KISHANIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) TWO appellants Kishania and Sanwaria alias Hansraj have filed this appeal against their conviction and sentences passed by the learned Sessions Judge, Churn, vide his judgment dated May 4, 1985. They have been convicted under section 376 (2) and sentenced to 10 years' rigorous imprisonment and a fine of Rs. 2000/- each, in default of payment of fine, to further undergo six months' rigorous imprisonment each. They have further been convicted under sec. 447, I. P. C. and sentenced to three months' simple imprisonment each.

(2.) THE prosecution story may be briefly stated here. Kumari Sayara, alleged to be 15 years of age, is daughter of Malaram. It is alleged that on June 25, 1984, at about

(3.) THE first and the foremost contention put-forward by the learned counsel for the appellants is that in this case the first information report has been lodged after considerable delay and the delay has not been satisfactorily explained. He submits that the accident had taken place at 3. 00 P. M. on Feb. 25, 1982, but the first information report was lodged after three days on February 28, 1982 at about 6. 30 P. M. THE delay is sought to be explained on the ground that Kumari Sayara's father was not at home on that day and had to be called through his son Bhanwarla and it was after his arrival that some deliberations whether or not to make the report were carried out and then the report was lodged. THE explanation on the face of it, does not appear to be satisfactory. Even if it is accepted that the report could not have been made before Mala Ram was called and he reached the house, the fact as to when Malaram came to his house after this incident, is clouded in mistory and each of the witnesses has given different version in this regard. Mala Ram states that his son Bhanwaria had come to call him on that very evening, i. e. evening of Feb. 25, 1982 and he came to the village along with him on the next day early in the morning. To be precise, the words may be judged *** This goes to show that although Mala Ram had reached the village in the morning on 26th, but he wanted to hide this fact by saying that in the night they stayed in the 'dhani' and reached the village in the evening of 26th. Even if this statement is accepted, there is no explanation why the report was not filed on 26th itself when he had reached the 'dhani' or atlest on 27th Feb. , 1982 when he had reached the village on the night of 26th Feb. , 1982. Not only this, the statement of Malaram in this respect is directly contradicted by Smt. Sayara herself, who says that her father had reached the village on the next morning itself, i. e. the morning of 26th. If that is so, the delay between the morning of 26th Feb. to the evening of 28th Feb. , 1982 remains unexplained. P. W. 10 Mst. Bhali on the other hand states that her husband had come to the village two days after the incident. Thus, she gives a version altogether inconsistent with that of Malaram and Kumari Sayara. This goes to show that sufficient time was taken by the first informant and the members of his family in making out a story implicating the accused, otherwise there was no ground for delaying the matter. Even if it is taken into account that in matters relating to rape, the people, specially from the village community, are averse in making any report to the police, but for that they should not be expected to take such a long time, if at all the matter is to be reported to the police. This unexplained delay, rather the delay which is sought to be explained by divergent versions goes to show that the time was utilised for making out a story which may not, be true and correct story about the incident. THErefore, this delay gives rise to a very strong inference against the prosecution.