B.K. Behera, J.
1. The respondent, serving as a Tube-well Mechanic attached to the Korkonda Block, stood charged under See. 376 and 457 of the Indian Penal Code for having committed rape after breaking open the house of the victim Saibani (P.W. 6), then working as a Lady Sweepress in the Public Health Centre at the same place, On a consideration of the evidence, the learned trial Judge has found that neither of the two charges had been established.
2. In an appeal against acquittal, no interference is called for unless the findings recorded by the trial Court are found to be unreasonable, perverse or unfounded. Even if another view can be taken in favour of the prosecution, the order of acquittal is not to be interfered with.
3. I have heard the learned counsel for both the sides. At the stage of hearing, the learned Standing Counsel has fairly and justifiably submitted that the respondent was entitled to the benefit of doubt in the facts and circumstances of the case.
4. The occurrence had allegedly taken place during the night of August 10/11, 1980 at about 1 00 A. M. Earlier to the occurrence, fire respondent, it was alleged, had suggested to P. W. 6 to marry her and she had declined saying that she would marry the person chosen by her parents. While she was alone asleep in her house by closing the door, the respondent, as alleged, opened the door by removing the latch by pushing his hand from outside, pounced upon P. W. 6 who was sleeping on a cot with a mosquito-net covering her by opening a portion of the mosquito-net, gagged her mouth, slapped and threatened her and then ravished her.
5. As has been noticed by the learned trial Judge, it was highly unlikely that P.W. 6, a young lady that she was being aged about twenty-two years then sleeping alone in the house, would have slept without taking adequate care to properly close the door by locking it from inside. The learned Judge, for the reasons recorded in the judgment, has observed that it was highly likely that the door had not been properly closed thereby affording an opportunity to the respondent to visit her during the night. This finding recorded by the trial Court cannot be said to be unreasonable.
6. Notice has rightly been taken by the learned trial Judge that although the allegation of P. W. 6 was that she had been ravished without her consent and against her will and there had been a tussle, in the course of which the respondent had tried to pull out the blouse on the person of P. W. 6, no tearing had been noticed in the blouse and there was no damage to it. There was no damage to the mosquito-net either. The medical evidence would show that P. W. 6 was healthier than the respondent. The latter was aged about twenty-four years then. The evidence of P. W. 6 in the Court that her mouth had been gagged and that the respondent had dealt a slap on her for which she remained afraid could not be accepted as neither in the first information report nor in her statement in the course of investigation, she has stated about it. In the circumstances of the case and in the context these omissions would amount to contradictions within the meaning of the Explanation to Section 162 of the Code of Criminal Procedure. If her mouth had not been gagged and she had not been slapped, she would have offered resistance in which case, injuries would have been noticed on the private parts of the respondent and P. W. 6, but there was none. There was but one injury, viz. a nail mart on the neck of the respondent which, as rightly noticed by the learned trial Judge, could not point to his guilt and could not be said to be incompatible with his innocence. P. W. 6 had sustained no injury on her person.
7. As observed by the learned trial Judge, in an unguarded moment, P. W. 6 had blurted out in her cross-examination that at the time of the sexual intercourse, the respondent had both his hands on her shoulder and she had her hands on the shoulder of the respondent. This among other circumstances would show that if the respondent had sexual intercourse with P. W. 6, it might have been with the consent of the latter not against her will and without her consent.
8. P. W. 6 did not inform anyone about the occurrence during the night and even on the day following, when she went out for duty in the morning, she did not inform anyone and not even P. W. 10 with whom she had been chitchatting prior to the occurrence. She had made a belated statement to P. W. 4 on who3e advice she lodged the first information report. Some delay in lodging the first information report in order to bring the culprit to book in a case of rape cannot be said to be unusual as the tendency of the victim may be to suppress the fact and to save her prestige, but regard being had to the circumstances of the case narrated above and the fact that she had been functioning in an office, she would normally have reported about the occurrence against another public servant to her superiors soon after it and she had not done so.
9. True it is that the respondent had denied the charges and had not pleaded that she had sexual intercourse with P.W. 6 with her consent. But as has been laid down by the Supreme Court in the case of Pratap Misra and others v. State of Orissa A. I. R. 1977 S. C. 1307 even if a plea of consent has not been pleaded, such a plea can be raised and accepted if it can be spelt out on the evidence. The view of the trial Court that the case was one of consent and not one of outrageous sexual assault without the consent and against the will of P. W. 6 cannot be said to be unfounded on the evidence on record.
10. For the reasons aforesaid, I am of the view that the charges had not been brought home to the respondent and he was entitled to an acquittal.
11. The appeal fails and is dismissed.