JUDGMENT :- This appeal is directed against the judgment and order dated 9-9-2004 passed by the Additional Sessions Judge, Gadchiroli in Session Trial No. 39/96 whereunder the appellant herein was convicted for the offence punishable under section 376, Indian Penal Code and sentenced to suffer R.I. for seven years and to pay a fine of Rs. 500/- in default to undergo R.I. for one month. 2. The prosecution case in brief is thaton 6-9-1995, at about 2 to 3 P.M., the prosecutrix Ku. Pachobai Zhitu Sarpam, then aged about 21 years, resident of Ghugava, Taluka Korchi, District Gadchiroli, was planting chili crops near her field on the bank of nallah. When she was digging for plantation, the appellant arrived there on his bicycle and came near her stealthily and held and pulled her. He attempted to remove her saree, but because of the resistance offered by her, he could not do so. However, the appellant overpowered her and then felled her down and removed her saree. He then took out his full-pant and on falling on her, committed sexual intercourse, in spite of her resistance. She shouted, but the appellant pushed dupatta in her mouth and threatened to kill her in case she raises shouts. At that relevant time, when the accused was committing sexual intercourse, a person named Sukhdeo Katenge (P.W. 3), who was fishing in the nullah, heard the shouts and cries of the prosecutrix and hence, he rushed to the spot. He saw the appellant committing sexual intercourse with the prosecutrix. When he reached to the spot where the appellant was sexually seducing the prosecutrix, the appellant stood up and started wearing his full-pant and then he attempted to leave the spot. By that time, one Devlu Zhitu Sarpam, the brother of the prosecutrix, on hearing the shouts of the prosecutrix, came to the spot. His sister, the prosecutrix narrated the entire incident of rape by the appellant, to him. Devlu, in turn, asked the appellant as to why he did such an evil act. That time, the appellant attempted to run away, but he was obstructed by Devlu by caught holding him by his collar and asked him to accompany with him to the house of Police Patil. That time, the accused told that he had committed mistake and he, therefore, sought apology, but then the accused, giving jerk, ran away. That time, the appellant attempted to run away, but he was obstructed by Devlu by caught holding him by his collar and asked him to accompany with him to the house of Police Patil. That time, the accused told that he had committed mistake and he, therefore, sought apology, but then the accused, giving jerk, ran away. Devlu, taking with him his sister the prosecutrix, went to the house of Police Patil and narrated the incident to him. 3. By that time, it was evening and hence the prosecutrix accompanied by her mother, went to the Police Station Purada on the next day, i.e. on 7-9-1995. She was interrogated by the then AS.!. Jayant Mungelwar (P.W. 4) to whom she narrated the incident orally which was reduced into writing vide Exh. 25, and on the basis of that, an offence under section 376, Indian Penal Code was registered vide Cr. No. 39/95. 4. The prosecutrix was referred to Medical Officer Dr. Tejram Sahare (P.W.1) who was then working as Medical Officer in the Primary Health Centre, Kurkheda. He examined the prosecutrix and issued certificate vide Exh. 20 regarding his findings in respect of the age of the prosecutrix, so also the factual state of her health. In his certificate Exh. 20, he stated that her vagina was well developed. Hymen was completely ruptured and rugosed. The vagina was specious which shows that she experienced coitus repeatedly since long duration. It is further stated that definite opinion regarding experience of last coitus cannot be given. No any injury seen over the vagina or any other private parts. On the basis of her external features, the Medical Officer opined that she was then 20 to 22 years of age. 4A. During the course of investigation, Police visited the place of occurrence and drew the spot panchanama vide Exh. 14. There they spotted two hair-pins of the prosecutrix which were seized under the spot panchnama Exh. 14. The appellant was referred for medical examination. The Medical Officer, on examining him, issued Medical Certificate vide Exh. 28. The sample of his semen was drawn. The clothes of the prosecutrix were seized. The property that was seized, was sent to Chemical Analyser for examination. After the receipt of the report of C. A, vide Exh. 14. The appellant was referred for medical examination. The Medical Officer, on examining him, issued Medical Certificate vide Exh. 28. The sample of his semen was drawn. The clothes of the prosecutrix were seized. The property that was seized, was sent to Chemical Analyser for examination. After the receipt of the report of C. A, vide Exh. 34 and completing the investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, Desaiganj, who, by his order, committed the case to the Court of Sessions. S. Before the Court, when the charge was framed vide Exh. 11, the appellant pleaded not guilty to the charge and claimed to be tried. It was his defence that the prosecutrix Pachobai was lunatic since her childhood and, therefore, her marriage was not performed. She was wandering on roads and was catch-holding the hands of others. He also stated that he was "Mahar" by caste, whereas the prosecutrix and her brother are "Adiwasi" and, therefore, there was enmity between him and them, and due to that enmity, he was falsely implicated. It was further his defence that he might have gone for answering the call of nature and, therefore, he was wearing his full-pant. 6. At the trial, the prosecution examined Medical Officer Dr. Tejram (P.W. 1), Devlu, Brother of prosecutrix (P.W. 2), an independent eye witness Sukhdeo (P.W. 3), and AS.!. Jayant (P.WA). 7. As could be seen from the defence of the accused, though he has empathetic ally denied that he was involved in committing or having sexual intercourse with the prosecutrix, he had been there in the vicinity for answering call of nature and, therefore, he was wearing his full pant. The trial Court accepted the version of the independent witness Sukhdeo who claimed to have witnessed the incident of commission of rape on the prosecutrix by the accused. This was much more so when the medical evidence, as it is clear from the Certificate Exh. 22 issued by the Medical Officer, did not notice any sign of commission of rape. The trial Court also accepted the evidence of witness Devlu to whom the prosecutrix disclosed as to what had been done to her by the appellant. In addition to that, the trial Court accepted the narration of the incident by the prosecutrix to AS.I. Jayant who reduced it into writing vide report Exh. 25. The trial Court also accepted the evidence of witness Devlu to whom the prosecutrix disclosed as to what had been done to her by the appellant. In addition to that, the trial Court accepted the narration of the incident by the prosecutrix to AS.I. Jayant who reduced it into writing vide report Exh. 25. In that background, discarding the defence, the learned trial Court found the appellant guilty for the offence under section 376 of Indian Penal Code and, therefore, consequently he was sentenced as stated earlier. Hence this appeal. 8. The learned counsel Mr. Sirpurkar vehemently submitted that the trial Court has convicted the appellant without there being any cogent and satisfactory evidence. He pointed out that the medical evidence and more particularly, the findings recorded by Dr. Tejram (P.W. 1) on examining the prosecutrix, in Medical Certificate Exh. 20, did not corroborate the case of the prosecution that the rape was committed on the prosecutrix. According to him, the findings recorded in the Medical Certificate Exh. 20 totally rule out the possibility of commission of rape on the prosecutrix. He submitted that the evidence of witness Sukhdeo (P.W. 3), though he is claimed to be an independent witness, does not at all support the case of the prosecution as his evidence is not at all probable and it could be very unfortunate for the prosecution that the prosecutrix is not examined in the Court, though she was a prime witness in this case, through. whose testimony it was to the advantage of the Court to get direct evidence or eye witness account of the alleged incident. He submitted that the claim of the prosecution that the prosecutrix could not be examined as she was lunatic, is not acceptable as it is not sufficient merely because the Medical Officer has issued the certificate which is marked as Article "A". So the absence of her evidence is an inherent infirmity in the prosecution case. As regards the evidence of witness Sukhdeo, the learned Counsel submitted that he was a got up witness and having regard to the medical evidence, his version before the Court· claiming to be an eye witness to the incident of alleged commission of rape, cannot be believed and accepted. As regards the evidence of witness Sukhdeo, the learned Counsel submitted that he was a got up witness and having regard to the medical evidence, his version before the Court· claiming to be an eye witness to the incident of alleged commission of rape, cannot be believed and accepted. What AS.I. Jayant (P.W. 4) has stated about the occurrence, is only on the basis of what was taken down in writing when the prosecutrix orally reported to him the incident. So his evidence cannot be a substitute to the evidence of prosecutrix. As regards the witness Devlu, he did not claim to be an eye witness to the incident inasmuch as on his own version, his attention was attracted when he heard the shouts of his sister and when he went to the spot, he only saw the appellant wearing his pant while his sister was weeping and she disclosed him as to what had happened to her. Therefore, the learned Advocate has submitted that the trial Court has committed an error in convicting the appellant. The prosecution has utterly failed to bring home the guilt to the appellant beyond reasonable doubt. He, therefore, urged that the appellant was right in his statement that he was implicated falsely due to enmity. He, therefore, urged that the appeal be allowed and the appellant be acquitted. 9. As against this, Mr. Lanjewar, the learned AP.P. supported the judgment of conviction. He pointed out that the absence of Medical Evidene as to the commission of rape, is of no consequence inasmuch as the prosecutrix was examined by the Medical Officer on 8-9-1995 when the incident alleged has taken place on 6-9-1995. He further submitted that the evidence of witness Sukhdeo, who is an independent witness, has been rightly accepted by the trial Court as his presence on the spot of incident was natural and there was no reason for him to give evidence against the appellant. His evidence was natural and the trial Court was right in finding that his evidence inspires confidence. He further submitted that his evidence is giving direct eye witness account of the incident of commission of rape and as such it lends corroboration to what was orally reported by the prosecutrix to A.S.I. Jayant (P.W.4) which has been transmitted in the written report. He further submitted that his evidence is giving direct eye witness account of the incident of commission of rape and as such it lends corroboration to what was orally reported by the prosecutrix to A.S.I. Jayant (P.W.4) which has been transmitted in the written report. He further submitted that Devlu, the brother of the prosecutrix, has given evidence in a straightforward manner. The trial Court has rightly rejected the defence about the enmity between him and the prosecution witnesses. Though his evidence is not direct evidence or eye witness account of the incident of commission of offence of rape, it has come in his evidence that when he heard shouts and when he saw the accused there wearing his full-pant, his sister was weeping and disclosed that she was ravished by the appellant. He, therefore, urged that the trial Court has rightly convicted the appellant and as such this appeal merits no consideration at all. 10. In the first place, the findings recorded by the Medical Officer about the lunacy of the prosecutrix, after examining her, vide Certificate Article "A", certainly, do suggest that the prosecutrix was, at that time, lunatic. This fact is not disputed by the defence. It is very curious that it was suggested by the defence to witness Devlu (P.W.3) that since the childhood, the prosecutrix Pachobai was lunatic and, therefore, her marriage was not performed. It was also suggested that his sister Pachobai was wandering on road and catch-holding hands of others. Witness Devlu has stoutly denied the suggestion. His evidence was recorded on 15-7-2004. It was brought by the defence in his cross-examination that last year, his sister Pachobai was examined in the hospital. Prior to that, she was not taken to the hospital. So his evidence, as it stands, lays assurance to the claim of the prosecution that the prosecutrix Pachobai, though was quite a normal girl, after the incident, became lunatic. As pointed out, the suggestion by the defence that Pachobai was lunatic right from her childhood, in a sense, supports the claim of the prosecution that at the time when the evidence was led by the prosecution, she was admittedly lunatic. Therefore, there was justification for the prosecution for not examining the prosecutrix Pachobai as witness in the case though, undoubtedly, her evidence was certainly primary and in the nature of eye witness account. Therefore, there was justification for the prosecution for not examining the prosecutrix Pachobai as witness in the case though, undoubtedly, her evidence was certainly primary and in the nature of eye witness account. In other words, in this set of facts and circumstances, 'non-examination of the prosecutrix Pachobai does not bring any infirmity in the prosecution case. 11. The evidence of Dr. Tejram (P.W. 1) in pursuance of the finding recorded or observations noted in the Certificate Exh. 20, no doubt, shows absence of any injury to the private part of the prosecutrix, so also the fact that all her sexual secondary organs, breast and pubic hairs were well developed. Her hymen was completely ruptured and vagina was found to be specious which showed that she experienced coitus repeatedly since long duration. This clinchingly shows that she was habituated to sexual intercourse. The Medical Officer has also opined that no definite opinion regarding the experience of last coitus could be given. There was no injury seen over the vagina or any other private part. These findings recorded by the Medical Officer have been highlighted by the defence to support its contention that the factum of sexual intercourse at the time and place has not been clinchingly established. Rather it was submitted that the claim in that regard has been negatived because of these findings. But, in my opinion, having regard to the other attending circumstances, it is very difficult to accept the submissions of the learned Advocate in that regard. In the first place, it is to be noted that when it was found that there was rupture of hymen and the vagina was specious, the prosecutrix has experienced coitus repeatedly since long. If that is so, then when the appellant had sexual intercourse with the prosecutrix, in all probabilities, there could not have been any injury on her private parts. Therefore, merely no injury was found on her private parts, it is very difficult to discard her claim that rape was committed on her. It is needless to say that the gist of findings of rape is having forcible sexual intercourse against the consent of a woman. Therefore, merely no injury was found on her private parts, it is very difficult to discard her claim that rape was committed on her. It is needless to say that the gist of findings of rape is having forcible sexual intercourse against the consent of a woman. Therefore, in case a woman or a girl is unfortunately used to sexual intercourse, it is not necessary that in such a case, there would be evidence in the form of injury to her private parts as a result of sexual intercourse having been taken against her consent. 12. The learned advocate for the defence pointed out from the spot panchnama that trampling of grass was noticed at the place of occurrence and the victim has claimed that she offered resistance and, therefore, in all probabilities, she must have received injury, say abrasion, etc. on her back or other part of her body. But, absence of that, falsifies her claim that rape was committed on her. This submission, though, at the first blush, appears attractive, has to be rejected taking into consideration the other attending circumstances of the case. It is to be noted that the prosecutrix reported the matter to the Police on the next day. Then she was sent to medical examination on 9-9-1995. Therefore, due to lapse of two days, it is quite possible that there might not have been traces of such injuries or abrasions on her person. Even according to him, the manner in which the incident has taken place, it is possible that no such injuries even of minor nature could have been caused, as it is clear from the evidence of independent witness Sukhdeo that the incident ended in a short span. He has stated in his evidence before the Court that after hearing the shouts, his attention was attracted and, therefore, he turned to the place to find that the appellant was having sexual intercourse with the prosecutrix having fallen her on the ground and then when he reached there and questioned the appellant, he left her and started wearing his pant and started going from there. Even the witness Devlu who was working in the other part of the field, when heard shouts of his sister Pachobai, rushed to the scene and saw the appellant wearing his full-pant, while his sister who was found standing there, was weeping and when he reached there, disclosed him that the appellant committed rape on her, the details of which have been recorded in the report which was taken down by A.S.I. Jayant (P.W. 4), as narrated by the prosecutrix. So, in such circumstances, the absence of injuries by itself, as has been rightly found by the trial Court, cannot be said to be a circumstance to reject the claim of the prosecutrix. 13. This is much more so when there is a direct evidence of witness Sukhdeo whose presence at the time and place is not specifically denied by the defence. His evidence is, no doubt, creditworthy because though he was subjected to cross-examination, the defence could not succeed in bringing firstly, any contradictions or omissions in his evidence, and secondly, any infirmity in his evidence to make a dent in his testimony. This witness being an independent witness and his presence at the time and place being very natural and undisputed, the trial Court has rightly accepted his evidence. The learned counsel for the defence has stated that the witness Devlu has not, in his evidence, stated about the presence of this witness at the place of occurrence. It is true that it is not so specifically stated, but it is equally true that the defence has not brought anything in the evidence of witness Devlu that this witness was not present at the spot of occurrence. What is material is that this witness had no reason to give false evidence to implicate the accused. So his evidence inspires confidence and in my opinion, in his evidence, the factum of commission of rape/the accused having committed sexual intercourse with the prosecutrix at that time and place, is clinchingly borne out. As pointed out in the earlier part of the judgment, it was suggested that the accused might have gone there for answering call of nature. This suggestion so given, in all probabilities, justify the claim of the witnesses in their evidence that they saw the accused wearing his full-pant. As pointed out in the earlier part of the judgment, it was suggested that the accused might have gone there for answering call of nature. This suggestion so given, in all probabilities, justify the claim of the witnesses in their evidence that they saw the accused wearing his full-pant. So, this fortifies and strengthens the claim of witnesses that the accused was very much there and that too he was wearing his full-pant. The suggestion that the he was wearing the pant at the time and place where the victim was, itself goes to show that the accused had removed his full-pant and he was naked and this action probabilise that the accused was having had sexual intercourse with the prosecutrix. There is evidence of witness Devlu that the prosecutrix was weeping and she told him that the accused had sexual intercourse with her. This evidence is acceptable. The evidence of witness Sukhdeo in that regard is also plausible. So, considering the evidence of these two witnesses, the claim of the appellant that he had simply removed his full-pant or he might have removed his full-pant for answering the call of nature, appears to be as absurd and unbelievable as possible. Then the conduct of the accused, as stated by the witness Devlu when he was apprehended and questioned by witness Devlu, is again indicating his involvement in the commission of offence. It has come in his evidence that the accused, when questioned he admitted to have committed that evil act and prayed for apology. That instant and prompt expression by the accused to witness Devlu is acceptable and believable and it is very natural. If that is so, then his subsequent conduct when he was caught hold by holding his collar, his attempt to get free by giving jerk to witness Devlu, certainly indicates his involvement in the commission of crime. Therefore, as rightly observed by the trial Court, the factum of commission of sexual intercourse by the accused has been established. The observations by the Medical Officer that no definite opinion regarding the experience of last coitus could be given, in my opinion, does not negate the claim of the prosecution that the accused had sexual intercourse with the prosecutrix. That is because the prosecutrix was examined by Doctor after two days of the incident. The observations by the Medical Officer that no definite opinion regarding the experience of last coitus could be given, in my opinion, does not negate the claim of the prosecution that the accused had sexual intercourse with the prosecutrix. That is because the prosecutrix was examined by Doctor after two days of the incident. Therefore, it is obvious that the evidence in that regard and particularly the finding of semen in her Vagina or private part of the body or her clothes, was naturally not possible. 14. The defence of the accused is of the total denial. This is in the sense that it is not his case that he had sexual intercourse with prosecutrix Pachobai with her consent. There are circumstances to justify that the accused had sexual intercourse with her against her consent. What was narrated to A.S.I. Jayant by the prosecutrix, which has been recorded in the report Exh. 25, certainly goes to show that she was not a willing party. Whatever she narrated orally to A.S.I. Jayant (P.W. 4) has been reduced into writing vide report Exh. 25 and that has been specified by this witness in his evidence before the Court and what is surprising is that his evidence in that regard has not been challenged by the defence except giving suggestion that the prosecutrix did not tell the contents of the report and that the Police Patil and the brother of the prosecutrix told the contents of the report. The witness has stoutly denied this suggestion. It is needless to say that in his examination-in-chief, this witness has categorically stated about what was reported to him by'the prosecutrix, it was reduced into writing vide Exh. 25. Therefore, though it is true that his evidence cannot be said to be an eye witness account of the incident, but then it is certainly corroborating the version of other witnesses as to the incident. If that is taken into consideration, then it lays assurance to what has been stated by the witnesses Devlu and Sukhdeo in their evidence before the Court. In the first place, when the accused went near the prosecutrix and tried to hold her, she offered resistance. She did not allow him to remove her saree. If that is taken into consideration, then it lays assurance to what has been stated by the witnesses Devlu and Sukhdeo in their evidence before the Court. In the first place, when the accused went near the prosecutrix and tried to hold her, she offered resistance. She did not allow him to remove her saree. But then as it has come in the evidence, the accused overpowered her and felled her on the ground and after removing her saree, had sexual intercourse with her. She shouted, which fact is corroborated by the version of witness Sukhdeo and her brother Devlu as these two witnesses, on hearing her shouts, rushed to the spot to find that the appellant was wearing pant and the prosecutrix Pachobai, was weeping and shouting and then immediately, she, as claimed by the witness Devlu, disclosed to him, in presence of the accused, that he had sexual intercourse with her. So, the situation that prevailed at the place of occurrence, as has been disclosed by these two witnesses, certainly lends assurance to the prosecution claim that sexual intercourse which the accused committed with the prosecutrix, was against her consent. 15. It is true that it was suggested to witness Devlu that the appellant being belonging to "Mahar" caste and there being enmity between him and his other relatives including his father on the basis of caste, he has been falsely implicated in this case. The witness Devlu has stoutly denied the suggestion. What is surprising is that the suggestion was given that this enmity was of his childhood. It is very difficult to accept the same and the trial Court, even on that count, discarded the suggestion. 16. So, on appreciation of evidence of witnesses Sukhdeo, Devlu and A.S.I. Jayant, and taking into consideration the narration in the report Exh. 25 being supported by the evidence of witness Jayant (P.W.4) and other attending circumstances, it is to be said that the trial Court has rightly found the appellant guilty for having had sexual intercourse with the prosecutrix against her consent, at the time and place alleged. The prosecution has established beyond reasonable doubt that the accused has committed the offence. So there is no reason to disturb the finding recorded by the trial Court holding the appellant guilty for the offence under section 376 of the Indian Penal Code. So also awarding the sentence as stated above. The prosecution has established beyond reasonable doubt that the accused has committed the offence. So there is no reason to disturb the finding recorded by the trial Court holding the appellant guilty for the offence under section 376 of the Indian Penal Code. So also awarding the sentence as stated above. The appeal merits no consideration at all and the same is to be dismissed. Hence the order: The appeal is dismissed. The order of conviction and sentence dated 9-92004 passed by the learned Additional Sessions Judge, Gadchiroli, in Sessions Trial No. 39/1996, is confirmed. Appeal dismissed.