S.S. Dewan, J. - (1.) THE appellant Jagan Nath son of Bhima Ram aged 30 years stood charged before the Sessions Judge, Rohtak, under section 376 of the Indian Penal Code for committing rape on Mst. Rukmani, wife of Gopi Ram of village Bhallaut on March 31, 1973. The Sessions Judge held the charge as proved. The appellant was convicted under section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of three years. The version of the prosecution case is as follows: - - The prosecutrix Mst. Rukmani is a married woman aged 30 -35 years. During the days of this occurrence, she was posted as water -woman in Girls School, Bidhani. On March 31, 1973 at about 6.00 P.M. she left village Bidhani as the school had closed on account of holidays. She reached Rohtak at about 7.00 P.M., but could not catch any bus or tempo for going to village Ballaut. She went to the house of her relative Nathu Ram P.W. 4 who was then employed as a waterman in Jat College, Rohtak. After taking meals, Mst. Rukmani and Nathu Ram left the house for seeing a picture. When they reached in front of the Sessions Court premises, Ganga Ram. P.W. and some other rickshaw -walas surrounded them. They suspected Mst. Rukmani and Nathu Ram as vagabonds. Nathu Ram told the rickshaw -wala that they were not vagabonds, but they did not agree. The rikshaw -walas insisted that they would take them to the police pest. Rukmani and Nathu Ram accompanied the rickshaw -walas and when they reached Gohana level crossing, the appellant came on a cycle from the opposite direction. The rickshaw -walas told him that Nathu Ram and Mst Rukmani appeared to be vagabonds and they were taking them to the police post. Jagan Nath, appellant asked the prosecutrix and Nathu Ram to accompany him to the police post. It is stated that when the appellant, Mst. Rukmani and Nathu Ram were on there way to the police post and had reached in front of the shop of Jiwan Dass, P.W. 5, Nathu Ram told the latter to rescue him and Mst. Rukmani from the clutches of the appellant. Jiwan Dass told the appellant that Nathu Ram was a good man and therefore, he should leave him and Mst Rukmani. Consequently, the appellant let go Mst. Rukmani and Nathu Ram. When Mst. Rukmani and Nathu Ram had reached the turning of the Model Town which was situated in front of the approach road of Medical College Hospital, Rohtak, the appellant and one more person met them there. The appellant said that he would take Mst. Rukmani to the house of Nathu Ram to verify if he was her relation or she was an abducted woman. Nathu Ram agreed to that proposal, but the appellant told him that he Nathu Ram, would not go with him, but take Mst Rukmani alone with him. When Nathu Ram insisted that he would also go with them, the appellant gave him a slap. When Mst. Rukmani insisted that she would not go alone with the appellant then the latter gave her slap. After having a round of Model Town, the appellant took Mst. Rukmani to Sonepat Adda, Rohtak and from there to Gandhi Camp, Rohtak. On reaching there, the appellant told a shop -keeper that he wanted to sleep for the night and be had a woman with him. That shop -keeper took them to a house situated in another Gali and opened a room for them. The appellant took Mst. Rukmani to that room and committed sexual intercourse with her twice against her will. At about 4.00 A.M. the appellant let Mst. Rukmani go from there. Mst. Rukmani reached the house of Nathu Ram at about 5.00 A.M. on April 1, 1973 and narrated the whole occurrence to him. Nathu Ram and Mst. Rukmani then went to the police post, Model Town, Rohtak. She made a statement Ex. PD before Assistant Sub -Inspector Hazura Singh and on its basis formal first information report Ex. PD/2 was recorded at the police station, City Rohtak. Assistant Sub Inspector Hazura Singh took Salwar Ex. P1 of Mst. Rukmani and Kachha Ex. P2 worn by the appellant into his possession. The appellant was formally arrested by the Assistant Sub -Inspector. The appellant and Mst. Rukmani were medically examined by Dr. M.R. Bishnoi and Dr. Saroj Kanta Gaur respectively. The Chemical Examiner vide his report Ex. PC opined that semen was present on Salwar and Kachha. The appellant in his examination under section 342, Code of Criminal Procedure denied the entire prosecution averments, His version was that he had been falsely implicated by Assistant Sub -Inspector Hazura Singh who was inimically disposed towards him as the latter had asked him to bring some cases, but he told him that he could not do so. Assistant Sub -Inspector Hazura Singh had abused him and told him that he would see him. As stated earlier, the lower Court held the appellant guilty and convicted and sentenced him as above. He has challenged his conviction and sentence in this appeal.
(2.) THE version of the prosecution has been stated in due detail. The prosecution mainly relies upon the testimony of the prosecutrix for proving the same. The law as regards credibility of the testimony of the prosecutrix in case of sexual offences, the question of acting upon the same as a basis for finding of a guilt and the necessity of corroboration to the same, may be stated as follows: - - (i) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge; (ii) There may be circumstances in a given case which might, make it safe to dispense with such corroboration; (iii) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from the infirmities or defects, in a manner so as to make it either unsafe or impossible to base a finding of guilt on the same. Some of the salient factors of this type may briefly be stated as follows: - - (a) circumstances showing on the part of the prosecutrix an animus against the accused ; (b) where the question of want of consent is material, circumstances tending to show consent, e.g., absence of material showing an attempt at resistance ; absence of any marks of struggle ; (c) attempts at improvement or exaggeration in the version as attempted by the prosecution ; (d) elements of artificiality or unnaturalness in the story as attempted by the prosecutrix ; (e) conduct on the part of the prosecutrix ; inconsistency with the credibility of the version, e.g. omission to make a disclosure at the earliest opportunity ; and (f) absence of signs of rape in the findings of the medical examination or on chemical analysis. In view of the legal position, it is first essential to subject the testimony of Mst. Rukmani to a close scrutiny and to consider whether the same suffers from infirmities or defects of the type noted above. It has been strongly contended by the learned defence counsel that the testimony of Mst. Rukmani shows clear attempts at improvement. Mst Rukmani has stated that the wife of Nathu Ram is a daughter of her Mausi while Nathu Ram stated that the sister of his mother -in -law is the younger brother's wife of the husband of the mother of Mst. Rukmani. In the first information report, it is stated that Nathu Ram is related to Mst. Rukmani as her Jija. In her statement before the police, she stated that Nathu Ram was her relation but now she has defined that relationship. In her statement before the police she had not stated that the appellant had committed sexual intercourse twice upon her, but now she has introduced that fact. She stated that the appellant had met her and Nathu Ram in front of the Sessions Court while the rickshaw -walas met them at the Gohana railway crossing. But before the police, her stand was that the rickshaw -walas had met them in front of the Sessions Court while the appellant had met them at the Gohana railway crossing. The contention that the above said averments of Mst. Rukmani constitutes an attempt at improvement, has substance. When an unsophisticated witness attempts improvements on points which she thinks material, the testimony could be said to suffer from a significant infirmity. The next circumstance which appear from the record is that there does not appear to have been on her part any attempt at resistance. Normally when a woman is subjected to intercourse against her will, some sort of resistance by her with her hands or otherwise would be expected. She did not bite nor even scratch the appellant. There is no good explanation on the record, for her failure to offer this type of resistance. Her explanation for this particular omission is that she was threatened by the appellant which is difficult to believe in the circumstances of the case. Dr. Saroj Kanta Gaur, P.W. 2 who examined the prosecutrix opined that she appeared to be habitual to sexual intercourse and the introitus was very loose. She did not find any sign of injury on her body. It is inconceivable that a grown up lady of 30 years would submit to a forcible intercourse without struggle. Had she struggled, there would have been some scratches on the face, the hands and the arms of the appellant as well as on her own body. The complete absence of any injury or scratch on the persons of the appellant and the victim suggests very clearly that the intercourse was not forcible.
(3.) THE next question that arises is whether the sexual intercourse was committed with or without her consent and whether the appellant is guilty of an offence punishable under section 376 of the Indian Penal Code. It was urged by the learned counsel that in any case it was a case of consent as the prosecutrix had been going about at various places through congested areas and ultimately to a place where the appellant was alleged to have committed sexual intercourse with her. It is brone out from the evidence of the prosecutrix that she was taken by the appeal and from the level crossing towards Model Town and from there to Sonepat Adda and Gandhi Camp. The shops were open at that time. If she was an unwilling party and was forced to accompany the appellant on a cycle as alleged by her now, she could have raised alarm and brought the offender to book. But she did not do anything of the sort which clearly shows that she had been moving about with the appellant on her own accord and as such she was not as virtuous a lady as she was now mad; put to be. She did not raise alarm which implies that she was a consenting party to the commission of the said act. It is unimaginable that the appellant would have taken the prosecutrix to the different areas when there was traffic on the roads. In the instant case the incident occurred in the room of somebody to whom she never complained that the appellant had brought her there to commit rape on her. If she had raised alarm, some body would have been attracted to that room. She remained with the appellant for about five hours. It is difficult to believe that she could succumb to the threat continuously for that much time. The other aspect of the matter is that the place of incident is not such as to give a sence of security to the appellant in the normal course of things. On the other hand, repetition of sexual intercourse goes to show that it was a case of consent.;