The forcible nature of sexual intercourse supersedes claims of consensuality, particularly when credible evidence substantiates allegations of coercion.

JUDGMENT :

V. Narasingh, J.

Heard learned counsel for the petitioner and learned counsel for state.

1. This Criminal Revision has been filed assailing the judgment dated 30.01.2004 passed by the learned Addl. Sessions Judge, Jharsuguda in Criminal Appeal No.31/10 of 2001, affirming the order of conviction qua the petitioner dated 29.09.2001 passed by the learned Asst. Sessions Judge, Jharsuguda in S.T. Case No.201/33 of 99 under Sections 376 of IPC and imposing a sentence of rigorous Imprisonment for a period of seven years along with a fine of Rs.5000/-. In default to undergo R.I. for six months.

2. The prosecution case, in brief, is that in Chaitra 1997, the prosecutrix, aged approximately 17–19 years, visited the pharmacy of the Petitioner, where he closed the door and committed forcible sexual intercourse despite her protest. Thereafter, the Petitioner criminally intimidated the victim into silence and exploited the situation to subject her to repeated sexual abuse, resulting in her pregnancy. Though a Panchayat meeting was held in the village on this issue, the accused did not attend the same and a formal complaint was lodged on 01.10.1997, leading to the registration of F.I.R. (Exhibit-1). Consequent to the investigation, the final charge sheet was filed against the Accused Petitioner under Section 376 IPC .

3. To drive home the charge, the prosecution examined eight witnesses of whom P.W.1, the victim, P.W.2, the mother, P.W, the Doctor and P.W.8, the I.O, are the material witnesses, and several documents were marked Exts. 1 to 3/1.

Neither oral nor documentary evidence was adduced on behalf of the accused Petitioner.

4. Considering the evidence and materials on record, the learned Trial Court convicted the Petitioner under Section 376 of IPC and directed him to undergo R.I. for seven years along with fine of Rs.5000/-, and in default to undergo R.I. for six months.

5. On appeal being preferred, such conviction and sentence were upheld, denying the plea of false implication. Being aggrieved, the present revision has been preferred.

6. Learned counsel for the Petitioner submits that both the learned Trial Court as well as the learned Appellate Court committed a grave error in the appreciation of evidence, particularly that of P.W.1—the victim.

It is further submitted that admitted delay in institution of the F.I.R was not taken into account and that the Courts below lost sight of a very important facet of the defence, which is clearly borne out from the facts of the case that the act was consensual and has subsequently been given the colour of an offence.

To fortify his submission he relies on the judgments of the Apex Court in the case ofPratap Misra v. State of Orissa , (1977) 3 SCC 41 and State of Maharashtra V. Uddhav , (2002) 23 OCR (SC)-643.

7. Learned counsel for the State, on the other hand, submits that the appreciation of evidence by the Courts below is in accordance with the settled principles of law and does not warrant interference in the present revision.

8. This Court has closely scrutinized the evidence of P.W.1 and on such close scrutiny, this Court is not persuaded to hold that the case relates to a consensual relationship that later turned sour. On the contrary, the materials on record indicate that the act was forcible from the very inception. In this context, the reliance placed by the Petitioner on the judgment of the Apex Court in the case of Pratap Misra (supra), is misconceived in as much as the same is clearly distinguishable facts.

9. It is hazardous to rely on medical jurisprudence, as being sought by the Petitioner referring to the opinion of Taylor in Principles and Practice of Medical Jurisprudence, Volume-I