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---S. 376--Rape--Appreciation of evidence--If charge is of graver nature like rape, greater amount of care is to be exercised to scrutinize evidence to see whether evidence inspired confidence to satisfy a judicial mind and charge against accused was established beyond all reasonable doubts.

---S. 376--Rape--Delayed F.I.R.--F.I.R. delayed by 4/5 days--Mother and brother of prosecutrix available to lodge F.I.R.--Delay not adequately and satisfactorily explained--Prosecution case, held, doubtful.

---S. 376--Rape--Witnesses claiming to have heard shrieks of prosecutrix and reaching place of occurrence--Prosecutrix deposing continuation of intercourse for half an hour when she was not a consenting party--Reaching of witnesses at place of occurrence, held, to be phoney and fictitious in circumstances.

---S. 376--Rape--Delay in Medical Examination--Medical facilities available in same town where prosecutrix was raped and lived permanently, but was examined after four days delay--Such- delay, held, made case of rape doubtful.

---S. 376--Rape--Shalwar of prosecutrix suspected to be blood-stained taken into possession' by Investigating Officer but not produced in Court--Non-production of Shalwar rendered case of prosecution doubtful--Accused acquitted in circumstances.

Malik Muhammad Zafar for Appellant.

Nemo for the State.

Dates of hearing: 9th March and 26th May, 1982.

Asghar Ali alias Taidi aged 17/18 years labourer resident of Mian Channu Town was tried for abducting Mst. Maqsoodan aged 12/13 years and committing rape with her on 21-4-1978 at 11 noon in Mian Channu Town. The trial Magistrate by his order, dated 6-10-1980 convicted him under section 376, P.P.C. and sentenced to undergo seven years' R.I. and a fine of Rs.5,000. In default of payment of fine to undergo six months' R.I. He was also convicted under section 342, Cr.P.C. to undergo one year's R.I. and a fine of Rs.1,000. In default thereof to undergo further one month R.I. It was directed that both the sentences would run concurrently. The convict has challenged his conviction as well as sentence through this appeal which is being disposed of by this judgment.

2. Brief facts, giving rise to this case, are that on 21-4-1978 at about 12 noon Maqsood Mai (P.W.2) daughter of Amir Ali (P.W.1) (complainant in this case) was passing through the street when Asghar Ali appellant caught hold of her and forcibly took her into the house of one Nasir Ali Shah where he was putting up those days. In that house he committed rape with the girl against her wishes. She raised alarm which was heard by Barkat Bibi (P.W.3) (her mother) and Muhammad Boota (P.W.4). They reached the house where the alarm was emanating. They found that the doors of that house were closed from inside therefore by scaling over the wall, the door of the house was opened. The witnesses tried to apprehend Asghar Ali but he succeeded to escape from there. Shalwar of Mst. Maqsoodan was lying loose in her legs. She tied it up and accompanied the witnesses to her house. Because her father Amir Ali had left that morning for Lahore, therefore, this occurrence was narrated to him on his return on 25-4-1978, as Mst. Barkat Bibi his wife did not come out of the house fearing harm at the hands of Asghar appellant. Amir Ali having learnt about the occurrence went towards the police station for reporting the matter to the police. On his way he met A.S.I. Mehdi Hassan near the railway crossing and lodged report Exh. P. A. with him same day at 10 p.m. Formal F.I.R. EXh.r.A./1 was drawn on the basis of Exh . P. A. by Inayat Ali Head Constable.

3. Mehdi Hassan A.S.I. having registered the case visited the spot the same day and prepared site plan Exh.P.D. with its marginal notes. He also seized the Shalwar of the prosecutrix produced before him by Amir Ali (P.W.1), which was seized after making its sealed parcel through Memo. Exh.P.E. He arrested Asghar Ali and got him medically examined about his being sexually potent. Mst. Maqsoodan was also medically examined by Lady Doctor Zubaida (P.W.5) for her age as well as to detect if she was raped. She issued medical certificate Exh.P.B. After usual investigation the petitioner was challaned to Court.

4. At the trial the prosecution produced eight witnesses in support of its version. The important witnesses are Mst. Maqsoodan P.W.2, and the two eye-witnesses namely, Mst. Barkat Bibi mother of the prosecutrix and Muhammad Boota (P.W.4), a relation of the prosecutrix; besides them there is medical evidence which has been brought on record through Lady Doctor Zubadia (P.W.5) who examined Mst. Maqsoodan (P.W.2) on the point of rape and (P.W.6) Dr. Shaukat Kanwal who examined the appellant and opined that he was capable of performing sexual intercourse.

5. The appellant when examined under section 342, Cr.P.C. pleaded innocence. He maintained that as a labourer he constructed the house of Amir Ali complainant (father of the prosecutrix) who owed some money, to him. When he demanded the same from him, the complainant altercated with him and due to that grievance .he was involved in the case. He examined eight witnesses in the defence, who talked about the good character of the appellant and about the bad character of the prosecutrix and his family. Some of them also stated that the father of the prosecutrix Amir Ali had quarrelled with the appellant when the latter had demanded his wages which the former owed him and that a quarrel took place between them.

6. Learned trial Magistrate held that the delay of four days in reporting the matter to the police was satisfactory explained on the record. He further held that it was not established that the prosecution witnesses were inimical towards the appellant and, therefore, he believed them and convicted the appellant on the basis of their deposition under section 376 and also under section 342, P.P.C. as described in the opening paragraph of this judgment.

7. I have heard the learned counsel for the appellant as well as for the State and also perused the record.

8. It is very easy to level allegation of rape but very difficult to establish the same. At the same time, I think the graver is the charge, the greater amount of care to be exercised to scrutinize, if the evidence brought on the record inspired confidence so as to satisfy a judicial mind that the charges framed against the accused are established beyond all reasonable doubts. Looking at this case, from this angle, I find that the evidence adduced by the prosecution at the trial is not of the quality which could inspire confidence so as to satisfy a judicial mind that the appellant was guilty of the charge of rape levelled against him. My reasons for this conclusion are given below.

The prosecution case is that on 21-4-1978 Mst. Maqsoodan (P.W.2) was returning home and when she reached at the door of her house was caught from behind by the appellant and dragged her in his house forcibly despite her resistance and after chaining the door of the house from inside' made her lie on the floor of a room and committed sexual intercourse with her against her wishes. She raised an alarm. Hearing the commotion her mother Mst. Barkat Bibi (P.W.3.) and Muhammad Boots. (P.W.4), their relative, resident of Kot Sajjan Singh reached the spot and Saw the occurrence. The appellant disappeared from the scene and the girl was made to wear the blood-stained Shalwar and was brought back to the house. The matter was reported to the police on 25-4-19.78 at 10-00 a.m. by. Amir Ali step-father of the prosecutrix on his return from Lahore.

9. Admittedly there is a delay of 4 days in reporting the matter to the police. It is stated in the F. I. R. Exh. P. A. that due to fear of Asghar appellant Mst. Barkat Bibi mother of the prosecutrix did not go out of the house to report the matter to the police. Mst.Barkat Bibi stated at the trial that she was threatened by the appellant not to report the matter to the police. This explanation was considered as satisfactory by the learned trial Magistrate for making a delayed report to the police. I think that the learned trial Magistrate appeared to be over generous in accepting this explanation despite the fact that this explanation stood belied by number of circumstances e.g. Muhammad Boota (P.W.4) is admittedly a relative of the prosecutrix who is young man of 28/30 years of age as described by him at the trial. This witness has not stated that appellant had ever held out such a threat to the P.Ws. Rather his case is that when he entered the house of occurrence he saw the appellant running from his back side and thus there was no occasion for uttering such a threat by the appellant. It appears that Amir Ali (P.W.1) (father of the prosecutrix) and Mst. Barkat Bibi (P.W.3) have introduced the story of threat so as to coin an excuse for making a belated report to the police. Admitting without conceding that the appellant's threat deterred Mst. Barkat Bibi to go out for making the report but it is not understandable that this threat equally had deterred Muhammad Boota (P.W.4) from going to the police and making a report about the incident, specially when it is in evidence, that this witness left for his village the same day. Therefore, he while on the way back could stop at the police station for the report. Not only that he is related to the prosecutrix rather he was so intimately concerned with the affair that hearing the alarm of the prosecutrix he had jumped over the wall to rescue her from the clutches of the appellant. It is worth noting that the occurrence had taken place in a Mohallah of Mian Channu Town. The Police Station from that Mohallah is stated to be at a distance of four furlongs. It is, therefore, not believable that if Mst.Maqsoodan a minor was raped forcibly in such a cruel manner that she bled from her private parts then her close relatives like her mother and another relative would observe silence over such ghastly incident and would not report the matter for 4 days to the police. Leaving apart the delay in making the report to the police the prosecutrix, minor girl and bleeding was not taken immediately for treatment to the hospital. The indifferent attitude exhibited by mother and the relative of the prosecutrix cast enormous doubts on the genuineness of the prosecution case. Rather it suggest that no such occurrence ever took place or the real author of the crime was not known to them and they kept guessing about the culprit and thus sat over the matter for such a long time. Boota (P.W-4) stated that about 4/5 days after the occurrence Amir Ali complainant's son came to call him in connection with this case. It means that besides Muhammad Boota the son of the complainant was also available at the house who went to afar-off village to call Muhammad Boota P.W. but curiously enough did not go to the police for report in his town. For these reasons I am of 'the view that 4 days delay in this case has not been adequately and satisfactorily explained and as a result the prosecution case is rendered doubtful.

10. The prosecution story that Mst. Maqsoodan was lifted forcibly from near the door of her house in the street at mid-day does not ring true. According to Mst. Maqsoodan P.W. the appellant committed sexual intercourse with her for half an hour when her mother Mst. Barkat Bibi (P.W.3) arid Muhammad Boota (P.W.4) came and got her released from him. It is also in the evidence that the door of the house of Mst. Barkat Bibi was not chained from inside when the girl was lifted. Mat. Barkat Bibi and Muhammad Boota P.Ws. claimed to be present at such a distance from the spot that it was possible for them to hear the shriekes of the prosecutrix and reach the place of occurrence. If it were so, then it would have been impossible for the appellant to commit sexual intercourse with the prosecutrix for half an hour when prosecutrix was also not a contesting party. Again it would have been impossible for the appellant to have dragged the unwilling girl from near the door of her house because Mst. Barkat Bibi and Muhammad Boota P.Ws. must have foiled such an attempt. It means that the story of forcible abduction of the prosecutrix from near her door and that she was raped till her own kith and kin reached the place of occurrence appears to be phoney and fictitious.

11. The medical evidence also does not support the prosecution version. It is stated that Mst. Maqsoodan was made to lie per force on the floor and was raped while she had been struggling to get herself released. In these circumstances she must have suffered marks of violence on her body but to the contrary no such mark except a teeth bite on her left cheek was found which could be easily simulated. Again I find that the witnesses have tried to exaggerate by saying that at the time of occurrence the girl was bleeding from her privates parts and her Shalwar was also besmeared with blood but the Lady Doctor Mst. Zubaida P.W.5 who examined Mst. Maqsoodan on 25-4-1978 D did not notice any marks of violence on her body nor did she find any blood on her clothes or on her private parts. Her medical examination revealed that she was habitual to sexual intercourse because her hymen was torn with old tears and admitted two fingers easily. It intrigues my mind as to why the girl who was raped on 21-4-1978 per force was not got medically examined till 25-4-1978 when the medical facilities were available in the same town where the occurrence took place and where the prosecutrix resided permanently.

12. The lady doctor (P.W.5) has given approximate age of Mst. Maqsoodan as 12/ 13 years. I think this estimate is also not correct because according to her own observation the girl was habitual to sexual intercourse and her private parts were well developed and still more, the girl was found subject to menstruation which is a sure sign of attaining puberty in a female. The Investigating Officer seems to have deliberately avoided to get her bony-age fixed through radiologist to avoid an adverse circumstance for the prosecution and in order to forestall the pleading of "consent" as his defence by the appellant.

13. For the above discussion and in view of the material available on record, I have gained an impression that the prosecutrix being major had consented the commission of sexual intercourse with the appellant.

14. Lastly, the prosecution witnesses are closely related No independent witnesses of the locality came forward to support Mst. Maqsoodan, although the occurrence took place in habitated, locality of Mian Channu Town. Surpisingly the inhabitants of that Mohallah have appeared in defence.

15. At the end I may say, that prosecution in, this case has been conducted carelessly. According to medical examination of Mst. Maqsoodan her vaginal swabs were prepared by lady doctor and sent. to Chemical Examiner. Her Shalwar was allegedly seized by the Investigating Officer, suspecting that it was stained with blood. Neither the Chemical Examiner's report nor the Shalwar were produced before the trial Court. Might be that ultimately their evidentiary value had proved to be of little value yet it was the bounden-duty of the prosecution to bring on record all the pieces of evidence for consideration by the trial Court.

16. For the foregoing reasons I am fully convinced in my mind that the appellant has not been connected with the crime beyond reasonable doubt and the charge against him has failed. The result is that the appeal is accepted, the conviction and sentence under section 342/376, P.P.C. is set aside and the appellant is acquitted. The appellant should be released forthwith if not wanted in any other case.

S.A. Acquittal ordered.

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