she was threatened for life to desist her from telling this fact to anybody. After five months when her stomach started swelling the accused took her to Sultanpur and the pregnancy was terminated and after that he left her at her home. When he asked her after returning from Sultanpur, then she started weeping and narrated the whole story, then the first information was lodged by him. 19. In his cross-examination, he has stated that he has not seen accused committing rape on her daughter. His relation with accused was very good. The relation was good till he came to know about the rape. At that time, the victim was not married. She was being looked after by him and his wife. He came to know of the rape after five months of rape. Between the time of rape and in which the victim never complained against the accused since accused was his cousin brother. He used to come to his house. Sangeeta never went to Sultanpur with Ram Sukh Pal. On the day, when she went to Sultanpur along with accused, he was not aware of this fact. When she returned from Sultanpur, his wife was at his home and he was on the tub-well. He cannot say as to when the victim went out from the house. The information of her returning from Sultanpur was not given by his wife. He is not aware as to how many days the victim was absent from her house. He was also not aware that the victim was pregnant or not. When she returned home, he or his wife did not ask as to where she was. After eight days of her return, she became ill then he asked from his daughter and then she narrated the entire story, before that he was not aware of the incident. 20. P.W.-2, the victim, has stated that about one year prior to her statement in the court, she had gone to ease herself in the field of Prithivipal Singh. There Arhar crops were standing. At about 7 or 7: 30p.m. accused caught hold of her and throwing on the ground, raped her. She could not raise alarm because she was gagged. She further stated that the accused threatened her that if you will tell this to anybody, she will be killed. There Arhar crops were standing. At about 7 or 7: 30p.m. accused caught hold of her and throwing on the ground, raped her. She could not raise alarm because she was gagged. She further stated that the accused threatened her that if you will tell this to anybody, she will be killed. So, she did not tell this anybody in here house. She has further stated that she became pregnant from the rape and after five months, when she was going to her field, the accused was standing there on a motorcycle along with one unknown person. He made her sit on the motorcycle and both of them drove her to Kothera Bazar. She was taken to Sultanpur by taxi and she was taken to some doctor and the pregnancy was terminated. After that, the accused brought her from Sultanpur and dropped at the place from where he has taken her away. She was feeling geedy somehow she reached her home where her parents started weeping after seeing her. When her father asked then she narrated the entire story. The witnesses further stated that her mother is mentally weak. In her cross-examination, she has stated that at the time of rape she was not beaten. The place of rape is about 10 paces away from the pond. She has further stated that due to social stigma, she has not informed her parents about the rape. She has further stated that after this incident, she was not raped again by the accused. She has further stated that she did not identify the second person who was driving the motorcycle. This witness further stated that after abortion she remained in the hospital for about three days. She had never visited Sultanpur prior to this. He has further stated that there was no dispute about land with the accused but the dispute is with his brother. 21. The accused in his statement under Section 313 Cr.P.C. has Stated that due to some dispute regarding money he was implicated in this offence. No offence has been adduced from the side of the appellant that there was some dispute or altercation between father of the victim and the accused regarding some money transaction. Even no suggestion has been given to the father of the victim that he has been implicated due to some land dispute or money. 22. No offence has been adduced from the side of the appellant that there was some dispute or altercation between father of the victim and the accused regarding some money transaction. Even no suggestion has been given to the father of the victim that he has been implicated due to some land dispute or money. 22. A perusal of the statement shows that there is hardly any reason to disbelieve the statement of the victim regarding rape and abortion. Admittedly, the victim became pregnant. This cannot happen without any sexual intercourse/rape. There is no suggestion from the side of appellant to the victim that she was having some illicit relation with any other person, and due to enmity he has been implicated. As the appellant did not dare to give this suggestion to the victim then her testimony regarding rape is uncrossed. The uncrossed testimony coupled with the fact that the accused-appellant has not even dared to suggest to the victim, clearly establishes the fact that the victim was raped by the appellant. 23. It is very natural that the victim of rape may keep mum about the incident specially when threatened by life, due to social stigma. The appellant is uncle of the victim as he is cousin brother of her father. Considering this relation also it can very well be understood that why did the victim kept mum. 24. It has been the settled principle of law that if the evidence of victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration. 25. In the case of Hem Raj versus State (2014) 2 SCC 395 , it has been held that "in a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible; if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. [See State of Maharashtra versus Chandra Prakash Kewalchand Jain (1990) 1 SCC 550 ). Such weight is given to the prosecutrix's evidence because her evidence is on par with the evidence of an injured witness, which seldom fails to inspire confidence. [See State of Maharashtra versus Chandra Prakash Kewalchand Jain (1990) 1 SCC 550 ). Such weight is given to the prosecutrix's evidence because her evidence is on par with the evidence of an injured witness, which seldom fails to inspire confidence. Having placed the prosecutrix's evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully. 26. It is also noteworthy that P.W.-3 was not asked as to after how many weeks the pregnancy becomes apparent. It is on the record that mental state of the mother of the victim is not good. In this condition it is not surprising that she could not detect her daughter's plight. The mental status of the victim's mother is the reason, why her mother was not examined in the Court. 27. Considering the entire evidence on record, it is clear that : - (1) the alibi taken by the appellant is of no help to the appellant. (2) statement of both the doctors P.W.-3 and P.W.-6 clearly establishes incomplete termination of the pregnancy. (3) Defence has not dared to suggest that the victim was having sexual relation with anybody else. 28. The evidence on record, in light of above facts, clearly indicates that prosecution has established the case against the appellant beyond any doubt. Appeal is thus devoid of merit and is hereby dismissed.