JUDGMENT

This appeal under Section 379 of the Code of Criminal Procedure is directed against the judgment and order of the High Court of Judicature for Rajasthan at Jodhpur dated 28th January, 2002 in S.B. Crl. Appeal No. 405/93. The High Court by its impugned judgment and order set aside the order of acquittal passed by the District & Sessions Judge, Jalore dated 28th April, 1993 in Criminal Case No. 27/90. The trial court had acquitted the appellant of the charge under Section 376(2)(e), I.P.C. holding that the prosecution had failed to make out its case against the appellant. The High Court by its impugned judgment and order reversed the findings recorded by the trial court and held the appellant guilty, and sentenced him to undergo 10 years’ rigorous imprisonment and to pay a fine of Rs. 1,000/- and in default, to further undergo simple imprisonment for four months.

2. The case of the prosecution is that on 16th January, 1990 at about 10 A.M. the prosecutrix Vadki (PW-1), a pregnant woman, along with her sister-in-law Morki (PW-8) and wife of her husband’s brother Poni (PW-2) went to collect cow dung in what is described as the jungle of Odwara. PW-1 has described it as a ‘jungle’, while PW-2 has described it as ‘Kokad’ which, we are told, means land covered by bushes. At about 10 A.M., the appellant is said to have appeared on the scene. While PW-1, the prosecutrix, was collecting cow dung, PW-2 and PW-8 were also collecting cow dung in different directions at a distance of 100-150 ft. away from the prosecutrix. The appellant felled the prosecutrix and after removing his clothes and those of the prosecutrix started committing rape. The prosecutrix raised a hue and cry which attracted PW-2 and PW-8 to the place of occurrence. They had also protested, but they were threatened by the appellant who was carrying an axe. It is the case of the prosecutrix that out of fear she could not do anything since the appellant was carrying an axe and threatened her. On seeing the occurrence, PW-2 and PW-8 rushed to their village and informed their mother/mother-in-law who came to the place of occurrence. Thereafter, the prosecutrix was taken to her house. On that day, the husband of the prosecutrix, Kheta (PW-10) was not in the village and returned the next day at about 11 A.M. The incident was narrated to him, whereafter he went to the Police Station Nosra where a report was lodged at 6 P.M. on 17th January, 1990. The prosecutrix was got examined by a doctor (PW-7) on 18th January, 1990. The appellant was arrested on 19th January, 1990 and was sent for medical examination on 20th January, 1990. The case of the prosecutrix is supported by the prosecutrix (PW-1) and also by two other eye witnesses, namely, PW-2 and PW-8.

3. The medical evidence disclosed that the prosecutrix had suffered injuries in the course of the occurrence. We have the evidence of the doctor (PW-7) who, on examination of the prosecutrix, found the following injuries :

“1. Two abrasions in between the two thighs of the reddish colour of the size 1/2 x 1/6 and the other injury was there at a distance of 1/4 cm., away.

2. Abrasion having the reddish colour over which the scratch was present in the midst which was situated on the calf of right leg having the size of 1/2 x 1/3 c.m.

3. Abrasions with reddish colour, which were four in number, which were present there below the right knee and the size of abrasions was 1/4 x 1/2 cm, 1/4 x 1/4 cm., 1/2 x 1/2 cm., and 1/3 x 1/3 cm.

4. Roundish abrasion in reddish colour of the size of 1/4 x 1/4 cm., which was situated below the left knee anteriorly.

5. Abrasion of reddish colour of the size of 2/3 x 1/2 cm., above the left elbow.

6. Two abrasions having reddish colour of the size of 1/2 x 1/6 cm., present on the left parietal region. The internal wall of the vagina of Smt. Vadi was congested having reddish colour and libia minora was also congested and its hymen was absent.”

4. Having regard to the injuries found and other features notic