Judgment:
M. Papanna, J.
1. Impugned Judgment of the learned Sessions Judge, Mayurbhanj (Baripada) passed in S.T. No. 112 of 1991 convicting the appellants under Section 376(2)(g) of IPC and sentencing each of them to undergo R.I. for ten years is under challenge in this Criminal Appeal from Jail.
2. Case of the prosecution is that on 21.5.1991, victim Manka Hansda went to village Baghiatanger (Chunusahi) to attend marriage ceremony of daughter of one Ram Chandra Majhi. She took part in the tribal dance in the said ceremony. When darkness set-in she was returning home alone from the said dange. On the way, the accused persons (hereinafter referred to as 'the appellants') caught hold of her. They dragged her towards Chununala. When she resisted and cried for help, they gagged her mouth with a towel. They tied her hands and carried her to a lonely land beyond Chununala. They laid her on the ground. Then one after another they committed rape on her. Thereafter they carried her to a place surrounded by bamboo clamps. One after another they again raped her there. As a result, she became unconscious. By the time she regained her consciousness, it was dawn. She found herself lying in the water of Chununala. She also found her gold and silver ornaments missing from her person. She untied the towel. She went to the house of her sister nearby. She narrated the incidentto her sister. She took water given by her sister and after taking rest for some time she went to the house of her brother to whom she narrated the incident. Her brother took her to Choukidar who advised them to go to Police Station. Accordingly, they went to Police Station and lodged the report. Basing on the said report, police investigated into the case. On completion of investigation police submitted charge sheet against the appellants under Sections 376(2)(g) and 379 of the Indian Penal Code.
3. The appellants denied the charges. Appellant Sano set up a defence theory of enemity between him and the victim's brother, who did not pay money for taking handia on credit and he along with his sister implicated him falsely in this case.
4. Evidence of eight witnesses has been pressed into service to prove the charges against the appellants. P.W. 1 is the victim. P.W. 2 is a lady, who saw the appellants dragging the victim forcibly. P.W.3 is victim's sister to whom she narrated the incident. P.W. 4 is her brother's wife. P.W. 5 is the Doctor who examined three of the appellants. P.W. 6 is the lady Doctor who examined the victim. P.W. 7 is the I.O., P.W. 8 is the O.I.C. of the concerned Police Station who submitted charge sheet against the accused persons.
5. The defence, on the other hand, declined to examine any witness.
6. On consideration of the evidence of the victim coupled with evidence of other witnesses, the learned trial Judge found the appellants guilty of the charge under Section 376(2)(g) of the Indian Penal Code. Accordingly, he convicted the appellants and sentenced them as stated above.
7. The learned counsel appearing for the appellants contended that the appellants are entitled for an acquittal as the prosecution case has not been established beyond reasonable doubt particularly when medical evidence shows no external injuries on the victim. That apart, the learned trial Judge has gone wrong in convicting the appellants basing on uncorroborated testimony of the victim. On the other hand, the learned Additional Standing Counsel supported the judgment of conviction and sentence passed by the learned trial Judge.
8. In view of the contentions raised by the learned counsel for the parties, it is necessary to examine the evidence led in by the prosecution to prove the charge against the appellants.
9. I have gone through the judgment impugned in the appeal together with relevant evidence of witnesses basing on which the learned trial Judge convicted the appellants. A perusal of testimonyof prosecutrix (P.W. 1) shows that on her way back home from the marriage ceremony she attended, the apellants caught her and dragged her in spite of her resistance. It is also revealed from her testimony that her mouth was gagged by a towel when she started shouting. They carried hereto a land beyond Chununala. She was laid down on the ground and raped by the appellants one after another. After that she was taken to another place near a Bamboo clamps. There also'all of them assaulted her sexually one after another and satisfied their lust. On the next morning after she regained her consciousness she told her kith and kin all about the occurrence. I do not find any infirmity in the testimony of the prosecutrix. The defence theory of enemity between appellant Sano and her brother on the question of non-payment of money by the latter for taking handia on credit from the former having been not proved and no witness in support of such a plea having been not examined the defence plea is not believable and cannot be considered in view of clear, categorical and consistent evidence of the prosecutrix regarding rape committed by the appellants one after another.
10. In A.I.R. 1989 S.C. 1475 (Pramod Mahto and Ors. v. State of Bihar), the Supreme Court has taken the view that even if communal feelings had run high, it is inconceivable that an unmarried girl and two married women would go to extent of staking their reputation and future in order to falsely set up a case of rape on them for sake of communal interests. In the present case, though the appellants set up defence theory of enemity between the appellant Sano and victim's brother, the same could not be proved. Moreover, the prosecutrix, in my considered view, would not go to the extent of staking her reputation and future in order to falsely set up a case of rape on the appellants at the instance of her brother who is said to have taken handia from one of the appellants on credit.
11. As argued by the learned counsel for the appellants, it is not a case of no evidence particularly when lady Doctor (P.W. 6) on examination of the prosecutrix stated to have replied to the query of I.O. that there was sign of recent sexual intercourse on the victim. It is argued on behalf of the appellants that since no external injuries were detected on the body of the victim, it cannot be said with certainty that she was subjected to gang rape. Moreover, the learned counsel for the appellants urged that in the absence of spermatozas in the vaginal fluid as per testimony of P.W. 6, the learned trial Judge ought not to have found the appellants guilty of the charge.
12. In the present case, the alleged occurrence took place in the night of 21.5.1991 but she was medically examined by P.W.6 on 23.5.1991. So naturally, no spermatoza could be detected in her vaginal fluid after two to three days of the occurrence. But, however, P.W. 6 has found one lacerated injury 5 mm x 3 mm x mucusal dept present in fourchette which was bleeding. The injury was within three days old. Evidence of P.W. 6 also indicates that after sexual intercourse normally spermatoza dead or living would be available for twenty four hours. But if the victim washed her private part then spermatoza may not be found in her vagina. Therefore, facts proved lead to an irresistible conclusion that the victim has been subjected to rape by the appellants. As such, the contention as raised above by the learned counsel for the appellants being unsustainable in law stands rejected.
13. The learned counsel for the appellants has contended that except the statement of the victim no other witnesses have seen the sexual assault committed on the victim by the appellants. In such a case, the learned trial Judge ought to have acquitted the appellants under benefit of doubt. In this connection, the evidence of P.W. 2 cannot be lost sight of. Her evidence goes to indicate that at the material time she was selling Handia at some distance away from the place of dance. She has stated to have seen the appellants dragging the victim in spite of her protest. They took her towards the Nala. They did not leave her in spite of her request and rather they shouted at her questioning if P.W. 1 is her relation. Moreover, after the occurrence when she got her consciousness in the morning the victim told her sister (P.W. 3) and wife of her brother (P.W. 4) that she was raped in the previous night. P.W. 4 has stated to have seen mud on her clothings. Her body, hair and clothes were wet and disorder, which was indicative of the fact of sex violence. On the facts and circumstances of the case, I do not give importance to minor discrepancies which do not go into the root of the matter. Moreover, when all the important 'probabilities factor' echoes in favour of the versions narrated by the witnesses, testimony of the prosecutrix cannot be disbelieved and discarded. In my considered view there is no need for corroboration to the testimony of the prosecutrix. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (AIR 1983 SC 753), the Supreme Court has taken the view that corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion To do so is to justify the charge of male chauvinism in a male dominated society.
14. In AIR 1952 SC 54 (Rameshwar v. State of Rajasthan), the Supreme Court has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable volse of Vivian Bose, J., who spoke for the Court as follows :
' The rule, which according to the cases has hardended into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of Judge.'
15. In the case at hand, it is needless to examine regarding consent of the prosecutrix to the alleged sexual cohabitation with the appellants because it is disclosed from the evidence of P.W. 1 that she resisted and cried for help when the appellants caught hold of her and dragged her towards the place beyond the Chununala for committing rape on her. Her evidence is also clear that her mouth was gagged by means of towel during the course of sexual assault committed on her by the appellants. In such a view of the matter the question of her consent to the sex offence cannot be thought of or imagined.
16. In the case of State of Maharashtra Vrs, Chandraprakash Kewalchand Jain with Stree Atyachar Virodhi Parishad, Maharashtra State v. Chandraprakash Kewalchand Jain (AIR 1990 SC 658), the Supreme Court has settled the law as follows :
'The prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She-is undoubtedly a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evalution of her evidence as in the case of an injured complainant or witness and no more.'
17. In the present case, keeping in mind the guidelines laid down by the Supreme Court, I feel satisfied that the Court can act on the evidence of the prosecutrix. There is no rule or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to took for corroboration. So far as this case is concerned, I do not find any reason to be hesitant to place implicitreliance on the testimony of the prosecutrix. Moreover, the prosecutrix is an adult and of full understanding. As such, the learned trial Judge has rightly based conviction of the appellants on her evidence, particularly when the same does not suffer from any infirmity. Above all, on the totality of the circumstances appearing on the record of the case, I am convinced that the prosecutrix does not have a strong motive to falsely involve the appellants.
18. In the result, I do not have any hesitation in accepting evidence of the prosecutrix. In my considered view for the reasons recorded above, the learned trial Judge has not committed any illegality in passing the judgment of conviction and sentence against the appellants. The appellants are bound to suffer the sentence of imprisonment with which I am not inclined to interfere.
Accordingly, the appeal fails and is hereby dismissed.