Judgment :

A.K. Patnaik, J.

This is an appeal by way of special leave under Article 136 of the Constitution against the judgment dated 13.12.2004 of the Madhya Pradesh High Court, Gwalior Bench.

2. The facts very briefly are that a First Information Report (for short 'FIR') was lodged by the complainant in Police Station, Civil Lines, Morena, on 01.03.2000 at 7.50 p.m. in the evening. In her verbal statement which was registered as FIR, the complainant stated that on the previous night while she was sleeping in her house in village Tighrapura in a room at about 2 a.m., the appellant, who was her neighbour, entered into her house and forcibly committed intercourse with her when her sister-in-law Guddi Bai sleeping in a nearby cot woke up after listening to weeping of the complainant and then the appellant ran away. The complainant further stated that her husband Rajesh had been to the well to give water to the field and when he came in the morning she told him about the incident and he went to Khadiahar to call her father-in-law Ram Bhajan but he did not meet him and then the complainant has come with her husband to lodge the FIR. Pursuant to the FIR, an x-ray was conducted on the complainant. The complainant was also medically examined. Investigation was conducted and the statements of witnesses were recorded by the police and charge-sheet was filed against the appellant under Section 450, IPC, (house trespass in order to commit an offence) and Section 376, IPC, (rape).

3. At the trial of Sessions Case No.129 of 2000, the FIR was marked as Ex.P-6. Dr. Yogender Singh, who carried out the x-ray examination, was examined as PW-1 and the x-ray report was marked as Ex.P-1. Dr. Smt. Chandra Jatav, who conducted the medical examination on the complainant, was examined as PW-2 and her examination report was marked as Ex.P-5. The Petticoat of the complainant along with the slide of her vaginal liquid were sent to the Forensic Science Laboratory (FSL), Gwalior, and the FSL report was marked as Ex.P-7. Guddi Bai, the sister-in-law of the complainant, was examined as PW-4 and the complainant was examined as PW- 5. On the basis of the ocular evidence of PW-4 and PW-5 and the medical evidence and FSL report, the learned Sessions Judge, Morena, convicted the appellant by judgment dated 31.07.2002 and sentenced him to three years rigorous imprisonment and a fine of Rs.250/-for the offence under Section 450, IPC and also sentenced him to seven years rigorous imprisonment and a fine of Rs.500/-for the offence under Section 376(1) IPC. Aggrieved, the appellant filed Criminal Appeal No.452 of 2002 before the Madhya Pradesh High Court, Gwalior Bench, but by the impugned judgment the High Court maintained the conviction and sentences under Sections 376 and 450, IPC, and dismissed the appeal.

4. At the hearing of this appeal, Mr. R.C. Kohli made two submissions before us: (i) the appellant was not guilty of the offence of rape as PW-5, the complainant, had given her consent to the sexual intercourse as would be clear from the evidence on record; and (ii) the complainant has made out a false case against the appellant because of a grudge that the family of the complainant bore against the appellant over a land dispute.

5. Ms. Vibha Datta Makhija, learned counsel appearing for the State, on the other hand, referred to the evidence of PW-5 to show that the complainant made all efforts to resist the appellant and submitted that this was thus not a case where the complainant had given her consent for the sexual intercourse. She cited the judgment in State of U.P. v. Chhotey Lal [(2011) 2 SCC 550] to submit that the word "consent" in the definition of rape in Section 376, IPC, connotes exercise of intelligence based on knowledge of the significance and moral quality of the act to which consent is given and also presupposes a choice of the woman who is said to have given consent between resistance and assent. In reply to submission of Mr. Kohli that the c