FULAN YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellants have been convicted under Sections 323 and 376/34 IPC and sentenced to RI for two months and seven years respectively by the 2nd Additional Sessions Judge, Khagaria in Sessions Case No. 54 of 1993 by a judgment dated 24/26.05.1994. The case of the prosecutrix is that on 10.11.1992 both the appellants forcibly caught hold of informant and committed rape upon her. During trial the prosecution examined ten witnesses out of whom P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 are corroborative witnesses and they gave hearsay account of the occurrence whereas P.W. 6 is the proseuctrix herself, P.W. 7 is the Investigating Officer and P.W. 8 is the Doctor who examined the prosecutrix.

(2.) It has been submitted on behalf of the appellants that the prosecutrix during cross - examination clarified that in fact no rape could be committed and, therefore, at best it would be a case of Section 354 IPC. The further submission is that the Doctor has not found any signs of rape and, therefore, the conviction was unsustainable. On going through the evidence of P.W. 6, the prosecutrix, I find that in her examination -in -chief she has stated that in fact rape was committed upon her by the appellants and even during cross -examination it appears that illiterate lady was subjected to a cross - examination only with the view so she would concede the ejaculation had taken place before the rape was committed.

(3.) In my view, the cross -examination is unworthy of credence moreso because the corroborative witnesses have also supported that soon after the incident the fact that the appellants have committed rape upon the victim was reported to them by her. The Doctor no doubt had not found any external signs of injury on the private part of the prosecutrix but the Courts have routinely disbelieved the evidence of Doctor when evidence of the prosecutrix is without any blemish.