JUDGMENT
Garg, J.
1. This appeal has been filed by the Stale of Rajasthan against the judgment and order dated 19.9.1987 passed by the learned Sessions Judge, Jodhpur in Sessions Case No. 120/85 by which he acquitted the accused respondents Mahendra Singh of the charge for the offence under Section 376 1PC and Mithia of the charge for the offence under Section 376/114 1PC.
(2). The facts giving rise to this appeal, in short, are as follows:-
On 28.9.1985 at about 10.30 AM, PW3 Chuki wife of Pemaram, aged 17 years, resident of Beru District Jodhpur (hereinafter referred to as the prosecutrix) lodged an oral report with PW13 Narain Singh, SHO, Police Station Soor Sagar stating inter-alia that on 27.9.1985 she and her Nanad Tipu, PW5 went to field for taking fodder for animals and when they were collecting fodder, accused respondents Mahendra Singh and Mithia came there and the accused respondent Mithia first caught the throat of the prosecutrix PW3 Chuki and put her on the ground and he took out knife from his pocket and by one hand pressed her throat and, thereafter, accused respondent Mahendra Singh stretched her both legs and removed her gagra and opened hook of his pent and put down his pent and, thereafter committed rape with her and at the time when accused respondent Mahendra Singh was committing rape on her, accused respondent Mithia was pressing her throat and since cloth was also put on her mouth, she could not make hue and cry. It was further stated in the report that her nanad Tipu, PW5 ran away from the scene after seeing accused respondents and after committing rape, both accused respondents ran away. It was further stated in the report that blood was coming out from her mouth etc. and when she was going to her house, her sister Oogli, PW10 met her on the way and at that time, prosecutrix was weeping and on being asked, she narrated the whole story to her sister Oogli, PW10 and then, she reached her house, where her husband PW4 Pemararn was there and she also told the whole story to him and since there was no means of communication, therefore, the report was lodged on the next day.
On this report, police registered the case and started investigation. During investigation, PW3 Chuki was got medically examined by PW12 Dr.B.P. Gupta and her medical examination report is Ex.P/14, where Dr.B.P. Gupta, PW12 found that there was no injury on her person and she was habitual to sexual intercourse. For the purpose of ascertaining her age, X-rays were taken and PW12 Dr.B.P. Gupta, after seeing X-ray plates, opined that her age was between 19 to 20 years and the report is Ex.P/15.
After usual investigation, police submitted challan against the accused respondents in the Court of Magistrate, from where the case was committed to the Court of Session.
On 20.2.1986, the learned Sessions Judge, Jodhpur framed charges for the offence under Section 376 IPC against accused respondent Mahendra Singh and for the offence under Section 376/114 IPC against the accused respondent Mithia. The charges were read over and explained to the accused respondents. They denied the charges and claimed trial.
During the course of trial, the prosecution, in support of its case, examined as many as 13 witnesses and got exhibited some documents. Thereafter, statements of the accused respondents under Section 313 Cr.P.C. were recorded. In defence, no evidence was led by the accused respondents.
The learned Sessions Judge, Jodhpur through his judgment and order of acquittal dated 19.9,1987 acquitted the accused respondents of the charges framed against them holding inter-alia that statement of the prosecutrix PW3 Chuki was not worth reliable as her statement was not being supported by medical and other evidence and there were material contradictions in her statement.
Aggrieved from the said judgment and order of acquittal dated 19.9.1987 passed by the learned Sessions Judge, Jodhpur, this appeal has been filed by the State of Rajasthan.
3. In this appeal, it has been argued by the learned Public Prosecutor for State that statement of the prosecutrix PW3 Chuki should have been believed by the learned Sessions Judge, Jodhpur, as she has clearly staled that accused respondent Mahendra Singh committed rape with her and another accused respondent Mithia also helped accused respondent Mahendra Singh in committing rape on her. Thus, it was prayed that this appeal be allowed and accused respondents Mahendra Singh and Mithia be convicted and sentenced for the offence under Sections 376 and 376/114 IPC respectively.
4. On the other hand, the learned counsel appearing for the accused respondents submitted that findings of acquittal recorded by the learned Sessions Judge, Jodhpur are based on correct appreciation of evidence and thus, no interference is called for with the impugned judgment and order passed by the learned Judge, Jodhpur and this appeal filed by the State of Rajasthan be dismissed.
5. I have heard the learned Public Prosecutor and the learned counsel for the accused respondents and perused the record of the case.
6. In my opinion, the findings of the learned Sessions Judge, Jodhpur acquitting the accused respondents of the charges framed against them are liable to be confirmed because of the following reasons.
7. So far as the medical examination of the prosecutrix PW3 Chuki is concerned, the same is found in her medical examination report Ex.P/14, which shows that she was habitual to sexual intercourse and no marks of injury were found on her person.
8. So far as the age of the prosecutrix PW3 Chuki is concerned, she has been assessed between 19 to 20 years by PW12 Dr. B.P. Gupta, after seeing X-ray plates and the report is Ex.P/15. Thus, age of the prosecutrix PW3 Chuki at the time of alleged incident was 19 to 20 years.
9. In rape cases, corroboration of the testimony of the prosecutrix is not required as a rule of law, but corroboration should ordinarily be required in the case of woman having attained majority and who is habitual to sexual intercourse as in such cases there is likelihood of having levelled such an accusation on account of instict of self preservation or when the probabilities factors are found to be out of time.
10. From this point of view also, the statement of the prosecutrix PW3 Chuki is being examined.
11. The prosecutrix PW3 Chuki in her examination-in-chief has stated that both accused respondents are resident of the same village to which she belongs and she has further given the same version which was given by her in the report Ex.P/5, just quoted above and the same is not being repeated here. However, she has admitted that accused respondent Mahendra, after opening his pent and putting it on one side, put his penis into her vagina and he committed sexual intercourse for sufficient time. In cross-examination, she admits the following facts:-
1. That when she went to give her statement in Court, she was told by one Surajmal that statement, which was given by her before police, should be given in Court.
2. That she does not know the accused respondents before this incident.
3. That accused respondent Mithia gave fist blow on her cheek and as a result of which, there was swelling on her face and this swelling remained for one month.
4. That after receiving fist blow, she became unconscious and remained unconscious for three hours.
5. That what thing was put in her vagina, she does not know and she was told by PW5 Tipudi that accused respondent Mahendra Singh put her hand in her vagina.
6. That when she reached home, she found her mother-in-law and father-in-law there.
7. That whole story was told to her father-in-law and mother-in-law by PW5 Tipudi, while she slept after reaching home and she was not conscious for whole of the night.
8. That she was told by PW5 Tipudi that whole story was narrated by her to PW4 Pemaram.
9. That since she was unconscious, she did not tell about incident to her husband PW4 Pemaram.
10. That it is correct to say that on the same day, her husband Pemaram, PW4 came to house and she and her husband PW4 Pemaram both remained in the house.
11. That she also received injuries from the broken bangles in her hands, which were shown to doctor.
12. PW5 Tipudi, who is Nanad of the prosecutrix PW3 Chuki, is a child witness and after preliminary examination, her statement was not recorded as according to the opinion of the learned Sessions Judge, she was not in a position to give statement and she was weeping.
13. PW9 Suwa is the mother-in-law of the prosecutrix PW3 Chuki and she states that she was told about the whole incident by PW3 Chuki prosecutrix herself. She admits the following facts in cross-examination:-
1. That when prosecutrix PW3 Chuki came to her house, there was swelling on her face and blood was coming out and she was semiconscious.
2. That after 3-4 days when prosecutrix PW3 Chuki was in a position to speak, whole story was told to her by PW3 Chuki.
14. PW10 Oogli, who is sister of the prosecutrix PW3 Chuki, has been declared hostile.
15. In my considered opinion, from the above evidence, statement of the prosecutrix PW3 Chuki on the point that accused appellant Mahendra Singh has committed sexual intercourse with her forcibly, cannot be accepted. There are material contradictions in her statement from her report Ex.P/5.
16. The statement of the prosecutrix PW3 Chuki does not get corroboration from the medical evidence as from her statement as well as from other evidence, it appears that there was swelling on her face and blood was coming out from her face, but her medical examination report Ex.P/14 is nil on this aspect and thus, statement of the prosecutrix PW3 Chuki does not get corroboration from medical evidence.
17. From the report Ex.P/5, it appears that prosecutrix PW3 Chuki while going to her house met with her sister PW10 Oogli and she told the while story to PW10 Oogli. However, PW10 Oogli does not corroborate the statement of the prosecutrix, as she has been declared hostile. Thus, version of the prosecutrix PW3 Chuki does not get corroboration from PW10 Oogli.
18. In the report Ex.P/5, the prosecutrix PW3 Chuki has stated that she narrated the whole incident to her husband PW4 Pemaram, but in Court statement she states that whole incident was narrated to her husband PW4 Pemaram by PW5 Tipudi and not by her.
19. When she did not receive any injury on her cheek, her statement on the point that accused respondent Mithia gave a fist blow on her check becomes false one and from this point of view also, statement of the prosecutrix PW3 Chuki that she was shown knife by accused respondent Mithia cannot be accepted.
20. The fact that accused respondent Mahendra Singh, after putting his pent on one side, committed rape with the prosecutrix goes to show that prosecutrix PW3 Chuki was consenting party, otherwise when the story of knife is belied, the prosecutrix PW3 Chuki could have run away from the scene when the accused respondent Mahendra Singh went to keep his pent on one side.
21. The fact that accused respondent Mahendra Singh had sexual intercourse with the prosecutrix PW3 Chuki for sufficient time also goes to show that in all acts she was a consenting parly, otherwise accused respondent Mahendra Singh could not have sex with her for a long time. Had she not been a consenting party, some sort of injuries must have been a consenting party, some sort of injuries must have been received by the prosecutrix PW3 Chuki and absence of injuries on her person negatives the allegation of rape and rather shows that accused respondent Mahendra Singh had sexual intercourse with the prosecutrix with her tacit consent. The medical evidence clearly discloses that the prosecutrix PW3 Chuki does not appear to have put up any resistance to the alleged onslaught committed on her by the accused respondent Mahendra Singh. From this, the only irresistible inference can be that the prosecutrix was a consenting party.
22. For the reasons stated above, it can be concluded that the prosecution has not been able to prove its case beyond all reasonable doubts against the accused respondent Mahendra Singh for the offence under Section 376 IPC and against accused respondent Mithia for the offence under Section 376/114 IPC and thus, the findings of the learned Sessions Judge, Jodhpur acquitting the accused respondents Mahendra Singh and Mithia of the charges framed against them liable to be confirmed, as they are based on correct appreciation of evidence and this appeal filed by the Stale of Rajasthan is liable to be dismissed. Accordingly, this appeal filed by the State of Rajasthan is dismissed, after confirming the judgment and order of acquittal dated 19.9.1987 passed by the learned Sessions Judge, Jodhpur.