V.K. Bali, J.
1. Appellant Ranbir alias Billa, caste Harijan, who was 20 years of age at the time of occurrence, has since been held guilty for offence under Section 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years as also to pay fine of Rs. 200/- and in default thereof, to further undergo rigorous imprisonment for a period of six months, vide order dated 1 -9-1992 passed by learned Additional Sessions Judge, Jagadhri. In the present appeal, that has been filed by him challenging the order of conviction and sentence, as mentioned above, what has been debated before this Court is that even if, he might have indulged in sexual intercourse with prosecutrix. namely, Rakesh Devi, also a Harijan by caste, the same was with her consent and the prosecutrix being more than 18 years of age, the appellant could not be held guilty for offence under Section 376 of Indian Penal Code.
2. In the context of the only argument, i.e., sexual intercourse with consent of the prosecutrix, that has been raised by learned counsel representing the appellant in support of this appeal, all that needs to be noticed, on the facts. is that the incident occurred on 4-9-1990 at about 10.00 a.m. in the sugarcane fields of one Om Prakash, Carpenter and an FIR of the incident came to be recorded on the next date, i.e., 5-9-1990 at 11.45 a.m. on the statement made by the prosecutrix, which when translated into English could read thus :-
'Stated that we are 5 brothers and sisters and I am the eldest. My father is doing labour work. I am studying in 8th Class In Government High School, Syalba. Yesterday on 4-9-1990, the school was closed at 9.00 a.m. I went to my house from the school and went to ease myself in the sugarcane fields of Om Prakash, Carpenter. When I had eased myself and was trying to string my Salwar and was about to come out, Ranbir alias Billa son of Ram Singh, caste Harijan, a boy of our village, came in the sugarcane fields to me. He had already taken off his Lungi and put the same on his shoulder. Moment Ranbir came, he caught my arm and dragged me in the sugarcane field. He embraced me and by doing so, made me to lie down on the ground. By forcefully holding me, he opened the string of my Salwar and tried to put off the same. I pulled my Salwar up with force and made noise. In this manner, Ranbir tried to put off my Salwar once or twice with a view to commit rape with me but I hit my legs to Ranbir and, thus, did not permit him to put off my Salwar. On hearing my noise, Baldev Singh son of Jaipal, Harijan, Leela wife of Prakash, Harijan and Sona Devi wife of Jaipal, Harijan, of my village, came at the spot in the fields. On Seeing them, Ranbir left me and ran away. If Baldev and the said two ladies had not reached the sugarcane field, Ranbir would have forcibly committed rape with me. Ranbir tried his best to commit rape with me. While coming home, I felt ashamed and, thus, took medicine, which was mixed in paddy. People of my house took me to hospital at Mustafabad for treatment. Today I had regained my consciousness. Ranbir has tried to forcibly commit rape with me. Legal proceedings should be initiated against him.'
3. On the basis of the FIR, as referred to above, lodged by the prosecutrix, a case under Sections 376/511 of Indian Penal Code was registered on the same very day. It appears from the records of the case and, in particular, statement made by the prosecutrix, who appeared as PW-6, as also Investigating Officer Surjit Singh, who was examined as PW-8, that after some time on the same very day, a supplementary statement of Rakesh Devi was also recorded where, she stated that the appellant had committed rape with her. It is on the basis of this statement, It further appears, that a case under Section 376 of Indian Penal Code was registered against the appellant.
4. As per the statement made by Dr. Varinder Nagpal, Medical Officer, Primary Health Centre, Mustafabad, who was examined as PW-2, Rakesh Devi was brought by her father to the Primary Health Centre, Mustafabad on 4-9-1990 and was medico legally examined by him. The Doctor found that the prosecutrix was conscious. Her pulse was 60 p.m.. B.P. 106/76 and respirated rate was 20 p.m. perspiration all over the body and restlessness was also present. There was no synosis. Pupil response was sluggishly responding to light and slightly constructed. Gestic lavage was done and sample of the same was handed-over to the police for chemical analysis. Urine sample was also taken and after proper sealing, was handed-over to the police. Ex. PB was proved on record as copy of medico legal report given by the Doctor. This very Doctor had sent intimation, Ex. PB/1 on 4-9-1990 at 1.20 p.m. regarding the admission of the prosecutrix in the hospital to the Police Station, Chhapper. Police of Police Station, Chhapper came to the Doctor on 4-9-1990 and vide application, Ex. PB/2, made by the police, he had opined on the same very day that the prosecutrix was not fit to make the statement. On 5-9-1990, Dr. A. L. Sethi vide his opinion, Ex. PB/4, however, had opined at 11.00 a.m. that Rakesh Devi was fit to make the statement. In the cross-examination, Dr. Varinder Nagpal admitted that the prosecutrix herself signed MLR, Ex.PB, in his presence and at the time she was putting her signatures, she was in senses. It may be mentioned at this stage that the prosecutrix brought no evidence with regard to the samples of gestic lavage as also urine that were taken and sent for chemical analysis. Bachan Singh, Revenue Patwari of the area, who was examined as PW-3, proved the site plan (Aksajara), Ex.P.C. Dr. Anita Bala, Medical Officer, Civil Hospital, Jagadhri, who was examined as PW-4, stated that on 5-9-1990, on the request of the police, Ex.PD, she had medico legally examined Rakesh Devi. On examination, there was no mark of injury on the body and inner side of thigh and perlrriinum and breast. There was sparce black public hair. There was no stains of blood and se-men on the hair. Valva on inner side was pinkish and contrusei. Hymen was ruptured. Fresh bleeding was positive. Vaginal orifice admitted one finger tightly. Vagmal swab was taken for detection of semen. Cerix was healthy. In the opinion of this Doctor, sexual intercourse had been done in the cilent and the prosecutrix was not habitual of intercourse. In her cross-examination, she had stated that on her enquiry, father of Rakesh Devi had stated that his daughter was not previously medico legally examined in connection with the case of rape. Rakesh Devi was in her senses at that time. She further stated that since there was no mark of injury on the person of Rakesh Devi, she could not say about the commission of rape and that it is the patient/prosecutrix, who could tell all about this. Balwant Lal, Head Master, Government High School, Syalba, where the prosecutrix was studying, was examined as PW-5. He stated that Rakesh Devi was admitted in Class VIII on 7-5-1990 and her date of birth has been shown as 15-11-1972. In his cross-examination, this witness stated that on 4-9-1990 there was no holiday in the school and there was routine working in the school. Rakesh Devi was absent from the school on 4-9-1990 as per attendance register of the school. Rakesh Devi, who was examined as PW-6, supported the prosecutrix version but while giving narration of events before the Court, she did not say that the appellant had ever tried to rape her and that she was able to ward off the attempt of the appellant but rather she stated that after the appellant had made her forcibly to He down on the ground, he broke open the string of her Salwar and then committed rape upon her against her wishes. She also stated in examination-in-chief that keeping in view the pitiable condition of her father, she tried to commit suicide by consuming some poisonous substance and then , became unconscious and re-gained consciousness on the next day in the hospital at Mustafabad where, her statement, Ex.PG, was recorded by the police. On the same day after about one or two hours, she stated that, she had also given her statement for the second time. In the first statement, Ex.PG, she could not explain fully about the commission of rape because she was feeling shy and also not conscious at that time. In the cross-examination adverted to her, she stated that on 4-9-1990, she studied in the school for first two periods. All the classes of the school remained closed after the function. After coming from the school, she stayed for about 5-7 minutes at her house. Her parents were not at the house at that time. They were already away to the fields. Distance of the fields where her parents were working was 2-3 kms. from her house. She further stated that the fields of Om Prakash fall on the western side from the metalled road whereas, village Jhaichandana, where she was residing, falls on the eastern side from the said metalled road and she had entered in the sugarcane fields from the southern side. She further stated that since the sugarcane crop was so intensive, therefore, she did not receive any abrasion or mark of injury on her person and further she did not receive any injury during resistance. She also denied the knowledge that if the appellant had sustained any injury due to her resistance. Baldev, who was examined as PW-7, supported the prosecution version and stated that he along with others had seen the appellant committing rape upon Rakesh Devi and the appellant fled away from the spot on seeing them with his underwear and lungi. In his cross-examination, he stated that last year he was studying in Xth Class, in Janta High School, Mustafabad and on that day, he had gone to school in the morning time. He volunteered to state that after some time the school was closed and he then returned to his house at about 9.15 a.m. He further stated that he along with others had heard the noise of Rakesh Devi from the distance about 10 paces and that the appellant fled away from the spot before they could see him. He further stated that on return to the house of Rakesh Devi, the occurrence was narrated to the father of the prosecutrix at 9.30 a.m. Parents of the prosecutrix were not present when they had reached the house. He had gone at the place where the father of prosecutrix was working and narrated the entire story in the field itself. On the date of occurrence, no report was registered with the police.
5. The prosecution gave up Sona Devi and Leela Devi, as having been won over by the appellant. Surjit Singh, SI, who made investigation in the matter, was examined as PW-8. He too stated that he had also recorded supplementary statement of Rakesh Devi on 5-9-1990 in Primary Health Centre, Mustafabad.
6. When examined under Section 313 of Code of Criminal Procedure, the appellant denied the incident and stated that he was innocent. In the defence led by him, Tajinder Singh, Clerk of Janta Senior Secondary School, Mustafabad, was examined as DW-1, who stated that as per the attendance register of Class Xth, Section C, of the month of September, 1990, Baldev Raj son of Jai Pal was a student of Xth Class, Section C and that on 4-9-1990, as per the entries of the register, the school was closed. In the cross-examination, he stated that there were holidays in the school from 4-9-1990 to 9-9-1990 but he could not say as to on what account the school was closed. He denied the suggestion that the school was closed suddenly on 4-9-1990 due to the disturbance created on account of report of Mandal Commission.
7. From the narration of facts, as fully detailed above, it appears that the prosecutrix for her medical treatment had reached Primary Health Centre, Mustafabad, on 4-9-1990 itself. Even though, an attempt has been made to look like as if the prosecutrix was unconscious having consumed some poisonous substance, yet it is clear that she was conscious and was neither treated nor examined for the purpose of rape said to have been committed upon her. It is rather clearly made out from the statement of Dr. Varinder Nagpal, PW-2, that she was conscious. Her pulse was 60 p.m., BP was 106/ 76 and resplrated rate was 20 p.m. It is true that the said Doctor had stated that the prosecutrix had perspiration all over the body and was feeling restlessness and further that an attempt was made that she may vomit out and some salt was administered to her for the said purpose, but it is significant to mention here that the, prosecution brought no evidence on record with regard to the samples of gestic lavage and urine that were taken and sent for chemical analysis to find out that as to whether the prosecutrix had actually consumed some poisonous substance. From the statement made by Dr. Varinder Nagpal, PW-2, it is clear the prosecutrix was conscious when brought to the hospital and that she had signed her MLR, Ex.PB, on 4-9-1990 itself, when the same was sent at 1.20 p.m. to Police Station Chhapper and further that when she signed Ex.PB, she had put her signatures in the presence of the witness aforesaid and she was in senses.
8. The evidence aforesaid, coupled with withholding of the prosecution the analysis of chemical examination report of the samples sent, that may have thrown some light with regard to the prosecutrix having ousumed some poisonous substance, adding has to be returned that the pros- was, indeed, conscious when brought to the Primary Health Centre, Mustafabad, on 4-9-1990. It is significant to mention that even though, she made her statement, Ex.PG/1 on the next day, she only complained of an attempt of rape having been made by the appellant and not rape as such. She gave complete narration of events by which, she tried to ward off the attempt made by the appellant to commit forcible sexual intercourse with her. It may be recalled that she stated that when the appellant has opened the string of her Salwar and started to put it off, she pulled her Salwar up with force and kept on making noise. She further stated that the appellant again once or twice tried to put off her Salwar with a view to commit rape with her but she hit the appellant with her legs and did not permit him to put off her Salwar. She was, thus, category that even though, a serious attempt on her had been made to commit rape, the same had actually not been committed. In the supplementary statement stated to have been made by her after 1-2 hours, when she appeared in Court to depose, she changed the version from an attempt to rape to actual rape committed on her. While dealing with the contention raised by learned counsel representing the appellant that it is a case of consent, these two aspects shall have to be kept in view.
9. Mr. Aggarwal, learned counsel for the appellant, vehemently contends that once it is proved on the record that the prosecutrix was not unconscious when admitted at Primary Health Centre, Mustafabad nor any time during the course of day on 4-9-1990 nor any time thereafter, there is no question that she would have not made the statement that rape has since been committed on her. In fact, the prosecutrix being a consenting party to sexual intercourse when caught by her own villagers made an attempt to show that evil designs of the appellant were resisted by her. But when it became clear to her that on further medical examination that shall have to be conducted in view of the statement that a serious attempt was made to commit rape upon her, it was found that she had actually indulged into sexual intercourse, she came up with the true incident but gave a colour of forcible sexual intercourse, further contends learned counsel. With a view to prop up the contention, as noted above, learned counsel further contends that the very fact that the prosecutrix had come up with a false version that she had gone to the school and after first two periods, on account of function, the school had closed, in fact and reality, she was absent from the school and the school had functioned normally. The prosecutrix, it appears, had not gone to the school at all and having taken advantage of her parents being working about 2/3 kms. away from the house, she herself went in the fields of Om Prakash, Carpenter and indulged in sexual intercourse with her consent. It has further been urged by him that there was no occasion for the prosecutrix to have gone in the field of Om Prakash, which is at a quite distance at the time which was not a normal time of answering nature call (latrine) particularly when, as per her case, she after attending first two periods in the school, had returned to her home. He further contends that it is a case where no mark of injury was found, either on the private parts or any part of the body of the prosecutrix. nor any injury has been caused to the appellant, which was not possible in a case when the prosecutrix had resisted and that too violently by hitting the appellant with her legs number of times.
10. I have heard learned counsel representing the parties and with their assistance examined the records of this case. There appears to be considerable merit in the contentions of learned counsel representing the appellant, as noted above. It is, indeed, proved on the record, as I have already held above, that the prosecutrix was not unconscious at any stage after it is alleged that she had become a victim of rape. The Doctor, who first examined her at Primary Health Centre, Mustafabad, clearly stated in lxami nation-in-chief that when brought she was conscious. She also signed her MLR in the presence of the Doctor, which was sent for information to the concerned Police Station at 1.20 p.m. on the same very date. The Doctor further stated that she was conscious when she had signed the MLR in his presence. The prosecution, as noted above, has brought no evidence with regard to even the samples that had actually been sent for chemical analysis. A presumption has to be drawn that if the same was done, it would have turned against the prosecution case. I find considerable merit in the contention of learned counsel as well that there is no injury on any part of the body of the prosecutrix. It was not a case of hawk catching a dove. Whereas, the prosecutrix was about 18 years of age at the time of alleged commission of crime, the appellant was 20 years of age and as per the case set out by the prosecutrix, she had resisted not once but twice-thrice by hitting the appellant with her legs. The occurrence had taken place in the fields of sugarcane. There was not an abrasion or bruise either on the person of the appellant or the alleged victim. It really lends credence to the contention of learned counsel for the appellant that it was a case of sexual intercourse with consent. It is proved from the records of the case that the school was functioning normally on the date of incident and further that the prosecutrix had not attended the school as she had been marked absent as per attendance register of the school. The parents of the prosecutrix were in the fields 2/3 kms. away from the house and further that the place of occurrence was not very close to the house of the prosecutrix, where she had gone to ease herself at a time which was not a normal time for the said purpose. It appears to this Court that taking advantage of absence of her parents, the prosecutrix did not go to the school and rather chose to go to the fields of Om Prakash and when caught indulging into sexual intercourse with the. appellant by Baldev, PW-7 and two ladies of her village, she first tried to make it look like as if she had taken some poisonous substance and inasmuch as, the story of taking poisonous substance would have been exposed, she then made to look like as if the appellant had tried to commit forcible sexual intercourse with her to which, she bravely resisted and when it transpired to her that on further examination, her story of attempt to commit rape upon her and her endeavour to save herself would be exposed, she came up with the story of forcible Sexual inter-course having been committed upon her.
11. In totality of the facts and circumstances of this case, whereas, this Court has no hesitation in holding that even though, the prosecution has been able to prove that the appellant alone had indulged into sexual intercourse with the prosecutrix and rupture of the hymen of the prosecutrix may also even indicate that it may be very initial stage of her indulging into sexual intercourse, but the Same, in all probability, was with her consent. The plea of consent raised by the appellant, during the course of trial it is rather strange to note, has been turned down by the learned trial Judge by observing that no enmity has been proved between the appellant and father of the prosecutrix and, therefore, there was no motive for the prosecutrix to have falsely involved the appellant. If it be a case of consent, enmity between the appellant and father of the prosecutrix, in considered view of this Court, was wholly immaterial.
12. In view of the discussion made above, appellant has to be given the benefit of doubt and, therefore, this appeal is to be allowed. That being so, order of conviction and sentence recorded by learned Additional Sessions Judge, Jagadhari is set aside and the appellant is acquitted of the charge framed against him.