JUDGMENT
O.P. Pradhan, J.
1. This appeal by a convict is directed against the judgment and order dated 15-11-1983 passed by 1st Additional Sessions Judge, Kheri in Sessions Trial No. 393 of 1983 whereby the appellant was convicted and sentenced under Section 376, I.P.C. to undergo five years’ R.I.
2. The facts giving rise to this appeal may be briefly stated as follows:
3. The prosecutrix is a resident of village Palhanapur within the circle of police station Bhira of district Kheri and so is the accused-appellant. It was on 28-1-1979 that the prosecutrix, Smt. Shanti had gone to ease herself in the cane-field of Munna at about 4 p.m. While she was coming back from the cane-field, the accused-appellant caught hold of her from behind and disabled her to raise an alarm by pressing his hand on her mouth. He also felled her on the ground and started committing rape on her. The prosecutrix could not wriggle out of the situation since the accused-appellant had over-powered her and she could not raise a hue and cry because her mouth had been shut. In the process of commission of rape, the hand of the accused-appellant which had been pressed on the mouth of the prosecutrix happened to slip away whereupon the prosecutrix raised an alarm which attracted to the scene of occurrence Puttu, Lalla and Vijay Prakash. The accused-appellant managed to escape on being detected by the aforesaid people. The prosecutrix also narrated her tale of woe to these people and came back to her house from where she went to the police station Bhira along with her father-in-law and Puttu to lodge the report about this occurrence. Accordingly the prosecutrix, Smt. Shanti lodged orally a report about this occurrence at police station Bhira on the same day i.e. 28-1-1979 at 8.05 p.m. In this report, she named the accused-appellant as the culprit who had committed rape on her against her will. Investigation followed. The prosecutrix was examined the next day at about 1.30 p.m. by Dr. Radha Vats P.W. 3. Since the prosecutrix was a married lady, no opinion about the rape could be given by the said doctor. After completion of the investigation, a charge-sheet for the prosecution of the accused-appellant under Section 376, I.P.C. was submitted by the Investigating Officer. The accused ! was put on trial on a charge Under Section 376, I.P.C. He pleaded not guilty to the charge and claimed his false implication at the hands of one Hanif who according to him, was seen coming out of the cane-field together with the prosecutrix but in order to save himself, he got the report lodged against the accused-appellant.
4. In support of its case, the prosecution examined the prosecutrix, Smt. Shanti who has supported the prosecution version in all its material particulars. Puttu Lal P.W. 2 was also examined as a witness of fact but he was declared hostile and cross-examined by the State counsel. This witness accompanied the prosecutrix to the police station when the former went there to lodge the first information report. A mention of his name finds place in the copy of G.D, Ext. Ka-3. Dr. Radha Vats P.W. 3 was examined to prove the medical examination report of the prosecutrix. Head Constable. Balmik Singh P.W, 4 was examined to prove the F.I.R. and the G.D. prepared in that behalf. Vijay Prakash P.W. 5 is a witness of fact and was examined to say that he saw the accused-appellant running away from the cane-field of Munna towards south and that the prosecutrix had told him immediately after the occurrence that the accused-appellant had committed rape upon her,
5. The accused-appellant did not produse any witness but filed two papers in defence. The first paper is a certified copy of a complaint dated 5-8-1978 filed by Bankey Lal against Ram Vilas and eight others in the Court of Special Judicial Magistrate, Kheri in connection with offences under Sections 147, 427 and 506, I.P.C., and Section 24 of the Cattle Trespass Act. In this complaint, Vijay Prakash who has appeared as a prosecution witness in the present case is named as one of the accused persons. The second paper is a certified copy of order dated 27-10-1978 passed in the said case. It goes to indicate that the accused were summoned and filed their surety bonds in the Court for their appearance. This is all which has been adduced in defence on behalf of accused-appellant.
6. On a consideration of the entire oral and documentary evidence placed on record by the parties, the learned Additional Sessions Judge came to find that it had been established beyond reasonable doubt that the accused-appellant had committed rape on Smt. Shanti at about 4 p.m. on 28-1-1979 in the cane-field of Munna in village Palhanapur within the circle of police station Bhira, district Kheri. He, therefore, convicted the accused-appellant Under Section 376, I.P.C. and sentenced him to undergo five years’ R.I. Feeling aggrieved with this order of conviction and sentence, the convict preferred this appeal.
7. I have heard learned counsel for the appellant as also the learned Government-Advocate and perused the record.
8. It has been contended on behalf of the appellant that the rape was not Committed by the appellant on the prosecutrix but that it was one Hanif who was working in the Forest Department who had actually committed rape on the prosecutrix but in order to save himself and his service, he manoeuvred to get involved the appellant for the commission of rape. It has also been urged on behalf of the appellant that the manner in which the rape is said to have been committed by the appellant appears much too improbable, inasmuch as the appellant would not succeed in accomplishing the act with one of his hands placed on the mouth of the prosecutrix. It was further contended that the medical evidence does not support the commission of rape on the prosecutrix and that the spots of semen found on the Petticoat and Dhotti of the prosecutrix were not sent for chemical examination. The learned counsel for the accused-appellant, therefore, strenuously contended that the prosecution has not succeeded in establishing its case against the appellant beyond reasonable doubt. Sentence of fine imposed on the appellant, was also said to be severe.
9. In order to test these arguments advanced by the learned counsel for the appellant, evidence on record has got to be scrutinised. The star witness of the prosecution in the present case is the prosecutrix, Smt. Shanti P.W. 1. She is a married lady and was aged 20-22 years at the time she gave evidence in Court in the year 1983. It may be recalled that the occurrence took place on 28-1-1979. She has clearly stated that she had gone to ease herself at about 4 p.m. on the day of occurrence and while coming back, she was held from behind by the accused-appellant and felled on the ground and further that the accused-appellant pressed his hand on her mouth to disable her from raising any alarm. She further deposed that the accused-appellant committed sexual intercourse with her against her will. It also appears from her evidence that she tried to wriggle out of the situation but the accused-appellant had over-powered her and she had not the capacity and strength to wriggle out of the situation. It was after the hand of the accused slipped away from her mouth that she could raise a hue and cry which attracted to the scene of occurrence Puttu, Lalla and Vijay Prakash and it was then that the accused-appellant managed to escape from the field towards south. She narrated her tale of woe to these persons who had reached the place of occurrence after the accused-appellant had fled and then reported the occurrence at the police station in the company of her father-in-law and Puttu, F.I.R. Ext. Ka-1 supports, in all material particulars, the version of the prosecutrix. This F.I.R. came to be lodged without delay at a distance of 8 1/2 miles from the village of occurrence. The prosecutrix was also examined the next day by Dr. Radha Vats who, however, did not find any marks of injury on, her person nor she could give any opinion about the commission of rape. So far as this medical evidence goes, it may be pointed out that the prosecutrix was a married lady and was, therefore, used to sexual intercourse. Moreover, as already laid down by the Hon’ble Supreme Court, rape is a crime and not medical condition. Whether rape occurred or not is a legal conclusion, not medical. (See Madan Gopal Kakkad v. Naval Dube, ). Therefore, nothing of particular importance turns upon this, contention of the learned counsel for the appellant that the medical evidence does not support the version of the prosecutrix that she had been subjected to rape a day earlier.
10. The contention advanced by the learned counsel for the appellant that the appellant could not accomplish the act of rape with one of his hands placed on the mouth of prosecutrix, does not also appear to cut much ice. It is in the evidence of Smt. Shanti PW 1 that the accused-appellant started intercourse with her after he had felled her on the ground and placed one of his hands on her mouth. She further stated that the hand which had been placed on her mouth by the accused-appellant happened to slip and, therefore, the persons present in the neighbouring fields were attracted to the scene of occurrence, on her raising an alarm and the accused-appellant then escaped towards south. The position narrated by the prosecutrix regarding the commission of rape may appear to be a little improbable but not impossible. The prosecutrix also tried to wriggle out of the situation but she could not, since she had not the capacity and strength to overcome the accused-appellant. I have gone through the evidence of the prosecutrix in detail but I do not find any cogent ground to discredit her testimony on this score. No dent could be caused to her testirnony during cross-examination either. She also narrated her tale of woe to Vijay Prakash PW 5 and others regarding the commission of rape by the accused-appellant. Vijay Prakash PW 5 has corroborated, in material particulars, this part of her testimony and has clearly stated that he had seen the accused-appellant fleeing from the cane-field towards south and that the prosecutrix told him immediately after the occurrence that the accused-appellant had committed rape on her. Learned counsel for the appellant contended that Vijay Prakash has his own grudge since Bankey Lal had filed a criminal complaint in which Vijay Prakash PW 5 was also arrayed as an accused. So far as this contention goes, there is nothing on record to establish that the accused-appellant had given evidence in the said complaint against Vijay Prakash PW 5. If the certified copy of the complaint could be filed, there was no plausible reason for not filing the certified copy of the deposition, if any, given by the accused-appellant against Vijay Prakash PW 5. Hence, this criticism against Vijay Prakash PW 5 is of little importance and has to be repelled.
11. It has been further contended that the stains of semen which are said to have been found on the petticoat of the prosecutrix were not sent for chemical examination. The learned Additional Sessions Judge has rightly commented on this lapse of the investigating agency and has further rightly observed that this lapse of the investigating agency would not furnish the sole ground for rejecting the prosecution case. I agree with the learned Additional Sessions Judge on this score.
12. Learned counsel for the appellant further urged that the conviction of the accused-appellant cannot be recorded on the sole testimony of the prosecutrix. In the first place, the testimony of the prosecutrix has also been supported to some extent by the evidence of Vijay Prakash PW 5, in so far as he says that he saw the accused-appellant fleeing from the cane-field towards south and that the prosecutrix told him Immediately after the occurrence that she had been raped by the accused-appellant. Secondly, even if it be assumed for the sake of argument that there is the sole testimony of the prosecutrix with regard to the commission of rape, it may be pointed out that conviction can be recorded on such testimony also, if the evidence of the prosecutrix inspires confidence. The Hon’ble Supreme Court has laid down that in such a case there is no legal obligation to look for corroboration of the evidence of prosecutrix. (See State of H.P. v. Raghubir Singh, ). The evidence of Smt. Shanti does inspire confidence.
13. So far as the defence plea that the rape was actually committed by one Hanif who manoeuvred to get the accused-appellant involved in this case goes, it may be said that the learned Additional Sessions Judge also did not find any cogent material on record to give effect to this defence plea. The prosecutrix has denied the suggestion put in this behalf during her evidence in the trial Court. One Hanif who works in the Forest Department, did come to the husband of the prosecutrix who is a barber to get his hair cut and dressed up but there is nothing on record to indicate that this Hanif had illicit relations with the prosecutrix or that this Hanif was so powerful and resourceful that he could manage to get the accused-appellant involved for the commission of this crime. The evidence on record indicates that the prosecutrix came back to her house after the incident and thereafter went to the police station Bhira accompanied by her father-in-law and Puttu. It is beyond comprehension that the prosecutrix would spare the real culprit of the offence of rape on her at the behest of other who was not shown to have any influence on her. The lower Court has rightly rejected this defence plea for the reasons recorded in its judgment. I also agree with the said reasoning of the learned Additional Sessions Judge on the defence plea. Hence the defence plea of the accused-appellant is fit to be stated to be rejected.
14. For what has been said above, it has to be found that the prosecution has succeeded in establishing its case beyond reasonable doubt against the accused-appellant regarding the commission of rape by him on the prosecutrix at about 4 p.m. on 28-1-1979 in the cane-field of Munna situate in village Palhanapur, district Kheri,
15. Now remains the question of sentence. The learned counsel for the appellant has pleaded that the sentence may be reduced having regard to the overall facts and circumstances of the case and particularly the appellant who is not given to such a vice nor is he shown to be a previous convict. The trial Court has awarded a sentence of five years’ R.I. On a consideration of the entire facts, circumstances and the material placed on record, in the light of the submissions made by the learned counsel for the appellant, I consider that a sentence of three years’ R.I. will meet the ends of justice.
16. In the result, this appeal is partly allowed in the manner that the conviction of the appellant under Section 376, I.P.C. is upheld but the sentence of five years imposed on him is reduced to three years’ R.I. The appellant is on bail. He will surrender forthwith to serve out the sentence awarded to him by this Court. Let the record of the Court below be sent back forthwith.