M.L. Shrimal, J.
1. The accused-petitioner Idan-singh along with four other persons, was prosecuted in the court of Assistant Sessions Judge, Balotra, under Sections 376, 366, 452 and 147, I.P.C., for forcibly abducting P.W. 6 Jadav and committing rape upoa her. The learned Assistant Sessions Judge acquitted threa accused, namely, Sonaram, Madhosingh and Jodharam, tried along with the petitioner. He, however, convicted the accused-petitioner Idansingh under Sections 376, 366 and 452, I.P.C. The other accused Aman Singh was also convicted under Section 366 and 452, I.P.C., and both of them were sentenced to various terms of imprisonment under each count. Petitioner Idansingh and the other co-accused Aman-singh preferred an appeal, which came up for decision before the Additional Sessions Judge, Jalore, Camp Balotra, who acquitted the other co-accused Amansingh, but maintained the conviction and sentence recorded against the accused-petitioner Idansingh by his judgment dated March 29, 1973. Hence this revision petition.
2. The prosecution case, as disclosed at the trial, is that P.W. 6 Jadav, an unmarried girl between the age of 17 to 19, was living with her father P.W. 1 Javarsingh in his Dhani. On the intervening night of 2nd and 3rd February, 1968, P.W. 1 Javersingh, P.W. 6 Jadav, her brother Pratap and her mother, who was blind and dumb, were sleeping in the Dhani of Javar Singh. Accused Idansingh, Amansingh, Madho Singh, Sona and Jodha formed an unlawful assembly, armed themselves with lathis'. The common object of the assembly was to abduct P.W. 6 Jadav with an intention to compel her to marry Idan Singh against her will or to be forced or seduced to illicit intercomse against her wishes by accused Idansingh. In prosecution of the common object all the five accused came in a Jeep belonging to P.W. 16 Himmatsingh, to the Dhani of P.W. 1 Javar singh. Javarsing (P.W. 1) and his son Pratap were belaboured by Idansingh and others. Idansingh forcibly lifted and dragged P.W. 6 Jadav, placed her in the Jeep, which was awaiting at a little distance from the Dhani of Javarsingh. Thereafter all the five accused boarded the Jeep. The accused took the Jeep to the village Kolu. In the way Idansingh placed his hand on the mouth of P.W. 6 Jadav so that she may not raise hue and cry. It has also come in the prosecution evidence that one of the accused threatened her for life with a knife, P.W. 9 Kishoresingh saw the petitioner in the company of P.W. 6 Jadav. At that time he noticed that the girl was sobbing. When the party of the accused reached at village Kolu the girl was made to alight in the Dhani of P.W. 10 Hamirsingh. Accused Idansingh obtained clothes from Hamirsingh's mother and compelled P.W. 6 Jadav to change her clothes. Thereafter she was taken to the Dhani of Hamir Singh's sister, which was known as Jethusingh's Dhani. It is alleged that in the Jhumpa of Jethusingh Idansingh committed rape upon P.W. 6 Jadav against her wishes and other accused Amansingb stood on watch outside the Jhumpa.
3. From the Dhani of Jethusingh she was taken to Baba's Dhani. In the day time she was kept in a house and in the night she was taken to the Jhumpa. Outside the Jhumpa the other accused Amansingh and Baba slept and Idansingh again committed rape upon P.W. 6 Jadav. On the next day she was taken to the Dhani of Maghsingh. In between this period P.W. 1 Javarsingh gave a written report of the occurrence (Ex. P/l) at Police Station, Samdari, on 3-2-1968. A formal first information report in the prescribed form was also drawn, which has been marked as Ex. P/17. Tht police after registering the case under Sections 147, 452, 366, I.P.C. chased the accused. On 8-2-1968 the police party reached at the Dhani of Maghsingh where Idansingh and Amansingh were arrested and P.W. 6 Jadav was also recovered. The recovery memo containing all the details regarding the recovery of the girl and the seizure of the articles is Ex. P/6. Pt W. 6 Jadav was clinically examined by P.W. 8 Dr. Subudhimal. The report of the Doctor is Ex. P/ll. On the advice of the Doctor X-ray was taken. The X-ray plates are Ex. P/12 and Ex. P/13 and the report given on the basis of the X-ray examination of tiae girl is Ex. P/14. The police after usual investigation submitted a challan in the Court of S.D.M. Balotra, against five accused persons including the petitioner, who were ultimately tried by the Assistant Sessions Judge, Balotra. The accused pleaded not guilty to the charges and the prosecution examined seventeen witnesses in support of their case. The accused in their statements recorded under Section 342, Cr.P.C. denied their complicity in the crime. The case of accused Idansingh before the trial court was that P.W. 6 Jadav was his married wife and as she was being married again to Pepsingh, he went in the company of some other persons to the house of P.W. 1 Javarsingh and asked Javarsingh's wife to intervene, who readily agreed and thereafter Javarsingh's wife, Idansingh and other persons came to the Dhani of Maghsingh, hut to his ill luck by this time P.W. 6 Jadav was already married to. Pepsingh. Idansingh protested and stated that he will seek the help of Panchayat for intervention. Javarsingh feeling guilty of his act gave the first information report Ex. P/l as a counterblast In support of his case the accused examined 10 witnesses in defence. The learned Assistant Sessions Judge disbelieved the defence version. Placing reliance on the statements of P.W. 1 Javarsingh, P.W. 6 Jadav, P.W. 16 Himmat Singh, he held that P.W. 6 Jadav was forcibly abducted by accused Idansingh and Amansingh and others from the house of P.W. 1 Javarsingh. He further held that P.W. 6 Jadav was taken against her wishes to village Kolu and thereafter to the Dhani of Jethusingh and Baba's Dhanis She was also raped in the Jhumpas of Baba and Jethusingh by accused Idansingh. The learned Judge held the accused Idansingh and Amansingh guilty of the charges framed against them. He, however, extended the benefit of doubt to the three accused. In appeal the learned Additional Sessions Judge, Jalore, Camp Balotra, acquitted Amansingh, but upheld the conviction and sentence recorded against Idansingh by the trial court.
4. The learned Counsel appearing on behalf of the accused, has very frankly conceded that he does not want to rely upon the defence evidence, as the two courts below for good and sufficient reason have held it to be unreliable. He has rightly done so.
5. The main contentions of the learned Counsel for the petitioner are that the accused-petitioner Idansingh has been convicted on the solitary statement of P.W. 6 Jadav. On the date of the commission of the offence she was above 18 years of age, No marks of injuries were found on her person. Her conduct shows that she was being kept sit difiereat places without coercion with opportunity o( complaint and also to escape, but she did not avail of thoee opportunities and as such it can safely be concluded that she was a consenting party to her abduction and the alleged sexual intercourse by Idansingh. Reliance was placed on,-
Ram Murti v. State of Haryana : 1970CriLJ991 ; and Jamail Singh v. State of Rajasthan 1972 Raj LW 18 : 1972 Cri LJ 824.
6. From the re'sume' of the case, as stated above, it can be seen that so far as the actual abduction is concerned the evidence of P.W. 1 Javarsingh, P.W. 6 Jadav and P.W. 16 Himmat Singh relied upon by the two courts below is throughout consistent. No animosity has been alleged or proved between these three witnesses and the accused-petitioner. The statement of P.W. 1 Javarsingh finds corrobojration from the statement of P.W. 2 Bhiksingh, who stated that after the occurrence Javarsingh and his son Pratap told him and others that his daughter was forcibly abducted from his house. Reference may be made to Ramratan v. State of Rajasthan : 3SCR590 . P.W. 1 Javarsingh was clinically examined by P.W. 7 Dr. Shyamlal on 3-2-1968, who noticed three injuries on the person of P.W. 1 Javarsingh. Thus his statement further finds corroboration from the statement of P.W. 7 Dr. Shyamlal and injury report EK. P/10. P.W. 9 Kishoresingh saw accused Mansingh sitting with a girl in a feep on the night of the occurrence and ke noticed that the girl was weeping. She was recovered from the Dhani of Maghsingh vide EK. P/6 and accused Idansingh was also arrested there. Thus there is sufficient evidence oo record to hold that P.W. 6 Jadav was abducted by Idanstngh with the help of other persons. She was removed from Dhani to Dhani and was placed in an unfamiliar surroundings. It has also come in the prosecution evidence that Idansingh and his other companions threatened her with dire consequences in case she tried to reveal her identity or raise a cry. Helpless and unprotected, as she was in the hostile atmosphere, it cannot be said that she had opportunity to escape and she did not take advantage of the possibilities of her escape, because she was a consenting party. There is no evidence on record to hold that she was free to act on her own. On tho contrary there is statement of P.W. 6 Jadav to the effect that she was watched and guarded by the associates of Idansingh in Jhumpas of Jethusingh and Baba. The witnesses named above have stood the test of cross-examination and I find no reason to reverse the finding oC fact arrived at the two courts below. Therefore, I uphold the conviction of the accused-petitioner under Section 366, I.P.C.
7. From what has been stated above it is clear that so far as actual rape is concerned the evidence relied on by the prosecution could naturally be mainly that of P.W. 6 Jadav. The other evidence of P.W. 10 Hamirsingh and Ps W. 12 Jethusingh only establishes that she was found in the company of the petitioner in the Dhani of Hamirsingh and thereafter in the Dhani of Jethusingh. The learned Assistant Sessions Judge has accepted the evidence of P.W. 6 Jadav as true on the point of rape by the petitioner on her at the Jhumpa of Jethusingh's Dhani and Baba's Dhani. In this connection the learned Assistant Sessions Judge has taken into consideration report Ex. P/ll and the statement of P.W. 8 Dr. Subudhimal. The learned Additional Sessions Judge on appeal has also accepted the evidence relied on by tho learned Assistant Sessions Judge and has confirmed the conviction and sentence awarded to the accused-petitioner, The learned Counsel for the accused-petitioner contended that even according to her statement opportunity of making complaint against rape, was available to her, but she did not make use of it and as such it implies that she was consenting party to the whole affair. He further urged that Ps W. 8 Dr. Subudhimal, who clinically examined her, did not find any external injury either on her private part or on other part of her body and as such it should be inferred that the sexual intercourse with her was performed by the accused-petitioner with her consent. If she would have been an unwilling party she would have resisted to her utmost and would have borne marks of violence on her body, face, neck, limbs and she could have also inflicted injuries on the body ot her assailant. He further urged that in sexual cases of rape or the like there is always a danger in acting on the solitary statement of the prosecutrix and the assistance of corroborative evidence should be sought as to lend assurance that the evidence of the prosecutrix can be safely acted upon. In support of his contention he has placed reliance on Jairnal Singh v. State of Rajasthan 1972 Raj LW 18 : 1972 Cri LJ 824. That case is of no avail to the accused-petitioner, because in that case the alleged rape was committed on the prosecutrix of that case on a hard and rough surface in the field. F.I.R. of that case was given on 18th August, 1968, and the prosecutrix Inderjeet Kaur was also clinically examined by Dr. Har Govind on 28th August, 1968. In the facts and circumstances, of that case non-availability of the injury on the person of Inderjeet Kaur became a matter of considerable importance, whereas in the case on hand consistent evidence is that she was raped on a cot, There is nothing on record to show that she was raped on a rough place. Moreover, she was abducted on the intervening night of 2nd and 3rd February, 1968, and was clinically examined by P.W. 8 Dr. Subudhimal on 10-2-1968. Besides that it would be too much to hold that whenever a prosecutrix is found to have sustained no visible injury in a case of rape, consent on her part should be presumed. It would amount to leaving the unprotected girls at the mercy of the wolves of the society. The other case Ram Murti v. State of Haryana : 1970CriLJ991 is also of no help to the accused-petitioner. The pros ecutrix of that case Satnam Kaur was found to be used to sexual intercourse. It was noticed by the doctor who clinically examined her that the rupture of her hymen was old. It was also found that Ram Murti, accused of that case, was a teacher in the school and had before the impugned occurrence committed sexual intercourse with her (prosecutrix of that case) a number of times in the school so much so that she became pregnant and he arranged her abortion from a 'dai'. In the peculiar facts and circumstances of that case their Lordships of the Supreme Court observed 'that keeping in view the medical evidence which showed that the prosecutrix had been used to sexual intercourse, in order to accept her statement that she was compelled, threatened or otherwise induced to go with the appellant, there should, in our opinion, be cor-roboration of some material particulars from some independent source and her statement cannot be considered sufficient to sustain the appellant's conviction'. The Hon'ble Court also observed that the accused of that case Ram Murti for some time past was in illicit intimacy with Satnam Kaur (prosecutrix of that case). Thus, it is apparent that the case on hand is totally distinguishable on facts.
8. As already held above by me P.W. 6 Jadav was taken from place to place and was placed in unfamiliar surroundings. Helpless and without any prospect of safety as she was by the time she reached the Jhumpas of Jethusingh and Baba, whatever little self confidence she possessed in the beginning might have been neutralised by the said situation in which she was placed. A imere act of helpless resignation in the face, of inevitable compulsion, quiescene, non-resistance or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent on the part of a woman, as a defence in an allegation of rape, requires voluntary participation, sot after the exercise of intelligence, based on the situation, but after having freely expered a choice between resistance and assent. Submission of the body under the influence of fear or terror is no consent. There is subtle dim-renoe between consent and submission, This is a thin marginal line which divides the two. Every consent involves a submission but the eonverse does not involve consent. Constat of the girl in order to relieve an act of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balaam between the good and the evil. The word consent has well known meaning. It is always a voluntary and conscious aeeeptanc of what is proposed to be done by another and concurred in by the former.
9. On the proved facts of this ease it can safely be said that there is nothing on the record that at any time the prosecutrix P.W. 6 Jadav was free to act of her own. On the contrary there is sufficient evidence on record to hold that at all material times she was kept in terror by th' petitioner or by others at his instance.
10. The other contention of tk' learned Counsel for the petitioner is that the statement of P.W. 6 Jadav uncorroborated, as it is, is not sufficient to bring home the guilt to the accused. I do not feel persuaded to agree with the learned Counsel for the petitioner. Her statement stands sufficiently corroborated by the statement of P.W. 8 Dr. Subudhimal, which has not ruled out the possibility of rape. It also stands corroborated by circumstantial evidence. Besides that, the prosecutrix cannot be considered to be as accomplice. It is only a rule of prudence. Court normally looks for some cqrroborationj of the prosecutrix in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The only requirement of law is the rule of prud'ne' namely the advisability of corroboration should be present in the mind of the Judge placing reliance on the statement of the prosecutrix. The learned Assistant Sessions Judge and the learned Additional S'ssions Judge have kept this rule of prudence in their mind. The evidence of other witnesses examined in this case has been properly considered by the courts below and I do not consider it necessary to cover the groimd again. The two courts below after scanning the evidence in detail have held the accused-petitioner guilty of the offences charged against him. The power of this Court in exercise of its revisional jurisdiction is highly restricted. It is not required to reappraise the evidence over again. I find no reason to revise the rinding of guilt arrived at by the two courts below.
11. The offence in this case has been committed in a high handed manner and the false plea raised by the accused that Mst. Jadav (prosecutrix) was his married wife, has aggravated it further. Where a prisoner is convicted of an outrageous rape, or a brutal and unprovoked assault involving grave injuries by lethal weapon to the government servant on duty or an armed robbery of the bank or grave extensive loss to public property or an economic offence such as adulteration of food, medicine, or smuggling of gold, in such cases law abiding citizens look to the Courts to retaliate on behalf of the community. They expect that criminals who prey on the community or violate its fundamental values or, by their aggressive and rapacious conduct, imperil the average citizen's sense of security and confidence in law and order, should be made themselves to suffer in requital for the kaxm they have done to otkers.
12. In the facts and circumstances of the case the sentence imposed by the trial court and affirmed by the appellate court cannot be said to be severe. The revision fails and is dismissed.
13. The accused-petitioner Idansingh is on bail. He is not before me. The learned Chief Judicial Magistrate, Jalore, will take appropriate steps to get the accused-petitioner arrested and send him to jail for undergoing the remaining period of sentence awarded by the trial court and affirmed by this Court. It is, however, made clear that the accused-petitioner will be entitled to the benefit of Section 428, Criminal P. Cs. and the period of detention undergone by him during the investigation, inquiry or trial shall be set off against the term of sentence imposed on him.