JUDGMENT 1. - Two accused-appellants Bhera Ram and Rati Ram have been convicted under section 376 I.P.C. and sentenced to 10 years R.I. and a fine of Rs. 2000/- each by the learned Sessions Judge, Churu by his judgment dated 10.7.85. In default of payment of fine they have been further directed to undergo six months R.I. and it has also been directed that the entire amount of the fine shall be paid to the prosecutrix. 2. The prosecution story briefly stated is that on 25.1 84, Smt. Kamla had gone to fields to collect cow-dung and fire wood at about 11.30 a.m. When she was so collecting the cow-dung, the two accused persons came there and forcibly caught hold of her, they felled her down and had sexual intercourse with her one after the other without her consent and against her will. She tried to raise hue and cry, whereupon Tola Ram who was in the neighbouring fields reached the spot and on seeing him the accused fled away. Smt. Kamla was then brought to her house. Her father and brother were not in the village on that day. Her brother returned at about eight in the night and when he was informed of this incident by Smt. Kamla he lodged a first information report of this incident at police station Sardarshahar at 11.30 p.m. The police station is said to be six miles away from the place of the incident which was in the village Jivan Desari. The police started investigations. Smt. Kamla was got medically examined. The accused persons were arrested and they were also got medically examined. The petticoat of Smt. Kamla and the underwears of both the accused were also taken possession of by the police and sent for chemical examination. After completion of the investigation the police put up a challan for offence under section 376 I.P.C. against both the accused persons and they were committed to the court of Sessions, Churu Charges under section 376 I.P.C. were framed against both the accused persons. They pleaded not guilty and claimed to be tried. The learned Sessions Judge, thereupon examined the prosecution evidence in which nine witnesses including the doctor and the Investigating Officer were produced. They pleaded not guilty and claimed to be tried. The learned Sessions Judge, thereupon examined the prosecution evidence in which nine witnesses including the doctor and the Investigating Officer were produced. Thereafter, the accused were also examined under section 313 Cr.P.C. They denied the prosecution story and alleged that they had wrongly been implicated on account of previous enmity with Ram Karan. They examined two witnesses in their defence showing that there was some altercation between the accused and Smt. Kamla when she was wrongly collecting the fire wood from the field of Chuna Ram Mala Ram asked her not to take wood from his field and, therefore, they have falsely been implicated. The learned Sessions Judge believed the prosecution story and convicted and sentenced the accused persons as aforesaid. 3. I have heard the learned counsel for the appellants and the learned P. P. and have gone through the record of the case. 4. It is alleged by the learned counsel for the appellants that the accused persons have falsely been implicated on account of previous enmity and that if at all the accused persons had intercourse with Smt. Kamla, it was with her consent and as she was a grown-up girl more than 18 years of age, the intercourse with her consent does not amount to any offence and. therefore, the learned Sessions Judge was wrong in convicting the appellants. The learned public prosecution, on the other hand has supported the judgment of the learned Sessions Judge. 5. So far as the theory of intercourse is concerned, I do not have any reason to doubt the statement of Smt. Kamla, inasmuch as no woman would ordinarily depose of a sexual act against her on account of stigma attached to it in the society unless there is some truth in it and in this case the statement of Smt. Kamla is corroborated by the testimony of Tola Ram, who is said to be present in the neighbouring field and was attracted by the hue and cry raised by Smt. Kamla.Not only this it does appear that same such incident had taken place even according to the testimony of D. W. 1 Smt. Malee whose presence was deposed to by Smt. Kamla. 6. 6. The next question which immediately arises for consideration it on is whether the intercourse was with the consent of the prosecutrix and whether that consent absolves the accused persons of the offence of rape. In this connection the first thing to be taken note of is the age of the prosecutrix Smt Kamla has stated her age to be 14 years but has not given any definite basis for this statement of her own age. She is a rustic villager and, therefore, for the estimate of her own age is not of much significance. Smt Dama, P. W. 4 who is the mother of Smt Kamla is silent about her age. Dr. Suresh Chandra Mathur, P. W. 9 had estimated her age between 15 to 16 years upon appearance. She does not appear to have been subjected to any ossification test from his cross examination doctor admits that there may be margin of one to two years in the estimated are given by him and he further admits the- Smt. Kamla may have been 17 to 18 years at the time of examination. Thus according to doctor Suresh Chandra Mathur the age of Smt. Kamla could be 18. In these circumstances it will have to be concluded that Smt. Kamla was at least 18 years of age at the time of this incident and if the intercourse with her by the two accused was with her consent then it may not amount to any offence 7. This at once brings me to the question whether as a matter of fact Smt. Kamla was consenting party to this incident of intercourse with her by the two accused persons. The learned counsel for the appellants has put forward a number of circumstances which according to him would go to show that the act was with the consent of the prosecutrix Sm. The learned counsel for the appellants has put forward a number of circumstances which according to him would go to show that the act was with the consent of the prosecutrix Sm. Kamla and the first and foremost of them is the absence of any injury on the private parts or on any other parts of the body of Smt. Kamla and according to the learned counsel the absence of such injury rules out the possibility of any forcible intercourse with her and gives rise to a presumption that the intercourse was with her consent and in this connection the learned counsel for the appellants has placed reliance upon a large number of authorities namely, Pratap Misra and others v. State of Orissa (1977 S.C. 1307) ; Hari Gujar v. The State of Rajasthan 1977 W. L. N. 578) .; Chamanlal and another v. The State of Rajasthan (I. L. R. (1973) 23 Raj. 160 , Chhatiya v. The State (1952 R. L. W. 289) , Jagannath & others v. The State of Rajasthan (1979 Cr. L R. (Raj) 228) , Sarwar Beg v. State of Rajasthan (1982 Cr. L. R. Raj.) 597) and Amli alias Jamna Dass v. The State and another (1983 Cr. L R (Raj ) 289) . He has further urged that in this case the incident is alleged to have taken place in an open field where she is alleged to be collecting fire wood and cow-dung and in these circumstances it may be presumed that the ground was rough and if two persons have had forcible intercourse with her on such a rough ground, injuries were bound to be caused to her private parts, her back and buttock etc. He also pointed out that Smt. Kamla states that all her bangles except two hid been broken and had fallen down at the spot but no such pieces of bangles were recovered from the spot, which also goes to show that the story of rape on her is a concocted one or intercourse was with her consent otherwise in the struggle which she must have put forth the bangles must have been broken and fallen on the spot. He has further contended that the conduct of Smt Kamla after the alleged rape also goes to show that as a matter of fact it was not a rape. He has further contended that the conduct of Smt Kamla after the alleged rape also goes to show that as a matter of fact it was not a rape. She took the matter very lightly inasmuch as on that very night she had slept with husband and had intercourse with him, which cannot be expected of a woman who had been subjected to a rape by two persons in the day. He went on to say that it appears that during the course of the intercourse with consent the parties may have been surprised by the accidental appearance of Tola Ram and the wife of Anada Ram and in these circumstances Smt Kamla has come out with a story of rape. In the last he urged that there is previous enmity between the brother of prosecutrix, namely, Ram Karan P. W. 2 and the accused persons and therefore, the accused have falsely been implicated.The learned public prosecutor on the other hand urged that mere absence of injuries is no ground to conclude that the intercourse was with the consent and when Smt. Kamla has given a clear description of the whole incident there is no reason to disbelieve her and as a matter of fact no further corroboration is necessary either by way of medical evidence or other circumstantial evidence. He has placed reliance upon Rafiq v. State of uttar Pradesh (A.I.R. 1981 S.C. 559) and Sheikh Zakir v. State of Bihar (1983 Cr. L R. 1285) . He further urged that when two persons had overpowered Smt. Kamla and one was holding her down while the other was committing intercourse, she should not be expected to have put up much of resistance and, therefore, any serious injury on her private parts or other parts of the body could not have been expected. However, there are two injuries on her person as has been found by doctor and, therefore, in the facts and circumstances of the present case consent cannot be presumed from the mere absence of severe injuries. He also negatived the other circumstances relied upon by the learned counsel. I shall deal with them one by one. 8. However, there are two injuries on her person as has been found by doctor and, therefore, in the facts and circumstances of the present case consent cannot be presumed from the mere absence of severe injuries. He also negatived the other circumstances relied upon by the learned counsel. I shall deal with them one by one. 8. Before coming to the consideration of the evidence in this respect it may be pointed out that the old theory of corroboration of the statement of the prosecutrix has now been given a go-by and the recent decision of the Hon'ble Supreme Court as well as the other High Courts, it has been laid down that the statement of the prosecutrix can be relied upon without insisting upon its corroboration by other independent corroborative evidence, as would be app arrant from the two authorities already referred to above, reliance on which has been placed by the learned public prosecutor. Reference may also be placed on Bharwda Bhogin bhai Hirjihhai v. State of Gujarat (1983 Cr.L.R. 1096) which lays down the true rules in respect of the presence or absence of corroboration and a perusal thereof would clearly indicate that ordinarily if the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. It may further be pointed out that the law itself has undergone a very matter change in this respect and section 4(a) has been inserted in the Evidence Act by Act No 43 of 1983 which lays down that in a prosecution for rape under clause (a), (b), (c), (d), (e) or (g) of sub-section (2) of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. In the light of this state of law I shall proceed to examine the circumstances pointed out by the learned counsel for the appellants to see whether it was a case of consent. Dr. Suresh Chand Mathur, P. W. 9 has stated that he had found two injuries on the person of Smt. Kamla, when he examined her on 25.1.84. It may at once be stated that there appears to be some mistake about the date of the examination stated by the doctor because he states that he examined Smt. Kamla at 1.45 p. m. on 25.1.84. whereas the report of this incident itself had been made at 11.30 p.m. on 25.1.84 and therefore, it cannot be expected that the doctor would have examined Smt. Kamla even before the report was lodged, on police request. As a matter of fact the report of the doctor Ex. P. 11 would go to show that it was on 26.1.84 that he examined Smt. Kamla and the date 25.1.84 has been stated by him probably because on the right upper corner of this report Ex. P. 11, the F.I.R. No and the date 25.1.84 is mentioned and the doctor may have probably had a look at this corner rather than towards the bottom of the report where he had put his signatures along with the date 25.1.84. In his deposition the doctor says that he found the following injuries on the person of Smt. Kamla:- "(1) Linear abrasion vertically placed on inner boarder back-side of left fore-arm 1.5" below left wrist. (2) Slight conjunction of lips with flushing of cheeks present both sides." The duration of both the injuries was between 12 to 24 hours. So far as injury no. 2 is concerned the doctor has opined that it could be caused by kissing and so far as injury no. 1 goes he has stated that it could be caused by nail marks. In these circumstances in the first place it cannot be said to be a case of no injury at all and, therefore, the contention that the absence of injuries on the person of the prosecutrix gives rise to a presumption of consent need not necessarily be drawn in the present case. In these circumstances in the first place it cannot be said to be a case of no injury at all and, therefore, the contention that the absence of injuries on the person of the prosecutrix gives rise to a presumption of consent need not necessarily be drawn in the present case. However, it must be kept in mind that injuries are very minor and are also explicable on this hypothesis as pointed out by the doctor and, therefore, the matter should be examined also from the point of view as if it was a case of absence of injuries. On the basis of the two authorities of the Hon'ble Supreme Court already referred to above it may safely be concluded that in all cases absence of injuries on the person of the prosecutrix by itself does not necessarily give rise to a presumption of consent, specially now in the face of the special provision under section 114(A) of the Evidence Act when the prosecutrix denies consent and alleges that it was a forcible act without her consent and against her will. The absence of injuries on her person cannot give rise to such strong presumption of consent as would rebut the statutory presumption which has now been raised by section 114(A) of the Evidence Act. The authorities relied upon by the learned counsel are regarding cases prior to the introduction of section 114(A) of the Evidence Act and none of them hold that mere absence of injuries by itself gives rise to a presumption of consent. The absence of injuries in those cases was in addition to other factors. These authorities are, therefore not of much help. Not only this, in the present case it has been alleged that the two accused had first over powered her and had then placed her on the ground. One caught hold of her and the other indulged in intercourse with her and they took turns. In these circumstances when a woman who is just about 18 years of age is overpowered by two stout persons aged 25 years each, she cannot be expected to have put up much resistance and, therefore, injuries may not have appeared on her person except the slight ones as has been deposed to by the doctor. In these circumstances when a woman who is just about 18 years of age is overpowered by two stout persons aged 25 years each, she cannot be expected to have put up much resistance and, therefore, injuries may not have appeared on her person except the slight ones as has been deposed to by the doctor. In this connection the learned counsel for the appellants, however, urged that even in case where more than one person had indulged in the act of intercourse absence of injuries had been taken to a very strong basis of evidence in support of consent. In this connection he referred to Amli alias Jamna Dass v. The State and another (Cr. L. R. (Raj.) 1983-289) . In my opinion that case is clearly distinguishable. It was a case where two young boys aged about 19 each were alleged to have had sexual intercourse with a grown up woman aged about 27 to 30 years and that too after she had accompanied them to the pits on the point of pistol and there, one after the other is alleged to have had intercourse with her. Such is not the case here. 9. The fact that the occurrence had taken place in the open field and on a rough ground also does not in the circumstances of this case go against the prosecution, inasmuch as it is clear from the evidence that the crop had already been harvested and many people were not expected to be present nearby and, therefore, the accused may have, in the passion had forcible intercourse with her even in the open field in the day light. 10. It is true that the site inspection note Ex. P. 2 does not show that any pieces of bangles were found at the spot but it may be noted that the incident had taken place at about 11.30 a.m. on 25.1.84 and the site inspection was made on the next day i.e. 26.1.84. It may be possible that during the passage of this time the pieces may have dis appeared form the spot and, therefore, the mere absence of those pieces from the spot cannot give rise to any presumption against the prosecution. 11. It may be possible that during the passage of this time the pieces may have dis appeared form the spot and, therefore, the mere absence of those pieces from the spot cannot give rise to any presumption against the prosecution. 11. The fact that the accused and the prosecutrix may have been surprised by the sudden appearance of Tola Ram at the spot and thereupon Smt. Kamla may have come out with a story of rape, also does not appear to be holding any substance. It may be pointed out that Smt. Kamla is a girl who had been married about 10 months prior to this incident It has not at all be suggested in her cross examination nor has been brought out in any other manner that there was any intimacy between the accused persons and Smt. Kamla prior to this incident. On the other hand it is suggested by the defence itself that there was previous enmity between the family of the accused and Ram Karan, brother of the prosecutrix. Thus when the probability of consent is ruled out it cannot be assumed that merely because Tola Ram happened to reach the spot being attracted with the cries of Smt. Kamla that Kamla made out a story of rape although she was a consenting party. 12. I also do not find any force in the contention of the learned counsel for the appellants about the alleged improper conduct of Smt. Kamla, inasmuch as it is alleged that she had slept with her husband and had intercourse with him on that very night, there is no such suggestion to Smt. Kamla in her cross-examination and merely because her mother has stated that Kamla's husband had come to the house on that night and they had slept in one room, one cannot jump to the conclusion that they had any sexual intercourse on that night. 13. The statement of Smt. Kamla that while she was collecting cow-dung and fire wood she was overpowered by two accused persons and they forcibly have intercourse with her, is not only corroborated by the statement of Tola Ram but it stands further corroborated by the recovery of her petticoat which has been found torn at places and Smt. Kamla has stated that it was during the struggle that her petticoat got torn. In these circumstances I am perfectly in agreement with the learned Sessions Judge that the offence of rape has clearly been brought home to the accused persons and so far as the sentence goes, according to the amended provision of section 376 the minimum sentence awarded by the learned Sessions Judge cannot be said to be improper or harsh and does not require any modification. 14. In these circumstances the appeal fails and is hereby dismissed.Appeal dismissed. *******