JUDGMENT M.C. Jain, J.
1. The appellant Gokul was convicted under Section 376, I.P.C. and sentenced to rigorous imprisonment of five years by judgment dated 17-7-1981 passed by Sri J.N. Bansal, the then Sessions Judge, Lalitpur in S.T. No. 46 of 1981.
2. The relevant facts may be taken note of. Smt. Raina Bai was a married lady. On 22-8-1980 she had gone from her village Torhi to the market within Police Station Bar, District Lalitpur to make sundry purchases. She had been accompanied by Gomti and Shyam Lal. She happened to be separated from them in the market and when she was about to return to her village, the appellant Gokul who was her uncle through village kinship met her and persuaded her to return to the village with him. She agreed as it was evening time. When both of them were passing by the temple of Bankhandi Hanuman near culvert, the appellant dragged her towards the culvert and threw her behind the bushes. Then he committed rape upon her forcibly in spite of her resistance. He had gagged her mouth so as to guard against escape of any cry from her. Two villagers, namely, Chauda son of Umrao Chaudhary and Shyam Lal son of Kunji happened to pass thereby and were attracted to the spot. When they challenged the appellant, he ran away. She returned to the village and narrated the occurrence to her mother. Her father was not there in the village on that date and as such she could not venture out to the police station to make the report during night time. The report was got scribed by her by one Sri Pratap Singh Yadav and lodged at the police station the next day at. 9.30a.m. A case under Section 376 of I.P.C. was registered and the investigation followed. She was subjected to medical examination on 23-8-1980 on 6.10 p.m. Dr. (Smt.) Surendra Kaur P.W. 6 had medically examined her. There was no mark of injury on her body or private parts. Hymen was torn at 3-4- places and old healed tears were present. Vagina admitted two fingers easily. Vaginal smear was taken and sent to pathological test. She was habitual to sexual intercourse. As per supplementary report, no spermatozoa was seen in the vaginal smear. No opinion about rape could be given.
3. Defence was of denial. The appellant, however, admitted to be related to the prosecutrix as her uncle. According to him, his father had some dispute with the father of the prosecutrix in connection with a wall and that was the cause of his false implication. He also stated under Section 313, Cr.P.C. that the prosecutrix had been married long back. He also produced his own father Nanda as D.W. 1 to say that there was dispute between him and Hariya father of the prosecutrix over a wall and he had lodged some reports at the police station in this behalf, which he proved.
4. The witnesses examined by the prosecution were eight in number including Doctor, Investigating Officer and formal witnesses. The star witness was the prosecutrix, Smt. Raina Bai PW 4 herself. Two others, namely, Shyam Lal PW 2 and Chauda PW 3 were also examined as witnesses who had reached the spot and challenged the appellant and with the prosecutrix had returned to the village from the spot. But they chose not to support the prosecution case and were declared hostile.
5. The trial Judge relied upon the testimony of prosecutrix Raina Bai PW 4 and found her testimony to be trustworthy. Relying on her version and other material circumstances, he found the appellant to be guilty, convicting and sentencing him as stated earlier.
6. I have heard Sri. P.N. Mishra, learned counsel for the appellant and learned A.G.A. from the side of the State in opposition of the appeal. The main argument of the learned counsel for the appellant is that the circumstances on record indicate that the prosecutrix was a consenting party and as such no offence can be deemed to be committed by the appellant within the ambit of law. On the other hand, the submission of learned A.G.A. is that the case of the prosecution stands proved to the hilt.
7. It needs no debate that in a case of rape the most important witness is always the prosecutrix and the prosecution case cannot be flawed simply because there is no corroborative evidence. But at the same time, it deserves mention that a witness may lie but the circumstances will not. In a case where the rape is based on sole testimony of the prosecutrix, the test to verify her veracity would be to judge the same in the light of the attending circumstances. In the present case, a number of strong circumstances are lined up to indicate that the prosecutrix herself was a consenting party to all that happened.
8. To begin with, it may be observed that the prosecutrix knew the appellant from before, so much so that she was related to him. They were of the same caste also almost of the same age group. Though she had gone to the market with Gomiti and Shyam Lal, but she separated from them. The explanation offered by her is not appealing that she suddenly got separated from them in the market. Obviously, she chose to come back in the company of the appellant. When she was returning from market, she had spotted her uncle Harwa. But she did not take his company. If she was afraid of returning to the village from the market all alone, then she would have availed of the company of her uncle Harwa Instead of appellant. It is an indicator that she had decided to enjoy the company of the appellant who was of her own age group.
9. It is further pertinent, to find out that there is no physical evidence to support the contention of rape (forcible sexual intercourse) having been committed on her. She said that she had been dragged and thrown on the ground behind the bushes where the appellant forcibly did sexual act with her. She, according to her, kept struggling to extricate herself from the clutches of the appellant, but all in vain. Her medical examination report states that she did not suffer any injury on any part of her body. She claimed that she suffered bruises and her bangles had been broken down, pricking in her wrists. But no abrasion or bruises were found on her body. The medical examination report completely negatives the application of any force on her, which would have been the case if she had forcibly been subjected to sexual intercourse. Moreover, her version is that two witnesses, namely, Shyam Lal PW 2 and Chauda PW 3 were attracted to the scene who had witnessed the incident. They allegedly challenged the appellant who ran away. But these witnesses have not supported the prosecution case. Shyam Lal PW 2 stated that prosecutrix had also gone to the market but he had turned back all alone without having witnessed anything in the way. When the Investigating Officer visited the spot he did not find any broken pieces of bangles. It may be relevant to state that under ordinary circumstances, it is not possible for a single man to rape an adult female in full possession of her sense without any resistance at all. When subjected to forcible sexual intercourse, the victim is likely to offer resistence resulting in some injury in the form of bruises, abrasions, etc, Indeed, that would offer physical evidence regarding the incident which is missing in the present case.
10. The prosecution case right from the beginning is that two persons namely, Shyam Lal and Chauda had reached the spot and witenssed the incident. The possibility cannot be ruled out that though the prosecutrix was a consenting party to all that happened, she apprehended that those witnesses would disseminate the incident in the village, damaging her reputation. She, therefore, thought it better to accuse her partner (appellant) of rape in order to save her own reputation. As she was discovered by two others in the actual act, she decided to lodge the F.I.R. the next day. Two witnesses named above namely. Chauda and Shyam Lal left the prosecutrix to fend her accusation against the appellant in her own way without involving themselves, lest they might invite trouble for themselves in future.
11. I am of the view that the prosecutrix was seemingly a consenting party to sexual intercourse with her by appellant. The appeal deserves to be allowed.
12. The appeal is allowed. The judgment and order passed by the trial Court are reversed. The accused-appellant Gokul is acquitted. The appellant is on bail.
13. Let a copy of this judgment along with record of the case be sent to the Court below for ensuring Compliance under intimation to this Court within one month positively.