O R D E R:

The revision petitioner was convicted by the trial Court for the offence under Section 376 of Indian Penal Code for raping PW.1. The same was confirmed in appeal by the Sessions Court.

2. The case of the victim-PW.1 is that she was living with her mother-in-law and brother-in-law. On 19.11.2004, after taking bath while she was wearing her saree, the accused who was her neighbor entered into her house and asked for beedies. PW.1 gave him the beedies and asked the accused to leave. However, the accused closed the doors forcibly and made her fall on to the ground, gagged her and raped her. She escaped from PW.1 and informed her neighbours Chand Bee-PW.2 and Pushpa-PW.3.

3. The brother-in-law who was examined as PW.4 later arrived and took her to the police station where she filed the complaint Ex.P1. Police commenced investigation and seized the saree of PW.1 which is marked as M.O.1. She was referred to the Government hospital for medical examination. After the incident, according to PW.1, her husband divorced her.

4. The trial Court examined PWs.1 to 11 and marked Exs.P1 to P11. Both the Courts below found favour with the version of PW.1 and convicted the accused.

5. PW.1 stated her case about rape being committed by the accused. The other two independent witnesses who are PWs.2 and 3 turned hostile to the prosecution case and denied having any knowledge about the rape or any kind of harassment by the accused. The brother-in- law-PW.4 stated before the Court that PW.1 had informed him about the incident. The evidence of PW.4 is hearsay evidence.

6. PW.5 who is the mediator for scene of offence turned hostile and denied seizure of M.O.1-saree of PW.1. The mediator for scene of offence panchanama and PW.6 also turned hostile. PWs.7 and 8 are the mediators to the confession of the accused who also turned hostile and stated that their signatures were taken on the panchanama by the Police.

7. PW.9 is the medical officer who examined PW.1-victim on 19.11.2004 and found that there were no external injuries. The vaginal swabs of PW.1 collected by PW.9 were sent for FSL examination and since the report-Ex.P7 revealed presence of semen, PW.9 gave opinion that intercourse occurred.

8. Learned Counsel appearing for the revision petitioner would submit that in the background of the independent witnesses turning hostile and there being no injuries on the body of PW.1, the version of forcible rape by PW.1 cannot be believed. It is highly improbable that PW.1 would have opened the door and given beedies to the accused when she was not fully dressed. The version of the accused is that she was in a compromising position with someone else and when he saw the incident, the complaint was filed against the accused. Another defence taken during trial is that there was consensual sex in between PW.1 and accused. Since the version of PW.1 is doubtful, benefit of doubt has to be extended to the accused.

9. On the other hand, learned Assistant Public Prosecutor argued that the solitary testimony of PW.1 would suffice. There is no reason as to why PW.1 would falsely implicate the accused if the allegation of rape is incorrect. He further argued that the defence taken by the accused is two-fold and only to get out of the case, such defence was taken which was found to be incorrect by both the Courts below.

10. The victim-PW.1 stated that she knew the accused and he was visiting her house frequently. Earlier, the wife of the accused and PW.1 were rolling beedies together. The version of PW.1 that the accused forcibly committed rape on her is not supported by medical evidence. It was specifically stated that the accused gagged her, forced her to the ground and committed rape on her. Immediately, she changed her saree and went to her neighbours PWs.2 and 3. The conduct of PW.1 that she changed her saree and went to the neighbours appears to be doubtful. Both PWs.2 and 3 who are the independent witnesses have turned hostile stating that no such incident happ