IMPORTANT POINT
The sole testimony of the victim can be accepted and relied upon for fixing guilt if it inspires confidence, and medical evidence about 'habituated to sex' does not relieve the accused from the charge of rape.

JUDGMENT :

1. Instant appeal arises out of judgment and order of conviction passed by learned 1st Adhoc Assistant Sessions Judge, Parbhani dated 18.07.2002 in S.T. No. 158 of 2000 in which both the appellant are held guilty and convicted for commission of offence punishable under Section 376(g) of the Indian Penal Code [IPC].

FACTS GIVING RISE TO THE SESSIONS TRIAL ARE AS UNDER

2. On 05.11.1999, victim, a 15 years old girl, was carrying meals for her grandfather, who was working in the field. While going to he field, she was required to pass through the fields of appellants Parmeshwar and Vitthal. Around 10.00 a.m., she was intercepted by Parmeshwar. Later on appellant Vitthal joined him and they both lifted victim and took her to the cotton crop and took turns to have forcible sexual intercourse with her. She informed her mother, but initially she reported only regarding occurrence of outraging her modesty. In the evening, it is case of prosecution that, she disclosed about pains to her private part and thereafter she narrated the facts about both accused committing rape on her.

Therefore, on the strength of such statement, crime initially registered for offence under Section 354 IPC came to be converted to 376(g) IPC. She was subjected to medical examination. PW6 carried out investigation and after its completion, both accused came to be chargesheeted and tried by learned trial court, who, on appreciating testimonies of six witnesses and documentary evidence, recorded guilt for offence under Section 376(g) IPC and sentenced both accused to suffer 10 years rigorous imprisonment and to pay fine. Such order dated 18.07.2002 is now taken exception to by filing instant appeal.

SUBMISSIONS

3. Learned counsel for the appellants pointed out that there is apparently false implication. He emphasized that initially incident reported by victim herself was of merely outraging modesty. Even crime was registered on her such statement, but later on false and afterthought complaint alleging commission of rape has been registered. He pointed out that there is no convincing evidence about victim being taken by accused in the field and raped. He pointed to the medical evidence and submitted that there are no injuries and even medical report is about old hymen tear and victim to be habituated to sex. Therefore, according to him, even medical evidence does not support prosecution. He took this court to the testimony of victim in witness box and also to her cross-examination and would emphatically submit that answers given in cross clearly show that version has been improvised. Her entire testimony is full of material omissions and contradictions.

He also took this court through the testimony of mother and would point out that her cross also clearly shows that it is full of material omissions and contradictions and improvised version. That, except testimonies of these two witnesses, there is no other independent witness. Therefore, it is his submission that with such quality of evidence, guilt ought not to have been recorded. He finally submitted that very testimony of victim has failed to inspire confidence. That, according to him, it is not possible to commit such offence during day time, that too in a cotton crop when people were admittedly working around the alleged scene of occurrence due harvesting season. That, victim also has not raised any hue and cry or alarm. Therefore he questions the reasoning and the conclusion reached at by the trial Judge. For all above reasons, he prays to allow the appeal by quashing the impugned judgment of conviction.

4. In answer to above, learned APP pointed out that firstly, victim was below 16 years of age at the time of occurrence. She is a village girl and an illiterate. That, taking disadvantage of her loneliness, both accused known to her have committed rape by taking turns. That, accused Parmeshwar had committed rape twice. That, when one was raping, the other held her. They had threatened to throw her in the