Judgment:
P.K. Patra, J.
1. The appellant has challenged the judgment dated 18.7.1995 passed by Shri B. K. Patnaik, Sessions Judge, Bolangir in Sessions Case No. 12 of 1995 convicting him Under Section 376 of the Indian Penal Code (for short 'I.P.C.) and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 2,000, in default, to undergo rigorous imprisonment for a further period of one year and acquitting him of the charge Under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act').
2. Briefly stated the prosecution case runs as follows :
The prosecutrix (P.W.I) aged about fifteen to sixteen years and a resident of village Jamdalkha in the State of Madhya Pradesh and her boyfriend (P.W.3) aged about 25 years and a resident of a neighbouring village-Kudapali, PS. Sohela, district Bargarh who were acquainted with each other, left together for Harishankar in the morning of 26.8.94 when the father of the prosecutrin threatened to assault P.W.3. After visiting the temple at Harishankar, they stayed together in the temple during the night and on the following morning they came to the house of P.W.2 in village Bileisathi under Patnagarh Police Station in the district of Bolangir who was known to P.W.3 being the father-in-law of the sworn friend of P.W.3. They stayed there for five days. It is alleged that in the night of 31.8.94, the appellant (hereinafter referred to as 'accused'), a young boy aged about twentytwo years and a resident of village Berhampura. P.S. Patnagarh in the district of Bolangir, reached the house of P.W.2 and threatened P.W.3 to take him to the police station alleging that he had eloped the prosecutrix, as told by her father who was present in his house and that he squeezed the cheek of the prosecutrix and left the place. Again the accused came to the house of P.W.2 in another room and closed the door of that room from inside and committed sexual intercourse with the prosecutrix for four times during the night and in the following morning he left that house. The prosecutrix and P.W.3 left together and on their way an Assistance Sub-Inspector of Police, Patnagarh Police Station (P.W.5) detained them finding their movement suspicious and took them to the Patnagarh Police station and produced them before the Officer-in-charge of the P.S. (P.W.8). During interrogation the prosecutrix did not reveal the incident before P.W.8 and preferred to remain silent and hence both of them were detained in the P.S. during the night. In the next morning, i.e., on 2.8.94, P.W.3 orally reported about the occurrence before P.W.8 who reduced the same to writing (Ext. 1) and registered the case against the accused and directed the S.I. of the P.S. (P.W. 10) to take up investigation. During investigation. P.W.I 0 examined the prosecutrix, seized her saree and chadi (M.Os.I and II respectively), on production by her stating that she had put on the same at the time of occurrence. P.W. 10 examined the other witnesses, arrested the accused on 3.9.94 from his residence at Berhampura and seized his pant. The prosecutrix and the accused were sent for medical examination and the accused was forwarded to Court in custody on 4.9.94. After completion of investigation, he submitted charge-sheet Under Section 376, I.P.C and 3(1)(xi) of the Act again the accused who stood his trial.
3. The learned Sessions Judge while convicting the accused on the first count, has acquitted him on the second count since there was no evidence on record to show that the prosecutrix belongs to Scheduled Tribe.
4. The plea of the defence is one of denial. According to the accused, he had advanced Rs. 2,000/- (Rupee two thousand) to P.W.2 for preparing of bricks and when P.W.2 did not comply, he demanded the money, for which this false case has been foisted against him at the instance of P.W.2.
5. Mr. K. Rath, Advocate appearing on behalf of Mr. D.P.Dhal, learned counsel for the accused and Mr. S. Pradhan, learned Additional Standing Counsel for the State were heard at length. While Mr. Rath contended that the impugned judgment is not sustainable in view of wrong appreciation of the evidence on record, the learned Addl. Standing Counsel supported the impugned judgment.
6. In order to bring home the charge against the accused, prosecution has examined as many as ten witnesses. P.W.I is the prosecutrix, P.W.2 is the owner of the house where the alleged occurrence took place. P.W.3 is the boyfriend of the prosecutrix. P.W.R is the wife of P.W.2. P.W.5 is the A.S.I, of Patnagarh P.S. who took P.Ws.l and 3 to the P.S. P.W.6 is the lady Assistant Surgeon who medically examined the prosecutrix. P.W.7 is the medical officer who medically examined the accused. P.W.8 is the O.I.C. of the P.S. who registered the case. P.W.9 is the Radiologist who conducted the ossification test of the victim girl and opined that her age was between fifteen to sixteen years. P.W. 10 is the Investigating Officer. The defence has examined none.
7. The learned Sessions Judge has placed reliance on the statement of the prosecutrix (P.W.I) and found corroboration from the statements of P.Ws.2, 3 and 4 and medical evidence on record and hold the accused guilty of the charge Under Section 376,1.P.C. and convicted him. The contention of the learned counsel for the accused that there was improper appreciation of the evidence by the trial Court, requires careful consideration.
8. P.W.6 the lady Assistant Surgeon of Patnagarh, has stated that on 3.9.94 she examined the prosecutrix on police requisition and as per her report (Ext.2) she found as follows :
i. There is sign of rape evident injury to hymen;
ii. Hymen was ruptured on the midline posteriorly which was bleeding easily on touch. There was no injury other than the injury to the hymen which seems to be within about seven days.
No foreign hair is detected in her vagina. Vaginal swab was collected and examined under microscope and spermatoza dead or alive, was found. No nail mark was found on her breast.
In her estimation, the prosecutrix was aged about sixteen years and she suggested for ossification test to determine the age of girl. P.W.9 who conducted ossification test, has opined that the age of the victim girl was between fifteen to sixteen years. In her cross-examination, P.W.6 has stated that the vagina of the prosecutrix admitted two fingers from which inference can be drawn that she was habituted to sexual intercourse. The medical officer (P.W.7) who examined the accused on 3.9.94 and submitted injury report (Ext.3) found as follows :
i. There was no injury or scratches on the body of the accused;
ii. There was nothing evident to show that he was not capable of having sexual intercourse;
iii. No foreign hair was found on her person; and
iv. There was no injury or his penis. No seminal stain was found on his thigh.
9. The Investigation Officer sent the saree (M.O.I.) and the underwear (chadi-M.O.II.) of the prosecutrix as well as the full pant of the accused for chemical examination and the chemical examination report (Ext. 1 5) shows that the saree (M.O.I.) contained blood stains but no semen and the underwear (M.O.II) contained blood stains but no semen and the full pant also contained blood stains but no semen. In view of the above evidence on record, the statement of the prosecutrix (P.W.I) as well as of the other witnesses, require careful scrutiny before placing any reliance on them to base a conviction of the accused.
10. The facts that the prosecutrix and her so-called boyfriend, belong to different castes and are residents of different villages and their togetherness and journey to Harishankar and staying together in the temple as well as in the house of P.W.2 would lead to an inference of their amorous relationship, notwithstanding their denial. While the prosecutrix (P.W.I) has stated that P.W.3 is her cousin, P.W.3 has stated that P.W.I liked him as her brother and there was no illicit relationship between them, but he has admitted that their relationship was not being approved by their parents. Further P.Ws. 2 and 4, in whose house, the alleged occurrence took place during the entire night, did not report the matter to the police and P.Ws. 1 and 3 also did not report the matter to the police in the next morning but preferred to leave for their villages in the afternoon. Even they did not disclose the occurrence before P.W.5 who took them to the police station finding their movement suspicious or before P.W.8 when they were produced before him. They stayed in the P.S. during the entire night and on the following morning, it is stated that the prosecutrix orally reported about the occurrence which was reduced to writing (Ext.l) by P.W.8 and the law was set in motion. In the above circumstances, the chances of concoction or initiation of a false case after premeditation and consultation, cannot be ruled out. It is stated by P.Ws.1,2,3, and 4 that an old lady named Dusmati, who was acquainted with P.W.3, had accompanied the accused to the house of P.W.2 on the first occasion and the said Dusmati has not been examined in support of the prosecution case. While giving a vivid description of the repeated sexual intercourse by the accused with her spreading a quilt (kantha) and over it her wearing saree, P.W.I has not hesitated to depose that the accused inserted his penis in her mouth to have oral sex and his finger in her vagina. Though she stated that her saree was stained with blood and semen, the Seriologist's report revealed that no stain of semen was found on it. The quilt or mattress has not been seized by the Investigating Officer. P.W.I has stated to have put on a chadi (M.O.II) at the time of occurrence and that the same was stained with blood and semen, but the Seriologist's report revealed that there was no stains of semen on it. In her statement in cross-examination, the prosecutrix (P.W.I) has stated that she is Saura by caste, P.W.3 is Lohara by caste and that she was residing in the house of P.W.3 but immediately she corrected herself saying that she was residing separately. Her village is situated at a distance from Harishankar and Harishankar is at a distance of about 35 kms. from village Bileisahi and they travelled the distance in a trekker. In her statement in chief P.W.I did not state about raising hulla when the accused allegedly committed rape on her but in her statement in cross-examination, she has stated the same and added that nobody came to her rescue because the room was bolted from inside. She has stated that her bangles were broken at the time of commission of rape but the I.O. has not seized any broken bangle from the room in question. She has stated that in the morning she disclosed the occurrence to P.Ws.3 and 4 but not to any outsider. According to P.W.2 the accused kept P.W.3 in one room and bolted the room from outside the took the prosecutrix to another room and bolted the room from inside and stayed there during the night. Had it been so, P.W.2 could have opened the door of the room in which P.W.3 was confined and both of them could have attempted to break open the door of the room in which P.W.I was confined or they could have called the villagers for assistance or could have gone to the police station to report the atrocity of the accused. But he has not done so. P.Ws.2, 3 and 4 have stated that after the departure of the accused from the house in the morning, P.W.I narrated the occurrence before them and showed her saree (M.O.I) and chadi (M.O.II) stained with blood and semen. But none of them brought the same to the notice of the villagers or attempted to go to the police station for lodging an F.I.R. The seizure-list (Ext.5) reveals that the saree and the chadi were stained with blood but there is no mention of semen. The seizure-list (Ext.6) reveals that the full pant seized from the accused did not contain any stain of blood or semen. As stated earlier, the quilt/mattress (kantha) has not been seized by the I.O. P.W.2 is 'BHANDARI' (barber) by caste and he has stated that his son-in-law is the sworn friend of P.W.3 for which P.W.3 and P.W.I were given shelter in his house without knowing their relationship. P.Ws. 2 and 4 have stated that on the first occasion when the accused came to their house accompanied by one old woman named Dasamati at about 8.00 p.m., the accused slapped P.W.3 alleging that he had eloped P.W. 1, stating tha the father of P.W. I was in his house. Apparently, P.Ws.2 and 4 did not protest the accused thereafter. It would lead to the inference that P.W.3 had eloped P.W. I. with oblique motive and that P.W.2 was a consenting party.
11. It is well settled in law that conviction can be based on the sole testimony of the prosecutrix if her evidence does not suffer from infirmities or is not improbable and is found to be trustworthy and reliable and that corroboration is not necessary unless there are compelling reasons for seeking corroboration and that corroboration is not a required rule and may be dispensed with whenever the Court is satisfied that it is safe to do so and that the rule is not that the corroboration is essential before there can be a conviction, but there is necessity to corroboration as a matter of prudence. It is also well settled in law that absence of injury on the private part of the victim or stains of semen or spermato/.a is of no consequence and cannot negative the offence of rape, but where the medical evidence is to the effect that there was no sign of recent intercourse or injury on the girl's private part and where it is clear that the prosecutrix is not a reliable witness or is a willing party to sexual intercourse, it would not be safe to convict the accused, on her uncorroborated testimony.
12. In the facts and circumstances of the case as discussed above, and the infirmities and improbabilities found in the statements of P.Ws. 1,2.3 and 4, would cast grave doubt on the veracity of the prosecution case and the chance of falsely implicating the accused for his protest against the elopement of P.W. 1 by P.W.3, cannot be ruled out. The medical evidence on record cannot be considered to have lent corroboration to the statement of the prosecutrix (P.W.I) regarding the rape. As per the evidence of P.W.9, the age of the victim girl, can vary by two years either side. In that case, if the age of victim girl is found to be above sixteen years and if the medical evidence on record shows that she was habituated to sexual intercourse, since the statement of the prosecutrix (P.W.I) as also statements of P.Ws. 2, 3 and 4 are found to be incredible for the reasons discussed above, reliance cannot be placed on them. The story of alleged rape is found to be most suspicious and doubtful. Hence the conviction of the accused cannot be legally sustained. The learned Sessions Judge while arriving at the culpability of the accused, did not consider the above aspects of the case and has not appreciated the evidence on record properly.
13. For the reasons discussed above, the impugned judgment of conviction is liable to be set aside and the accused will be entitled to an acquittal.
14. In the result, the Criminal Appeal is allowed and the judgment dated 18.7.95 passed by the Sessions Judge, Bolangir is Sessions Case No. 12/95 convicting the accused Under Section 376,1.P.C. and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 2,000/-, in default, to undergo rigorous imprisonment for a further period of one year is set aside. The accused is found not guilty of the charge and is acquitted. He be set at liberty forthwith, if his detention is not otherwise, required in any other case.