IMPORTANT POINT
Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between the resistence and assent.

JUDGMENT

Balakrishnan, J.-This appeal has been filed by the State of Himachal Pradesh against the acquittal of the accused for the offence under Section 376 I.P.C. The respondent-accused was tried by the Court of Sessions Judge, Chamba Division of Himachal Pradesh alleging that he committed rape of a girl aged 13 years.

2. The prosecution case is that the prosecutrix was the eldest daughter of Jagia Ram. Jagia Ram is a small agriculturist residing with his wife Smt. Pinji and children in a village by name Kuthed. He is a native of neighboring village Bhadhad. The accused is his brother-in-law being the brother of his wife, Smt. Pinji. The accused was aged about 17 years and was the student of VIIIth standard during the relevant time. On 17.4.1993, Smt. Pinji asked her daughter to go to village Bhadhad and get the plough kept in the house of Jagia Ram. Prosecutrix left for Bhadhad at about 6.00 p.m. on 17.4.1993. Accused also accompanied the prosecutrix. When she entered her father s house at Bhadhad to get the plough, accused followed her and when she reached the cow-shed, she was caught by the accused from behind. Prosecutrix tried to extricate herself from him but she was over-powered by the accused and was made to lie on the floor of the cow-shed. The accused then untied the knot of her salwar and lifted it down and thereafter, committed sexual act. There was bleeding from her private part. The prosecutrix returned home immediately and told her father Jagia Ram about the incident. Jagia Ram went to PW 8, Sh. Devi Chand, Pradhan of the Gram Panchayat of the area who, in turn, advised to lodge a complaint to the police. Jagia Ram reported the matter to the police. As the prosecutrix was having a severe pain and uncomfort, she did not accompany her father to the police station.

3. The police registered the case and investigation was commenced. Prosecutrix was subjected to medical examination by the PW 2, Dr. Veena Sehgal. The accused was arrested and PW 1, Dr. Hemant Sharma examined him. Police visited the place of occurrence and recovered a blood stained piece of cloth. The salwar and kameez worn by the prosecutrix at the time of the occurrence were also recovered. In the course of investigation, the police collected a family history book which indicated the age of the prosecutrix and the accused.

4. The piece of cloth recovered from the place of occurrence and the kameez worn by the prosecutrix were found to be stained with blood and on serological test found to have blood of A +ve group. Even though, there were some blood stains on the salwar, the grouping could not be made. The undergarments worn by the accused during the relevant time were also recovered and subjected to chemical examination and it neither contained blood nor sprematozoa.

5. The prosecutrix was medically examined by PW 2 Dr. Veena Sehgal. She observed as under :

"She was a girl of average built, conscious, well oriented in place and time. Height 4 -10½ ", weight 31 kg. Breasts and papilae were elevated as small mounds and there was enlargement of areolas diameter. Axillary hairs were not developed. Pubic hairs were not developed. She was referred to Dentist for examining here dental age. There were no marks of violence over the breasts, nipples, cheeks and lips. No marks of violence were seen on the external genitals, perineum, abdomen, chest, back, limbs, neck and face. Menarche not yet attained.

Perineal examination :

There were no marks of injury over vulva. Hymen found intact with a small laceration at 6 O clock position. Clotted blood was seen at vaginal orifice, which admitted tip of the finger with great difficulty".

On the basis of the above examination, PW 2 Dr. Veena Sehgal opined as under :

"From the above, it was difficult to say whether intercourse has taken place or not. Vaginal swab slide was prepared and got examined microscopically in the District Hospital, Chamba under which no dead or alive sperms were seen. Her blood group was A+VE. She was als