M. C. JAIN, J. - (1.) THE appellant was convicted of the offence u/s 376 I. P. C. and was sentenced to four years rigorous imprisonment and to a fine of Rs. 1,000/. In default of payment of fine to further undergo two months rigorous imprisonment.
(2.) THE accused and the victims were working as labour's in the construction of the house of Bhoorsingh at village Molasar. It is alleged that on 27. 6. 85 when the victim Mst. Patasi went for attending the nature's call, the accused caught hold of her forcibly and took her to the nearby bada and committed rape on her. Her cries were heard by Bhaguram and Jagdish and they caught hold of the accused and thereafter Bhaguram reported the matter to the mother of the victim. She visited the place of occurrence where the victim narrated the occurrence to her mother. THEreafter she went to the police outpost where there was S. H. O. She lodged the report to the S. H. O. on which case u/s 376 I. P. C. was registered. He started investigation at the village Molasar. He visited the spot and conducted the spot investigation and recorded the statements of the witnesses. THE prosecutrix and the accused both were medically examined. After-completion of investigation, charge sheet was presented against the accused and the accused was tried by the learned Additional Sessions Judge. THE accused pleaded not guilty to the charge. At the trial the prosecution examined P. W. 1 Mst. Patasi, P. W. 2 her mother Mst. Gheesi, P. W. 3 Mangilal, P. W. 4 Dr. Robert, PW 5 Bhaguram. P. W. 6 Dr. Hansaram, P. W. 7 Jeevanram, S. H. O. , P. W. 8 Ranjeet Singh. Constable, and PW 9 Harbans Singh, Constable. THE statement of the accused was recorded in which he stated that Bhaguram is inimical to him. THE accused examined two witnesses in defence. After hearing the arguments the learned Additional Sessions Judge found the offence proved against the accused. Hence this appeal. I have heard Mr. R. K. Gehlot, learned counsel for the appellant and Mr. R. K. Soni, learned public prosecutor for the State and perused the record of the case. At. the very outset I may state that the whole question in this case is with regard to the consent of the prosecutrix. The incident, otherwise is, amply proved. With regard to the incident there are the statements of the prosecutrix, the statements of her mother Gheesi and the eye witness Bhaguram and further corroboration is available from the medical examination of prosecutrix as well as the victim. On medical examination it was found by Dr. J. Robert that there was bleeding from vagina and there was laceration in vagina on lateral wall with bleeding. The findings recorded by him, according to him, was suggestive penetration. The clothes of the prosecutrix and the victim were seized and were sent for chemical examination. On chemical examination it has been found that the Lahanga, Kachha, vaginal smear and Urethral smear were found stained with humn semon. It may be stated that the accused was caught on the spot and was produced before the S. H. O. at the Police Outpost, Molasar, when he returned from spot investigation. The prosecutrix and the victim were examined on the night of 27. 6. 85 itself. As regards the age of the prosecutrix, it may be stated that she herself has given her age as 15 years only. But the medical opinion is to the effect that she is aged about 20 years. Now the whole question is as to whether there was consent of the prosecutrix in the commission of intercourse with her. On behalf of the appellant it is urged that there was no injury on the private part of the prosecutrix or on any other part of her body and besides that there are no injury on the person of the accused. Absence of injuries negatived the absence of consent and it should be taken that whatever accused did was with the consent of the prosecutrix. It was also pointed out that the prosecutrix and the victim were known to each other and they were working on the same kamtha for the last 13 days. Had there been no consent the accused would have availed the prosecutrix earlier and satisfied his lust. It was also pointed out by the learned counsel for the appellant that the position which the prosecutrix has deposed in her statement regarding her hands and the hands of the accused also shows that it is a case of consent. If any resistance would have been put by the prosecutrix then signs of resistance would have certainly appeared and this sort of statement would not have been given by the prosecutrix as to whether the hands were placed. The above circumstances, in my opinion, do not clearly make out a case of consent. Patasi has categorically deposed that she raised alarm and her cries were heard by Bhaguram and Jagdish and it was Bhagu Ram who reported the incident to the mother of the prosecutrix and that fact finds corroboration from the First Information Report as well. This part of the prosecution story cannot be considered to be a cooked up one. The prosecution case has been consistent as stated by the witnesses. According to the prosecutrix she was forcibly taken to the Bada and she raised hue and cry at that time. When Bhaguram was returning from his field he heard her cries and this is how the incident came to the light of Bhaguram. There are no reasons to disbelieve the statements of Patasi and Bhaguram on this aspect. Besides that, on spot investigation it has also been found that the chain (kanthi) which the prosecutrix was wearing was broken and motis were lying on the spot which were seized by the S. H. O. and the S. H. O also found marks of struggle on the spot. Beside that vaginal laceration was found by the doctor. These circumstances clearly make out that whatever was done by the accused was not done with the consent of the prosecutrix. It may be stated that the learned counsel for the appellant did point out some discrepancies, omissions and contradictions but they care all of minor nature, which do not in any way effect the substance in the prosecution case. As already stated the incident is amply proved and so far as the consent aspect is concerned it appears that the prosecutrix was over-powered by the accused and she could not put up sufficient resistance and so marks of injury could not appear on the person of the prosecutrix and the accused. Absence of injuries on the person of both does not necessarily mean that the act was done with the consent of the victim. The matter has to be examined in the light of other circumstances which have appeared on the record and in view there of I hold that there was no consent on the part of the prosecutrix and so offence u/s 376 I. P. C. is amply proved against the accused for which he has rightly been convicted. Coming to the question of sentence it may be stated that the learned Judge has considered the antecedent of the accused. It is recorded by the learned Additional Sessions Judge that the accused is in the habit of committing crimes. He was prosecuted earlier in seven cases, in some of which has been convicted and sentenced, and has also been given the briefly of probation of good conduct. Looking to the past antecedent's in my opinion, sentence has been rightly awarded and calls for no interference.
(3.) IN the result this appeal has no force and it is hereby dismissed. .;