LexSTATE OF RAJASTHAN versus N.K. - THE ACCUSED
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A STAIB OF RAJASTHAN - v. N.K. - THE ACCUSED MARCH 30, 2000 B [DR. A.S. ANAND, CJ., R.C. LAHOTI AND S.N. VARIAVA, JJ.] Indian Penal Codi!, 1860 : Section 376-0.ffence under-Delay in lodging FIR satisfactorily ex- c plained-Testimony of prosecutrix corroborated by another witness and Medi- cal Evidence-Delay in medical examination-Absence of injuries on the body of the prosecutrix-Perpetrator of crime able bodied youth-Acquittal by High Court on presumption of the consent of the prosecuirix to the act-On appeal, Held, Prosecutrix is a witness of truth and her testimony inspires confidence- -, Absence of injury is not necessarily an evidence to falsify the allegation or an D evidence of consent-If prosecution has succeeded in making out a convincing case for recording a finding~ to the !accused being guilty, the Court should not lean in favour of acquittal. Section 375-0.ffence under-Consent of prosecutrix-ls no defence, if the victim has been pmved to below 16 years of.age-If she be of 16 years of ,. E age or above, her consent cannot be presumed-inference as to consent can be drawn if o'!ly based on evidence or probabilities of the case. Criminal Trial : J Evidence of pmsecutrix-Reliability on-A prosecutrix complaining of F having been a victim of the offence of rape iS not an accomplice after the crime-There is no rule of law that her testimony cannot be acted without corroboration in material particular-Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness-Indian Evidence Act, 1872-Section 133-Accomplice. .. G FIR-Delay in lodging-Mere delay in lodging FIR cannot be a ground by itself for throwing the entire prosecution case-Criminal Procedure Code, ,, 1973-Section 154. Accused/respondent was charged under Section 376 lPC for the ...._ offence of committing rape of the prosecutrix. As per the prosecution case H the prosecutrix repQrted the matter to 'U' and to her father, immediately 818 STATE v. N.K. - THE ACCUSED 819 ~ aftl'r the incident. She wanted to lodge FIR alongwith her father, but she A was prevented from doing so by the people of the village of the community of the accused. However, FIR was lodged after five days of the incident stating therein the reason for delay in lodging FIR. Thereafter medical examination of the prosecutrix was done. Hymen 'Yas found ruptured. ln the opinion of the doctor sexual intercourse was done with the prosecutrix B 5 to 7 days prior to the day of the examination. No other injury was found on her body. The doctor opined that the age of the prosecutrix was 15 years. During trial, the testimony of the prosecutrix was corroborated by the deposition of her father, and also by medical evidence. In cross-exami- c nation nothing was brought out by the defence to doubt the truth of the reason for delay in lodging FIR. The doctor in his cross-examination stated that the age of the prosecutrix could be 15 or 16 years because a variation of 3 on plus or minus side was possible. 'U' was not examined. Trial Court, found that the testimony of the prosecutrix was trust- D worthy, being corroborated by the medical evidence as also by the testi- mony of her father. It was held that she was of 15 years of age; and that though there was delay in lodging FIR, it was satisfactorily explained. Accordingly, respondent was convicted for the offence under Section 376 IPC. E In appeal appeal the High Court acquitted the respondent, holding that the prosecutrix was not proved beyond reasonable doubt to be below 16 years of age, that though the factum of respondent having committed sexual intercourse was proved, but the absence of injuries on the person of the prosecutrix infers. tl~e possibility of the prosecutrix being the con- F -- senting party to the act, that the delay in lodging FIR was not satisfacto- rily explained, and that the delay coupled with non-examination of 'U' renders the prosecution case doubtful. Hence this appeal. Allowing the appeal, this Court HELD : 1. High Court was not justified in reversing the conviction G of the respondent and recording the order of acquittal. It is true that the golden thread which runs throughout the cob-web of criminal jurispru- - dence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to
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