JUDGMENT [ENTITY], J.
1. The appellant/accused, [ENTITY], aggrieved by the Judgment made in [CASE NUMBER] dated 8-9-1998 on the file of Additional Assistant Sessions Judge, [ENTITY] had preferred the present Criminal Appeal.
2. Submissions of Sri [ENTITY] : Sri [ENTITY], the learned Senior Counsel representing the appellant/accused maintained that this is a case of rape on a married woman and both the prosecutrix and the appellant/accused are of almost same age and there appears to be no resistance as per medical evidence and hence consent can be inferred. The learned Counsel also maintained that except the testimony of PW-1 there is no corroboration. The evidence of PW-2 does not help the prosecution in any way and PW-3 was declared hostile and as per Ex.P-1 the age of PW-1 was 22 years at the relevant point of time and the age of the appellant/accused was 23 years. The learned Counsel also pointed out that there are no injuries on the prosecutrix which would be suggestive of consent. The learned Counsel also had thoroughly taken this Court through the evidence available on record and explained the inherent improbabilities in the prosecution version. The learned Counsel placed strong reliance on a passage in Medical Jurisprudence by [ENTITY] and also on a decision of the Apex Court in [PRECEDENT], .
Submissions of the Additional Public Prosecutor:
3. The learned Additional Public Prosecutor would submit that the very conduct of PW-1 weeping and though PW-3 was declared hostile she also deposing about the weeping of PW-1 and the evidence of PW-6 also to the effect that the prosecutrix was weeping, would definitely negate the theory of consent propounded by the learned Senior Counsel representing the appellant/ accused. The learned Additional Public Prosecutor further continued that the evidence of PW-1 is corroborated by PW-2 upto some extent and further the post incident events and medical evidence would clearly establish the guilt of the appellant/accused. The learned Counsel also had taken this Court through the findings recorded by the learned Additional Assistant Sessions Judge and also placed reliance on [PRECEDENT] and would contend that by the mere absence of injuries, it cannot be said that the prosecutrix is a consenting party.
4. Factual matrix : The version of the prosecution is that on 3-8-1997 at about 10 A.M. [ENTITY] (PW-1), a resident of Mukkellapadu village went to Poleramma Vagu for washing clothes. The said Poleramma Vagu is situated on the Western side of Mukkellapadu Village. When PW-1 was about to wash clothes, the appellant/accused stealthily came out from the heap of Jammu, caught hold of her from behind, gagged her mouth with her saree, dragged her to the nearby field and committed rape on her in spite of her resistance and against her will. The appellant/accused threatened PW-1 with dire consequences if she informs the incident to any one. Immediately she started weeping and went to the village. On the way she met [ENTITY] (PW-3) and informed her about the incident. On that PW-3 advised her to inform the same to her parents-in-law. After reaching the house PW-1 informed the incident to [ENTITY] and [ENTITY] who are her parents-in-law who in turn informed the same to [ENTITY] (PW-4) who is the husband of PW-1. On the same day night [ENTITY] and [ENTITY] informed about the incident to village elders i.e. [ENTITY] (PW-5) and [ENTITY] (PW-6) who advised them to give a report against the appellant/ accused to police. Then [ENTITY] took his wife to Inavolu Police Station on 4-8-1997 where [ENTITY], S.I. of Police (PW-9) recorded the statement of PW-1 about the occurrence upon which he registered a case in [CASE NUMBER] under[SECTION], [ACT] and took up investigation. During the course of investigation PW-9 examined and recorded the statement of PW-1 and seized cotton lenga from [ENTITY] when produced by her while recording her statement. PW-9 visited the place of occurrence accompanied by PW-1 and mediators and seized three broken bangle pieces from the place of incident and one similar bangle from PW-1 from her right hand under cover of mahazar duly attested by [ENTITY] (PW-8) and [ENTITY]. Thereafter PW -9 sent PW-1/victim to Government General Hospital, Guntur for examination and treatment for the injuries sustained by her during the incident and recorded the statement of witnesses. [ENTITY], Inspector of Police (PW-11) took up further investigation and verified the investigation done by PW-9 and found it to be on correct lines. During the course of investigation PW-11 arrested the appellant/accused on 6-8-1997 in the fields of Tellabadu village and produced him before Dr. [ENTITY] for treatment for the injuries sustained by him during the offence and also for examination with regard to the sexual potency. The Assistant Director, Regional Forensic Science Laboratory on analysis of the material objects collected from PW-1/ victim and the seized langa, sent a report stating that the semen detected on item Nos. 1 and 4 is of human origin. Dr. [ENTITY] (PW-10) who is the Woman Medical Officer gave her opinion that there is evidence to suggest that PW-1 had recent sexual intercourse. Therefore the accused was charged under [SECTION] [ACT] for committing rape on [ENTITY] (PW-1).
5. The matter was committed to the Court of Session, Guntur Division and the same was made over to the Additional Assistant Sessions Judge, Narsaraopet who recorded the evidence of PW-1 to PW-11 and marked Exs. P-1 to P-12 and also marked Exs. D-1 to D-3 and M.Os. land 2 and convicted and sentenced the appellant/accused to suffer rigorous imprisonment for nine years and to pay a fine of Rs. 2000/- in default to undergo simple imprisonment for six months.
6. Evidence in relation to the incident : The evidence of PW-1 and PW-2 alone may be relevant in this regard. PW-1, the prosecutrix, deposed that she knows the appellant/accused and he also is a resident of the same village and [ENTITY] is her husband and [ENTITY] and [ENTITY] are her relatives. She further deposed that for washing clothes they used to go to a stream near their village which is called Poleramma Vagu and at about one year back the incident occurred. At about 11 A.M. she was alone present at Poleramma Vagu to wash clothes. PW-1 also deposed that daily she used to go to that place for washing the clothes. At that time, except PW-1 none was present and while PW-1 was washing clothes the appellant/accused came behind me and caught hold of my hands and he dragged her upto 15 to 20 feet on the edge of the stream where the Jammu was existing and there he had thrown her down and committed rape on her (manabangham chesinadu) PW-1 further deposed that when she was shouting, the appellant/accused gagged her mouth with her saree and after completing the act while going away the appellant/accused threatened her that he would kill her if she discloses the incident to any one. PW-1 further deposed that during the incident she sustained injury to her left hand near elbow and scratches to her legs and she went to the house weeping. While PW-1 was going to her house on the way [ENTITY] (L W-3) met her and questioned her as to why she was weeping and she narrated the incident to the said [ENTITY] and she told her that she should inform the incident to her parents-in-law. After reaching the house, she informed the incident to her mother-in-law and father-in-law on the same day. PW-1 informed the incident to her husband and her husband approached the village elders by name [ENTITY] at his house and the elders told them to file a case. On the following day, PW-1 went to the Police Station at 12 noon along with her husband. The S. I. of Police obtained her statement and obtained her thumb impression. PW-1 further deposed that she does not remember whether her husband also signed or affixed thumb impression on the statement. Ex. P-1 is the statement given by her to police and the police referred her to the Osmania General Hospital for medical examination and she was examined by the Doctor at the hospital and she was taken by the S.I. of Police to the scene of offence and the police seized the broken bangles from the scene of offence. MO-1 is the broken bangle pieces. Police also seized her langa which she was wearing at the time of incident. MO-2 is the said langa. This witness, PW-1, was cross-examined at length. She had deposed that she is an illiterate but she can give direction and all the villagers used to wash clothes at the vagu only. Several geographical features of the scene of offence had been elicited from PW-1 most probably to show the improbability of the appellant/accused committing such offence at such a place. This witness also deposed that her bangles were broken when she was thrown on the ground by the appellant/accused. She also stated that she did not state before the police as in Ex.D-1 to the effect that she was thrown by the appellant/accused in the channel. She also deposed that there was no one in the neighbouring lands and she struggled with the appellant/accused but he was holding her tightly and the appellant/accused caught hold of her hands and she raised cries and immediately the appellant/accused gagged her mouth with her saree. PW-1 further deposed that with one hand the appellant/accused caught hold of her both hands and with the other hand he gagged her mouth and she did not bite or use her nails to scratch the appellant/accused. While the appellant/accused was committing the act of rape, she removed the saree from her mouth. She also deposed that she shouted for help when the appellant/accused was committing the act against her. She also deposed that it is true that she stated before the police that when the appellant/accused committed the act of rape on her, she did not speak but she made gestures requesting him not to commit rape on her and her clothes were not torn. PW-1 also deposed that her husband is an agriculturist and on the date of the incident her husband went to Kurichedu village and she does not remember whether she stated before the " police that her husband went to Kurichedu village on the date of the incident. Several other details were elicited and she had deposed how they had approached the elders who had advised them to give report. She had also narrated all the other details how she was taken to the Government hospital where she was examined and the other details relating to the investigation and the investigating officer taking her to the scene of offence and also the seizure of M.Os. No doubt she admitted that it is true that her husband belongs to Sambaslva Rao group. But however she denied that the case had been foisted against the appellant/accused by her husband as the appellant/accused did not join the group of [ENTITY]. The other suggestions also were denied. This is the evidence of PW-1.
7. The evidence of PW-2 is only to the limited extent that daily he used to leave the she buffaloes at the lands near the vagu for grazing. He further deposed that he heard that PW-1 was raped by the appellant/accused and he heard about the incident from the elders of the village and when he went to vagu he had seen the appellant/accused easing by the side of the vagu and he does not know what happened after he left that place and he was examined by the police. Except to this extent, PW-2 had not deposed anything further. This is the evidence available in relation to incident.
Evidence in relation to just what happened immediately after the incident :
8. The evidence of PW-3, [ENTITY], is to the effect that she knows PW-1 and also the appellant/accused and they used to wash clothes in [ENTITY] and at about one year back at about 11 A.M. when she was going to vagu on the way she found PW-1 coming weeping and she questioned PW-1 as to why she was weeping and PW-1 informed her that the appellant/accused dragged her. Then she had gone to vagu to wash her clothes. This witness, PW-3, was declared hostile and Ex.P-2 was marked wherein before police she had narrated the incident and most probably with a view to help the appellant/ accused she had not deposed the same. Ex.P-3 also was put to this witness by the prosecution. It is no doubt true, as stated supra, that this witness was declared hostile. But it is pertinent to note that this witness deposed that PW-1 was coming weeping, but however she further deposed that PW-1 stated to her that she was dragged and nothing further was deposed. In [PRECEDENT], a two Judge Bench of the Apex Court at paras 37 and 51 observed :
"To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in [ACT]. 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under [SECTION] to put leading questions, or the leave under [SECTION] to ask questions which might be put in cross-examination by the adverse party, the [ACT] leaves the matter entirely to the discretion of the Court (see the observations of Sir [ENTITY] in [PRECEDENT]. The discretion conferred by [SECTION] on the Court is unqualified and untrammelled, and is apart from any question of "hostility". It is to be liberally exercised whenever the Court from the witnesses demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the Court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vesed the English Courts.
From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto."
In [PRECEDENT], a three Judge bench of the Apex Court held that where the Court gives permission to the prosecutrix to cross-examine his own witness, thus characterizing him as a hostile witness, that fact does not completely efface his evidence and the evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. It is no doubt true that in [PRECEDENT], , a two Judge Bench of the Apex Court placing reliance on [PRECEDENT] held that it is now well settled that when a witness who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony. The said decision was rendered by the Honourable [ENTITY] J., and [ENTITY], J. and the said learned Judges along with [ENTITY], J. a three Judge Bench, had delivered the decision referred ([PRECEDENT] (supra). Be that as it may, in the light of the view expressed by the three Judge Bench of the Apex Court, there cannot be any doubt or controversy that the evidence of hostile witnesses need not be discarded in toto and the same can be looked into and if well corroborated by the other evidence available on record, conviction on the strength of such evidence also can be sustained.
9. Post incident events : The evidence of PW-4, PW-5 and PW-6 is available on record in relation to post incident events. PW-4 is the husband of PW-1 who had deposed that he had gone to Kurichedu and he returned back to the house after 7 P.M. about one year back and he was informed about the incident and PW-1 and PW-4 had gone to the house of [ENTITY], an elder of the village and they informed the incident to [ENTITY] who advised them to give a report to the police. This witness, PW-4, also deposed that PW-1 narrated the incident to police and the S.I. recorded statement of PW-1 and PW-1 being uneducated, she had put her thumb impression and he had signed on Ex.P-1. This witness also deposed about the other aspects relating to investigation, the S.I. of Police proceeding to the scene of offence and examination of PW-1 by the Doctor and the other aspects. This witness was cross-examined at length and certain suggestions were put that there are certain groups in the village and in view of the same, the case had been foisted and these suggestions were denied by PW-4.
10. PW-5 is [ENTITY], a resident of Mukkellapadu village who deposed that he knows PW-4 and PW-1 and also he knows the appellant/accused and one year back at about 9 or 10 P.M., PW-1, PW-4 and PW-4's parents came to his house and at that time [ENTITY] also was present in his house and PW-4 and his brother informed him that the appellant/accused raped PW-1 and he advised them to approach the Government and thereafter they had gone to report the matter to Police. This witness also was cross-examined. It was suggested to him that all these belong to the group of [ENTITY] and the appellant/accused belongs to the group of [ENTITY] and hence the case was foisted. But however the said suggestion was denied. PW-6 is yet another witness who deposed that he is a member of panchayat of the said village and about one year back at about dinner time he went to the house of PW-5 on some work and while he was at the house of PW-5, PW-1, PW-4 and the parents of PW-4 came to the house of PW-5 weeping. PW-1's father-in-law informed them that the appellant/accused raped PW-1. Then they advised them to approach the police and on the next day, the S.I. came and examined him. This witness also was cross-examined and some suggestions were put to him which were denied. It is pertinent to note that PW-1 and PW-3, though declared hostile, and also this witness PW-6 deposed that PW-1 was weeping. This is the evidence available in relation to the post incident events.
11. Medical examination : The evidence of PW-7 and PW-10 is available on record in this regard. PW-7 is a Civil Assistant Surgeon who had examined the appellant/accused on 6-8-1997 and this witness deposed that he found the following injuries :
1. A linear scratch mark of 6 mm. Long on the middle of outer side of right fore-arm.
2. A linear scratch mark of 5 mm. Long on the right knee.
3. A linear scratch mark of 6 mm. Long on the front of middle of right leg.
All the scratch marks are covered by scrab.
PW-7 is of the opinion that the above injuries are simple in nature and might have been caused by scratch of sharp objects like thorns or nails and would have occurred about three days prior to his examination. This witness also deposed that he found no evidence which is suggestive of any incapability of sexual intercourse. Ex.P-4 is the wound certificate issued by PW-7 in respect of the injuries found on the appellant/accused. PW-10 is the Doctor who had examined PW-1 on 4-8-1997 and observed the following external injuries :
1. Recent abrasion 2 x 'A cm. Over the back of left elbow
2. Recent abrasion 2 x 1/4 cm. 2 cm. Below injury No. 1
3. Recent abrasion 1 cm. Below left scapula
4. No external injuries over breast, thighs, buttocks. There is also no external injury on external genitalia.
5. Features/Parous/vagina, patulous, hymen absent.
6. Vagina admitting 3 fingers loosly.
7. Uterus is normal size Mobile, Fornices free.
12. PW-10 also deposed that she had preserved the specimens as specified here-under:
1. Glass slide No. 1 containing smear from vaginal introitus.
2. Glass slide No. 2 cervical smear
3. Bottle No. 1 pubic hair clippings
4. Bottle No. 4 containing vaginal swabs
5. Bottle No. 3 with cervical swab
6. Bottle No. 4 with vaginal washings PW-10 further deposed that the above said specimens were sent to Regional Forensic Science Laboratory, Vijayawada on 23-8-1997 and the patient i.e., PW-1, was sent to Venerology Department and they opined that the victim is not suffering from any sexually transmitted disease and later the result of analysis from Regional Forensic Science Laboratory, Vijayawada was received. Ex.P-9 is the wound certificate issued by PW-10 by examining PW-1. Ex. P-10 is the opinion given by the Director of Forensic Science Laboratory, Vijayawada. PW-10 further deposed that she sent her opinion to Munsif Magistrate Court, Vinukonda and basing upon the case record and clinical examination and R.F.S.L. Report of the specimens preserved by her, she is of the opinion that there is evidence to suggest recent sexual intercourse. PW-10 had further deposed about the other details and she was cross-examined. Thus the medical evidence, especially the evidence of PW-10 is clear and categorical about the recent sexual intercourse.
13. Seizure and observation report: PW-8 is the Village Administrative Officer and this witness deposed that he knows the appellant/accused and also PW-1 and on 4-8-1997 at about 3.30 p.m. police summoned him to the place of offence which is on the bund of [ENTITY] in the village near the land of [ENTITY]. This witness i.e. PW-8, S. I. of Police and another V.A.O. [ENTITY] of Mukkellapadu village were present besides police. PW-1 had shown us the place where she was raped by the appellant/accused and they found three red bangle pieces. MO-1 is the said bangle pieces which were found by them at the scene of offence. PW-8 further deposed that they had seen the bangles wore by PW-1. The bangles which were worn by PW-1 and the bangle pieces which were found at the scene of offence are similar. This witness also deposed about the observation report and Ex.P-5 is the scene of offence observation report prepared by him. The Police seized MO-1 from the scene of offence in his presence. The Investigating Officer prepared a sketch at the scene of offence showing the physical features which was attested by him and another V.A.O. Ex.P-6 is the sketch prepared by the Investigating Officer. This witness was suggested that he never visited the scene of offence and police obtained his signatures at the police station, but he denied the same.
14. Investigating Officers : PW-9 and PW-11 are the Investigating Officers. PW-9, the Sub-Inspector of Police, Inavolu deposed that on 4-8-1997 at about 1 p.m. PW-1, wife of [ENTITY], came to police station accompanied by her husband PW-4 and he recorded Ex.P-1 statement from 1 P.M. to 1.30 P.M. upon which he registered a case in [CASE NUMBER] under [SECTION] [ACT] of Inavolu Police Station and submitted express F.I.Rs. to the Officers concerned. At this juncture it may be pertinent to have a look at the contents of F.I.R. Ex.P-1 which reads as hereunder :
"I am a resident of Mukkellapadu village. My husband is an agriculturist. I used to go to Vagu situated to the Western side of my village for washing clothes. Yesterday i.e. on 3-8-1997 at 11 A.M. I went to Vagu while I was bent to wash clothes one [ENTITY] s/o. [ENTITY], aged 25 years, [ENTITY] by caste, came behind me and embraced me and caught hold of my two hands and gagged my saree end into my mouth forcibly and dragged me into a 'Panta' canal situated by the side of "Jammu" and fallen down me and sat on me and lifted my petty coat and raped me. While I am weeping, he threatened me stating that he will kill me if the incident is informed to any body and ran away towards the village. Due to fall on the ground I sustained scratch injuries to my left hand, forearm and left leg. Then I collected my clothes which were brought for washing and went to my house weeping. On the way [ENTITY] wife of [ENTITY] came opposite to me and asked me what was happened. I told her about the incident and she advised me to inform the same to my in-laws. Then, I came to my house and 1 told the matter to my in-laws and they approached the village elders yesterday and on their advise, I came to Inavolu P.S. along with my husband and gave the statement which is read over to me and 1 admitted to be correct."
This witness also deposed about other aspects relating to investigation and also deposed about the examination of PW-1 and noting scratches on the left elbow and left leg on the body of PW-1 and taking PW-1 to Government Hospital for examination and proceeding to the scene of offence and securing mediators and also had deposed about the geographical features of the scene of offence in detail and also preparing a rough sketch Ex.P-6 and also the seizure under Ex.P-5 and the bangles MO-1. This witness also further deposed about the examination of other witnesses and also seizure of langa MO-2 and made an attempt to apprehend the appellant/accused, but was informed that he was absconding. On 5-8-1997, the Circle Inspector of Police had taken up the investigation and he had assisted him. This witness was cross-examined at length. No doubt PW-9 admitted that it is true that PW-1 stated before him as in Ex.D-1 and PW-4 stated before him as in Exs.D-2 and D-3, but denied the suggestion that he did not visit the scene of offence at all and had not prepared the scene of observation report and sketch and in fact the same had been prepared at the police station and it was also suggested that MO-1 and MO-2 were planted but however the same had been denied. This witness also deposed that PW-3 stated before him as per Ex.P-2 and Ex.P-3. It is pertinent to note that PW-3 was declared hostile.
15. PW-11 is the Circle Inspector of Police who deposed about the registration of the crime by PW-9 and this witness (PW-11) taking up further investigation, visiting the scene of offence and examining the witnesses. He deposed that he had not recorded the statements of witnesses since already the statements were recorded by PW-9. PW-11 further deposed that he arrested the appellant/accused and brought him to the Police Station and sent him to Government Hospital for medical examination and he was sent to judicial custody and this witness also deposed about the forwarding of M.Os. to Regional Forensic Science Laboratory, Vijayawada under the letter of advise and after completing the investigation he filed the charge-sheet. Ex.P-12 is the report received by I Additional Munsif Magistrate, [ENTITY] sent by Regional Forensic Science Laboratory, Vijayawada. This witness was cross-examined and certain suggestions were put to him and the suggestions were denied.
Findings recorded by the learned Additional Assistant Sessions Judge. [ENTITY] :
16. The learned Judge after framing the Point for consideration whether the prosecution had proved the guilt of the appellant/ accused beyond all reasonable doubt at para-9, proceeded to discuss the version of the prosecution commencing from paras 10 to 35 and arrived at a conclusion that the evidence of PW-1 does not suffer from any infirmities and there is no reason to insist upon corroboration to the evidence of PW-1. Except the medical evidence the attendant circumstances also are corroborating the evidence of PW-1 and hence arrived at a conclusion that the prosecution had proved the guilt of the appellant/accused relating to the charge under [SECTION], [ACT] beyond all reasonable doubt. Commencing from paras 10 to 35, the whole evidence available on record had been discussed threadbear by the learned Judge and the contentions advanced by both the prosecution and the defence also had been referred to and findings in relation thereto had been recorded.
17. Finding of this Court: On a thorough scrutiny of the evidence available on record and also the findings recorded by the learned Judge, this Court is of the considered opinion that there is no reason, much-less, valid reason to take a different opinion in appreciation of evidence or to deviate or differ from the findings which had been recorded by the learned Judge. However, submissions at length were made by the learned Senior Counsel in relation to the defence of consent on the part of the prosecutrix PW-1. Strong reliance was placed on the decision referred [CASE NUMBER] (supra) wherein the Apex Court at paras 2 and 8 held as hereunder :
"Ordinarily this Court does not interfere with the concurrent findings of fact arrived at by the Courts below, but after hearing counsel for the parties we are satisfied that this is a case in which the Sessions Judge as also the High Court have completely overlooked some striking facts and glaring defects appearing in the prosecution evidence which have vitiated the findings of fact. Furthermore, none of the Courts below tried to examine the possibility which was clearly suggested by the evidence of the prosecution itself that one or more of the appellants may have had sexual Intercourse with the prosecutrix not against her will but with her consent and the connivance of the husband prosecution witness 2. The learned Sessions Judge dismissed the plea of consent on the ground that it was not pleaded by the accused completely losing sight of the fact that in a criminal case the accused was not bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. The High Court has not considered this aspect at all. Such a wrong approach, therefore, by both the Courts below was resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals.
In the first place, the admitted position is that the prosecutrix is a fully grown up lady and habituated to sexual intercourse and was pregnant. She was experienced inasmuch as she had acted as a midwife. It is true that the learned Sessions Judge was impressed with the demeanour of this witness, but that by itself is not sufficient to prove the case if the allegation of the prosecution suffers from inherent improbabilities. The opinions of medical experts show that it is very difficult for any person to rape single-handed a grown up and an experienced woman without meeting stiffest possible resistance from her. In the instant case, according to the evidence given by P.W. 1, A-1 entered the room and committed sexual intercourse with very great force and violence against her consent. Indeed if this was so we should have expected the stiffest possible resistance from her resulting in injury over the penis or scrotum of the accused or abrasions over other parts of the body caused by the nails of the prosecutrix. The accused were examined by prosecution witness 9 who did not find any injury over the penis or scrotum and he does not say that he found any injury on any other part of the body. This is rather an important circumstance which negatives the allegation of rape. The prosecutrix knew full well that the appellants had entered the room with evil intention from the fact that her husband was dragged away to the verandah and the door was bolted by A-1. In these circumstances we fail to see why the prosecutrix should have silently abided to have the intercourse with the appellant without putting up any resistance, except shouting, particularly when the prosecutrix was a fully grown up lady and experienced not only in sexual intercourse but also in the art of midwifery. She knew that she was pregnant and if any violence was caused to her it may lead to abortion. This circumstance would naturally impel her to put up the stiffest possible resistance against A-1 who was single-handed and was not armed with any weapon which may have silenced the prosecutrix. The theory propounded by the learned Sessions Judge was that as the appellants were N.C.C. students and sturdy persons the prosecutrix may have found it futile to put up any resistance and may have decided to submit to the onslaught on her. Such a course of conduct is wholly improbable, particularly in the case of grown up and an experienced lady like P.W. 1. [ENTITY], in the Principles and Practice of Medical Jurisprudence. Vol. II, dealing with the cases of rape on a grown up woman observes as follows :
"Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of struggle to avoid sexual contract or penetration, and may well feel uncertainty about the real nature of an alleged assault in its absence.
A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent
Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The ageing of bruises is, as was indicated in Volume I, a matter of some uncertainty in the absence of microscopy. Strong corroborative evidence of a struggle might be obtained from an examination of the accused for similar marks or bruises or scratches about the arms or face, and possibly even about his penis, though this is less likely".
"Though injury is most unlikely to the penis, a man may have had his face scratched or have been bitten during a sex assault. The clothing may bear some contact traces of the woman-hairs, vaginal secretion or blood, and, though of less significance, seminal stains".
The medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellants. From this the only irresistible inference can be that the prosecutrix was a consenting party which would be reinforced by other circumstances to which we shall refer hereafter."
18. In this case no doubt the Apex Court after taking into consideration the facts had inferred consent, but the facts narrated are that the alleged husband already had a legally wedded wife and though there was said to be some marriage, the validity of the marriage itself was doubtful and may be that PW-2 in the said case, the alleged husband was carrying on illicit intimacy with PW-1. It is needless to say that normally moreso in criminal cases, the precedent value may be limited especially when the decision is based more on facts and it is also needless to say that when consent is made a defence in a sexual offence the same may have to be decided in the factual backdrop of a particular given case. The learned Counsel also placed strong reliance on [ENTITY]'s Medical Jurisprudence and Toxicology, 28th Edition at page 341 :
"Can a healthy adult female be violated against her will?
Under ordinary circumstances it is not possible for a single man to hold sexual intercourse with a healthy adult female in full possession of her senses against her will, unless she is taken unawares, thrown accidentally on the ground and placed in such a position as to render her completely helpless, or unless she swoons away from fright or exhaustion after long resistance. The act may be accomplished, if more than one man are concerned in the crime, or if the woman is too feeble to resist. In giving a definite opinion, it is necessary to take into consideration the relative strength of the parties and the community to which particularly the woman belongs. It is obvious that a woman belonging to a labouring class who is accustomed to hard and rough work will be able to offer a good deal of resistance and deal blows on her assailant and will thus succeed in frustrating his attempts at violation. On the contrary, a woman belonging to a middle or rich class of an educated family and not habituated to go about along by herself will not be able to resist for long and will soon faint or will be rendered powerless from fright or exhaustion."
On the basis of the medical evidence and also the absence of serious injuries contentions at length had been advanced that it is suggestive of only consent. It is no doubt true that from the material available on record, both the prosecutrix (PW-1) and also the appellant/accused are of about the same age. Consent by inference from facts and circumstances is a very delicate defence in a case of rape. Male aggressiveness and female submissiveness vis-a-vis consent as defence in an offence of rape would be always factual to be decided in a given case. Quantum of resistance of woman may vary from person to person and no uniform standard can be laid down. Male aggression and female submission in this regard out of threat, timidity, fear or other like physical or psychological factors also may have some impact on the quantum of resistance. The mere absence of serious injuries on the person of the prosecutrix always cannot be taken as an inference of consent. However, even otherwise on facts also the deposition of PW-1 is clear and categorical and as far as injuries are concerned, the medical evidence amply supports the same i.e., the evidence of PW-10. As already referred to supra, the defence of consent would depend upon the factual matrix of a given case and attendant circumstances and each case may have to be appreciated on facts and Courts are expected to evaluate the evidence to arrive at the correct conclusion. In the backdrop of this discussion, it is to be seen what are the factors which support the prosecution version and which negate the defence of suggestive consent to be inferred from the circumstances.
19. Here is a lady on whom the male aggressor had committed the heinous crime at the scene of offence, a place where nobody else was present. The conduct of prosecutrix in such cases always would be relevant. PW-1 deposed that after the incident she came weeping. PW-3, though was declared hostile, also deposed that immediately thereafter she had seen PW-1 weeping and PW-1 reiterated about the dragging. This is a very crucial aspect. Apart from this evidence, the evidence of PW-6 also is relevant who had deposed about the conduct of PW-1 and the other family members of PW-1 who reported the matter weeping. This conduct of the prosecutrix (PW-1) definitely negatives the theory of consent put forward as defence by the learned Senior Counsel representing the appellant/accused. The mere fact that PW-3 was gained over and had not supported the version of the prosecution, in the considered opinion of this Court, will not alter the situation in any way since the evidence of PW-1 is clear and categorical and definitely trustworthy. Hence the findings recorded by the learned Judge in this regard cannot be found fault in any way whatsoever. Apart from this aspect of the matter, the other attending circumstances i.e., the family members approaching PW-5 and PW-6 and the elders advising them to approach the Police and the consistent version commencing from Ex.P-1 well supported by the evidence of PW-1 and clearly corroborated by the medical evidence i.e., the evidence of PW-10 and the seizure well proved in relation to M.Os. 1 and 2 and the scene of offence and the other details well spoken by the Investigating Officers, in the considered opinion of this Court had proved the case of the prosecution beyond all reasonable doubt. The contradictions which were proved through the Investigating Officer if carefully scrutinized, are not so material which would shake the credibility of the witnesses concerned and hence on the basis of such minor discrepancy, the evidence cannot be disbelieved. Hence the findings recorded by the learned Additional Assistant Sessions Judge do not suffer from any legal infirmity and the said findings are hereby confirmed and accordingly the conviction as against the appellant/accused under [SECTION], [ACT] is hereby confirmed.
20. Quantum of sentence : There cannot be any controversy that sexual offence of this nature is a heinous crime. However it is brought to the notice of this Court that the appellant/accused has to maintain the children, wife and parents and there is no one to look after the family and hence taking into consideration the overall facts and circumstances, this Court is of the considered opinion that the sentence of rigorous imprisonment for nine years is on higher side and hence the same is modified to rigorous imprisonment for five years and as far as payment of fine of Rs. 2000/-, and in default to undergo S.I. for six months, is concerned, the same is hereby confirmed. Except the aforesaid modification, in all other particulars, the Criminal Appeal fails and accordingly the same shall stand dismissed. The boil bonds of the appellant/accused shall stand cancelled and the appellant/accused to serve the rest of the sentence. It is needless to say that the appellant/accused is entitled to setoff, if any, in relation to the period of imprisonment already undergone in accordance with law.