Deepak Maheshwari, J. - Heard learned Public Prosecutor and perused the material available on record.

2. This Jail Appeal was preferred by accused-appellant Manohar Singh assailing the judgment dated 12.10.2009 whereby he was convicted for the offence punishable under Section 376 IPC and was sentenced with Rigorous Imprisonment for a period of 7 years along with fine of Rs. 5000/-. Additional Rigorous Imprisonment for a period of 6 months was also awarded in default of payment of fine.

3. I have carefully scanned the judgment impugned dated 12.10.2009 in light of the evidence available on record.

4. An FIR Exhibit P-1 came to be filed on 2.7.2009 by prosecutrix Kiran Kanwar stating therein that on previous night her brother-in-law accused Manohar Singh forcibly took her to the Chhan situated in village Dhani and committed rape upon her. He has committed rape earlier also against which she made complaint to the family members but they spared him after persuading him not to do in future.

5. FIR No. 156/2009 was lodged and the investigation was conducted. Thereafter, charge-sheet came to be filed against the accused-appellant Manohar Singh for the offence punishable under Section 376 IPC. Learned Trial Court framed charge for the aforesaid offence against the accused to which he denied and claimed trial. As many as 15 prosecution witnesses were examined and 12 documents were also produced by the prosecution during trial. Accused was examined under Section 313 Cr.P.C., 1973 He stated that he has been falsely implicated. No defence evidence was produced by him. After hearing both the sides, learned Trial Court proceeded to convict the accused and sentenced him for the offence under Section 376 IPC as stated above.

6. Though, Amicus Curiae has not come forward to argue the appeal, yet I have carefully scanned the judgment in light of the material available on record. Prosecutrix PW-1 Kiran Kanwar has categorically supported the prosecution case stating that when she was sleeping with her children, accused Manohar Singh, after being drunk, came to her at about 11.00 in the night and asked her to serve food. After serving the food she went back to sleep. Then Manohar Singh asked her to bring glass of water and medicine, when she came again, he caught hold of her and forcibly took her to Chhan and closed her mouth. Despite resistance of the prosecutrix Manohar Singh forcibly committed rape upon her. He lifted her Petikot and set upon her after applying condomn. She could not cry being in dismay. Prosecutrix has stated that she made a complaint about this incident to her in-laws, who were residing with Madan Singh. Her mother-in-law accompanied her the very next morning to file the report Exhibit P-1. She has also stated that her statement under Section 164 Cr.P.C., 1973 was recorded as Exhibit P-6. During cross-examination, prosecutrix has admitted that earlier on two occasions the accused had done like this. She has also admitted that she did not sustain any injury, however she has categorically denied that she was a consenting party in the sexual intercourse.

7. It is to be noted that mother-in-law of prosecutrix PW- 3 Saman Kanwar has also corroborated the statement of prosecutrix and has deposed that the next morning Kiran Kanwar came to her and complained about the rape having been committed by Manohar Singh. Then she went alongwith prosecutrix and lodged report Exhibit P-1. PW-4 Daul Singh, father-in-law of prosecutrix has also stated the same facts. PW- 10 Sajjan Kanwar sister-in-law (Jethani) of prosecutrix has also corroborated the statement of prosecutrix. PW-12 Madan Singh, with whom parents-in-law of prosecutrix were residing, has also fortified the statement of prosecutrix. Though, these witnesses are not the eye witness of the alleged incident but they have deposed that soon after the incident, prosecutrix complained against accused and informed them about the alleged incident.

8. Prosecution has examined PW-8 Hardev Singh, who has medically examined prosecutrix. He has stated that vaginal swab and smear was obtained and was handed over in sealed condition to the police for FSL examination.

9. The main defence pleaded before learned Trial Court on behalf of accused is that prosecutrix was a consenting party. It has also been averred that she had admitted that earlier on two occasions the same incident was performed by him and so it was a sign that she was consenting party. Learned Trial Court has negated this plea on the ground that prosecutrix, was a rustic villager and uneducated lady who cannot be supposed to understand the intricacy of the questions put to her during cross-examination by the legal experts. It was also observed by learned Trial Court that had she been a consenting party, she would have not made complaint against the accused the very next morning. The reason assigned by learned Trial Court appears to convincing. Further, simply because the sexual intercourse has been caused earlier also with the prosecutrix by the accused, it does not mean that on the third occasion she was a consenting party. Even for the sake of arguments, if it is presumed that she was a consent party on earlier occasions, it does not give right or liberty to the accused to commit rape upon her for the third time against her will. It is pertinent to note that prosecutrix has categorically stated that despite her resistance, the accused set upon her and committed rape. Even during cross-examination, she has denied the suggestion that she was a consenting party. Her statement cannot be disbelieved in this regard.

10. It is to be observed that there is no circumstance available on record to suggest that the prosecutrix has concocted the story and falsely implicating the accused. The close family members who are father, mother and even wife of the accused have corroborated the statement given by prosecutrix. In such situation, there is not even remote possibility that the accused has been falsely framed in this case.

11. Taking all the relevant facts and circumstances into consideration, it is found that the judgment impugned does not suffer from any infirmity and is in perfect consonance with the prosecutrion evidence.

12. In the result, the appeal fails and the judgment impugned dated 12.10.2009 is upheld while disallowing the appeal. The registry is directed to inform the Superintendent of concerned jail wherein the accused-appellant has been lodged to serve him the sentence awarded by the judgment impugned dated 12.10.2009.

13. The jail appeal preferred by the accused is rejected.