( 1 ) THOUGH the accused in the present case faces serious charges of having trespassed into the residential house of complainant Chandrawwa at about 1 PM. On 6. 2. 1995 and having raped her thereafter, involving offences punishable under Sections 451 and 376 IPC. , the case has thrown up some fundamental aspects of the law relating to these offences. The complainant Chandrawwa was aged about 20 years at the relevant time and there is no dispute about the fact that she was not a minor. She had been married two years earlier but due to certain domestic problems she had returned to her parents house and was residing there. On 6. 2. 1995 her father had left the house and so had her mother and at the time of the incident namely, at about 1 PM. She was alone in the house. It is her case that the accused Gurupadayya came to the house and made certain enquiries about her father and mother and after verifying carefully that they were not around and that they were not likely to return for sometime is alleged to have entered the house and bolted the inner door. Thereafter, according to the victim the accused overpowered her and committed the act of rape. Her version is that she was not a consenting party or rather though she resisted by trying to shout, she was prevented from doing so because the accused felled her down, closed her mouth with one hand, silenced her and furthermore, the accused caught hold of her so forcefully that it became impossible for her to escape. She alleges that the accused had completed the act of rape when PW. 2 Tippawwa who is her aunty came there to take her for some function and when she started calling out to Chandrawwa, the accused panicked, he opened the door and fled from that place. PW. 2 states that it was the accused who opened the door and that he was in the process of trying to put his clothes in place when he fled from that place. She found the victim in a disturbed and disheveled condition and on asking her, Chandrawwa told PW. 2 that the accused had overpowered her and raped her. PW. 2 states that it was the accused who opened the door and that he was in the process of trying to put his clothes in place when he fled from that place. She found the victim in a disturbed and disheveled condition and on asking her, Chandrawwa told PW. 2 that the accused had overpowered her and raped her. The matter was thereafter reported to the police after the arrival of her parents and the police sent the victim to the hospital for necessary medical examination. The accused was arrested and also subjected to medical examination. The doctor undertook the necessary swab test etc. and after completion of the entire investigation the accused was charge sheeted and sent up for trial. ( 2 ) THE learned Sessions Judge accepted the evidence of the victim Chandrawwa and further held that this evidence is corroborated by the evidence of PW. 2 Tippawwa who arrived at the house virtually minutes after the alleged incident, who saw the accused running away virtually in a half-clothed condition and the other supportive evidence and the Court also accepted the explanation of the victim that since she had taken a bath immediately after the incident and also washed her clothes before going to the police station that whatever secondary signs of rape either on her body or on her clothes were not traceable. The accused was convicted by the trial Court and sentenced to five years rigorous imprisonment and a fine of Rs. 2000/- for the offence under S. 376 IPC. And to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- for the offence punishable under S. 451 IPC. The accused who is aggrieved by the conviction and sentence has preferred Criminal Appeal 778/98. The State has preferred Criminal Appeal 1090/98 praying for enhancement of sentence on the ground that the Court ought to have awarded a sentence of seven years rigorous imprisonment for the offence punishable under S. 376 IPC. unless valid and cogent grounds have been adduced for awarding a lesser sentence. We have heard both the appeals together on merits. The State has preferred Criminal Appeal 1090/98 praying for enhancement of sentence on the ground that the Court ought to have awarded a sentence of seven years rigorous imprisonment for the offence punishable under S. 376 IPC. unless valid and cogent grounds have been adduced for awarding a lesser sentence. We have heard both the appeals together on merits. We have heard the arguments advanced by the two learned Counsel and we have also done a threadbare review of the record because the facts of this case represent a rather serious and unfortunate state of affairs and, in the event of the charge having been proved, it would certainly have been a case for enhancement of sentence. ( 3 ) APPEARING on behalf of the appellant-accused, Mr. Nayak, learned Counsel submitted after taking us through the evidence on record that there is one factor that is absolutely glaring in the present case. He submits that the victim is a young woman of 20, the accused was a little older namely 45 an the incident is alleged to have taken place in a residential house in the village and the record establishes that there were a number of other residential structure in the very close proximity. The first submission advanced by the learned Counsel is that in cases of the present type, it is very necessary for the Court to take a board view of the record for purposes of considering both the probability and the possibility of an offence of this type taking place. There is no allegation that the accused was armed with a deadly weapon or that he had attacked and immobilised the victim and Mr. Nayaks submission is that in broad day light in the heart of the village the sheer probability or possibility of the accused venturing to commit the offence of rape is very highly improbable. Learned Counsels submission is that the first and most important ingredient which the prosecution is required to establish and what is condition precedent in law particularly in the case of sexual offences alleged against a major woman is the fact that the sequel intercourse has taken place forcefully or in other words, without the consent of the victim and against the wished of the victim. Conversely, the entire thrust of the argument placed before us proceeds on the footing that if the victim was a consenting party as is more likely and had decided to take advantage of the absence of her parents, that then the rest of the prosecution evidence would be more than fully explained. The learned Counsel submits that in that event there would be no question of the victim raising an alarm and others rushing to the spot to her rescue at the peril of the aggressor and secondly, his submission is that the total absence of even the slightest abrasion or injury mark on the person of the victim, the total absence of her clothes having been torn, the fact that even the glass bangles that she was wearing were intact and the fact that there were no signs of struggle within the house by way of damage or disturbance etc. would all point in favour of the theory that assuming something happened in the house on that afternoon that it was with the consent of Chandrawwa and not without her consent. ( 4 ) THE next limb of the argument takes us to the medical evidence and here again, the learned Counsel has demonstrated three very crucial aspects, both factual and legal to the Court. To support that, he has pointed out to us that the consequences of a conviction for rape being extremely serious almost as a rule of caution or as a rule of prudence even where the victims evidence appears reliable and worthwhile, the Court would rely heavily on the medical evidence and forensic evidence for purposes of establishing the commission of the offences. To start with, the examination by the doctor of Chandrawwa indicates that despite a careful scrutiny of her body that no injury marks, abrasion, bruises or anything of the sort was apparent despite the fact that she was examined just a few hours after the alleged incident. What is also demonstrated to us is that a similar examination was done as far as the accused was concerned and that absolutely no signs of any injuries appeared on his person. What is also demonstrated to us is that a similar examination was done as far as the accused was concerned and that absolutely no signs of any injuries appeared on his person. The submission is that this evidence totally destroys the force and lack of consent theory because if Chandrawwa had been continuously struggling and resisting apart from minor injuries on her person, there would certainly have been resistence injuries which could have been in the form of bite mark, scratches, abrasions, bruises etc. on the person of the accused. The learned Counsel then demonstrates to us that the police have seized the clothes of the victim as also of the accused and that absolutely no tell-tale marks such as tears or more importantly, any stains of any type of fluids have been detected inspite of forensic examination. This again not only goes against the theory of violent force and lack of consent but would seriously question the very genesis of the theory that the offence of rape had taken place. The fact that Chandrawwa had washed her clothes does not help the prosecution at all. ( 5 ) THE last aspect of the medical and forensic evidence revolves around the fact that despite very careful examination done by the doctor of the victim and of the accused absolutely no evidence of recent sexual intercourse has emerged. Mr. Nayak was quick to point out to us that Chandrawwa had tried to defend her position by stating that she had taken a bath after the incident but the doctor has pointed out that even if the victim had bathed after the incident that he presence of spermatozoa would have been detectable in the vagina for as long as three days after the incident. The swab test being negative, would therefore be almost destructive of the prosecution case. ( 6 ) AS against this position, the learned Addl. SPP has submitted that the Court ought to take into consideration the fact that Chandrawwa was taken completely by surprise by the accused who virtually gagged her and overpowered her as a result of which she was totally immobilised and silenced and this explains the fact that she could not scream or raise an alarm and secondly of the fact that there were virtually no injuries. His submission is that if the incident were to be re-created it would be evident that since the accused was obviously the stronger of the two that he had overpowered the victim and that explains why there were not only no injuries but no damage even to the clothing. The further submission is that where the evidence of the girl is clear and where it is corroborated by the evidence of PW. 2 Thippawwa that merely because supportive evidence is not available, it would not be permissible in law for the Court to hold that the offences have not taken place. ( 7 ) THE learned Addl. SPP has relied on the evidence of PW. 2 Thippawwa. He points out that she is an elder member of the family aged 50, that her arrival was unexpected, that she knows the accused, she had seen him running away in a half clothed condition. She has witnessed Chandrawwa with her clothes scattered and haris scattered and that Chandrawwa had immediately disclosed to her about the commission of the offence and that the trial Court was fully justified in having accepted this evidence as corroborative evidence and record a conviction. Learned Counsel submits that the offence having been established, in the absence of any extenuating circumstance the conviction ought to be confirmed and the sentence under the main charge or rape must be enhanced. The added argument was that instance of molestation and rape require to be not only deprecated but dealt with seriously by the Court and therefore this is a fit case in which the sentence be enhanced. ( 8 ) BEFORE considering the aspect of enhancement, we first need to examine the correctness or otherwise of the conviction. It is clear from the evidence of the victim that she makes out a case both of trespass and of rape, it is also true that the evidence of PW. 2 Thippawwa would strongly corroborate the version of the victim. What the trial Court has overlooked is the fact that the remaining evidence, particularly the medical evidence, forensic and the circumstantial evidence require to be dissected for purposes of answering the one crucial question in this case namely, as to whether, even assuming that rape had taken place, whether Chandrawwa was a consenting party. What the trial Court has overlooked is the fact that the remaining evidence, particularly the medical evidence, forensic and the circumstantial evidence require to be dissected for purposes of answering the one crucial question in this case namely, as to whether, even assuming that rape had taken place, whether Chandrawwa was a consenting party. The total absence of even the slightest injury on Chandrawwas person goes against her version that she violently resisted. It is also a little inconceivable to believe that the accused could silence an adult woman right through the entire operation. More importantly, if the victim was not a consenting party and had fought back, there would have been several tell-tale injuries on the accused which are totally absent. The clothes of the victim would have been in tatters and above all, there would have been some supportive medical evidence. Regardless of the fact that she may have had a bath, there would still had been more than ample tell-tale evidence which the doctor and the forensic experts would have detected. The absence of all of this goes very strongly against the prosecution and a serious doubt arises as to whether at all the act of sexual intercourse had taken place. More importantly, the untimely arrival of PW. 2 Thippawwa is indicative of the fact that even assuming something were to have happened in that house, that the attempt was frustrated. From the re-creation of the facts and circumstances of the case, it is impossible for us to hold that the accused had trespassed into the house or that he was even in the process of attempted rape or molestation more plausibly and possibly the more correct conclusion would be that his presence in the house is explained by the fact that whatever was to happen there was to take place by consent. The record clearly indicates that the outer door of the house had not been bolted. PW. 2 Thippawwa is categorical about this. This circumstance fully reinforces our view that the entry was not offensive and secondly that the accused had not come there for purposes of committing a criminal act. Had this been the case, the first thing that he would have done was to have secured the outer door which he had not done. This is one of the very strong circumstances that supports the conclusion that we have arrived at. Had this been the case, the first thing that he would have done was to have secured the outer door which he had not done. This is one of the very strong circumstances that supports the conclusion that we have arrived at. ( 9 ) WE need to highlight the legal aspect for only one reason in so far as even where the bulk of the record often indicates that a certain set of circumstances and evidence point to the possible commission of a sexual offence, that before a conviction is recorded in those of the cases where the woman is a major that the Court should never overlook the ingredient of consent. If the act has taken place with the consent of an adult woman, then no offence is made out and this fundamental and more crucial aspect of the law has got highlighted in the present case. ( 10 ) ANOTHER important aspect of the law that was debated before us is with regard to the applicability of S. 114-A of the Evidence Act which reads as follows: - s. 114-A:-Presumption as to absence of consent in certain prosecutions for rape:- in a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860) 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. This Section was inserted by Amendment No. 43/1984 in order to clear the gray area with regard to offences of rape where the Court is faced with the vexed question of deciding as to whether the victim had consented or not. The law provides for a presumptive situation whereby, once the prosecution establishes that sexual intercourse has taken place that if the victim states in her evidence that this has happened without her consent that the Court shall presume accordingly. Learned Addl. SPP submits that the facts of the present case are on all fours with the provisions of S. 114-A and consequently on this ground alone the conviction is required to be upheld. Mr. Learned Addl. SPP submits that the facts of the present case are on all fours with the provisions of S. 114-A and consequently on this ground alone the conviction is required to be upheld. Mr. Naik submits that the presumption can never arise unless the prosecution proves the most necessary ingredient namely that sexual intercourse had been established. We do not need to go into any elaborate debate because the facts of the present case or rather the medical and forensic evidence and the other circumstantial evidence that we have relied and re-relied upon earlier totally and completely go against the theory that the act of sexual intercourse has been established in the present case. It is true that while considering the aspect of consent, we have held that on the facts of the present case everything points in favour of Chandrawwa being a consenting party but we cannot overlook the basic evidence in this case which has failed to establish that the act of sexual intercourse had at all taken place. In this view of the matter, the question of applying the presumption under S. 114-A of the Evidence Act does not arise. ( 11 ) ON the state of the present record, in our very considered view the conclusions and findings arrived at by the trial Court are erroneous. The convictions and sentences awarded are accordingly set aside. The fine, if paid, is directed to be refunded. The Criminal Appeal 778/1998 filed by the accused is allowed. The bail bonds to stand cancelled. ( 12 ) AS a necessary consequence, Criminal Appeal 1090/1998 fails on merits and stands dismissed. --- *** --- .