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Himachal Pradesh High Court · body

2018 DIGILAW 1412 (HP)

Arjun Mehto v. State of Himachal Pradesh

2018-07-31

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Instant criminal appeal having been filed by the appellant-accused, is directed against the judgment/ order of conviction and sentence dated 27.11.2015/28.11.2015, passed by the learned Special Judge, Una, Himachal Pradesh, in case No. 1 of 2015, whereby learned court below while holding the appellant/accused guilty of having committed offence punishable under Section 376 of IPC, convicted and sentenced him to undergo imprisonment for seven years and to pay fine of Rs. 25,000/-, in default, of payment of fine, to further undergo simple imprisonment for a period of six months. 2. Briefly stated facts as emerge from the record are that on 21.9.2014, complainant Shiri Lal (PW1), who happened to be father of the victim, lodged a report with the police station Una, District Una, H.P., alleging Whether reporters of the Local papers are allowed to see the judgment? therein that he is resident of Bihar and at present, residing at Village Basal, District Una in a hut/Jhuggi. He alleged that in March, 2014, he had gone to his Village Railli (Bihar) alongwith his wife leaving behind victim (daughter) and his son Gauri Shankar in the hut at Basal and during this period, accused, who resides adjacent to his hut committed sexual assault on his minor daughter (victim) 3-4 times and threatened her with dire consequences if she discloses the incident to anybody. Complainant further reported to the police that on 15.9.2014, victim suddenly fell ill and she was taken to PW16 Pankaj at Basal, who disclosed to his wife that victim was pregnant and was carrying fetus of 5- 6 months. Complainant and his wife Ram Dulari (PW3) inquired from the victim, who told that during festival of Holi, accused had committed sexual intercourse with her 3-4 times forcibly and had threaten her with dire consequences in case she discloses about the incident to anybody. Complainant PW1 also reported to the police that accused in the presence of PW16 Pankaj confessed his guilt but now he has fled away leaving his luggage at Basal. On the basis of aforesaid complaint, FIR Ext.PW1/A came to be registered against the accused. Accused was arrested on 2.10.2014, and since then, he is behind bars. Complainant PW1 also reported to the police that accused in the presence of PW16 Pankaj confessed his guilt but now he has fled away leaving his luggage at Basal. On the basis of aforesaid complaint, FIR Ext.PW1/A came to be registered against the accused. Accused was arrested on 2.10.2014, and since then, he is behind bars. After completion of investigation, police presented the challan in the competent court of law, who being satisfied that prima-facie case exists, against the accused, charged him for having committed offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Sections 376 & 506 of IPC, to which he pleaded not guilty and claimed trial. 3. Learned trial Court on the basis of evidence collected on record by the prosecution held the accused guilty of having committed offence punishable under Section 376 of IPC and accordingly, convicted and sentenced him as per the description given herein above, whereas Court below acquitted the accused of charges framed against him under Sections 4 of the Protection of Children from Sexual Offences Act, 2012 and 506 of IPC. In the aforesaid background, appellant-accused has approached this Court in the instant proceedings, praying therein for his acquittal after setting aside judgment of conviction recorded by the court below. 4. Before adverting to the factual matrix of the case, it may be noticed that learned Special Judge, Una, while holding the accused guilty of having committed offence punishable under Section 376 of IPC categorically held that prosecution has failed to prove that victim was below 18 years of age and as such, charge framed against him under Section 4 of the Protection of Children from Sexual Offences Act, 2012, cannot be said to have been established. Similarly, the court below acquitted the accused of offence punishable under Section 506 IPC. Respondent-State did not lay any challenge to the aforesaid finding recorded by the learned Special Judge and as such, same has attained finality. Similarly, the court below acquitted the accused of offence punishable under Section 506 IPC. Respondent-State did not lay any challenge to the aforesaid finding recorded by the learned Special Judge and as such, same has attained finality. Though, in the case at hand, prosecution by way of medical evidence adduced on record, made an endeavor to persuade the court below that at the time of alleged incident, victim was minor, but as has been noticed above, such submissions of prosecution were not accepted and court below though held accused guilty of having committed offence punishable under Section 376 of IPC, but arrived at a definite conclusion that prosecution has not been able to prove that victim was below 18 years of age at the time of alleged incident. Since respondent-State failed to lay specific challenge to the aforesaid finding returned by the court below, question which remains to be adjudicated by this Court in the present proceedings is that whether victim was subjected to sexual intercourse against her wishes or she was a consenting party to the same? 5. Mr. Divya Raj Singh, learned counsel representing the appellant-accused while making this Court to peruse the evidence led on record by the prosecution made a serious attempt to persuade this Court to agree with his contention that the accused could not be held guilty of having committed offence punishable under Section 376 of IPC on the basis of evidence led on record by the prosecution because bare perusal of statements given by the material prosecution witnesses, nowhere suggests that accused forcibly committed sexual assault upon the accused, rather evidence adduced by the prosecution indicates beyond reasonable doubt that the prosecutrix/victim was known to the accused and they had prior acquaintance. Mr. Divya Raj further argued that if statements of material prosecution witnesses are read in conjunction with each other, it certainly suggests that there are material contradictions and inconsistencies in the statements of these witnesses and as such, accused could not be held guilty of having committed offence punishable under Section 376 of IPC, on the statements of witnesses, who are otherwise closely related to each other. Mr. Divya Raj, further argued that it has come in evidence that there were more than 100 huts near the site of the alleged incident, but none of the independent witness was associated by the prosecution to prove the case of the prosecution. Mr. Divya Raj, further argued that it has come in evidence that there were more than 100 huts near the site of the alleged incident, but none of the independent witness was associated by the prosecution to prove the case of the prosecution. He further argued that there is total misreading, misconstruction and mis-interpretation of the evidence led on record by the prosecution, as a consequence of which, erroneous findings have come on record to the detriment of the accused, who has been falsely implicated in the case. 6. Mr. Dinesh Thakur, learned Additional Advocate General, while supporting the impugned judgment of conviction recorded by the court below, vehemently argued that there is no illegality and infirmity in the impugned judgment of conviction recorded by the court below and as such, same needs to be upheld. While refuting contention put forth by the learned counsel representing the appellant-accused that none of the prosecution witnesses supported the case of the prosecution, Mr. Thakur, while inviting attention of this Court to the statements of material prosecution witnesses vehemently argued that prosecution proved beyond reasonable doubt that on the date of alleged incident, accused taking undue advantage of the innocence of the victim sexually assaulted her against her wishes. He further argued that if the statements of material prosecution witnesses are read in conjunction, it nowhere supports the case of the appellant that there are material contradictions and inconsistencies, rather all the material prosecution witnesses have in one voice stated that on the date of alleged incident, petitioner forcibly committed sexual assault on the victim. Mr. Thakur, further argued that true it is that respondent-State has not laid any challenge to the judgment passed by the Special Judge, Una, but medical evidence adduced on record clearly suggests that at the time of the alleged incident, prosecutrix was minor and not major and as such, accused does not deserve to be shown any leniency, rather needs to be dealt with severely. While inviting attention of this Court to the medical evidence available on record, Mr. Thakur, argued that it is not in dispute that accused is the biological father of the child and as such, it cannot be said that accused did not commit sexual assault by the accused on the date of the alleged incident. While inviting attention of this Court to the medical evidence available on record, Mr. Thakur, argued that it is not in dispute that accused is the biological father of the child and as such, it cannot be said that accused did not commit sexual assault by the accused on the date of the alleged incident. While specifically refuting the contention of the learned counsel representing the appellant that prosecutrix was a consenting party to the alleged incident, Mr. Thakur contended that onus to prove the factum that prosecutrix was a consenting party, was upon the accused, but evidence available on record nowhere suggests that he was able to discharge that onus and as such, learned court below rightly held him guilty of having committed offence punishable under Section 376 IPC. Lastly, Mr. Thakur contended that delay, if any, in filing of FIR is not fatal to the prosecution in the present facts and circumstances of the case because prosecutrix being illiterate was unable to narrate the incident to her parents immediately after incident but once factum with regard to her pregnancy came to the notice of parents, FIR was lodged without any delay. 7. I have heard the learned counsel representing the parties and gone through the records of the case. 8. This Court solely with a view to ascertain the correctness of aforesaid submissions having been made by the learned counsel representing the parties vis-à-vis impugned judgment of conviction recorded by the court below, carefully perused the evidence, be it documentary or oral led on record, perusal whereof certainly not compels this Court to agree with contention of Mr. Divya Raj that there are contradictions and inconsistencies in the statements of material prosecution witnesses. Rather, statements of material prosecution witnesses PW1, PW2, PW3 and PW16, if are read in conjunction juxtaposing each other, it certainly suggests that all the aforesaid prosecution witnesses have stated almost same facts and they have corroborated the version of each other. True, it is that there are certain minor discrepancies but that cannot be sufficient to conclude that statements having been made by the aforesaid material prosecution witnesses are not reliable on account of contradictions and inconsistencies. 9. True, it is that there are certain minor discrepancies but that cannot be sufficient to conclude that statements having been made by the aforesaid material prosecution witnesses are not reliable on account of contradictions and inconsistencies. 9. Though in the case at hand, prosecution with a view to prove its case examined as many as 19 witnesses, but statements of three witnesses i.e. PW1, PW2 and PW3, are material for ascertaining the guilt, if any, of the accused. PW5, PW6 and PW9 are the persons, who had an occasion to medically examine the accused as well as victim and as such, their statements may not be very relevant because factum with regard to the sexual assault on the alleged date of incident by the victim stands duly proved on record. It has come in the medical evidence that on account of sexual assault committed on the victim, she became pregnant and ultimately gave birth to one child, who unfortunately died after one week. As per medical evidence available on record, which is not rebutted, accused is the biological father of the child born from the womb of the victim. 10. Apart from above, though accused in his statement recorded under Section 313 Cr.PC., denied the case of the prosecution in toto and claimed that he has been falsely implicated, but if defence set-up by the accused during trial is perused and examined, it clearly suggests that an attempt was made to persuade the court below that victim was a consenting party and at no point of time, she was sexually assaulted against her wishes. 11. PW16 Pankaj Dogra is the another material prosecution witness, who in his statement before the court below corroborated the version putforth by the PW1 (complainant) as well as his wife Ram Dulari (PW3) that on 15.9.2014, PW3 Ram Dulari had come to his medical store alongwith prosecutrix and complained that prosecutrix is suffering from stomachache and vomiting. This witness informed PW3 (mother of the prosecutrix/victim) that victim is pregnant by 5-6 months and as such, she should be taken to some hospital. 12. Mr. This witness informed PW3 (mother of the prosecutrix/victim) that victim is pregnant by 5-6 months and as such, she should be taken to some hospital. 12. Mr. Divya Raj Singh, learned counsel representing the petitioner fairly conceded that though defence has been taken by the accused in the present case that he has been falsely implicated but there is un-rebutted medical evidence further corroborated with the statements of PW1, PW2 and PW3 to the effect that child born from the womb of the prosecutrix belongs to the accused and as such, he cannot deny having sexually assaulted the prosecutrix. But Mr. Singh while making aforesaid submissions argued that evidence available on record clearly suggests that prosecutrix victim had a prior acquaintance with the accused and for quite some time, accused remained in the hut of the complainant as has been admitted by him in his cross-examination. Mr. Divya Raj Singh, while making this Court to peruse the spot map Ext.PW19/A made a serious attempt to persuade this Court to agree with his contention that version put forth by the prosecutrix that she was forcibly taken by the accused to his hut in the afternoon is not tenable because as per the spot map and statement of PW3, there are/were more than 100 huts in and around the huts of the complainant as well as accused. While referring to the statement of PW3, wherein she admitted that there are/were more than 100 huts in the vicinity and during day time, elders and children use to stay in the huts, Mr. Singh forcefully contended that version put forth by the prosecutrix that she was forcibly taken to his hut is highly improbable and unbelievable and as such, could not be made basis for holding the accused guilty of having committed offence punishable under Section 376 of IPC. 13. True, it is that perusal of spot map Ext. PW19/A suggests that hut of the accused was at a distance of 35 feet, from the hut of the prosecutrix and there are number of huts in the vicinity but that cannot be a ground to dis-believe the version put forth by the prosecutrix. As has been argued by Mr. 13. True, it is that perusal of spot map Ext. PW19/A suggests that hut of the accused was at a distance of 35 feet, from the hut of the prosecutrix and there are number of huts in the vicinity but that cannot be a ground to dis-believe the version put forth by the prosecutrix. As has been argued by Mr. Divya Raj, that accused and prosecutrix were known to each other, possibility cannot be ruled out that prosecutrix-victim of her own volition had gone to the hut of the accused, but she did not know that accused will sexually assault her in his hut. Similarly, there is no dispute that there is no evidence led on record by the prosecution that prosecutrix at the time of the alleged incident raised hue and cry but that can also not be a ground to dis-believe the version put forth by the prosecutrix, who is admittedly an illiterate girl. Moreover, onus, if any, to prove the defence taken by the accused that prosecutrix victim was a consenting party was upon the accused and he with a view to discharge that onus ought to have led on record some positive evidence suggestive of the fact that victim of her own volition joined the company of the accused and thereafter agreed for physical relationship. Reliance is placed on judgment rendered by the Hon’ble Apex Court in State of H.P. v. Shree Kant Shekari (2004) 8 SCC 153 , relevant para whereof is reproduced herein below:- “15. Even otherwise the High Court seems to have fallen in grave error in coming to the conclusion that the victim has not shown that the act was not done with her consent. It was not for the victim to show that there was no consent. Factually also the conclusion is erroneous right from the beginning that is from the stage when the FIR was lodged and in her evidence there was a categorical statement that the rape was forcibly done notwithstanding protest by the victim. The High Court was therefore wrong in putting burden on the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it was for him to place materials to show that there was consent. The High Court was therefore wrong in putting burden on the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it was for him to place materials to show that there was consent. It is significant to note that during cross examination and the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code') plea of consent was not taken or pleaded. In fact in the statement under Section 313 of the Code the plea was complete denial and false implication.” 14. There is no evidence worth the name available on record that accused and prosecutrix victim had some kind of relationship prior to alleged date of incident. Though, evidence available on record suggests that accused, who is a married person having four children, resided in the hut of the complainant for some time but that cannot be a ground to infer that during that period, accused and prosecutrix had developed some friendship or intimate relationship. No doubt, accused put suggestions to the material prosecution witnesses to the effect that talks were going on for marriage between the accused and the prosecutrix, but all the material prosecution witnesses denied the aforesaid suggestion put to them with full vehemence and there is nothing in their cross-examination, from where it can be inferred that accused and the parents of the prosecutrix had agreed at any point of time for marriage inter-se accused and prosecutrix. Otherwise also, if for the sake of arguments, it is presumed that there was proposal of marriage between the accused and the prosecutrix, that would not give license to the accused, who was already a married person having four children, to sexually assault the prosecutrix victim, who at that relevant time was alone in her hut as her parents had gone to Bihar. Having carefully perused the evidence led on record, this Court finds it difficult to accept the contention of Shri Divya Raj, learned counsel representing the petitioner that prosecutrix-victim was a consenting party to the alleged incident and as such, arguments advanced on this count deserves to be rejected outrightly. 15. True it is that as per record, alleged incident took place in the month of March, 2014, whereas FIR came to be lodged on 21.9.2014, i.e. after approximately six months. Mr. 15. True it is that as per record, alleged incident took place in the month of March, 2014, whereas FIR came to be lodged on 21.9.2014, i.e. after approximately six months. Mr. Divya Raj, learned counsel, vehemently argued that there is no explanation rendered on record qua the delay in lodging the FIR and as such, court below ought to have rejected the version put forth by the prosecution on this sole ground only. Mr. Divya Raj Singh further argued that though explanation rendered on record by the prosecution that since factum with regard to the pregnancy of the prosecutrix came to the notice of the complainant (PW1) and his wife (PW3) on 15.9.2014, FIR rightly came to be filed on 21.9.2014, is also not tenable because as per statements of PW1, PW2 , PW3 and PW16, wife of the complainant (PW3) and prosecutrix (PW2) had gone to Pankaj Dogra (PW16) for medical checkup on 15.9.2014, on which date, PW16 informed PW3 that prosecutrix is pregnant by 5-6 months and she should be taken to the government hospital, but despite that FIR came to be lodged on 21.9.2014 i.e. after 7 days of discovery of fact with regard to pregnancy. 16. Having carefully examined statements of PW1 and PW3, who happened to be father and mother of the prosecutrix-victim, this Court is persuaded to agree with submission of Mr. Divya Raj, learned counsel representing the appellant that there is no plausible explanation rendered on record qua the delay in filing the FIR. It is highly improbable that factum with regard to the pregnancy of prosecutrix did not come to the notice of PW3, who happened to be mother of prosecutrix, for more than 6 months, especially, when it has come in the medical evidence, more particularly, opinion rendered by PW6 Dr. Akriti that victim/prosecutrix is/was menstruating since the age of 13. Apart from above, PW16 Pankaj in his statement recorded under Section 164 Cr.PC, categorically stated that he having seen enlarged abdomen of the prosecutrix/victim, informed PW3 that prosecutrix/victim/PW2 is pregnant by 5-6 months and as such, explanation rendered on record by PW1 and PW3 qua the delay in lodging the FIR, does not appear to be plausible, rather seems to be highly improbable. Dr. Akriti (PW6) in her report has categorically opined that victim had pregnancy of 27 weeks plus one day plus minus two weeks and one day. Dr. Akriti (PW6) in her report has categorically opined that victim had pregnancy of 27 weeks plus one day plus minus two weeks and one day. Dr. Akriti examined the prosecutrix immediately after one day of lodging of FIR. Another explanation rendered on record by the aforesaid witnesses to explain delay is also not tenable. PW1 and PW3 stated in their statements before the court below that they after having discovered the fact with regard to the pregnancy of victim on 15.9.2014, spent some time for verifying the fact but such statement of them is not based upon correct facts because as per statements of PW16, PW1 and PW3, PW1 and PW16 had visited the hut of the accused on 15.9.2014, itself, wherein he allegedly confessed his guilt before PW16. It is not understood that once accused had confessed his guilt on 15.9.2014, what was left for PW1 and PW3 to verify and as such, they ought to have filed FIR on the same day. PW1-complainant remained silent for almost 7 days after discovery of factum with regard to pregnancy and in the meanwhile, accused fled away from the Basal leaving behind his luggage. Though, there is no evidence available to the effect that PW1 and PW3 after having discovered factum with regard to the pregnancy of their child (PW2), made an attempt for conciliation inter-se them and the accused, but aforesaid conduct of them (PW1 and PW3) certainly indicates that they before lodging FIR made some attempt to prevail upon the accused to amicably settle the matter. But since this Court has already arrived at a definite conclusion that mere talk of marriage, if any, inter-se accused and prosecutrix would not have given any license to the accused to sexually assault the prosecutrix, aforesaid conclusion drawn by the court taking note of the evidence available on record, may not have much bearing/relevance as far as guilt of the accused is concerned. At this stage, Mr. At this stage, Mr. Divya Raj Singh, learned counsel representing the petitioner, placed reliance upon the judgment passed by the Division Bench of this Court in State of Himachal Pradesh v. Kamal Dev, Latest HLJ 2015 (HP) 579 to state that story put forth by the prosecution that factum with regard to the pregnancy only came to the notice of PW1 and PW3 on 15.9.2014, cannot be accepted being highly improbable, relevant para of the judgment is reproduced herein below:- “13. According to the case of the prosecution, the incident has happened in the month of March, 2007, however, FIR was registered vide Ext.PW-5/A on 21.8.2007. The version of the prosecutrix is that the accused has committed rape with her when she was coming back from the house of her maternal Uncle. However, she has not narrated this incident to her mother. According to the prosecutrix, she was again sexually assaulted when she was grazing cattle at Jungle Kajalkot. She narrated the incident to her mother when she was carrying pregnancy of 4-5 months. It is not believable that mother could not notice the pregnancy of her daughter. She would be rather the first person to know the pregnancy of her daughter. The prosecutrix was medically examined by Dr. Bandana, PW-3. According to Dr Bandana (PW-3), the gestational age of the fetus, on the basis of the report of ultra sound Ext. PW-3/B, was 29 weeks. According to report of the Radiologist, the radiological age of the prosecutrix was between 17 to 19 years.” 17. Mr. Divya Raj Singh also placed reliance upon the judgment rendered by the Hon’ble Apex Court in Mohd. Ali alias Guddu v. State of UP, (2015) 7 SCC 272 , to state that court below while holding the accused guilty of having committed offence punishable under Section 376 of IPC miserably failed to appreciate the factum with regard to the delay in lodging FIR as well as unnatural conduct of the family, who could have reported the matter to the police at the first instance. Para 29 of the aforesaid judgment is reproduced herein below:- “29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. Para 29 of the aforesaid judgment is reproduced herein below:- “29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. 30. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without re-appreciating the material on record, by giving the stamp of approval to the same.” 18. In the aforesaid judgment, Hon’ble Apex Court has categorically held that there cannot be any quarrel to the proposition that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based, but testimony of prosecutrix cannot be accepted without appreciating the acceptability and reliability of the testimony of the witnesses. Hon’ble Apex Court in the case supra held that delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. 19. In the case at hand, though accused has been not able to prove that prosecutrix was a consenting party to the alleged incident but definitely, there are certain circumstances, which create doubt with regard to the correctness of the statements/depositions made by (PW2) prosecutrix. Leaving everything aside, unnatural conduct of PW1 and PW3, who are the parents of prosecutrix-victim, whereby they failed to lodge FIR for almost 6 months, certainly creates suspicion and doubt with regard to the correctness of the story put forth by the prosecution. As has been observed herein above, that it is highly improbable that factum with regard to the pregnancy of PW2 did not come to the notice of PW3 (mother of the prosecutrix-PW2) for more than six months and as such, this Court has no hesitation to conclude that court below has not properly appreciated the evidence as far as delay in filing FIR is concerned. 20. At this stage Mr. 20. At this stage Mr. Dinesh Thakur, learned Additional Advocate General while inviting attention of this Court to the judgment rendered by the Hon’ble Apex Court in case titled State of H.P. v. Sanjay Kumar alias Sunny (2017) 2 SCC 51 , vehemently argued that delay in lodging FIR in rape cases particularly in acquaintance rape/incestuous rape, deserves to be ignored and cannot be made ground to acquit the accused. 21. Having carefully perused the aforesaid judgment laid down by the Hon’ble Apex Court, this Court sees no reason to differ with aforesaid submission of learned Additional Advocate General, but facts in the case before Hon’ble Apex Court were slightly different as far as present case is concerned. Hon’ble Apex Court in judgment referred herein above, was dealing with the case, wherein prosecutrix was 9 years old and she was allegedly raped by her uncle. 22. Hon’ble Apex Court in Mohd. Ali alias Guddu v. State of UP has categorically held that testimony of a prosecutrix can be accepted without any corroboration without material pa rticulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. 23. Since there is unexplained delay of more than 6 months in lodging the FIR, this Court can well appreciate that nothing with regard to the injury, if any, on the person of the accused would have come in the medical evidence, but in the case at hand, as has been noticed herein above, there is DNA report suggestive of the fact that child born from the womb of the prosecutrix belongs to the accused and as such, allegation with regard to the sexual assault stands duly proved, especially when accused has been not able to prove consent, if any, of the prosecutrix as has been discussed herein above in detail. In the case at hand, learned court below while holding the accused guilty of having committed offence punishable under Section 376 of IPC, has convicted him to undergo imprisonment for a period of seven years. 24. In the case at hand, learned court below while holding the accused guilty of having committed offence punishable under Section 376 of IPC, has convicted him to undergo imprisonment for a period of seven years. 24. Bare reading of Section 376 IPC clearly provides that whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. Definitely, case at hand does not fall under Sub-Section 2 of Section 376 IPC and as such, learned court below while holding accused guilty of having committed offence punishable under Section 376 of IPC, convicted and sentenced him to undergo imprisonment for 7 years. But proviso to aforesaid provision of law provides that court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than seven years. Section 376 of IPC as well as its Proviso are reproduced herein below:- “376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.” “Proviso:- 376. Punishment for rape: (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.” 25. Having heard learned counsel representing the parties and perused the record, this court is persuaded to agree with contention of Shri Divya Raj Singh that prosecution has not been able to explain the delay in lodging the FIR, rather explanation rendered, if any, is highly improbable and by no stretch of imagination, it can be accepted that mother of the accused was not aware for six months with regard to pregnancy of prosecutrix/victim, especially when she was menstruating since the age of thirteen. 26. Though this Court, having taken note of un-explained delay of six months in lodging the FIR and the explanation rendered by the complainant (PW1) as well as wife (PW3), with regard to their having discovered factum with regard to pregnancy of prosecutrix after six months of the alleged incident, would have proceeded to acquit the accused, but taking note of the fact that as per DNA report, child born from the womb of the prosecutrix belonged to the accused, restrains itself from passing such order. However, as has been observed in the earlier part of the judgment that explanation rendered on the part of the complainant as well as wife PW3 for delay of six months in lodging FIR from the date of alleged incident is highly improbable and cannot be accepted and as such, in the peculiar facts and circumstances of the case, this Court deems it fit to reduce the sentence as imposed by the court below, to the period already undergone by the accused i.e. 3 years 10 months. 27. 27. Consequently, the appeal is partly allowed and modified to the extent that the accused is sentenced to undergo imprisonment for the period he has already undergone. The accused be set free forthwith, if not required in any other case. Release warrants be prepared accordingly. Appeal is disposed of in the aforesaid terms.