Wanchoo, C. J. - (1.) THIS is an appeal by Chhatiya against his conviction under sec. 376 of the Indian Penal Code by the Additional Sessions Judge of Merta.
(2.) THE case relates to an incident which took place on the 10th of October, 1949, at about 7 P. M. THE prosecution story! was that Mst. Sayran was returning home from the fields, when the appellant came from behind and threw her down in Tejia's field in village Ajjasaria, and raped her. While he was doing so, two persons, namely, Mana and Ghama, happened to turn up. THEy had heard a cry and saw the appellant on top of Mst. Sayran. On their arrival, the appellant ran away. Mst. Sayran also got up, and went away to the village. She reported the incident to her husband that very evening; but the husband did not report the matter in the Thana till 24 hours afterwards. It may be mentioned that the! Thana is only about two miles from village Ajjasaria. The accused in his statement denied completely having any connection whatsoever with Mst. Sayran, and also denied tha|t he had raped her. He alleged that he had been implicated falsely because of enmity with Mst. Sayran's husband and with the main prosecution witness, Mana. Though the accused denied having anything to do with Mst. Sayran, questions were put to prosecution witnesses to suggest that Mst. Sayran was a woman of loose character, and one defence witness was produced to say that her husband had asked the witness to ask Chhatiya not to visit the woman. It seems, therefore, that there was some sort of illicit connection from before between the appellant and Mst. Sayran; but somehow or other he did not have the courage to admit in his statement in court that he was having sexual intercourse with her, when they were surprised. Of course, the sexual intercourse, which had taken place, must have been with the consent of the woman. There is no doubt, therefore, that there was sexual intercourse between the appellant and the woman that afternoon; but the question that has to be decided is whether the sexual intercourse was without the consent of the woman or against her will. The trial court has held that the sexual intercourse was without the consent of the woman and against her will. It has depended mainly on the statement of the woman. It may, however, be mentioned that the woman was bound to say that the intercourse took place against her will, if it is a fact that she and the appellant were surprised in the act. As for the two eye-witnesses, Mana certainly tried to suggest that the woman was struggling, for he said that she was moving her hands and feet. But the other witness Ghama directly contradicted Mana on this point, and said that the woman was not moving her hands and feet. It may be mentioned that Mana has reasons to be on inimical terms with the appellant, because the appellant and his brother Tejia had laid some information, which resulted in Mana's father getting into trouble. This fact was admitted by Ghama; but Mana had the hardihood to deny it. So far as, therefore, the statement of Mana is concerned, no reliance can be placed on it. Ghama P. W. 's evidence does not show that the woman was found struggling by them. The statement of the doctor also shows that there were no marks of injuries on the private parts of the woman. That may be expected in the case of a woman like Mst. Sayran who is 21 years of age and has had four children; but there were no marks of injury on other parts of her body either, except a small mark on the left cheek. Now, if the woman had struggled as she should because she was being raped against her will, there were bound to be scratches on various parts of her body but not on the cheek, because the cheek would not come into contact with the ground. The absence i of all marks of struggle like scratches on the body of the woman, in my opinion, leads to the inference that the intercourse must have been with the consent of Mst. Sayran. In any case, I am not satisfied from the evidence of the woman that she was raped against her will. I, therefore, allow the appeal, set aside the order of the court below, and acquit the appellant. He is in jail, and will be released at once unless required in any other connection. . ;