BHAT PARBHA RUDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a Criminal Appeal by one Parbha Ruda who was convicted by the learned Additional Sessions Judge of Ahmedabad at Himatnagar under sec. 376 Indian Penal Code for having committed rape on one Bai Bhurki the wife of one Jiva and also under sec. 451 Indian Penal Code for having committed criminal trespass by entering her room of the complainant Bai Bhurki with intention of having sexual intercourse with her. [

(2.) His Lordship after narrating the facts further observed :] In appeal it is contended by the learned counsel for the appellant that the offence of rape has not been proved that the appellant had not been sent to a medical officer for examination that his clothes had not been sent to the Chemical Analyser and that there is no evidence to show that the appellant had sexual intercourse with Bai Bhurki. It is therefore contended that the conviction for the offence of rape is not warranted and that further he has not committed the offence of criminal trespass. It is contended that in the charge the only intention alleged is the intention to commit rape that it is not alleged in the charge that the appellant had entered the room of the complainant with the intention of committing adultery and that therefore the appellant did not defend the case with a view to disproving the intention to commit adultery. It is also urged that the prosecution has not proved that Bai Bhurki is the legally married wife of Jiva. It is also contended that the appellant did not know and did not have any reason to believe that Bai Bhurki was the married wife of Jiva. It is also contended that as Bai Bhurki was a recent arrival to the town it is not likely that she would have committed adultery with a stranger. It is lastly contended that in the charge there is no reference to intention to insult or annoy the complainant. [

(3.) His Lordship after discussing the evidence further observed :] In these circumstances we do not see any reason to differ from the finding of the learned Additional Sessions Judge that the appellant had sexual intercourse with Bai Bhurki in her room at about 11-00 A.M. that morning. But a conviction for the offence of rape can be sustained only if the prosecution succeeds in proving that the intercourse was without the consent of Bai Bhurki or against her will. According to Bai Bhurki the appellant was armed with knife and threatened to kill her. But inspite of this according to Bai Bhurki she shouted and her cries could be heard outside. But it is not in evidence that her shouts had been heard by any person before Jiva arrived at the scene. Although in her evidence she has deposed that the appellant was armed with a knife there is no reference to the knife in her complaint which she lodged before the police. The medical evidence does not show any injury on her private part or on her person. Her clothes were not torn. There was no injury on the person of the appellant except the head injury nor is it the case of the prosecution that the clothes of the appellant were torn. Even according to the prosecution the injury on the head was not caused during the commission of the rape but was caused at the time when the appellant was trying to run away from the room after Jiva entered the room. The learned Additional Sessions Judge concedes that these circumstances might go to show that the intercourse was with the consent of the woman. The learned Judge held that there was no consent of the woman firstly because the complainant did know the accused before the day of the incident and secondly because the appellant had not stated that the sexual intercourse was with the consent of the woman. On these two grounds the learned Additional Sessions Judge found that sexual intercourse was without the consent of the woman. It may be that the woman had come to Himatnagar only two months before the incident. She has admitted that when she went to a nearby hotel to purchase `Bidis she paid the money not to the Bidi shop-keeper but to the appellant.