Full Judgment
M. Kapur, J.
1. The Sessions Judge, Jhalawar by his judgment dated 28th August 1982 found the appellant guilty for the offence Under Section 376 IPC and sentenced him to four years rigorous imprisonment and a fine of Rs. 1,000/-. In default of payment of fine he was directed to under go rigorous imprisonment for six months. Against the conviction and sentence the appellant has prefered this appeal.
2. The incident out of which this case arises occured on 14.6.1981. The prosecutrix is Mst. Anokhi Bai, whose age at the time of incident was 20 years. She reported at Police Station, Dug that on the day of the incident she proceeded on the way to Karasra and she sat down to answer the call of nature behind a bush and at that time the accused came there and caught hold of her. She shouted but her mouth was closed by cloth. Then she was forcibly taken to a ditch and there the accused committed rape upon her. She could shout only when the cloth was removed from her month after the act of rape was over. On hearing her shouts here uncle Madho came there and on seeing him the accused ran away. The accused even threw a stone at Madho, which resulted in an injury. Then Shanker also came there and he also saw the accused running away. This is in brief the story of the prosectuion. Witnesses P.W. 5. Anokhi Bai, P.W. 4 Madho and P.W. 3 Shanker have been examined to prove the case of the prosecution.
3. The veracity of the witnesses and the probability of the story shall be seen hereinafter, but before coming to the same medical examination of the prosecutrix may be looked into. Ex.P/9 is a medical report and according to this there were no marks of injuries on her body or the genitals. She had only one abrasion on the forearm which was 1/6' x 1/6'.
4. The learned Sessions Judge believed the witnesses and observed that the witnesses could not be disbelieved merely because they were relatives or partisan as on this account it was necessary that the statements of the witnesses should be examined carefully.
5. The learned Counsel for the appellant has attacked the findings of the learned Sessions Judge on a number of grounds. First of all his contention is that the story of the prosecution cannot be said to be probable because there were no injury marks on the body of the prosecutrix. The place where she is supposed to have been raped is a stony surface and it was also necessary that there should be some injuries on her back. Next it was contended that she was a married woman of about 20 to 21 years of age and she could have resisted the desire of the accused by causing injuries to him. His third contention is that there was previous enmity between the family of the prsecutrix and the accused and for this purpose the statements of PW. 2 Laxman may be referred to. He has admitted that 7 or 8 months prior to the incident his cattle entered into the field of the present accused and the accused had recovered money from him and Madho, on account of the damage caused to his crop. He is a real brother of Madho. It has also been contended that the only persons who reached the place of incident on hearing the shouts of Anokhi Bai were her uncle and his cousin brother Shankar, while there were labourer working near the place and they could have heard the shouts and seen the accused going away from there. Hence there is absence of independent witnesses. Besides this contention infirmities in the story of the prosecution are pointed out.
6. P.W. 3 Shankar, who is said to have arrived at the seence of occurence after Madho, has turned hostile and he has not supported the prosecution story. According to him the accused was just walking away from there and Anokhi Bai was not doing anything. That leaves us only with P.W. 4 Madho. P.W. 4 Madho was in the charvada of Bheru Singh along with Shankar when he heard the shouts. He went towards the side and saw Anokhi lying on the ground and on seeing him accused stood up and started running and threw a stone on him. He has admitted that near charvada there is a school and at the relevant time construction was going on in the school where several labourer were working. Then he has given the distance as one mile. Then he could not have heard the shouts and reached the place if the distance were to be one mile.
7. So far as P.W. 5 Anokhi Bai is concerned, she has stated that she had injuries on her back but in the medical report these injuries have not been shown. Her clothes were torn and spoiled, but these clothes were not produced before the court. They were sent to the Chemical Examiner but then neither the report was received nor the clothes were received. The prosecution obviously did not take any steps to find out as to what happened to them. Anokhi gave out her story only on coming to the village and not at the site where it was only natural for the people working there to collect.
8. The story of the prosecutrix can be relied upon even if there is not corroboration by other oral evidence but then the story should be consistent and probable and if some other corroboratory evidence is possible then this should come out either in the form of medical corroboration or some other circumstantial corroboration. The absence of injuries on the body of the prosecutrix make out a very strong circumstance to make her story improbable. Her uncle did not come to her rescue when she first shouted. According to the site plan, Madho was nears to the place from where the accused is said to have forcibly taken away Anokhi Bai, then from the place where the prosecsutrix was ultimately raped and from where Madho heard the shouts. Merely because there were broken piecs of bangles, it cannot be said that this piece of evidence can be accepted as corroborative evidence. The story of the prosecution is not very consistent and probable and it is not corroborated by any other reliable evidence so as to base the conviction ofs the appellant on the same.
9. In absence of injury marks on the body of the prosecutrix it can be said that either it was a case of consent or the case has been falsely made out. In this case considering the fact that there were some enmity between the uncles of the prosecutrix on the one hand and the accused on the other hand, chances are that a false story has been made out to implicate the accuse. In my opinion the evidence in the case can not be said to be sufficient for the conviction of the appellant for the offence Under Section 376 IPC, and this conviction is liable to be set aside.
10. Accordingly, the appeal is allowed. The conviction and sentence of the appellant is set aside. He is on bail his bail bond shall stand discharged.