Credibility of prosecutrix's testimony upheld despite absence of physical injuries.

1. This appeal is directed against the judgment dated 9-8-1990 delivered by the IIIrd Additional Sessions Judge, Raipur in Sessions Trial No. 167/89, whereby the appellant was convicted under S.376 of the Indian Penal Code and sentenced to rigorous imprisonment for 7 years and also fine of Rs. 100/- and in default to undergo additional rigorous imprisonment for 1 months.

2. Briefly stated the prosecution story is that on 14-4-1989 at about 7.30 p.m., the prosecutrix had gone to the Sherha field to attend the call of nature. The appellant came there and expressed desire to have sexual intercourse with her. The prosecutrix abused him, whereupon the appellant dragged her and laying her on the bund committed rape on her. On hearing shouts of the prosecutrix, PW 5, Bahruram, PW 3 and Jhanaklal, PW 7, who were present at the nearby tank rushed to the spot and saw the appellant committing rape. Jhanaklal, PW 7 held the appellant by his hand and separated him from the prosecutrix. The appellant shouted for Domar Singh, DW 1, who came to the spot. The appellant ran away thereafter. FIR was lodged by the prosecutrix at Police Station Mandir Hasaud at 2.30 a.m. on 15-4-1989 vide Ext. P - 6. On medical examination, Dr. Bhagirathi Joshi, PW 6 did not find any injury in the genitalia of the prosecutrix or externally on her body. The appellant, on being examined by Dr. K. Shanker found that he was capable of performing sexual intercourse and smegma was absent on his glans penis. The chaddi worn by the appellant, the vaginal slide of the prosecutrix prepared by Dr. Bhagirathi Joshi and the petticoat of the prosecutrix, which were seized by the police, were sent for chemical analysis to the Forensic Science Laboratory, Sagar, which opined vide Ext. P - 14 that seminal stains or spermatozoa were not found on the above articles. After completion of investigation, the appellant was prosecuted under S.376 of the Indian Penal Code .

3. The appellant abjured the guilt. The prosecution examined as many as 11 witnesses. In his examination under S.313 of the Code of Criminal Procedure, the appellant pleaded false implication and examined Domar Singh, DW 1 and Budharu, DW 2 in defence. Domar Singh, DW 1 admitted that on the date, time and place of occurrence, Jhanaklal, PW 7 and Bahruram, PW 3 had caught hold of the appellant and asked him why he had outraged the modesty of the prosecutrix.

4. Shri P. S. Chandel, learned counsel for the appellant argued that the testimony of the prosecutrix was unworthy of credit because no injury, external or on her private parts was found by Dr. Bhagirathi Joshi, PW 6. It was further argued that absence of injuries on the prosecutrix is suggestive of the consent of the prosecutrix in the sexual act alleged by the prosecution against the appellant. It was further argued that inference of consent of the prosecutrix in the sexual act could safely be drawn from the fact that the prosecutrix did not offer any resistance during the sexual act. Reliance was placed on a decision rendered by this Court in Criminal Appeal No. 375 of 1990 on 25-1-2007 ( Chaitram v. The State of Madhya Pradesh ).

5. On the other hand, Shri Sudhir Bajpai, learned Deputy Government Advocate for the State / respondent argued in support of the impugned judgment and placed reliance on Viswanathan and Others v. State represented by Inspector of Police, Tamil Nadu, 2008 (5) SCC 354 : AIR 2008 SC 2222 and B. C. Deva alias Dyava v. State of Karnataka , 2007 (12) SCC 122 : AIR 2007 SC (Supp) 678.

6. Having heard the rival contentions, I have perused the record and case law cited by both sides. There is categorical and specific assertion by the p