1. These two appeals have been directed against the affirming judgment of the High Court of Bombay, Nagpur Bench. The appellants have been convicted under Sections 366 and 376 read with Section 34 Indian Penal Code for abducting Smt. Sumotion 27-6-1984 sometime between 5.30 and 6.00 p.m. at Paratwada with the intent that she may be compelled or knowing that she would be compelled or forced or seduced to illicit intercourse and that she was subjected to rape. According to the prosecution case, Sumoti, the prosecutrix, PW2 and her co-sister Ganga, PW3 had gone to Paratwada for sale of grass. The two appellants approached them and offered to purchase the grass. They were asked to deliver the grass at their place at some short distance. The appellants carried the two ladies towards the Forest Depot and when they came near the "nala", it is alleged that one of these appellants caught hold of the saree of Sumoti, PW 2 as a result of which she dropped down the bundle of grass from her head. At this point of time her co-sister Ganga ran away from there. The appellants threatened Sumoti to kill her at the point of knife if she shouted and she was also slapped on her mouth. It is said that these appellants took her on the bicycle at the point of knife to some distance across the "nala" where she was subjected to forcible sexual intercourse. After committing the unholy act, they carried her back on the cycle. In the meanwhile on being informed by Ganga, the police jeep came in search of them and caught Appellant 1, Harishankar, while the second appellant Haridarsha ran away, but was apprehended later. The statement of Ganga was recorded. It was treated as FIR. The prosecutrix was medically examined and the doctor found the following four injuries on her person :
(1) Abrasion 1/4 cm x 1/4 cm over internal surface of upper lip.
(2) Contusion of total upper lip present.
(3) Abrasion 2 cm x 2 cm over left knee J joint at front.
(4) Contusion 1 cm x 1 cm over mid forehead.
The doctor also found the following three internal injuries:
(1) Abrasion 1/4 x 1/4 cm at couchette blood oozing.
(2) P.V. - No internal injury seen. But semen-like fluid seen. Vaginal swab taken for examination and two slides taken for examination.
(3) Closes - Number of seminal stains in the vicinity of genitals of red colour lugada.
2. At the trial the clothes of Harishankar were also seized and found to be stained with blood group "B". His underwear and banian and sample of pubic hair were also found stained with seminal fluid of blood group "B", which belonged to the said appellant.
3. The appellants were sent for trial for the offence under Sections 366 and 376 read with Section 34 Indian Penal Code. At the trial the appellants denied their guilt and pleaded false implication. They, however, did not adduce any evident in their defence. The trial court on evaluation of the prosecution evidence found the appellants guilty for the offence they were charged with and, therefore, convicted them under Section 366 I.P.C. and sentenced them to undergo rigorous imprisonment for five years. They were also convicted under Section 376 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. This conviction and sentence has been further upheld by the High Court. The learned Counsel for the appellant at the very outset submitted that the fact that the prosecutrix was subjected to sexual intercourse cannot be disputed but vehemently urged that the said act was committed with the consent of the prosecutrix. In support of his submissions, he took us through some of the circumstances to show that she was a consenting party. One of the circumstances is that in the FIR Wxh. 40, it has been mentioned that the appellants had sent back Ganga, PW 3 before the prosecutrix Sumoti, PW 2 accompanied them beyond the place where the grass bundle was dropped down. It is difficult to comprehend as to how this circumstance could be accepted to be an act of consent on the part of the prosecutrix. The second circumstance which was pressed was that there were 2-3 houses around the place where the bundle of grass was dropped down and one of the occupants of these houses was one Bhaiyaa, whom Ganga, PW 3 had met while he was milking his buffalo. But the two ladies did not shout which indicated that they were a willing party. This circumstance cannot be considered in isolation, but with the attending circumstances. It may be pointed out that the appellants were armed with knife and at some point of time when the prosecutrix tried to resist or shout, she was not only given a thrashing, but was also threatened to be killed by the knife. This fact was borne out from the evidence of the prosecutrix herself and the medical evidence. She has categorically stated that she was given a slap on the mouth when She tried to resist which is supported by the medical evidence. The medical examination report shows that there was abrasion on the surface of the upper lip and there was a contusion in the mid forehead and abrasion in the left knee joint besides the internal injuries in her private parts. There is also evidence that when she was being taken back after she was subjected to sexual intercourse, she was made to sit on the bar of the cycle while one of the appellants was driving the cycle and the other was sitting on the back of the cycle. It was difficult in such circumstances and situation for the prosecutrix to raise any further alarm when she was surrounded by the two appellants, who were armed with a deadly knife. There are other circumstances also which have been narrated by the learned trial Judge, in paragraph 12 of his judgment and on analysing the evidence, we find that those circumstances are consistent with the guilt of the appellants rather than their innocence. In these facts and circum stances we do not find that any case is made out to hold that the prosecutrix was a consenting party. In the result the appeal fails and is hereby dismissed. The appellants are on bail. Their bail is cancelled and they are directed to surrender to serve out the sentence.