GARG, J. - (1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 30. 8. 1997 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh in Sessions Case No. 106/96 by which he convicted the accused appellant for the offence under Sections 454 and 376 IPC and sentenced him in the following manner :- Name of accused appellant Convicted u/sec. Sentence awarded Govind Yadav @ Govinda 454 IPC 1-1/2 Years SI and to pay a fine of Rs. 100/-, in default of payment of fine, to further undergo SI for one month. 376 IPC 7 Years' SI and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo, SI for five months. Both the substantive sentences were ordered to run concurrently.
(2.) THE facts giving rise to this appeal, in short, are as follows :- On 20. 8. 1996 at about 11. 30 PM, P. W. 1 Paras (hereinafter referred to as the prosecutrix) aged about 20 years wife of Udai Lal lodged an oral report Ex. P/1 before PW14 Jagmohan, who was at that time SHO, Police Station, Akola, District Chittorgarh, alongwith her mother-in-law PW2 Chameli stating inter-alia that at about 10. 00 AM in the morning accused appellant threatened her and her mother-in-law PW2 Chameli went to the Police Station, Akola for lodging the report of that incident. It was further stated in the report by the prosecutrix PW1 Paras that since her mother-in-law PW2 Chameli had gone to the Police Station, she was alone in her house and her mother-in-law went to Police Station after putting a lock on the gate of the pole. It was further stated in the report by the prosecutrix PW1 Paras that at about 12. 00 Noon, accused appellant from the back side of the house of PW6 Ambalal entered her house and caughthold her and put her on the cot, which was lying in her room and she resisted, but the accused appellant did not yield to her resistance and he also gave slap to her and by one hand he caughthold her neck and by another hand, he uplifted her patticoat and then he put off her underwear and, thereafter, he committed rape with her. It was further stated in the report that she caught his hair and pushed him back, but with no result and he did sexual intercourse with her against her will and when his semen came out he left her and her lehanga stained with that seman and in making struggle against the alleged act of accused appellant, her bangles were also broken and, thereafter, the accused appellant ran away. It was further stated in the report that when she cried. PW3 Ram Chandra and PW10 Heerlal came and since the outer gate of the house was locked, therefore, they could not enter in her house and in the evening, when her mother-in-law PW-2 Chameli came, she narrated the whole story to her mother-in-law PW2 Chameli and villagers were also assembled there. On this report, police registered the case and chalked out regular FIR Ex. P/2 and started investigation. During investigation, site plan Ex. P/3 was prepared and through Ex. P/5 before PW9 Chhaganlal and PW7 Mangilal, PW14 Jagmohan seized Lehanga of the prosecutrix PW1 Paras and through Ex. P/6 in presence of PW8 Bherulal and PW13 Om Prakash, broken bangles of the prosecutrix PW1 Paras were seized by PW14 Jagmohan. THE accused appellant was arrested on 22. 8. 1996 through arrest memo Ex. P/14. THE prosecutrix PW1 Paras was got medically examined by PW16 Dr. Nareshwar and her medical examination report is Ex. P/19 and similarly, the accused appellant was also got medically examined by PW16 Dr. Nareshwar and his medical examination report is Ex. P/20. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 17. 1. 1997, the learned Addl. Sessions Judge No. 2, Chittorgarh framed charges for the offence under Sections 454 and 376 IPC against the accused appellant. THE charges were read over and explained to the accused appellant. THE accused appellant denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 16 witnesses and got exhibited some documents. THErefore, statement of the deceased appellant under section 313 Cr. P. C. was recorded. In defence, four witnesses were produced by the accused appellant. After conclusion of trial, the learned Addl. Sessions Judge No. 2 Chittorgarh through his judgment and order 30. 8. 1997 convicted the accused appellant for the offence under Sections 454 and 376 IPC and sentenced him in the manner as indicated above holding inter-alia:- 1. That statement of the prosecutrix PW1 Paras gets corroboration from the medical evidence, as in this case both prosecutrix PW1 Paras as well as accused appellant received injuries. 2. That statement of the prosecutrix PW1 Paras and PW2 Chameli are reliable and trustworthy and their statements further get corroboration from the statements of PW3 Ram Chandra and PW10 Heeralal, who reached on the spot just after occurrence. 3. That case of the prosecution is further strengthened by other circumstantial evidence that on Lehanga of the prosecutrix PW1 Paras, spot of semen was found and FSL report Ex. P/18 corroborates that fact and furthermore, on the place of occurrence, broken bangles of the prosecutrix PW1 Paras were also found. 4. That prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under sections 454 and 376 IPC. Aggrieved from the said judgment and order dated 30. 8. 1997 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh, this appeal has been filed by the accused appellant. In this appeal, the learned counsel appearing for the accused appellant has made the following submissions :- (1) That there are material contradictions in the statement of the prosecutrix PW1 Paras and the report Ex. P/1, which was lodged by her and furthermore, prosecutrix PW1 Paras admits in her statement recorded in Court that a written report was lodged, but no written report has been produced and thus, whose prosecution case comes under the shadow of doubt and on this ground alone, the case of the prosecution should be rejected. (2) That medical evidence in the present case is not worth reliable and the learned Addl. Sessions Judge has wrongly placed reliance on the so-called medical evidence. (3) That alleged incident is not being corroborated by other independent witnesses and from this point of view also, the accused appellant is entitled to benefit of doubt. (4) That in case the Court comes to the conclusion that the offence charged is proved against the accused appellant, he may be sentenced to the period already undergone by him, as he has remained in laid for more than five years. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge No. 2, Chittorgarh. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. Before proceeding further, first medical evidence of this case has to be seen.
(3.) THE medical examination report of the prosecutrix PW1 Paras is Ex. P/19 and the same has been proved by PW16 Dr. Nareshwar. From perusing the medical examination report Ex. P/19 of the prosecutrix PW1 Paras, it appears that whole incident as put forward by the prosecutrix PW1 Paras in her statement recorded in Court, was also narrated by her to PW16 Dr. Nareshwar and PW16 Dr. Nareshwar has reduced that incident in the medical examination report Ex. P/19. From the medical examination report Ex. P/19, it further appears that prosecutrix PW1 Paras received the following injuries on her person :- " (1) Contusion & scratch marks over the Rt. cheek just below Rt. eye. (2) Four scratch marks over the left side of neck. These are covered with clotted blood. (3) scratches over Rt. wrist anteriorly and posteriorly. " Pw16 Dr. Nareshwar, after medically and clinically examining prosecutrix Pw1 Paras, gave the opinion in the following manner :- " (1) Possibility of rape cannot be denied but sexual intercourse was positively performed. (2) Victim's age is more than 20 years. (3) Victim had sustained (3) injuries over the body which are of simple in nature and are caused by blunt trauma. (4) Her underwear is soiled with semen and is preserved for Examination. ;