J.M. Mahapatra, J.
1. The revision is directed against the judgment and order dated 3-4-1982 of the learned Sessions judge, Ganjam, Berharnpur maintaining the conviction of the petitioner under Set. 376,1. P. C. and sentencing him to R. L for five years thereunder.
2. Prosecution case in a nut-shell is that in the evening of 3-8-1979 the petitioner along with some others of village Budhamba was going with a woman by name Mathamani Jani towards Dera burial ground. One Ladu Kishore Pradhan saw it and waited on the road to see .what they were doing. About half an hour after he found all those persons including the petitioner running away. He went to nearby liquor shop and found some persons and told them as to what he had seen. Then all of them went to the spot and found the prosecutrix Mathamani Jani (P. W. 3) lying there almost naked. To their query she told them that one healthy boy of Dera community of Kodala and one boy of Kharada community and three others, whom she could identify rob bed her of gold ornaments and the two boys of Dera and Kharada community committed rape on her forcibly, P. W. 3 was brought by them to the village where she narrated the incident. There- after the petitioner and the accused Hari Kharada since acquitted were said to have confessed to have committed the offence before them. Next day, P. W. 3 was taken to the hospital for treatment and thereafter P. W. 3 accompanied by Ladu Kishore (P. W. 1) lodged F. I. R. at Kodala P, S, P. W. 5 the Officer-in-charge of the P.S. drew .up F. I. R., registered a case and took up investigation of the case. In course of investigation he got the prosecutrix (P.W. 3) medically examined by Doctor. P. W. 6. On completion of investigation charge sheet was placed against the petitioner and two others who stood trial for the offence of rape as also offences Under Sections 366 and 379 read with 34, I. P. C .
3. The plea of the petitioner at the trial was one of total denial.
4. In support of its case prosecution has examined seven witnesses in all, of whom P. W. 1 is the informant, P. W. 2 a post-occurrence witness, P. W.-3 the prosecutrix herself, P. W. 5, the I. O. and P. W..6 the doctor, P. W. 4 a formal witness and P. W. 7 the Judicial Magistrate who conducted T. I. Parade. Conviction of the petitioner is based solely ocular testimony of P. W. 1 corroborated by the testimony-of P;-W. 1 and others, and the evidence of the doctor, P. W. 6.
5. Mr. Misra, the learned counsel for the petitioner has raised three contentions:
(i) The non-examination of the petitioner by the doctor is fatal to the prosecution case;
(ii) all the five witnesses P. Ws. 1 to 5 having been declared hostile by prosecution and permitted to be cross-examined by the prosecution, their evidence ought to have been accepted with a great deal of caution by the learned Courts below and the Courts should not have placed implicit reliance on their testimony to base the conviction of the petitioner;
(iii) from the proved facts of the case, it would appear that the prosecutrix had her consent in the commission of rape. Each of these three contentions require a careful scrutiny.
6. In this case the petitioner has not been admittedly examined by any doctor. The evidence on record o shows that P. W. 6 the medical officer had only examined the victim woman (P.'W. 3). Relying on a decision of the Supreme Court in the case of Dr. S. P. Kohli v. The High Court of Punjab and Haryana, MR 1 978 S. C. 1753, it is contended by Mr. Misra that non-examination of the accused charged with offence of rape is fatal for the prosecution inasmuch as the smegma test of the accused is a sure and if fallible test to determine whether the male agent in the offence of rape had actually committed sexual intercourse or not and in the absence of such a test for want of medical examination of the petitioner, it is submitted that the petitioner cannot be said to have committed the offence of rape especially when some other persons are also alleged to have committed rape along with the petitioner. On a perusal of the evidence on record an I the aforecited decision of the Supreme Court, am of the view that non-examination of the petitioner by the doctor supports the defence theory of non-participation of the petitioner In the offence of rape.
7. Coming next to the theory of consent it is worthwhile to take notice of some admitted features of the case. P W. 3 the prosecutrix in her evidence has stated that she was administered liquor by the petitioner and others, and she voluntarily took some liquor, whereafter she was raped by the petitioner and accused Ganapati, while two others removed the gold ornament from her. The prosecutrix did not happen to know the petitioner and Ganapati beforehand, but she identified those two persons in the T.!. Parade. The evidence of the doctor, P W. 6 would reveal that he found some contusion and abrasions on the back and other parts of the body of P. W. 3. Her evidence with regard to the examination of the genitals and laboratory examination would go to reveal that the prosecutrix P. W. 3 was suffering from both gonorrhoea and Syphilis. The doctor found some ulcer in the genitals and discharge of pus also. The V.D.R.C. test of P.W. 3 indicated that she had veneral disease. P.W, 6 has also stated in his opinion that, .the- clinical and laboratory examination reveal the presence of veneral disease.
8. The evidence of the prosecutrix. herself and that of the doctor P. W. 6 coupled with the fact that she was mother of some three or four children would go to show that her agreeing to become a partner in the act of sexual intercourse cannot be ruled out of consideration altogether. The evidence of P. W. 3 in cross-examination would go to show that she was used to taking liquor regularly. The facts, circumstances and broad probabilities of the case, would go to indicate that P. W. 8 the prosecutrix herself of her own volition accompanied the petitioner and others to take liquor as also to be raped by them. Nowhere in her evidence she had stated that she struggled to get rid of the accused persons. She did not even breathe a word that before the attempted comission of rape she started to run away or that she struggled to get rid of the petitioner and other persons.
9. From the foregoing discussions, I have no doubt in my mind that even if rape was committed on P. W. 3 by the petitioner no offence of rape as defined in Section 375, IPC can be said to have been committed as the prosecutrix had consent which is proved by her conduct as revealed from the evidence discussed above.
10. In the light of my, discussions in the foregoing paragraphs and regard being had to the peculiar facts and circumstances of the case, and the further fact that all the five P.Ws. 1 to 5 were not relied upon by the prosecution and have been declared hostile and regard being had to the specific fact transpiring from the evidence, namely, the consent of the prosecutrix to the act of sexual intercourse, the conclusion is irresistible that the conviction of the petitioner Under Section 376, IPC cannot be sustained. The evidence broadly stated cannot be taken to be fool proof to indicate that the petitioner had complicity in the offence of rape. Even if the petitioner is believed to have taken part in the act of sexual intercourse with P. W. 3 in the company of another, the evidence of P.W. 3 herself and of the doctor, P. W. 6 would indicate that the prosecutrix herself was a willing partner in the act of sexual intercourse, and as such no offence of rape can be said to have been committed. I would, therefore, hold that prosecution has signally has failed to prove its case against the petitioner beyond all reasonable doubts. The petitioner is therefore entitled to acquittal.
11. In the result, the revision is allowed and the order of conviction and sentence passed against the petitioner is set aside. The petitioner is- discharged from his bail bond.