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Criminal Revision No. 1259 of 1970, heard on 27th March, 1985.

‑‑‑S. 376‑‑Evidence, appreciation of‑‑Prosecutrix, a full grown married woman yet not having a scratch on her person showing any resistance on her part‑‑Possibility that prosecutrix having been surprised by witnesses during her amoral relations with accused and in order to hide her shame, took defence of rape, exists‑‑Accused given benefit of doubt and acquitted, in circumstances.

Asif Sajjad Jan for Petitioner.

Rana Zahid Mahmood for A.‑G. for the State.

Date of hearing: 27th March, 1985.

This is a revision petition by Hakoo petitioner, against the judgment of an Additional Sessions Judge of Lyallpur, dated 14‑9‑1970, dismissing his appeal. Earlier, an Assistant Commissioner of Jhang, by his judgment, dated 30‑5‑1970; had convicted the petitioner under section 378, P.P.C. and sentenced him to four years rigorous imprisonment with a fine of Rupees. Two Thousand (Rs.2,000) or in default thereof to undergo further rigorous imprisonment for one year and ten stripes under Whipping Act.

2. The prosecution case as disclosed in the statement of Mst. Ghulam Sakina P.W.3 is that at Peshiwela some 6 months ago she was going out in the fields when at a distance of two squares from her Dhari near a wheat crop, Hakoo, accused, who had concealed himself in the wheat crop, came out. He held her by the arm and took her into the wheat crop and gagged her mouth with her Dopatta. She was then felled on the ground and the accused Hakoo raped her. She .vas successful in partly removing the Dopatta from her mouth and rinsed alarm, attracting to the place Waryam, Muhammad and Khan. Hal oo, accused then left the place. She lay there naked. She related the incident to the witnesses and then went to her husband. The report was then lodged with the police, vide Exh.P.A. She was medically examined. She also produced torn shirt Exh.P.1 and Chadar Exh.P.2 before the police, which were taken into possession.

3. I have heard the arguments of the learned counsel for the petitioner and the State and have also perused the record. It appears that Mst. Ghulam Sakina P.W.3 and Hakoo, petitioner, have adjoining houses and that prior to the occurrence, members of the two families had been on visiting terms with each other and that a brother of the petitioner had also been cultivating the land of the complainant family. At the time of the medical examination, Mst. Ghulam Sakina P.W.3 bore no marks of violence on her body, from which it could be inferred that she had not offered any resistance. The only evidence to show that she had offered resistance, appears to be a torn shirt P.1, which she stated she produced before the police officer, but the same was taken into possession after one and a half months of the incident. Mat. Ghulam Sakina P.W.3 is a full grown woman and if sexual intercourse had been committed by the petitioner with her against her consent, she would most assuredly have resisted and the least injuries which would have appeared on her body would have been abrasions on her back and elbows, if not on other parts of her body. The fact that she did not possess even a scratch on her person, leads to the reasonable inference that she was a consenting party. Very likely she was surprised by the appearance of some of these witnesses during her amoral relations, during which process the petitioner decamped and the prosecutrix, in order to hide her shame, took up the defence of rape. Taking all circumstances into consideration, the petitioner is entitled to the benefit of doubt.

4. For the foregoing reasons, this petition is accepted. The conviction and sentence of the petitioner is set aside. The petitioner is on bail. His bail bond shall stand discharged.

S. G. D.

Appeal allowed.

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