STATE OF MADHYA PRADESH v. RAJU RAJESH — 1993 DIGILAW 582 (MP)

D. K. JAM, J. ( 1 ) RESPONDENT Raju alias Rajesh, son of Hiralal Khatwani, resident of village Sarona, Police Station Narhapur, District Bastar, was prosecuted for offences under Sections 342, 354 and 376 of the Indian Penal Code, but he was acouitted of the said offences by the First Additional Sessions Judge, Bastar as Jagadalpur (Camp Kanker), vide judgment dated 15. 11. 1984, passed, in Sessions Trial No. 177 of 1983, and being aggrieved by the said Judgment of acquittal the State of Madhya Pradesh has preferred this appeal under section 378 (1) of the Code of Criminal Procedure, 1973, after obtaining leave of this Court under Section 378 (3) of the Code of Criminal Procedure. ( 2 ) ACCORDING to the prosecution, Sonaibai daughter of Phulsingh, was a resident of village Dumarpani, Tahsil Kanker, District Baster, and she had gone to village Selebhat as a guest to the house of her brother-in-law. On the date of the incident i. e. 1. 5. 1983, in the morning at about 9. 00 A. M. she had gone, along with her sister Sonbati, to the mill of Hira Seth situated at village Sarona, to get the Dhan of her brother-in-law pounded. They had reached the mill before the other customers and, so, Sonaibai requested that their Dhan should be pounded first, but she was told to keep the Dhan and it would be-pounded later on and the Dhan of the ether persons, who had reached the mill after her, was pounded first. Subsequently, the Dhan taken by Sonaibai and her sister to the mill, was pounded and, after this, when Sonaibai was giving the price for pounding the Dhan, at that time, accused Raju son of Hira Seth, came there and he told her to come inside and, then he would take the money. When both the sisters declined to go inside, then the accused Raju caught both the sisters with one hand each and started dragging them and inside one room, he locked Sonbati, and took Sonaibai to another room and locked the doors from inside and forcibly committed rape on her, and then she cried, he shut her mouth with his hands. After completing the act of rape, Sonaibai was sent outside by opening the door towards Badi side. Sonbati had opened the door and had. gone outside and had informed about this incident at the hotel of Rudeshwar. After completing the act of rape, Sonaibai was sent outside by opening the door towards Badi side. Sonbati had opened the door and had. gone outside and had informed about this incident at the hotel of Rudeshwar. Persons ran, but they found that the front door was locked. Sonaibai then narrated the incident to her sister Sonbati and also at the hotel of Rudeshwar at village Sarona, which was situated near the mill. The incident was also narrated by Sonaibai to her parents, but, as her father was very aged, hence she had gone with her relations Budhiyar and Ram Prasad to Dudhawa Bazaar to the shop of her brother-in-law Kartikram and had informed him about the incident, but, as there was a crowd at his shop, and, so, in the evening, she went along with Kartikram to Police Chowki. Dudhawa, where a written report (Ex. P-I) was handed over to the Incharge of Police-Chowki Dud hawa. The Sari and the petti-coat, which the prosecutrix Sonaibai was wearing, were seized at that very time vide seizure-memo (Ex P-2 ). Offences under Sections 376 and 342 of I. P. C. were registered at Crime No. 0/83 at Police Out-post Dudhawa. ( 3 ) SONAIBAI had been sent for being medically examined and she had been first examined by Lady Doctor (Shrimati) Mahalaxmi (P. W. 22) on 2. 5. 1983 and the report given by the Lady Doctor is Ex. P-24 and the report regarding Sari and Petti-Coat which were sent to her by the police, is Ex. P-25. The prosecutrix Sonaibai had also been examined by another Lady Doctor (Shrimati) Tiwari (P. W. 5) on 3. 5. 1983 and the report given by the Lady Doctor (Shrimati) Tiwari is Ex. P-5 while the report regarding the. Sari and the Petti-Coat, examined by her, is Ex. P-6. The Doctor, who had examined the prosecutrix, confirmed rape having been committed on her. To confirm the age of Sonaibai, X-ray of her left elbow and right iliac crest was taken and the report in this regard is Ex. P-8. Cement scrapings from inside the room where the incident had taken place, were taken and broken pieces of bangles were also seized from the said room - vide seizure memo (Ex P-13 ). Relevant entries from the register - showing the date of birth etc. were also seized during the investigation. P-8. Cement scrapings from inside the room where the incident had taken place, were taken and broken pieces of bangles were also seized from the said room - vide seizure memo (Ex P-13 ). Relevant entries from the register - showing the date of birth etc. were also seized during the investigation. After the accused Raju was arrested, he was also sent for medical examination and his under-wear had also been seized. The articles - seized in the case, were sent to the Chemical Examiner, F. S. L. Sagar who confirmed the presence of blood on the. Sari and the Petti-Coat of Sonaibai and on the cement pieces and also on the slides prepared from the vaginal smear of Sonaibai and the report of the Chemical Examiner is Ex. P-28. Report of the Serologist (Ex. P-29) confirmed at the articles, i. e. Petti-coat and the cement pieces, were stained with human blood. Blood was not confirmed on the underwear seized from the accused Raju. Seminal stains or spermatozoa were also not detected on the aforesaid articles - as per report of the Chemical Examiner (Ex. P-28 ). After completing the other formalities in the case, a charge-sheet had been put up against the present-respondent Raju alias Rajesh under sections 342, 354 and 376 of I. P. C. ( 4 ) RESPONDENT Raju had pleaded not guilty to the charges levelled against him before the Sessions Court. The defence of respondent Raju was that he was not present at the rice-mill and he had not talked to Sonaibai and her sister and that, he had not taken them inside the room and nor had he committed rape on Sonaibai, by locking her inside the room. According to Raju, the persons of Nay Yuvak Mandal bore enmity against him and it is at their instance, that Sonaibai had got instituted the false case against him. The respondent Raju; in his examination under Section 313 of Cr. P. C. had admitted that he was the son of the mill-owner Hira Seth and he had further admitted that, on Sunday, Sonaibai, along with her sister, had come to the mill at village Sarona to get their Dhan pounded. The fact that he (Raju) had been sent by the police for being medically examined, was also not denied. P. C. had admitted that he was the son of the mill-owner Hira Seth and he had further admitted that, on Sunday, Sonaibai, along with her sister, had come to the mill at village Sarona to get their Dhan pounded. The fact that he (Raju) had been sent by the police for being medically examined, was also not denied. ( 5 ) THE learned trial Judge, after considering the evidence adduced in the case, reached the conclusion that, at the time of the incident, the age of the Prosecutrix Sonaibai, had not been proved by the prosecution to be below the 16 years; there was delay in lodging the F. I. R.- which rendered the case of the prosecution doubtful; no seminal stains or spermatozoa were found on the clothes and the slides prepared from the vaginal smear of the prosecutrix; and that, the blood stains found on the clothes, i. e. Sari and Petti-Coat of the prosecutrix, were due to the fact that the prosecutrix was in menses at the relevant time. The trial Judge further found that, even if sexual- intercourse with the prosecutrix had taken place, then it was with her consent and not against her wish since no marks of struggle or violence were found on her body. On the basis of the above findings, the trial Court acquittal the present. The trial Judge further found that, even if sexual- intercourse with the prosecutrix had taken place, then it was with her consent and not against her wish since no marks of struggle or violence were found on her body. On the basis of the above findings, the trial Court acquittal the present. respondent Raju alias Rajesh of the charges under Sections 342, 354 and 376 of I. P. C. , and these findings, leading to the acquittal of the respondent Raju alias Rajesh, are under challenge in this appeal against acquittal, filed on behalf of the appellant State of M. P. ( 6 ) ALTHOUGH in an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet, as a rule of prudence, it should always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acouitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. T Where two reasonable conclusions can be drawn on the evidence on record, the High Court should as a matter of Judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acouiting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal as has been laid down in Ganesh Bhavan Patel v. State of Maharashtra. Keeping in view the aforesaid guide-lines laid down by the Apex Court, it has to be seen, in the instant case, whether the findings arrived at by the trial Court, are perverse in any way and whether any interference in the order of acquittal, is necessary or not. Keeping in view the aforesaid guide-lines laid down by the Apex Court, it has to be seen, in the instant case, whether the findings arrived at by the trial Court, are perverse in any way and whether any interference in the order of acquittal, is necessary or not. ( 7 ) ON behalf of the appellant, the first submission was that the finding of the trial Judge that the prosecution had failed to prove that the prosecutrix Sonaibai was below 16 years of age, was not justified because, the prosecution had clearly established, from the evidence on record, that, at the time of the incident, the prosecutrix Sonaibai was below 16 years of age. The aforesaid submission, made on behalf of the appellant, regarding the age of the prosecutrix being below 16 years at the time of the incident, does not appear to be correct. The learned trial Judge has discussed at length, the evidence adduced on behalf of the prosecution regarding the age of the prosecutrix and he has given sound reasons, duly supported by the case-law, for reaching the conclusion that the prosecution had failed to establish that, at the time of the incident, the prosecutrix was below 16 years of age. We entirely agree with the said finding of the trial Court and hold that the prosecution had failed to establish the fact that, at the time of the incident, the age of the prosecutrix Sonaibai was below 16 years. ( 8 ) THE next submission, made on behalf of the appellant, was that the learned trial Judge had committed an error in holding that there was delay in lodging the F. I. R. for which no plausible explanation had been given, and which renders the prosecution case doubtful. ( 9 ) THE learned trial Judge has discussed the evidence in this regard at length in his Judgment, but, in our considered view, his findings arrived at in this regard, are not justified, because from the evidence on record, it is clear that the incident had taken place on 1. 5. 1983, at about 11. 00 a. m. and a written report regarding the incident, had been lodged by the prosecutrix at police Out-post Dudhawa District Bastar, on the same day at about 7. 30 p. m. , and that, this delay of about 7-8 hours in lodging the report, had been duly explained. 5. 1983, at about 11. 00 a. m. and a written report regarding the incident, had been lodged by the prosecutrix at police Out-post Dudhawa District Bastar, on the same day at about 7. 30 p. m. , and that, this delay of about 7-8 hours in lodging the report, had been duly explained. Besides this, even if it is held that there was a delay of about 7-8 hours in lodging the report, it would not render the prosecution case doubtful in any way, became, it was an admitted fact that, on the day of the incident, both Sonaibai and her sister Sonbati, had gone to the mill of Hira Seth, situated at village Sarona, to get their Dhan pounded, and it was also an admitted fact that the accusd Raju alias Rajesh was the son of Hira Seth - owner of the mill. Besides this the learned trial Judge, after considering the evidence on record, hadreached the conclusion that sexual intercourse had been committed by the accused with the prosecutrix but, according to him, the same had been committed with her consent and not against her wish and, so, the prosecutrix being over 16 years of age, the accused could not be held liable for having committed rape on her, and, therefore, in view of this finding of the learned trial Judge, the other factors regarding the delay in lodging the F. I. R. or there being some discrepancies in the versions of the witnesses regarding the F. I. R. , would not render the prosecution case doubtful in any way, and so, the defence would not get any benefit even it was held that there was some delay in lodging the F. I. R. by the prosecutrix. ( 10 ) ON behalf of the appellant, the submission was that the loamed trial Judge had committed an error ill reaching the conclusion that sexual intercourse committed by the accused/respondent Raju with the prosecutrix Sonaibai, was with her consent, in view of clear medical evidence on record which clearly established that forcible sexual intercourse had been committed by the accused respondent Raju on the prosecutrix Sonaibai. As against this on behalf of the respondent, the finding of the trial Court that sexual intercourse committed by the accused with the prosecutrix, was with her consent was fully supported. As against this on behalf of the respondent, the finding of the trial Court that sexual intercourse committed by the accused with the prosecutrix, was with her consent was fully supported. The submission was that it was difficult to believe that the accused Raju by catching hold of one hand of Sonnibai with his one hand and with his other hand catching hold of the hand of Sonbati could have dragged them toward hist house, because both the girls could have resisted and refused to go, and this fact would go to show that both the girls had gone willingly from the mill where the Dhan was pounded, towards the house situated within the campus of the mill itself. ( 11 ) AFTER considering the evidence in this regard, we are not prepared to accept the aforesaid submission made on behalf of the accused/respondent, because from the version of Sonaibai (P. W. 1) and her sister Sonbati (P. W. 2) it is clearly established that, when Sonaibai had offered to give the charges for getting their Dhan pounded, the accused Raju had told them that he would take the money inside and, on their refusal, he had caught hold of them with both of his hands and had dragged them inside and they had raised alarm, but no one had come to their rescue. From the evidence on record, it is also clear that the mill is surrounded on all the three sides by the boundary walls-having a height of, more than a mants height. ( 12 ) DR. (Shrimati) Mahalaxmi (P. W. 22) has clearly stated in para 12 of her cross-examination then, on examining Sonaibai, she had found that she was very weak. This fact also goes to show that the prosecutrix Sonaibai was a very weak girl and, so, she could not have offered much resistance when she was being dragged towards the house by the respondent - alongwith her sister Sonbati. On behalf of the respondent, attention was drawn to para 3 of the deposition of Sonaibai (P. W. 1) in which she had stated that the accused had taken her inside the room and, then, he had lifted her and made her lie on the ground and. On behalf of the respondent, attention was drawn to para 3 of the deposition of Sonaibai (P. W. 1) in which she had stated that the accused had taken her inside the room and, then, he had lifted her and made her lie on the ground and. when he lay her on the ground, then she had raised her leg and that, the fact that she had raised her leg, would show that she was a consenting party. ( 13 ) AFTER perusing the entire statement of this witness Sonaibai, we are unable to accept the aforesaid contention that the prosecutrix was-a consenting party. From the evidence, of the prosecutrix itself, it is clear that whatever little resistance she could offer, she had offered and that, the accused Raju had committed rape on her without her consent. ( 14 ) FOR a proper appreciation of the evidence of the prosecutrix and her sister Sonbati, this fact should not be lost sight of that the case related to the Tribal belt of Bas tar - which is a backward area and that, the prosecutrix and her sister are poor Harijans - belonging to the lowest strata of society and the fact that they are poor Harijan Adiwasis, also finds place in the written report lodged by the prosecutrix at police Out-post Dudhawa. Thus, on the one hand, there is the poor Harijan Adiwasi Sonaibai - against whom rape was committed and she pitted against the respondent Raju who is the rich son of a mill owner, and all these facts are to be borne in mind at the time of appreciating the evidence. Besides this, the Courts have to bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victimts (prosecutrix) version. The injury on the person of the victim, especially her private parts: has corroborative value and the complaint immediately made by her parents und other persons regarding the incident and the presence of blood on her clothes, are also important factors which will further add credence to the testimony of the prosecutrix. The injury on the person of the victim, especially her private parts: has corroborative value and the complaint immediately made by her parents und other persons regarding the incident and the presence of blood on her clothes, are also important factors which will further add credence to the testimony of the prosecutrix. ( 15 ) THE respondent Raju was acouitted by the teamed trial Judge mainly on the ground that, though sexual intercourse had been committed on the prosecutrix Sonaibai by the accused Raju, the same had been committed with her consent and, hence, no rape had been committed - since the prosecutrix was above 16 years of age. Thus, the main question to be decided is; as to whether sexual intercourse had been committed on the prosecutrix with her consent or against her wish, ( 16 ) ONE of the facts, relied by the trial Court in. holding that sexual intercourse had been committed on the prosecutrix with her consent was, that the prosecutrix had stated in her cross- examination that, when she had been laid on the ground by the accused then she had raised her legs, but, considering the point of time when she had raised her legs, clearly indicates that she had raised her legs while the accused had laid her on the ground and not at the time when he was committing sexual intercourse with her and, therefore, it cannot be held that the prosecutrix was a consenting party merely because she had raised her legs at the time she was laid on the ground and also because, the prosecutrix had very clearly and emphatically stated that the accused had committed sexual intercourse with her against her wish and without her consent. It is also clear from the evidence of the prosecutrix Sonaibai (P. W. 1) that she had tried to resist and free herself from the clutches of the accused at the time he was committing rape on her and she had also tried to raise an alarm, but the accused had pressed her mouth to prevent her from shouting. It is also clear from the evidence of the prosecutrix Sonaibai (P. W. 1) that she had tried to resist and free herself from the clutches of the accused at the time he was committing rape on her and she had also tried to raise an alarm, but the accused had pressed her mouth to prevent her from shouting. Besides this, there is also evidence to this effect that, when Sonbati (P. W. 2) managed to go out of the room in which she had been locked inside, then she had immediately told one Ram Prasad whom she met near the mill and she had told him that Raju had taken Sonaibai in the room and was committing rape on her and, then, they had gone to the hotel of Rudheshwar and there also, Son bati (P. W. 2) had narrated about the incident to the persons present there. From the version of Sonaibai (P. W. 1) also, it is clear that when she had been freed by the accused after having committed rape on her, he had let her out from the back door in the Badi and, when she went out she had immediately informed about the incident to her sister Sonbati and also to the persons who were present in the hotel of Rudeshwar. Rudeshwar (P. W. 11) also supported the aforesaid version given by Sonbati (P. W. 2) regarding the incident. From the version of Rudeshwar (P. W. 11), it is clear that Sonaibai had also come to his hotel and she had also told him that Raju had caught her and taken her inside the house and there he had committed forcible sexual intercourse, i. e. rape, on her. ( 17 ) THERE is, thus clear and cogent evidence to this effect that, immediately after the incident, both the prosecutrix Sonaibai and her sister Sonbati, had informed persons present at the hotel of Rudehswar. about rape having been committed on Sonaibai by the accused Raju and this fact reveals against the theory of consent, because, had sexual intercourse been committed on the prosecutrix with her consent then she or her sister Sonbati would not have immediately complained about the incident to the persons present at Rudeshwars hotel immediately after the incident. about rape having been committed on Sonaibai by the accused Raju and this fact reveals against the theory of consent, because, had sexual intercourse been committed on the prosecutrix with her consent then she or her sister Sonbati would not have immediately complained about the incident to the persons present at Rudeshwars hotel immediately after the incident. ( 18 ) PROSECUTRIX Sonaibai (P. W. 1) had stated that on account of rape she had received injury in her private-part (Yoni) and there was also bleeding and, besides this, she had received some scratches on her left thigh, wrist and below her nose, Dr. (Shrimati) Mahalaxmi (P. W. 22) had first examined Sonaibai on 2. 5. 1983, i. e. on the next day of the incident and, according to her, she had not found any marks of struggle on her body, but on examining her private parts, she had found the hymen ruptured and she also found that she was in menses and bleeding per vagina was present and that she had prepared two slides from the vaginal smear and the report given by this witness is Ex, P-2- On the same day. Dr. (Shrimati) Mahalaxmi had also examined the petti-coat and the Sari of the - prosecutrix Sonaibai and she had found blood like spots at several places on both these articles, and the report given by this witness in this regard is Ex, P-25, ( 19 ) PROSECUTION evidence also discloses that the prosecutrix Sonaibai had again been got examined by at team of three lady doctors on 3. 5. 1993 and, in this regard the prosecution examined Dr. (Smt.) M. Tiwari (P. W. 5) and from the version of this witness, it is clear that on examining the lady she had found three small abrasions - which were not regular. 1/2 x 1/2 m. m. in size and scab formation had started but she was unable to say as to on which hand she had found the aforesaid abrasions. Besides this, one small linear injury was also round over the right wrist on the inner side and there was also scab formation. Further from the version of Dr, (Shrimati)- Tiwari, it is clear that on examining the private parts, i. e. per vaginal examination she found a small tear just below the hymen 1/2 m. m. , linear red swollen and tender. Further from the version of Dr, (Shrimati)- Tiwari, it is clear that on examining the private parts, i. e. per vaginal examination she found a small tear just below the hymen 1/2 m. m. , linear red swollen and tender. The hymen was found to be lacerated posteriorly: one tear at 9-Oclock position, 1 c. m. in size, swollen, red and lender and the whole of the hymen was found to be brushed. It was also found that there was bleeding present through and that the patient was in menses. On the basis of the above examination opinion was given that, from the above findings it seems that forceful intercourse had been done within-18 hours, The report, given in this regard and signed by the three lady doctors - including Dr. (Shrimati) M. Tiwari (P. W. 5), is Ex, P-5. The petti-coat and the Sari of the prosecutrix had also been examined by Dr. (Shrimati) M. Tiwari, and as per her report (Ex, P-6), she had found blood mixed semen like stains on both the articles and she had advised for the chemical examination of the aforesaid articles, ( 20 ) THERE is thus, clear cogent and positive evidence of Dr. (Shrimati) M. Tiwari (P. W. 2) that she had found a small tear just below the hymen 1/2 m. m. linear, and that the same was red, swollen and tender and on touching, the patient was feeling pain and that, hymen. was lacerated posteriorly and one tear at 9-0 clock position, 1 c. m. in size, was found; and there was also swelling redness and tenderness, and the hymen was also bruised: and on the basis of these findings, the opinion was given that forceful intercourse had been done. These findings regarding intercourse having been done within -18 hours, on the prosecutrix Sonaibai could not have been lightly brushed aside - as has been done by the learned trial Judge. ( 21 ) THE prosecution evidence further discloses that the prosecutrix Sonaibai had again been get examined by Dr. (Shrimati) Mahalaxmi (P. W. 22) on 4. 5. 1983, and the report given by this witness in this regard is Ex. P-26. According to Dr. ( 21 ) THE prosecution evidence further discloses that the prosecutrix Sonaibai had again been get examined by Dr. (Shrimati) Mahalaxmi (P. W. 22) on 4. 5. 1983, and the report given by this witness in this regard is Ex. P-26. According to Dr. Mahalaxmi (P. W. 22), she did not find any tear below the hymen, but in the 9-0 clock position, she had found a tear of small size, 1/6, she did not find any swelling in the vulva: and her opinion as per report (Ex. P-26), was that rape was done on her. Thus, Dr. (Shrimati) Mahalaxmi (P. W. 22) also confirmed the finding given by Dr. (Shrimati) M. Tiwari (P. W. 5) that rape had been done on the prosecutrix. The reasons given by the learned trial Judge, for not accepting the aforesaid finding given by the lady doctors, are neither reasonable nor probable and, therefore, the same cannot be accepted. Prosecutrix Sonaibai is herself victim of rape haying been committed on her by the accused and her evidence is further corroborated by the medical evidence on record and the fact that the doctors examining her, found that her hymen was ruptured and the hymen was bruised and there was also a small tear below the hymen and there was also redness and swelling found are sufficient to hold that rape had been committed on the prosecutrix. ( 22 ) ONE of the reasons for acquitting the respondents Raju, given by the learned trial Judge, was that no seminal stains or spermatozoa were found on the petti-coat and Sari of the prosecutrix - which had been sent for chemical examination. It is, not doubt, true that as per report (Ex. P. 28) of the Chemical Examiner, F. S. L. Sagar, no seminal stains or spermatozoa could be detected on Articles-A-i (Sari), A-2 (petti-coat), B (underwear ). C (cement), D. 1 and D. 2 (vaginal smear slides), but, according to the report presence of blood on all the aforesaid articles was confirmed, except on Article-B (underwear of accused ). According to the report (Ex. P. 29) of the Serologist human blood was detected on the petti-coat and cement pieces. The probable reason, why seminal stains or spermatozoa were not found on the articles on chemical examination (as per report Ext. According to the report (Ex. P. 29) of the Serologist human blood was detected on the petti-coat and cement pieces. The probable reason, why seminal stains or spermatozoa were not found on the articles on chemical examination (as per report Ext. P. 28), could be that the prosecutrix was found to be in menses at the time of her examination by the lady Doctors and as has also been clearly stated by them. In his regard the version of the prosecutrix Sonaibai (P. W. 1) was that it was incorrect that, on the day of the incident she was in menses and it was also incorrect that a day or two or three days after the incident menses had commenced, but this version of the prosecutrix that she was not in menses appears to be incorrect and cannot be relied upon-in view of the positive statements of Dr. (Shrimati) M. Tiwari (P. W. 5) and Dr. (Shrimati) Mahalaxmi (P. W. 22), that the prosecutrix was in menses. The fact that at the time of examination, the prosecutrix Sonaibai was in menses, can be the probable cause for seminal stains and human spermatozoa not being found on the clothes and also on the vaginal smear slides of the prosecutrix Sonaibai. ( 23 ) ONE of the reasons. given by the learned trial Judge for reaching the conclusion that, sexual intercourse had been committed on the prosecutrix was with her consent was that no marks of struggle and injuries were found on the body of the prosecutrix because in case, she had offered resistance, such marks of struggle should have been found on her body. ( 24 ) WE are unable to accept the aforesaid reason given by the learned trial Judge. Merely the absence of marks of struggle on the body of the prosecutrix, would not lead to the inference that no rape had been committed on the prosecutrix and each case has to be decided on its own merits. ( 24 ) WE are unable to accept the aforesaid reason given by the learned trial Judge. Merely the absence of marks of struggle on the body of the prosecutrix, would not lead to the inference that no rape had been committed on the prosecutrix and each case has to be decided on its own merits. In the instant case, there is clear evidence to the effect that the prosecutrix Sonaibai had tried to offer resistance at the time of the incident, but the resistance so offered was not sufficient to free herself from the strangle hold of the accused Raju, because of the fact that she was a very weak type of girl and the fact that she was a weak type of girl had been clearly stated by Dr. (Shrimati) Mahalaxmi (P. W. 22) during her cross-examination (Para 22 ). ( 25 ) FOR the aforesaid reasons, merely absence of marks of struggle on he body of the prosecutrix Sonaibai, would not lead to the inference that the sexual intercourse had taken place with her consent as has been held by the trial Judge, the fact that the accused/respondent Raju could commit sexual intercourse, stands proved from the version of Dr. Claudius (P. W. 4) - who had examined the accused Raju alias Rajesh on 17. 5. 1983 and the report given by him in this regard, is Ex. P. 4. ( 26 ) THE prosecution evidence also discloses that from the room in which the incident had taken place, cement scrapings had been taken during the investigation and the same had also been sent for chemical examination and human blood on the same was confirmed, as per report of the Serologist (Ex. P. 29), and his fact also confirms the prosecution version that the incident had taken place in the room of the house situated within the campus of the mill belonging to Hira Seth. ( 27 ) THE defence, in his examination under Section 313 of Cr. P. C. of the accused-respondent Raju. was that he was not present in the rice-mill and that, he had not taken Sonaibai or her sister in the room and that, he had not committed forcible intercourse or rape, with Sonaibai, and that, he had been falsely implicated by the members of the Nay Yuvak Mandal of Sarona - due to enmity. was that he was not present in the rice-mill and that, he had not taken Sonaibai or her sister in the room and that, he had not committed forcible intercourse or rape, with Sonaibai, and that, he had been falsely implicated by the members of the Nay Yuvak Mandal of Sarona - due to enmity. No evidence in defence had been adduced on behalf of the accused Raju during the trial to show that he had been falsely implicated or that, he was not present at the rice mill at the time of the incident. It was also not the contention of the accused-respondent Raju that he had committed sexual intercourse with Sonaibai with her consent. The reasoning given by the learned trial Judge in his Judgment for reaching the conclusion that sexual intercourse with the prosecutrix had been committed by the accused with her consent does not appear to be reasonable probable or justified and. Therefore cannot be accepted. The view taken by the learned trial Judge in the facts and circumstances of the case appears to be not only unreasonable and unjusticiable but appears to be rather perverse which calls for interferences in this appeal against acquittal. ( 28 ) SONBATI (P. W. 2) had tried to show that she had also witnessed the incident through the window from the room in which she had been locked but this version does not appear to be correct because later on in her cross-examination she had admitted that there was no window and she had tried to give another version that she had seen the incident from the chink in the door of the room - in which Sonaibai had been locked and where the incident had taken place. Sonbati (P. W. 2) cannot be believed on this point that she had also witnessed the incident from the room in which she had been locked. ( 29 ) NORMALLY the High Court does not interfere with an order of acquittal passed in the case but looking to the facts and circumstances, of the case in our considered opinion the judgment, of acquittal passed by the learned trial Judge in the instant case calls for interference because the reasons given by the learned trial Judge for acquitting the respondent Raju are not only unreasonable and unsustainable: but the same also appear to be perverse. ( 30 ) FOR the aforesaid reasons this appeal preferred on behalf of the State of M. P. against the acquittal of the respondent Raju alias Rajesh for the offences under Sections 342. 354 and 376 of I. P. C. deserves to be allowed and the same is accordingly, allowed. The acquittal of respondent Raju alias Rajesh son of Hiralal Khatwani resident of village Sarona. Police Station Narharpur. District Bastar, for the charges under Sections 342, 354 and 376 I. P. C. is set aside and, instead he shall stand convicted and sentenced to rigorous imprisonment for seven years and a fine of Rs. 2. 000 (Rupees Two Thousand) and, in default of payment of fine, to undergo further rigorous imprisonment for six months under Section 376 of I. P. C. He is further convicted and sentenced to rigorous imprisonment for six months under Section 342 of I. P. C. and rigorous imprisonment for one year under Section 354 of I. P. C. The sentence shall run concurrently. He shall also be entitled to get the benefit of Section 428 Cr. P. C. The fine amount, If recovered shall be paid to the prosecutrix Sonaibai. daughter of Phulsingh, resident of village Dumarpani. Police Station Narharpur. District Bastar. by way of compensation, as she is a poor Harijan Adiwasi lady. ( 31 ) THE respondent Raju alias Rajesh is on bail and was exempted from his personal appearance before this Court. His bail bonds are cancelled and is directed through his Counsel to appear before the Chief Judicial Magistrate, Jagdalpur on 26. 11. 1993 to hear the result of this appeal and to undergo the sentences awarded to him as aforesaid. Appeal against acquittal allowed. .