MANU/OR/0255/1994 Equivalent Citation: 1995CriLJ1561, 1995(I)OLR151 IN THE HIGH COURT OF ORISSA Criminal Appeal Nos.

175 and 191 of 1993 and Jail Criminal Appeal No. 205 of 1993 Decided On: 07.11.1994 Appellants: Fanibhusan Behera, Jeet Shankar Bohidar and Dinabandhu Behera Vs. Respondent: State of Orissa Hon'ble A. Pasayat and D.M. Patnaik, JJ. Judges:

Counsels: For Appellant/Petitioner/Plaintiff: Y. Mohanty and S.C. Das (in Crl. Appeal No. 175/93), S.K. Padhi, S. Parida and D. Mohapatra, Adv. (in Crl. Appeal No.191/93) and S. Mallik, Adv. (by Legal Aid and Advice Board in J. Crl. Appeal No. 205/93) For Respondents/Defendant: Addl. Standing Counsel Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Indian Penal Code, 1860 - Section 376; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1); Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1976 Cases Referred: Dr. S.P. Kohli, Civil Surgeon Ferozepur v. High Court of Punjab and Haryana through Registrar, (1979) I SCC 212; State of Uttar Pradesh v. Krishna Gopal and Anr., AIR 1989 SC 2154; Krishan Lal v. State of Haryana, AIR 1980 SC 1252; State of Karnataka v. Mahabaleshwar Gourva Naik, AIR 1992 SC 2043; Balwant Singh and Ors. v. State of Punjab, AIR 1937 SC 1030; Pramod Mehta and Ors. v. The State of Bihar, AIR 1989 SC 1475; Ramroop Das v. State, (1993) 6 OCR 120 JUDGMENT A. Pasayat, J.

1. "Rape or Raptus is when a man has carnal knowledge of a woman by force and against her will'' (Co. Litt. 123 b); or, as expressed more fully, "rape is the carnal knowledge of any woman above the age of ten years, against her will; or of a woman child, under that age, with or against her will" (Hale P. C. 628). In India, as set out in Clause Five of Section 375 of Indian Penal Code, 1860 (in short, 'IPC') the age relating to consent is sixteen years, at present. Original age of ten has been substituted from time to time in 1891 and 1925 by twelve years, and fourteen years. Since 1943 it is sixteen years. The essential words in an indictment for rape are rapuit and carna-liter cognovit. Rape is no longer considered as sexual assault by a man on the victim. Its scar on account of physical action may be obliterated; but it lives in an indolent state of mind of the victim which is never healed. Here the victim whose name we do not propose to indicate, has suffered ignomity of sexual assaults, as is claimed, by three persons, present appellants. Such an act has been described as ''gang rape" in Section 376, IPC. By Explanation. It is provided that when a woman is taped by one or in a group of persons acting in furtherance of their common intention, each of the persons is deemed to have committed gang rape within the meaning of Sub-section (2) of Section 376. A higher punishment is provided by enacting that the imprisonment shall be for a term not less than ten years, or may be for life and with liability for fine also. The Explanation has been introduced by the legislature with a view to effectively deal with the growing menace of gang rapes. 2. The three appellants have been sentenced to undergo imprisonment for life by learned Sessions Judge, Sundargarh on the basis of their conviction under Section 376, IPC. Additionally, they were sentenced to undergo rigorous imprisonment for five years for the offence punishable under Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, 'Atrocities Act'). 3. Appellants Fanibhusan, Jeet Sankar and Dinabandhu call in question their conviction on the ground that the medical evidence clearly falsifies the prosecution case, Strong reliance is placed on the evidence of doctors (PWs 13 and 14) for the purpose. It was submitted that their evidence showed absence of recent sexual intercourse, absence of spagma, and absence of injury on the prosecutrix (PW 12). 4. Accusations as made by the prosecution, which led to trial of accused persons are as follows : On 29-5-1992 the prosecutrix and her friend (PW 3) both belonging to village Narendra under Bonai Police Station went to village Babunuagaon at about 10 a. m. to give measurement of their dresses to the tailor Giridhari Patra (PW 1). From there they went to the house of prosecutrix's sister, took their lunch, and after taking rest for some time were coming towards their village by cycles. At about 3-30 p. m. on Bonaigarh-Gunindia Road, the three accused persons who were going in two bicycles passed them on the way, again returned and asked them as to where they were going The girls did not respond and continued their journey towards village. Suddenly accused Jeet Sankar caught hold of the hand of PW 3, who gave a bite and Jeet Sankar left her hand. Three accused persons chased the prosecutrix, who got down from her bicycle and started running. The accused persons caught hold of her, took her inside a pit in the road side. PW 3 travelled in her bicycle at a great speed to their village and informed the father of prosecutrix that the three accused persons were dragging the prosecutrix. On hearing this, father of the prosecutrix (PW 4) came to a betel shop in the village where PWs 5, 6, 10 and others were sitting and told them about the incident. Accused Fanibhusan removed her pant and under cloth, made her lie down with the help of accused

Dinabandhu Behera, caught hold of her hands, stretched her leas and Jeet Sankar made forcible intercourse, and gave her two to throe strokes. Thereafter accused Jeet Sankar caught hold of her legs and accused Fanibhusan made forcible intercourse.On being informed by PW 4, PWs 5, 6, 10 and others went to the spot. PW 5 Priyabandhu Pradhan arrived at the spot first and saw three bicycles lying on the road, saw head of a boy inside a pit and proceeded towards the spot. He saw Fanibhusan making intercourse with the prosecutrix. Ha saw accused Dinabandhu Behara gagging the mouth of the prosecutrix in one hand, and catching hold of her hand by another hand and accused Jeet Sankar was catching hold of another hand of the prosecutrix and raising her one leg. Accused Fanibhusan was naked. Seeing him, accused persons started running. PW 5 caught hold of Fanibhusan, who was naked and the other villagers saw the other two accused -persons running away, chased them and caught hold of them. Makru Kishan (PW 4) father of the prosecutrix also arrived there. They asked the names of the accused persons. The prosecutrix got up and put on her pant and later on lost her senses She was unable to talk and was feeling thirsty. So she was taken to village. The three accused persons were taken to the village club house, their names were ascertained with address, and subsequently were taken to the Bonaigarh police station. On the basis of information lodged by PW 4 a written report was prepared, investigation was undertaken, and the prosecutrix and the accused persons were sent for medical examination. The wearing apparels of the prosecutrix were also seized. Test identification parade was held where the accused persons were duly identified by prosecutrix After completion of investigation, charge sheet was submitted. 5. The accused persons pleaded innocence. According to them, while they were returning from Chura Munda village saw two girls and asked them as to where they were going, upon which one of the girls fled away and informed the villagers, who came, caught hold of them, assaulted them and produced them before Police Station; and the case has been falsely foisted against them. 6. Considering the evidence of seventeen witnesses who were examined to further the prosecution case, and placing reliance on the documents brought on record, the learned Sessions Judge held that offence punishable under Section 376, IPC was clearly made out against the accused persons. He, however, acquitted them of the charge under Section 354/34, IPC. Additionally he held them liable for the offence punishable under Section 3(1)(xii) of the Atrocities Act. The accused parsons were sentenced to imprisonment for life for the offence punishable under Section 376(2)(g), IPC, and were further sentenced to rigorous imprisonment for five years for the offence punishable under Section 3(1)(xii) of the Atrocities Act. 7. Since the olea of the accused persons rests on the acceptability of allegations of rape in the background of medical evidence we have restricted our consideration to that aspect only. In the statement of the accused persons recorded under Section 313 of the Code of Criminal Procedure. 1973 (in short, the 'Code'), it is accepted that they asked the two girls as to where they were going, one of the girls ran away, they ware taken by the villagers from the spot of occurrence to the village club, and were produced before Police. In other words presence of accused at the place of occurrence, is accepted. 8. Evidence of the prosecutrix alone is sufficient to maintain the conviction under Section 376, IPC. Evidence of the prosecutrix about the incident is as follows :

"...This accused (identified accused Fani Bhusan) removed my chadi and the napkin (undercloth), made me lie down. Accused Dinabandhu Sahara (correctly identified) made me tie down and caught hold of both my hands. Accused FaniBehera stretched my legs accused Jeet Sankar Bohider (correctly identified) made intercourse with me, 8nd gave two to three strokes. He got up and caught hold of my legs. Thereafter accused Fani Behera penetrated,......" Evidence of the doctor (PW 13) who examined the prosecutrix is to the effect that he found no external injury on her person or privata part. He opined that the injury on the private part, i.e., in the vagina of the victim girl depends on size of penis, vagina and flexibility of hymen and the force used. In the present case, the hymen was not ruptured. He stated that ha could not tell if the orifice was big enough. The vagina allowed his two fingers tightly up to 2.5". When his two fingers up to 2.5" had entered into the vagina of the girl, the possibility of penis of a young man up to that extent entering into the vagina of the girl cannot be ruled out. He had not examined the penis of the accused persons. No injury was caused in the vagina of the girl when he put his two fingers inside the vagina of the girl. He agreed to the suggestion that the injury on the private part of the vagina depends upon the nature of the hymen, the size of male and female organ, the extent of penetration and the amount of force used. He did not accept the suggestion that the hymen is usually lacerated in case of virgins. PW 14 examined accused Jeet Sankar Bohidar on 30-5-1992 and found no injury on his private part. Similar was the report in respect of accused Fani Bhusan. No smegma was present under the prepuce of the penis of any of the three accused persons. PW. 14 opined that smegma is a natural creation of human body, absence of smegma indicates no recent sign of sexual intercourse, and recent time means within 12 hours. He Further opined that the penises of the three accused persons are of normal growth and capable of sexual intercourse. He did not find any sign of recent sexual intercouse with the penis of the aforesaid three accused persons. It is the absence of injury, absence of smegma and the conclusion that there was no sign of recent intercourse which constitute trumpcard in the defence plea. 9. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (See Joseph Lines IC & K. 893). It is well-known in the medical world that the examination of smegma loses all importance after twenty-four hours of the performance of the sexual intercourse. (See. Dr. S. P. Kohli. Civil Surgeon. Ferozepur v. High Court of Punjab and Haryana through Registrar MANU/SC/0080/1978. In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty-four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration.The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well-settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The Shape and the texture pf the hymen is variable. This variation sometimes permits penetration without injury. This is possible because of the peculiar shape of the

orifice or increased elasticity. On the otter hand, sometimes the hymen may be more firm, less elastic and gets stretched, and lacerated earlier. Thus a relatively less forceful penetration may not give risa to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hyman which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majors. These, vii. labia majors are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen or even an attempt at penetration is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376, IPC. 10. Considered in the aforesaid legal setting, it has to be seen that the acts complained of constitute rape. It is stated that the evidence of the prosecutrix is unreliable, and should be discarded in the absence of any corroboration. In the Indian setting, refusal to act on the testimony of a victim of sexual attack in the absence of corroboration as a rule is adding insult to the injury. Why should the evidence of a girt or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinted with doubt, disbelief or suspicion ? The victim of rape cannot be treated as an accomplice. Absence of injuries on the person of the victim may not be fatal to the prosecution and corroborative evidence may not be an imperative component of judicial credence in rape cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. lndeed from place to place, from age, from varying life-styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may h