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2000 DIGILAW 123 (HP)

ANUP SINGH v. STATE OF HIMACHAL PRADESH

2000-05-26

LOKESHWAR SINGH PANTA

body2000
JUDGMENT (Lokeshwar Singh Panta, J.):- This appeal by Anup Singh from jail is directed against the judgment and order dated 15.11.1999 passed by Sessions Judge, Mandi in Sessions Trial No. 6/99 whereby the appellant has been convicted under Section 376 of the Indian Penal Code for committing sexual intercourse with Smt. Beasa Devi his first cousin sister who is a mentally retarded woman. The learned Sessions Judge sentenced Anup Singh to suffer rigorous imprisonment for seven years and pay fine of Rs. 5,000/- and in default thereof to suffer further rigorous imprisonment for two years. In case the fine is realized from the appellant, the same was ordered to be paid to the victim through her guardian. 2. Smt. Beasa Devi mentally retarded woman is aged about 40-45 years. She was married but her marriage did not last long and she was sent back to her parental home by her husband after about six months of the marriage PW. Smt Beasa Devi lives alone in the Varandha turned into a room in the old house of the family in village Riharu, Tehsil Jogindemagar, District Mandi but she takes her food in the house of her brother Sher Singh. Smt. Krodhu Devi is the mother of Smt. Beasa Devi and five sons. All of them live separately in the same village and their houses are adjacent to each other. Krodhu Devi lives with her elder son Shri Dan Singh. The appellant Anup Singh is the first cousin of Smt. Beasa Devi and son of younger brother of the husband of Smt. Krodhu Devi. He also lives in his house which is nearby to the house of brothers of Smt. Beasa Devi. 3. The prosecution case in brief is that on 16.9.1998 at about 8.30 P.M. when Smt. Beasa Devi came to her room after taking meals in the house of her brother Sher Singh, her mother Smt. Krodhu Devi came to her room to see if her daughter had turned back and went to sleep. On entering the room of Smt. Beasa Devi, her mother saw the appellant trying on the person of Beasa Devi and found him committing sexual intercourse with her daughter. Smt. Krodhu Devi saw it in the torch light as there was no electricity light in that room. On seeing Smt. Krodhu Devi, the appellant ran away leaving behind his pyjama Ext. P-1, Kurta Ext. Smt. Krodhu Devi saw it in the torch light as there was no electricity light in that room. On seeing Smt. Krodhu Devi, the appellant ran away leaving behind his pyjama Ext. P-1, Kurta Ext. P-2, Banyan Ext.P-3 and Underwear Ext. P-4 respectively. The Police was immediately informed on telephone about the incident. It was in the next morning that Sub Inspector Rachhpal Singh who was Incharge of Police Post, Ladbharol came to the village and recorded statement of Krodhu Devi marked (Ext. PW-Z/A) and he sent the recorded statement to the police station for recording formal first information Report. ASI Shri Bishan Dass, recorded FIR Ext. PW-13/A in Police Station Jai Nagar (District Mandi). Appellant absconded from his house and he was subsequently arrested on 20.9.1998 in some other village. Sub Inspector Rachhpal Singh prepared spot map Ext. PW-13/6 and got PW.Beasa Devi medically examined from Dr. M.K. Rana who at the relevant time was posted as Medical Officer of Civil Hospital, Jogindemagar. The Investigating officer also recorded the statements of the witnesses and recovered Pyjama, Shirt, banyan and underwear left behind by the appellant in the room of Smt. Beasa Devi. The clothes of Beasa Devi were also taken into possession. All these clothes were sent to the Chemical Examiner for test but nothing incriminating was discovered by the Chemical Examiner. The appellant was arrested by S.I. Rachhpal Singh on 20.9.1998 in some other village and he was also got medically examined on 23rd September, 1998 from Doctor R.K. Sood, who at the relevant time was posted in Medical Hospital (Health Centre) Ladbharol According to the opinion of Doctor Sood, the appellant was found capable of performing sexual intercourse. After completion of the investigation, charge sheet was laid against the appellant for the commission of the alleged offence. The appellant denied the allegations appearing against him and claimed to be tried. The learned Sessions Judge on Police report found a prima-facie case against the appellant and charge sheeted him under Section 3761.P.C. 4. At the trial the prosecution examined T4 witnesses. Dr. M.K. Rana (PW-1) Smt. Krodhu Devi, mother of the prosecutrix (PW-2), Smt. Beasa Devi, prosecutrix (PW-3), Ranvir Singh, Up-Prandhan of the village (PW-4) Smt. Vidya Devi, Pradhan of Gram Panchayat, (PW-5), Sher Singh brother of the prosecutrix, (PW-6) Dr. At the trial the prosecution examined T4 witnesses. Dr. M.K. Rana (PW-1) Smt. Krodhu Devi, mother of the prosecutrix (PW-2), Smt. Beasa Devi, prosecutrix (PW-3), Ranvir Singh, Up-Prandhan of the village (PW-4) Smt. Vidya Devi, Pradhan of Gram Panchayat, (PW-5), Sher Singh brother of the prosecutrix, (PW-6) Dr. R.K. Sood, (PW-7), Smt. Satya Devi (PW-10), ASI Bishan Dass (PW-13) and S.I. Shri Rachhpal (PW-14) and some other police officials. 5. The appellant in his statement recorded under Section 313 Cr. P.C. has admitted that prosecutrix Smt. Beasa Devi is the daughter of his fathers elder brother (Taya). He has also admitted that Beasa Devi is of unsound mind. He admits that Beasa Devi was married to Bazir Singh who left her because of her unsoundness of mind. He denied the other allegations levelled against him by the prosecution. The defence of the appellant was that he had litigation on a land with Sher Singh, brother of the prosecutrix and on the day of the alleged occurrence he took liquor with Sher Singh and when they were taking liquor together he had a scuffle with Sher Singh. Thereafter he went to the house of Pradhan Singh second brother of the prosecutrix and there also he started taking liquor with Pradhan Singh. At the house of Pradhan Singh he had a scuffle with him (Pradhan Singh) as well, but on the next morning the matter was solved. Then he went to the Police Post and the police official asked him to come on the next day. He said that he went to his hotel from where the police took him to the hospital. He pleaded that he is innocent and the prosecution witnesses have falsely implicated him in the case. 6. The learned Sessions Judge, after considering the evidence adduced in the case, over ruled the defence plea that the appellant was falsely implicated in the case because of some enmity with the prosecution witnesses, and found that the prosecution has proved the guilt of the appellant beyond any reasonable doubt and therefore convicted and sentenced him as mentioned above. 7. The appellant has filed the present appeal from jail and also requested for appointment of legal aid counsel to him to prosecute his appeal. This court admitted the appeal on 23.2.2000 and Mr. 7. The appellant has filed the present appeal from jail and also requested for appointment of legal aid counsel to him to prosecute his appeal. This court admitted the appeal on 23.2.2000 and Mr. Harish Behal, Advocate of this court was appointed Legal Aid Counsel Under "High Court of Himachal Pradesh (Legal Aid to Accused) Rules", 1981 to prosecute the appeal of the appellant. 8. I have heard Mr. Behal, Legal Aid Counsel and Mr. J.K. Verma, learned Asstt. Advocate General and re-appraised and re-analysed the material on record. The first contention of Mr. Behal was that the report of quarrel and nuisance recorded in Police Post, Ladbharol on telephone on the night of 16.9.1998 when the alleged incident took place would go to show that there was some quarrel between the appellant on one hand, Sher Singh and Pradhan Singh brothers of the prosecutrix on other hand over some landed property when the appellant took liquor with them and the defence of the appellant that he has been falsely implicated in the present case stands proved from the contents of daily diary/rapat Ext. PW-12/A. According to the learned counsel the prosecution witnesses are inimical towards the appellant on this count and his defence has not been properly appreciated by the learned Sessions Judge which is more plausible and satisfactory than the prosecution case and, therefore the conviction and sentence of the appellant has to be set aside. I find no merit in this submission of the learned counsel. It is true that the extract of the daily diary of Police Post, Ladhbaraol dated 16.9.1998 (Ext.PW. 12/A) would show that a telephonic message was received in the Chowki from Police Station, Joginder Nagar to the effect that in village Riharu some person had caused nuisance and that police official should be deputed to the village to verify the correctness of the information. This was not a direct report of PW. Smt. Krodhi Devi or brother of PW. Smt. Beasa Devi and it was a message which was recorded from the Police Station by some police official at Police Post, Ladbharol. It has come in the evidence of S.I. PW-Rachhpal Singh that a message was received from Joginder Nagar Police station whcih was recorded in the daily diary (Ext.PW 12/A) and as there was no vehicle to go to the village which is about 3 or 3 K. Ms. It has come in the evidence of S.I. PW-Rachhpal Singh that a message was received from Joginder Nagar Police station whcih was recorded in the daily diary (Ext.PW 12/A) and as there was no vehicle to go to the village which is about 3 or 3 K. Ms. from the Police Post, therefore he went to the village on the following morning. If the message was not correctly reported by the Police official of the Police Station Joginder Nagar about commission of the rape of PW. Smt. Beasa Devi by the appellant, the prosecution should not suffer for lapses on the part of the informer of Police Station, Joginder Nagar. The defence of the appellant that he has falsely been implicated in this case cannot be accepted, in the teeth of over-whelming evidence appearing against him which shall be dealt with in the later part of the judgment when the evidence of the prosecution witnesses will be noticed and discussed. 9. Mr. Behal next contended that FIR (Ext. PW-3/A) had been recorded on 17.9.98 at 5.25 PM. by PW.Smt. Krodhu Devi mother of the prosecutrix after consultation and deliberation with her sons which would again support the defence of the appellant that the brothers of the prosecutrix with whom he had quarrel on 16th September, 1998 intentionally implicated the appellant in a false case. I have considered this contention of the learned counsel which can also be not accepted on the touch stone of the cogent and satisfactory explanation brought on record. No doubt, PW. Sub Inspector Rachhpal Singh in his cross-examination has stated that he recorded the statement of PW.Smt. Krodhu Devi under Section 154 Cr. P.C. on 17.9.1998 at-2.15 pm. and he did not record her statement earlier after reaching the village as PW. Smt. Krodhu Devi wanted to consult her five sons. True it is that the statement of Smt. Krodhu Devi was recorded after she had consulted her sons but no adverse inference can be drawn against the prosecution in the circumstances of the case. and he did not record her statement earlier after reaching the village as PW. Smt. Krodhu Devi wanted to consult her five sons. True it is that the statement of Smt. Krodhu Devi was recorded after she had consulted her sons but no adverse inference can be drawn against the prosecution in the circumstances of the case. It is natural for a rustic woman of the house to consult the family members before lodging the report of rape when family honour and reputation of her daughter was involved, more especially, in the present case the appellant is the first cousin of the prosecutrix and nobody on earth could expect that appellant would indulge in such inhuman act with his first cousin who is suffering under mental unsoundness. In her cross-examination PW. Smt. Krodhu Devi has categorically denied the suggestion of the defence that earlier to the present occurrence any case was registered against the appellant by her. She states that her family members have no quarrel with the appellant. Her version is that the appellant has been visiting her house regularly. No suggestion was put to her by the defence that the FIR, was as a result of consultations and deliberations by her with her sons to implicate the appellant falsely. PW. Sher Singh brother of the prosecutrix in his cross-examination has categorically denied the suggestion of the defence that a false case has been filed against the appellant. He has also denied the suggestion that his brother Dan Singh had earlier filed a false case against the appellant and due to some enmity he has made a wrong statement against the appellant. It is settled principles of law that in a rape case the honour of the family is involved and its members nave to decide whether to take the matter to the Court or not: It is not un-common with such considerations that delay action on the part of the near relations of a woman who is raped is bound to occur (AIR, 1981 Supreme court 361, Harpal Singh & Anrs. v. State of Himachal Pradesh.) In the case on hand it cannot be said that there was any delay in lodging the FIR. v. State of Himachal Pradesh.) In the case on hand it cannot be said that there was any delay in lodging the FIR. The F.I.R. was promptly lodged after lapse of three hours from the time of recording of the statement of PW.Smt.Krodhu Devi at 2.25 PM by PW, S.I. Rachhpal Singh at the place of occurrence and the distance of the Police Station from the place of occurrence as is revealed from the FIR, (Ext. PW.13/A) is about 45 K.M. Therefore, the plea of false implication of the appellant in this case after due deliberations and consultations of her sons by PW. Krodhu Devi cannot be accepted. 10. Mr. Harish Behal then contended that the prosecution has failed to proved on record that there was any penetration which is necessary to constitute the sexual intercourse to the offence of rape under first explanation of Section 375 I.P.C. According to the learned counsel if the evidence of the prosecution has to be accepted, it can at the most be said an attempt to rape and not the commission of the offence of rape. In support of his submission the learned counsel has placed reliance in 1995 Cri. L.J. 2501 (Delhi High Court), Jagdish Pd. Sharma v. State. To appreciate this contention of the learned counsel I have analyzed the evidence of PW.Smt. Krodhu Devi who is eye witness of the crime. In her deposition she has stated that she lives with her elder son Dan Singh and her daughter PW. Beasa Devi has been taking meals in the house of her second son PW. Sher Singh. It was a day of Sair festival when she had gone to take meals in the house of her son Pradhan Singh. After taking meals she came to her old house where PW. Smt. Beasa Devi was residing to see if Smt. Beasa Devi had returned back after taking meals and gone to sleep. She had a torch in her hand as there was no electricity light in that house, when she entered room of Smt. Beasa Devi, she found Anup Singh committing sexual intercourse with her daughter. She saw Anup Singh committing sexual intercourse in the light of torch. Both Beasa Devi and Anup Singh were in naked posture and he was lying over Beasa Devi. She saw Anup Singh committing sexual intercourse in the light of torch. Both Beasa Devi and Anup Singh were in naked posture and he was lying over Beasa Devi. Anup Singh on seeing her ran away leaving behind his clothes i.e. Pajama, Kurta, Banyan and Underwear which were lateron identified by her in the Court. She raised alarm which attracted her sons Dan Singh, PW, Sher Singh, Pradhan Singh, PW, Ranjit Singh PW. Smt. Vidya Devi, Pradhan who immediately came in the room of her daughter. The Police was informed on telephone about the occurrence. She has been subjected to corss-examination and there is nothing in her cross-examination to show that PW. Krodhu Devi is making a false statement. No suggestion has been put to her that the appellant was not in the room of prosecutrix Beasa Devi at the relevant point of time nor it was suggested to her that he was not lying naked on Beasa Devi when Krodhu Devi found both of them in the naked posture. The only suggestion given to her was that her relation with the appellant was inimical because of some dispute with her from the very beginning which she categorically denied. From the evidence of Smt. Krodhu Devi, I find no cogent reason for her to implicate the appellant in a false case more specifically of rape of her mentally retarded daughter and Smt. Krodhu Devi will certainly nor involve the appellant, the son of her husbands brother in false charge unless there is a clear motive or intention to do so. 11. Dr. M.K. Rana examined prosecutrix Beasa Devi and found her not mentally sound. On examination of her genitals his observation is as under:- "Public hair fully grown. There was no injury on the genital parts. Hymen was ruptured. It had been torned long ago and healed. The tags of hymen were seen. No injury was noticed on the volva and vagina and vagina admitted two fingers easily." 12. Dr. Rana took two vaginal swabs, and sent them to Chemical Examiner. In the opinion of the doctor there was no signs of forcible intercourse as there was no injury and no semens were found in the vagina and on receipt of the chemical examiners report of the clothes of the prosecutrix, Doctor has said that no samens were found thereon. Rana took two vaginal swabs, and sent them to Chemical Examiner. In the opinion of the doctor there was no signs of forcible intercourse as there was no injury and no semens were found in the vagina and on receipt of the chemical examiners report of the clothes of the prosecutrix, Doctor has said that no samens were found thereon. It was admitted by the Doctor that presence of semen was not necessary in the vagina as he had examined the prosecutrix after two days of the occurrence. In his cross-examination, doctor said that the semen will remain in the vagina over night only. He again testified that the patent was not mentally sound. From the evidence of the Doctor, it is no doubt clear that he has not found semen on the vagina of the prosecutrix, yet it cannot be said that the appellant had not committed rape with the prosecutrix. The prosecutrix was examined in the court and it was noticed by the learned Sessions Judge that she was not well oriented and mentally fully developed. PW. Ranvir Singh Up Pradhan of the Panchayat stated that Smt. Beasa Devi is mentally underdeveloped. On the night of 16.9.1998, he heard an alarm of PW. Smt. Krodhu Devi, mother of the prosecutrix as his house is adjacent to the house of smt. Krodhu Devi and when he came out of his house, he saw the appellant running naked out of the room of Smt. Beasa Devi when he was under the influence of liquor. He also said that PW. Vidya Devi Pradhan of the Panchayat had also reached at the house of Beasa Devi. He has denied the suggestion of the defence that he has made false statement to implicate the appellant because the appellant has got political affiliation with the Congress Party whereas he is a member of B.J.P. PW. Vidya Devi deposed that her house is adjoining to the house of Beasa Devi. On Sair festival day Smt. Krodhu Devi came to her house and told her that the appellant had committed wrong act (Galat Kam) with Beasa Devi and then she immediately went to the room of Beasa Devi and saw Anup Singh coming out of her room in complete naked posture and at that time he was under the influence of liquor. In her cross-examination, she has admitted that Beasa Devi was mentally retarded for the last about 20 years. She denied the suggestion of the defence that she has made wrong statement against the appellant, but no specific instance has been put to her for making false statement. PW. Sher Singh brother of the prosecutrix has also testified that Beasa Devi was mentally retarded and her marriage was solemnized about 30 years prior to this incident, but due to her unsoundness of mind her husband left her after about 6 months of the marriage. On 16.9.1998 at about 8.30 P.M. it was a Sair Festival Day, when Beasa Devi went to her room after taking meals in his house. He left her in the room at about 8.30 PM on the day of the occurrence, and returned to his house when he heard some noise and went back to her room and he saw the appellant running from the place of occurrence in a naked posture. He followed the appellant to some distance that concealed himself in his house. In the cross-examination of this witness nothing more except mere suggestion was put to him that a false case has been foisted upon the appellant by him. PW.Smt. Satya Devi, wife of Pradhan Singh deposed that the appellant is the son of her husbands uncle. She testified that on 16.9.1998 on Sair Festival day she heard noise of Smt. Krodhu Devi at about 8.30 P.M. and on hearing the noise she immediately came out of her house, when she saw the appellant coming out of the room of Beasa Devi in naked posture. In her cross-examination she stated that her room is at a distance of about 2-4 from the room of Beasa Devi. She also categorically denied the suggestion of the defence that because of some inimical relations with the appellant, she is making a false allegation against the appellant and she repeated that her family members have good relations with the appellant. The appellant in his statement under Section 313 CR. P.C. also admits that Beasa Devi is not mentally fully developed and is unable to comprehend and understand the question and is also not well oriented to time, place and matters. The appellant in his statement under Section 313 CR. P.C. also admits that Beasa Devi is not mentally fully developed and is unable to comprehend and understand the question and is also not well oriented to time, place and matters. From thoroughly analyzing the entire oral evidence on record, I am of the view that the prosecution has proved its case beyond shadows of doubt that it was appellant and none else who committed rape on mentally retarded Beasa Devi with her consent when Beasa Devi and the appellant were found in a naked posture by PW. Krodhu Devi and on seeing Krodhu Devi, the appellant had run away from the scene of occurrence under the influence of liquor. From the evidence of the Doctor, it is clear that no semens could be found on the vagina of the prosecutrix as he had examined her after two days of the incident and the semens will always remain in the vagina overnight only. In the light of the evidence discussed above, the contention of the learned counsel for the appellant that the prosecution has failed to prove the ingredient of explanation of Section 375 IPC, is not tenable. In Jagdish Pd. Sharma v. State, 1995 CRI.L.J.2501 (Delhi High court) relied upon by the learned counsel for the appellant, the facts of that case were that the accused alleged to have committed rape on child aged about 3-1/2 years was found in compromising position at the time of incident and no injury was found on the private part of the prosecutrix, and further there was delay in getting prosecutrix as well as accused medically examined. The investigation was found shoddy and medical evidence would show the accused not having complete sexual intercourse as there was no proof of penetration and in those facts and circumstances, the learned Judges of Delhi High Court concluded that the offence of rape was not made out and the accused was found guilty of offence of an attempt to commit rape and ultimately convicted under Section 511 IPC. In the present case as noticed above, the prosecution has proved the guilt of the appellant by adducing cogent, acceptable and convincing evidence and there is no reason at all to discredit and disbelieve the truthful version of the witnesses who are near relations of the appellant corroborated by independent witnesses namely Pradhan and Up-Pradhan of the Panchayat of the village of the appellant as well as the prosecutrix. 13. Last contention of Mr. Bahel was that the prosecution has failed to establish the essential ingredients of clause fifthly of Section 3751.P.C. Section 375 reads as under:- "Rape - A man is said to commit "rape" who, except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following description: First:-........................................................... Second:-.......................................................... Third:-........................................................ Fourth:-....................................................... Fifthly: - With her consent, when at the time of giving such consent by reason of unsoundness of mind or intoxication or with administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly:-..............................................." 14. According to the learned counsel, for constituting the offence of rape under clause fifthly, the prosecution has miserably failed to prove that the appellant had committed rape with Beasa Devi with her consent, when at the time of giving such consent, by reason of unsoundness of mind," Beasa Devi was unable to understand the nature and consequence of that to which she gave consent," and on this sole ground the conviction Of the appellant is grossly perverse and illegal. The learned counsel emphasized that the qualified words in clause fifthly "she is unable to understand the nature and consequence of that to which she gives consent" has been incorporated by the Legislation with definite purpose that unless the prosecution proves that a woman who gives her consent for sexual intercourse by reason of unsoundness of mind, she must be" unable to understand the nature and consequence of that to which she is a consenting party" and in the present case no evidence was led by the prosecution to prove that Smt. Beasa Devi was unable to understand the nature and consequence of the act to which she gave her consent. True it is that no witness has said that Beasa Devi was "unable to understand the nature and consequence of the act to which she gave consent" to the appellant to commit sexual intercourse with her. From the material on record noticed in the earlier part of the judgment, Beasa Devi was married woman and might have enjoyed sex with her husband during the period she remained in his house for about six months. The appellant knew that Smt. Beasa Devi was of unsoundness mind and was unable to understand the nature and consequence of the act to which she gave consent to him. It has already been noticed that Beasa Devi and the appellant were both found naked by PW.Smt. Krodhu Devi when the appellant was lying on her and committing sexual intercourse. In the circumstances of the present case, from analyzing the entire evidence on record it stands proved that the appellant had committed sexual intercourse with Beasa Devi with her consent, when at the time of giving such consent she was by reason of unsoundness of mind unable to understand the nature and consequence of the act to which she gave consent to the appellant. Therefore, the contention of Mr. Behal that unless the qualifying words incorporated in the clause are proved by the prosecution directly from the mouth of the witnesses, clause fifthly will not be applicable in the present case cannot be accepted and further it cannot be said that unless those qualifying words are proved, a woman of unsoundness of mind giving consent for sexual intercourse will be deprived of her fundamental rights under Article 21 of the constitution. It is by now well settled that rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victims most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 (see) Shri Bodhisattwa Gautamn v. Miss Subhra Chakraborty, AIR 1996 Supreme Court 922). Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victims most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 (see) Shri Bodhisattwa Gautamn v. Miss Subhra Chakraborty, AIR 1996 Supreme Court 922). In State of A.P. v. Gangula Satya Murthy (1977) Supreme Court Cases 272, their Lordships of the Supreme Court in para 27 of the report held as under: "The courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a "case and not get swayed by minor contradictions or insignificant discrepancies in the statements of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against woman in general and rape in particular is on the increase. It is an irony that while we are celebrating womans rights in all spheres, we show little or no concern for her honour. It is a sad reflection and it must be emphasized that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation" 15. In this case the conduct of the appellant when caught in the act of sexual intercourse with Beasa Devi, is also relevant for the purpose of deciding the case7. It is proved on record by PWs. Krodhu Devi, Ranvir Singh, Vidhya Devi, Sher Singh and Satya Devi that after committing the rape on Beasa Devi the appellant ran away from her room in complete naked porture under the influence of liquor leaving behind his clothes in the room of Beasa Devi. He was not found in the village thereafter and was ultimately arrested by PW. S.I. Rachhpal Singh on 20.9.1998 i.e. after four days of the commission of the offence in some other village. He was not found in the village thereafter and was ultimately arrested by PW. S.I. Rachhpal Singh on 20.9.1998 i.e. after four days of the commission of the offence in some other village. The conduct of the appellant is also relevant to prove that it was the appellant and none else who committed sexual intercourse with his first cousin Beasa Devi a mentally retarded woman, otherwise, also I there is no explanation given by the appellant as to why he was in the room of Beasa Devi on the night of the occurrence and why he ran away naked leaving behind his clothes when he was seen by the prosecution witnesses. Further, the appellant absconded from the village and was not available for the police for about four days. The defence of the appellant is found incrediable and unfounded. If the appellant had a land dispute with the brothers of Beasa Devi, namely, PW. Sher Singh and Pradhan Singh, there was no reason for him to go to the house of both these persons and take liquor with them. The conduct of the appellant was also suggestive of his implication in committing sexual intercourse with Beasa Devi. The learned Sessions Judge has rightly rejected the defence of the appellant for sound and tenable reasons and I find no reason to differ with the conclusion. 16. The next circumstance which is again proved by the prosecution implicating the appellant in the commission of the alleged offence is the recovery of his clothes Exts. P-1, P-2, P-3 and P-4 from in the room of Beasa Devi after he left the room in a naked posture. It is not disputed that these clothes belong to the appellant. In the first instance, the appellant suggested to Smt. Krodhu Devi that these-clothes did not belong to him, but in the next breath it was suggested that these clothes were stolen from his house which she denied. All other witnesses, namely, PWs. Ranvir Singh, Vidya Devi, Sher Singh and S.I. Rachhpal Singh Investigating Officer have un-equivocally stated that the clothes of the appellant were found in the room of Beasa Devi which were taken into possession by the Police. The appellant has admitted that police took his Pajama (Ext.P-1), Shirt (Ext.P-2), Banyan (Ext. P-3) and Underwear (Ext.P-4) from outside his house where he had hanged them for drying. The appellant has admitted that police took his Pajama (Ext.P-1), Shirt (Ext.P-2), Banyan (Ext. P-3) and Underwear (Ext.P-4) from outside his house where he had hanged them for drying. This defence of the appellant was again self contradictory. As noticed above, it was suggested to PW. Smt. Krodhu Devi by the appellant that someone had stolen these clothes from his house. The appellant was not available form 16th to 20th September, 1998 in his house as he had absconded immediately after the occurrence. In these circumstances, there was no question of appellant having hanged the clothes for drying outside his house. The recovery of these clothes from the room of Beasa Devi immediately after the appellant committed sexual intercourse with her has again lent necessary credence to the evidence of all the witnesses whose statements have been noticed herein-above. 17. Though Beasa Devi appeared as PW-3 and was found mentally retarded unable to understand nature and consequences of sexual act, but at the same time in her statement before the Court Beasa Devi categorically stated that she had gone to sleep when the appellant came to her room, her Salwar was opened by him and he committed act with her. On re- appraisal and re-examination of the entire evidence on record discussed above, I find no infirmity or perversity in the findings, reasoning and conclusion of the learned Sessions Judge to hold the appellant guilty of the offence for which he was prosecuted. The evidence of the prosecution witnesses is trust worthy, credible, cogent and convincing to pin point a finger of guilt at the appellant who had taken the advantage and benefit of Beasa Devi’s mental disability for satisfying his sexual lust. It was also noticed on record that the appellant was involved in similar act with some other woman for which a case was pending against him in the Court of law but his defence in that case was that he married the said woman later on. Though this fact is not considered to be relevant for holding the appellant guilty of committing the sexual intercourse with Smt. Beasa Devi, yet this would prove his conduct which is a relevant fact. 18. No other point has been urged by the learned counsel on either side. 19. In the result, for the above-said reasons and discussion, there is no merit in this appeal and it is accordingly dismissed. 18. No other point has been urged by the learned counsel on either side. 19. In the result, for the above-said reasons and discussion, there is no merit in this appeal and it is accordingly dismissed. The copy of this judgment is sent to the appellant to jail. Before parting this judgment, this Court places on record its appreciation for the assistance rendered by Mr. Harish Behal, learned Legal Aid Counsel who with his usual vehemence and ability defended the case of the appellant.