The weight given to the evidence of a victim of sexual assault and the distinction between consent and submission are crucial legal principles established in the judgment.

Sunil Kumar Sinha, J.

1. This judgment shall govern the disposal of both the criminal appeals as they arise out of a common judgment dated 8th August, 2001 passed by the Special Judge (SC & ST (Prevention of Atrocities) Act), Raipur in Special Sessions Case No. 82/2000, whereby, the appellants were convicted under Section 376(2)(g) IPC, and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo R.I. for 6 months.

2. The appellants were charged under Section 376(2)(g), IPC read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Special Act.

3. The brief facts are that at the relevant time, the prosecutrix, Smt. Sunita Bai (P.W. 8) was working as a labour in a Plywood Factory. She had joined the said work just 2 days prior to the date of incident. Some construction work was going on in the factory, in which the appellant Narayan was working as a Mason. The allegations are that on 22-8-2000 at about 1.00 p.m. Narayan called the prosecutrix for sweeping in a particular room. Firstly, she denied saying that he may call other labour but when she was insisted, she went inside the room for the said work. As soon as she entered into the room, both the appellants came there, Narayan gagged her mouth and threw her on the ground, whereafter Vijay removed her clothes and committed forcible intercourse against her. She could not make hue and cry because her mouth was closed by Narayan. When they left the premises, she narrated the story to one Mr. Tiwari and thereafter went to her house and disclosed the story to Smt. Kiran Saxena (P.W. 7) and when her husband Sunil Kumar (P.W. 9) came to the house in the evening, she also narrated the story to him and the FIR (Ex. P/17) was lodged in the police station at about 10.00 p.m. on the same day.

4. During the course of investigation, the prosecutrix was sent for medical examination and was examined by lady Dr. S. Singh on 23-8-2000 at about 3.40 p.m. who prepared her report Ex. P/1 -A. According to the report; her pubic hairs were not matted and there were no mark of external injuries, hymen was old torn, vagina was easily admitting two fingers and uterus was of normal size. She recorded the opinion that there were no signs of recent intercourse. Appellant Vijay was also sent for medical examination and was examined by Dr. Santosh Bhandari (P.W. 3), who prepared his report Ex. P/5, according to which, he was capable to perform sexual intercourse.

5. On trial, the Special Judge convicted the appellants under Section 376(2)(g), IPC. However, they were acquitted of the charges framed under Section 3(2)(v) of the Special Act for the reasons that it was not established that the aforesaid offence was committed on the ground that the victim was a member of Scheduled Castes or Scheduled Tribes and the appellants were having such knowledge about it.

6. The conviction of the appellants is based upon the testimony of the prosecutrix supported by the evidence of Kanhaiya (P.W. 4), Smt. Kiran Saxena (P.W. 7), Sunil Kumar (P.W. 9) and the contents of FIR (Ex. P/7).

7. Learned Counsel for the appellants argued that the evidence of the prosecutrix appears to be unreliable as there are many discrepancies in it. She did not raise alarm either at the time of commission of rape or at any later point of time, the rape in a room in factory premises was not possible and if anything has happened, a possibility of her being a consenting party cannot be fully ruled out in this case. They referred to the decisions of the M.P. High Court rendered in the matters of Ghanshyam v. State of M.P. (1988)2 MPWN 129 : Raju v. State of M. P. 1987-1 (12) (sic) and Nanhaji alias Nanhe Vir alias Kunjilal Lodhi v. State of M. P. 2000 (1) MPLJ Note 19. They also referred to the two decisions of the Apex Court rendered in the matters of Uday v. State of Karnataka 2003 AIR SCW 1035 : 2003 Cr