The appellant was convicted under section 376, P. P. C. And sentenced to five years R. I. By the learned Section 30 agl1strate, Gujrat. The prosecution case is that sometime before the occurrence which took place on or about the 2nd June 1965 Mst. Irshad Bibi, the daughter of the complainant Allah Ditta, had been a consenting party to eloping with the appellant on his promises of gifts to fancy garments and orna--ments. The report was lodged on 3rd June 1965 by Allah Ditta and it was stated therein that two or three days earlier Mst. Irshad Bibi had eloped with the appellant and that she had been brought back by Khuda Bux and Nazra, P. W.
4. And P. W. 5 and that she had been returned at the intervention of Khuda Bux and Nazra who had handed her over to her father: The case was reg1stered on the basis of an application by Allah Ditta addressed to the S. P., Gujrat.
Mst. Irshad Bibi was medically examined after she had been restored and the appellant was thereafter challaned. Some details of the prosecution were that the appellant met Mst. Irshad Bibi by appointment and went to her house when she was alone, that at about late in the night Mst.
Irshad Bibi voluntarily accompanied the appellant who repeated his promises of new clothes and orna--ments to her. She was taken to the appellant's dera where his friends were present. There she was kept in a room which was guarded outside at night. That night the appellant com--mitted forcible sexual intercourse with Mst. Irshad Bibi. She was kept there for two days and one night.
Thereafter she was brought to the canal bridge and handed over to Khuda Bux and Nazra who took her to her father.
2. The learned trial Magistrate on the basis of the medical evidence held that Mst. Irshad Bibi was below 15 years of age and that she had been subjected to sexual intercourse and in spite of the plea of enmity the appellant was convicted under section 376, P. P. C. The trend of the judgment, however, indicates that the learned Magistrate was also impressed by the fact that she had been abducted although only a charge under section 376, P. P. C. Was framed against the appellant.
3. The learned counsel has argued on the basis of the prosecution evidence and the overriding circumstances of the prosecution case that Mst. Irshad Bibi had gone with the appellant and was a consenting party to her elopement with him that it must be presumed that she was a consenting party to sexual intercourse with her even though she has in her evidence in Court stated that it was forcibly committed with her. The learned counsel has pointed proviso five to section 375, P. P. C.
According to which a man is said to commit rape with a woman unless it, falls under the circumstance that it was with or without her consent when she is under 14 years of age and therefore argued that under no circumstance it can be held that rape was committed on Mst.
Irshad Bibi. Her statement to the effect that rape was committed cannot be taken on its face value in the context of the observations of Faruqui, J. In Allah Bux v. The State (PLD 1963 Kar. 684) to the effect that the evidence of the prosecu--trix cannot be accepted at its face value unless it is supported by independent corroborating evidence. It has been pointed out in the first information report that the reason for filing the report after four or five days of the incident was that Allah Ditta had been seeking to obtain a birth certificate of Mst. Irshad Bibi It is an important circumstance that the birth certificate was not produced by the prosecution. It has now been produced in these proceedings by the learned counsel for the appellant and indicates that a daughter was born to Allah Ditta on the 18th November 1950. On the date of occurrence this Irshad Bibi would thus be 14 years six months and 11 days old. The evidence with regard to the examination of Mst. Irshad Bibi on the basis of occification of the bone was also that she was over 14 years of age. That this certificate pertains to Mst. Irshad Begum is established by the fact that it is a prosecution case that Mst.
Irshad Bibi is the eldest of the two minor s1sters and has one younger brother. Thus in any case Mst.
Irshad Bibi on the day of the occurrence was certainly over 14 years of age.
4. It was further argued that in these circumstances and for the dominant admission that Mst.
Irshad Bibi left her house with the appellant with her own consent it cannot with any reason be urged that very night after elopement she could have res1sted sexual intercourse with the appellant. This is neither natural nor believable in normal circumstance. It is not Mst. Irshad Bibi's case that she was disappointed with the promises made by the appellant. Indeed she has asserted that after she eloped with the appellant he re-affirmed his promise to provide her with fancy clothes and ornaments. The additional circumstance urged is that there is complete absence of any injuries on her person or on her private parts if her statement is to be considered that she res1sted sexual intercourse by the appellant and reliance is placed on Mahla Ram v.
Emperor (AIR 1924 Lah. 669). The observations of Moti Sagar, J. :- "Where there is no independent evidence in support of the statement of the complainant that she was raped by the accused, it would be most dangerous to base a conviction on her uncorroborated testimony alone; the first and foremost circum--stance that can be looked for in cases of rape is the evidence of res1stance which one would naturally expect from a woman unwilling to yield to a sexual intercourse forced upon her. Such a resistance may lead to the tearing of clothes, the infliction of personal injuries and even injuries on her private parts. Where there is absolutely no evidence on the record of any struggle having taken place nor were marks of any injuries found on the person either of the complainant or of the accused. Held that the accused cannot be said to have had connection with the woman without her consent."
There is no independent evidence to Mst. Irshad Bibi's evidence and the additional factor is that at no time has she stated that she was put in fear by the appellant. All these circumstances lead to the irresistible conclusion that being over 14 years of age Mst. Irshad Bibi had willingly eloped with the appellant, that she was a consenting party to sexual intercourse with him and the result must be that the appellant is guilty of no offence in law for these reasons. In consequence, the appeal is allowed and the conviction and- sentence of the appellant is set aside. He is on bail. His bail bonds are cancelled and the sureties are discharged.