SHIV KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) these two appeals are directed against the judgment and order dated 7/10/1991 passed in Sessions Case No. 40/91, by the Sessions Judge, Dausa, Camp Bandikui, whereby Shiv Kumar, appellant in Appeal No. 457/1991 and the appellants Bhondu and Dablu alias Rewarmal, appellants in Appeal No. 469/91, were convicted for offence under S. 376, I.P.C. and each one of them was sentenced to undergo 10 years' R.I. and to pay a fine of Rs. 200.00, in default of payment of fine each one of them was ordered to further undergo three months' R.I.

(2.) An FIR was lodged on 3/03/1991 with regard to an incident dated 19-2-1991 that Prabho, daughter-in-law of Prabhati Lal (father-in-law), author of the FIR, was taken in a school building by the three appellants on 19-2-1991 at about 6 a.m. while she had gone to attend the call of the nature and there she was raped. Thereafter, she was subjected to medical examination on 5-3-1991. Police registered a case and investigated the matter and filed challan against the three accused persons who were convicted and sentenced as above, by the Sessions Judge, Dausa, Camp Bandikui, by his judgment and order dated 7-10-91, against which the present two appeals have been preferred.

(3.) It has been argued by Shri N. K. Joshi and Shri A. K. Gupta, on behalf of the appellant that in the instant case, FIR was lodged as late as on 3-3-1991 with regard to the incident which is alleged to have taken place on 19-2-1991 and there is no explanation for the delay except that the father-in-law Prabhati Lal and the husband of the prosecutrix were at Delhi and they had come down to the village on 27/ 28/02/1991. It has been pointed out that P.W. 10 Ram Prasad who is said to be the maternal-in-law of the prosecutrix Prabho had gone to Delhi on 27-2-1991 to call Sualal and Prabhati Lal and they came on 28-2-1991 and yet, the FIR was lodged as late as on 3-3-1991. On this premises, it has been submitted that there is no explanation for the delay from 19/02/1991 to 20/02/1991 and evven after the arrival of Sua and Prabhati in the village on 28-2-1991, there is no explanation for filing the FIR on 3-3-1991. Thus, it has been submitted that there is abnormal, unexplained and inordinate delay in the filling of the FIR and this by itself is fatal to the case of the prosecution. In this regard, reliance has been placed on Rafiq v. State of U.P., 1980 (4) SCC 262 and Marudanal Augusti v. State of Kerala, AIR 1980 SC 638.