JUDGMENT - SINHA D.D., J.:---Heard Mr. Daga, learned Counsel for the appellant and Mr. Dhote, learned Additional Public Prosecutor for the respondent-State. 2.The criminal appeal is directed against the judgment and order, dated 4-2-2002, passed by the Second Ad Hoc Additional Sessions Judge, Wardha, in Sessions Trial No. 131 of 1996, whereby the present appellant-accused was convicted for the offence punishable under section 376 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for seven years and was further directed to pay a fine of Rs. 1,000-00, in default, simple imprisonment for three months. 3.Mr. Daga, learned Counsel appearing for the appellant, contended that the evidence adduced by the prosecution is insufficient to bring home the guilt of the accused for the offence punishable under section 376 of the Indian Penal Code. It is submitted that the place, where the prosecution had suggested that the alleged rape has taken place, is near the busy road and at the relevant time, lot of people were going and coming from the said road and, therefore, it is not possible for the accused to commit rape at such a place which is near the busy road. It is contended that the entire case of the prosecutrix is concocted and fabricated and, therefore, the same cannot be believed. It is further contended that there is no corroboration to the version of the prosecutrix in respect of the act of rape by the accused, except the version of the prosecutrix, which also is not believable and does not inspire confidence. It is submitted that the witness P.W. 6 Shivdas, to whom the prosecutrix Nagubai appeared to have disclosed that the accused removed her clothes and committed the act of rape, immediately after the alleged incident, has turned hostile and, therefore, his evidence is of no consequence either to the accused or to the prosecution. 4.Mr. Daga, learned Counsel, further contended that in the instant case, the medical evidence does not support either the case of the prosecution or the version of the prosecutrix. There are no injuries on the private part of the prosecutrix as well as on her person. 4.Mr. Daga, learned Counsel, further contended that in the instant case, the medical evidence does not support either the case of the prosecution or the version of the prosecutrix. There are no injuries on the private part of the prosecutrix as well as on her person. It is submitted that if the theory of prosecutrix that the rape was committed by the accused in the open field and it was against her will and without her consent is accepted, then she ought to have resisted and in such a situation, injuries on the person of the prosecutrix were inevitable. Absence of the injury on her person as well as opinion of the doctor which discloses that the doctor could not give a positive opinion about the rape goes to show that the theory put forth by the prosecutrix is fabricated and concocted. 5.Mr. Daga further contended that though the accused had taken a defence that the prosecutrix had taken Rs. 500-00 from him as a hand loan and since she could not repay the said amount, she falsely implicated the accused in the crime in question, ought to have been considered by the trial Court as a reasonable defence on the basis of the attending circumstances brought on record by the prosecution. Mr. Daga, learned Counsel, alternatively contended that even if it is presumed that at the relevant time the accused followed the prosecutrix and attempted to commit rape, however, he could not perform forcible intercourse, since other persons, who were going by the side of the road, including some of the prosecution witnesses, intervened and, therefore, in a given set of circumstances, this can be a case of attempted rape and, therefore, the sentence awarded by the trial Court for the offence under section 376 of the Indian Penal Code is excessive and harsh and the same needs to be altered accordingly. 6.Mr. Dhote, learned Additional Public Prosecutor, on the other hand, supported the impugned judgment and order passed by the trial Court, and contended that the evidence adduced by the prosecution witnesses is not only acceptable, but proves the case against the accused beyond all reasonable doubts for the offence under section 376 of the Indian Penal Code. It is contended that the evidence of the prosecutrix is corroborated by the evidence of P.W. 9 Fattusingh as well as other attending circumstances brought on record by the prosecution. It is contended that the evidence of the prosecutrix is corroborated by the evidence of P.W. 9 Fattusingh as well as other attending circumstances brought on record by the prosecution. It is contended that the prosecutrix was a widow having four children and, therefore, absence of injury on her private part does not destroy the prosecution case. It is contended that the trial Court, after taking into consideration the entire evidence adduced by the prosecution, rightly accepted the same and properly punished the accused for the offence punishable under section 376 of the Indian Penal Code. 7.Considered the contentions canvassed by the respective Counsel. 8.Before I consider the evidence adduced by the prosecution, it would be appropriate, at this stage, to consider some of the relevant facts brought on record by the prosecution. On 25th July, 1996 at about 5.00 - p.m., P.W. 1 Nagubai (prosecutrix) was proceeding towards her village on feet from village Arvi after doing her marketing. When she reached near a nursery, the accused is alleged to have caught hold of her and dragged her by the side of the road. It is further alleged that he pulled her down on the ground and removed her saree forcibly and committed sexual intercourse without her consent and against her will. The prosecutrix raised an alarm for help. P.W. 9 Fattu Rathod, resident of Dahegaon, heard her alarm and he responded to it. He saw the prosecutrix in a nude condition and the accused was also seen getting up from the spot. 9.The prosecutrix, after reaching her village, went to the house of the Police Patil and subsequently went to the Police Station at Arvi on the night of the incident only and lodged a report. She was referred to the General Hospital for medical examination, the offence bearing Crime No. 185 of 1996 was registered against the accused. The accused was arrested on the night of the incident. He was also referred for medical examination. After usual investigations, the charge-sheet was filed against the accused in the Court of Judicial Magistrate, First Class, Arvi. The offence being exclusively triable by the Court of Sessions, the Judicial Magistrate, First Class committed the case to the Court of Sessions for trial and the trial Court, after considering the evidence on record, convicted the accused for the offence punishable under section 376 of the Indian Penal Code. The offence being exclusively triable by the Court of Sessions, the Judicial Magistrate, First Class committed the case to the Court of Sessions for trial and the trial Court, after considering the evidence on record, convicted the accused for the offence punishable under section 376 of the Indian Penal Code. Hence the present appeal. 10.In the instant case though the prosecution has examined in all ten prosecution witnesses, however, the case of the prosecution primarily is based on the evidence on P.W. 1 Nagubai (prosecutrix), P.W. 9 Fattu Rathod and P.W. 10 P.S.I. Ramrao Kalambe, the Investigating Officer. It is, no doubt, true that the conviction can be based on the sole testimony of the prosecutrix provided the same is truthful, straightforwarded and inspires confidence in the Court. Similarly the same should not suffer from material omissions and contradictions. However, the Court normally should look for corroboration to the version of the prosecutrix. 11.In the instant case, the incident has taken place on 25th July, 1996 at about 5.00 p.m., by the side of Arvi Road. The prosecutrix in her examination-in-chief has stated that she was proceedings from Arvi on feet to her village. She reached near a hillock. The accused had come from behind, caught hold of her. He dragged her by the side of the road. The accused removed her saree and ravished her. He also gagged her mouth. The prosecutrix had seen one Nanubai and P.W. 9 Fattu and called them. They approached her and saved her. The prosecutrix in her examination-in-chief has further stated that first she went to the house of the Police Patil and thereafter she went to Police Station and lodged the report. The first information report was lodged by the prosecutrix at about 9.45 p.m. on the same night, in which the prosecutrix has specifically stated that the accused caught hold of her and dragged her by the side of the road, caught hold of her hair, pulled her down on the ground, removed her saree which was on her person and thereafter committed sexual intercourse with her. It is pertinent to note that in the instant case, the subsequent conduct of the prosecutrix is a relevant circumstance. The prosecutrix almost immediately after the alleged incident of rape, lodged the first information report (Exhibit 24), in which she has categorically stated that the rape was committed by the accused. It is pertinent to note that in the instant case, the subsequent conduct of the prosecutrix is a relevant circumstance. The prosecutrix almost immediately after the alleged incident of rape, lodged the first information report (Exhibit 24), in which she has categorically stated that the rape was committed by the accused. The fact of lodging first information report without lapse of time rules out the possibility of concoction and fabrication. The story put forth by the prosecutrix in the first information report is totally corroborated by her evidence in the Court in respect of all material particulars. It is, therefore, important to note that the subsequent conduct of the prosecutrix, coupled with the story put forth by her in the first information report as well as in her examination-in-chief does show that the accused at the relevant time and place has committed act of sexual intercourse on the prosecutrix. 12.It is necessary now to consider the cross-examination of the prosecutrix in order to test veracity of her ocular testimony. In the cross-examination, the suggestions, which are given to the prosecutrix, instead of destroying the case of the prosecution, reaffirm the material particulars of the prosecution case put forth by the prosecutrix in the first information report as well as in her examination-in-chief. The prosecutrix has stated in the cross-examination that it is true to say that the accused was approaching her from behind. It is further stated by the prosecutrix that the accused was observing her and was following her. She has also stated that while she was being dragged by the accused, she sustained injuries on her head. She has also stated that the accused had pulled her down on the ground by holding her hair and there was a swelling on her head. It has also come in the cross-examination that when the accused caught hold of her hand, the articles, which she had purchased from the market, fell down on the ground. The above referred factors which are finding place in the cross-examination would go to show that the defence has virtually not disputed the presence of the accused on the spot, catching hold of the prosecutrix at the relevant time, dragging her by the side of the road, pulling her down on the ground. The above referred factors which are finding place in the cross-examination would go to show that the defence has virtually not disputed the presence of the accused on the spot, catching hold of the prosecutrix at the relevant time, dragging her by the side of the road, pulling her down on the ground. In that view of the matter, the material version of the prosecutrix finding place in the first information report in her examination-in-chief is confirmed in the cross-examination. The only omission, which is brought by the defence, is in respect of gagging her mouth by the accused at the relevant time. This omission, in my opinion, is not a material omission, which would destroy the prosecution case put forth by the prosecutrix. While reappreciating the evidence of the prosecutrix in totality, I have no hesitation to hold that the evidence of the prosecutrix is not at all shattered in the cross-examination. On the other hand, as I have already stated hereinabove, the same is reaffirmed. 13.The story put forth by the defence in the cross-examination of the prosecutrix that she had taken a loan of Rs. 500.00 from the accused and as she could not repay the same, she has falsely implicated the accused in the offence in question, is not only difficult to accept, but the same is inconceivable. The Court cannot turn Nelsons eye to the fact that in the Indian society, no woman would involve somebody in a situation like this where her pride, prestige and future would be totally destroyed. It is not only her own future, but the future of her children is also at stake and, therefore, the defence which is raised by the appellant is extremely difficult to accept. 14.In the instant case, the evidence of the prosecutrix is natural, truthful, straightforward and inspires confidence. Similarly, there are no material contradictions and omissions, and corroborate the material particulars of the prosecution case put forth in the first information report which was lodged by the prosecutrix within a few hours of the incident. 15.The evidence of the prosecutrix is corroborated by the evidence of P.W. 9 Fattu Shersingh Rathod, who has stated in his examination-in-chief that he along with one Nanubai of his village were returning from Arvi. 15.The evidence of the prosecutrix is corroborated by the evidence of P.W. 9 Fattu Shersingh Rathod, who has stated in his examination-in-chief that he along with one Nanubai of his village were returning from Arvi. He heard commotion from the barren land which was adjacent to the road and heard the shouts of a woman who was shouting for help. He, therefore, went there and saw the prosecutrix nude and also saw the appellant-accused there. He stood up and rushed towards him with a stone. This witness further stated that he and Nanubai took the prosecutrix with them. The only omission, which is brought out in the cross-examination of this witness, is in respect of the fact that the accused had followed them, which again is not a material omission in order to destroy the ocular testimony of this witness. The evidence of this witness corroborates the material particulars of the prosecution case put forth by the prosecutrix in the first information report as well as in her evidence and, therefore, this is a case where the version of the prosecutrix is corroborated by the testimony of this witness, which makes the prosecution case put forth by the prosecutrix strong and acceptable. There is nothing brought on record by the defence in the cross-examination of this witness in order to show that he is an interested witness. In absence thereof, this witness is an independent witness and in view of the attending circumstances, a most natural one and, therefore, the evidence adduced by this witness is acceptable and corroborates the first information report as well evidence of the prosecutrix. 16.It is, no doubt, true that in a given case if the Act of intercourse is committed against the will and consent of the lady on the rough ground, the possibility of injuries finding place on the person of the victim is there. However, in the instant case, it has come on record that at the relevant time, it was a rainy season and it had rained on the date of incident and, therefore, the soil had become muddy and soft and, therefore, it was neither hard nor tough and hence in these circumstances, non-finding of injuries on the prosecutrix does not vitiate the prosecution case. The contention canvassed by the learned Counsel in this regard is, therefore, misconceived. 17.It is, no doubt, true that the prosecutrixes was examined by Dr. The contention canvassed by the learned Counsel in this regard is, therefore, misconceived. 17.It is, no doubt, true that the prosecutrixes was examined by Dr. Meena (P.W. 8) and she could not give a positive opinion about the act of rape, since the prosecutrix was habituated to the intercourse. The medical evidence, no doubt, is a material piece of evidence. However, it needs to be appreciated in view of the facts and circumstances involved in each case. In the instant case, one cannot lose sight of the fact that the prosecutrix was an elderly lady of about 40 years of age having four children and was, therefore, undoubtedly habituated to the sexual intercourse. In a situation like this, it is not always possible to sustain injuries on the private parts of a lady and, therefore, non-finding of injuries on the private part of the lady by the doctor does not, in my opinion, affect the ocular version of the prosecutrix. 18.As far as the defence of the accused is concerned that the prosecutrix has falsely implicated him in the present crime, since the prosecutrix who had borrowed an amount of Rs. 500.00 from him, was not in a position to return the said amount to the accused, is totally inconceivable and cannot be accepted. Similarly, the alternative argument canvassed by the learned Counsel for the applicant that this is a case of attempted rape, is also not acceptable firstly because the defence, which is taken by the accused, is totally inconsistent with this aspect. The defence taken by the accused in the cross-examination as well as the story put forth by him in his examination under section 313, Criminal Procedure Code, is totally inconsistent with the facts of the case and secondly there are no circumstances brought on record by the defence in order to hold that this is a case of attempted rape. In absence thereof, the contention canvassed by the learned Counsel for the appellant in this regard cannot be accepted. For the reasons stated hereinabove, there is no case made out for interference. The finding of conviction recorded by the trial Court is hereby confirmed. Appeal is dismissed. Appeal dismissed. -----