L. Rath, J.
1. This appeal from jail has been preferred assailing the conviction of the appellant Under Sections 457 and 376 IPC and sentences to undergo rigorous imprisonment,for 10 years and to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for one month more Under Section 376, IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for one month more Under Section 457, IPC with direction that both the sentences of imprisonment would run concurrently.
2. The appellant was charge-sheeted along with another Chhotu Mahanandia but the latter having absconded the appellant alone faced the trial on the allegation that at the midnight of 12-5-1986,four persons entered into the room where the victim lady PW 5 was sleeping, through the open space available in between the thatch and the height of the wall of the room and successively gang raped her. It is the prosecution case that the victim lady was staying in the house of PW 1 and was working as a labourer at Rajgangpur. Her husband had deserted her and she was putting up in one room along with another working woman who was not present during the night of occurrence and neither her child was also there. She woke up because of the sound caused due to entry of the appellant and others and found the appellant to be holding a knife. At the point of knife she was first raped by the absconding accused Chhotu Mahanandia and thereafter by all others in spite of her protest and that due to her protest she received injury on her wrist. After the act was committed, three of the persons including the appellant escaped in the same route as they had come and the absconding accused went out through the entrance door when she opened it. She immediately narrated the occurrence to PW 1 and his wife in whose house she was staying as a tenant and named the appellant as also Chhotu Mahanandia among the persons who had violated her. She also narrated the incident to the villagers and on their advice went to the police station where at 11 a.m next day she orally lodged the FIR on which investigation was taken up. Her wearing apparels were seized as also a half-pant, a Chadi and a towel supposed to have been left back by the miscreants, and her broken bangles. The seized articles were sent for chemical examination. PW 5 was also sent for medical examination which was done the same day by PW 4. After completion of investigation, charge-sheet was submitted and the appellant was made to stand trial. The plea of the appellant was complete denial of the occurrence The learned Sessions Judge found the evidence led by the prosecution to be acceptable to sustain the charges and hence convjcted the appellant and sentenced him as above,
3. Mr. Das, learned counsel for the appellant, has made a yeoman's effort in assailing the judgment contending that in view of the evidence of the victim lady herself and the medical evidence, there could not be any question of rape committed on her and that the appellant is entitled to acquittal. It is his submission firstly that the medical evidence completely rules out the possibility of rape and secondly that even if any such act was committed, yet there was no evidence of the appellant being one of the participants in the crime, 'his identity having never been found established. Developing, he has placed specific reliance on the evidence of the doctor PW 4 who had examined PW 5 and had found no injury on her private parts or around the same, and on the fact that her vaginal swab did not show detection of any spormatozoa. The public hair was not matted and there was absence of semen on the vagina or its region and that the overall opinion of the doctor was that no sign of rape was noticed. Ext. 3 is the communication by PW 4 to the l.O on 19-5-1986, i.e six days after the examination wherein he stated that as the patient was neither a virgin nor any spermatozoa was detected from her vaginal canal and no injury was noticed at the vaginal canal or on the private parts, and she was capable of undergoing sexual act without any difficulty, it was not possible to say that she had undergone recently any sexual act. It is the submission of the learned counsel for the appellant that since it is the case of PW 5 that she was successively raped by four persons and that Chhotu Mahanandia committed rape twice, it would have been impossible, if the facts were true, that the vaginal swab would not show presence of spermatozoa in the vaginal canal, that semen would not be detected in the vagina or around it or that the public hair would not be matted. Coupled with this, he also places reliance on the fact that though PW 5 made specific statement that her Saree and Saya, MOs IV and V respectively, had been stained with semen, yet their chemical examination did not show presence of any semen or blood. According to Mr. Das while such medical evidence demolishes the story of rape, further the very identity of the appellant is not established as it was PW 5's case that the room was completely dark and she had extinguished the Dibri (open lamp) which was burning earlier and the act committed on her was in darkness and that she had been able to identify the appellant only because the persons were talking among themselves and were uttering each other's names. She had specifically admitted in her cross-examination that the faces of the assailants were not clearly visible as it was dark. It is also pointed out that in the FIR she had stated that she had been able to identify the appellant and Chhotu Mahanandia..
4. There is not much of difference in the FIR and the statement made by PW 5 in the Court. She has specifically stated that in the night of the occurrence Chhotu entered her room by scaling over the wall for which she got up. After that the appellant entered the room by the same route with a knife in hand. They asked her not to make any hulla and Chhotu pressed her mouth. The appellant threatened her saying that if she would make hulla she would be killed. Thereafter,two other persons entered into the room. Chhotu extinguished the Dibri and disrobing her committed rape on her forcibly. Thereafter they raped her successively with Chhotu committing the act at the beginning and again at the end. Due to the assault on her, her bangles broke and she had a, so received a cut injury by a sharp cutting weapon in her hand. Due to forcible opening of her blouse, its buttons also gave away. Out of them, since appellant and Chhotu Mahanandia were talking with each other, she could identify them but she could not identify the others very well. She informed the matter to PW 1 who also called others and hearing the matter the witnesses went to the houses of the appellant and Chhotu Mahanandia but did not find them,
5. Because of such consistent statement made by PW 5 and nothing of importance having been brought in her cross-examination to discredit her statement, a conviction can very well be based on her solitary evidence. But the question arises whether in view of the medical evidence as referred to earlier, it could be said that PW 5 was not subjected to rape as alleged by her. It is to be remembered that the medical evidence is to be judged as any other evidence and that the conclusion reached or the opinion advanced by the medical officer is neither conclusive nor binding and that the Court has to reach its conclusion on the totality of the circumstances and the probability of the occurrence after weighing each piece of evidence. That conviction under a charge Under Section 376, IPC is possible upon the sole testimony of the prosecutrix is now settled law as was propounded in AIR 1933 SC 753 (Bharwada Bhoginbhai Harjibhai v. State of Gujarat) wherein it was observed that corroboration is not the sine qua non for a conviction in a rape case and that 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. There is no reason to view the evidence of the girl or the woman complaining rape on her or of sexual mole station 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. A girl or woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever oceurred. She would be conscious of the danger of being ostracized or being looked down by the society including her own family members, relatives, friends and neighbours. It was pointed out that on principle the evidence of a victim of sexual assault stands on par with the evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. If the evidence of the victim does not suffer from any basic infirmity, and the probabilities-factor does not render it unworthy of credence, as a general rule there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be for the coming subject to the qualifications that the corroboration may be insisted upon when a woman having atained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct. of self preservation or when the probabilities-factor is found to be out of tune.
6. From the declaration of law thus expounded, the evidence of the prosecutrix is not in need of any corroboration except from the medical evidence where such evidence is forthcoming and the probabilities-factor in the case does not improbarbilise her case. In 1980 Cri LJ 1344 (Rafiq v. State of V.P.), Justice Krishna lyer. explaining an earlier decision of the Supreme Court in AIR 1977 SC 1307 (Pratap Misra v. State of Orissa) as regards absence of injury on the person of the woman as fatal to the prosecution and the need of corrobating evidence observed that the facts and circumstances often vary from case to. case, the crime situation and the myriad psychic factor, social conditions and people's life-style may fluctuate, and so, rules of prudence relevant in one fact-situation may be inapt in another. 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. The learned Judge further observed that there are several sacred cows of the criminal law in Indo-Anglican jurisprudence which are superstitious survivals and need to be re-examined. When rapists are revelling in their promiscuous pursuits and half of humankind-womankjnd-is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even it, taken as a whole, the case spoken to by the victim strikes a Judicial mind as probable.
7. Tested on such premises of law,it is to be seen as to whether there is any lack of probability in the evidence of PW 5 and whether the medical evidence improbabilses her evidence to the extent that it can be regarded to be so wholly contradictory as to be thrown out as false evidence.
8. Considering the case from such background it is seen that in fact the medical evidence lends some corroboration also to the victim's case. In fact, some external injuries were found on her person and PW 4 has stated that she had suffered one sharp cutting injury with regular margin of the size 1/2 'x 1/8th' on the left wrist which was simple in nature and was possibly caused by a sharp cutting weapon like knife. This was what precisely stated by PW 5 herself. Further, the doctor found one scratch on front upper pan of chest which was simple in nature and possibly caused by human nail, a fact which was also deposed to by PW 5, The age of the injuries was stated to be 20 to 24 hours. As regards other aspects of the medical evidence, Mr. Das in spite of his best efforts has not been able to show any pronouncement that absence of injury on the private parts or around the same or absence of semen either in the private parts or around the same are positive-evidence of absence of rape or intercourse. In a case reported in 1963 (2) Cri. LJ. 715 (The State v. Angom IMaobi Singh and Anr.) where the tacts were almost identical and there was no injury in the private parts and no semen was detected in the clothes or in the private parts, it was held that the same did not prove that there was no rape. It was held on the other hand that the injury she received on her body while trying to ward off the Kukri, clearly showed that there was a determination on the part of the accused to gratify their passions even with violence. The facs in that case were that two persons committed rape on the victim, overpowering her at a lonely place even while she tried to push them aside and run away. They had forcibly pushed her down on her back in a muddy place on the roadside, gagged her and had threatened her with a Kukri, In the process of warding off, she was injured.
9. Modi in his Medical Jurisprudence aad Toxicology, Twentieth Edition reports a case at page 345 under the heading 'Rape on Adult Woman'that a married woman of 18 years carrying a bundle of hey on her head was flung down on the ground by a strong powerful man who then pulled up her clothes and putting his hand on the mouth to prevent her from crying, ravished her. Her stifled cries however brought some people to the place and consequently the man ran away. The woman was examined by Modi the following day. There were no marks of injury to the genitals. The hymen was lacerated and showed carunculae myrtiformes. She had been used to sexual intercourse. She had a linear scratch across the left cheek caused probably by finger nail. The accused was convicted and sentenced to three years' rigorous imprisonment.
10. There is no universal rule that in a case of successive rape by persons more than one there must necessarily be injuries to the female and that absence of such injuries to the private parts would exclude possibility of rape. Taylor's Principles and Practice of Medicall Jurisprudence, Thirteenth Edition shows the following passage at page 76 :
'It must also be remembered that the reaction of the vaginal mucuso to a penetrating foreign body is to lubricate, and therefore even in non-consenting intercourse there will be a certain amount of lubrication produced during the act, even if lubrication was lacking on initial penetration. The frequently repeated myth that the vagina will remain dry in non-consenting intercourse with the resulting production of serious abrasion and bruising is entirely untrue.
In the case of sexually experienced woman, and those who have borne children, signs of even the most minor vaginal injury may well be absent.'
Even PW 4 in his cross-examination specifically opined that PW 5 whom he examined, being habituated to sexual intercourse on account of her marriage would not sustain any injury in her private parts in consequence of forcible intercourse with her by four persons one after another. Thus the medical evidence regarding absence of injury in the private parts of PW 5 in no way improbabilises the version of PW 5.
11. Absence of spermatozoa in vaginal swab also in no way excludes possibility of rape. There is no authority that in the case of rape, spermatozoa must necessarily be found in the vaginal secretion. That apart, it is also possible to prevent any spermatozoa to escape into vaginal canal by use of male barrier contraceptive.
12. Next remains the question regarding absence of seminal stains on or around the private parts of PW & and absence of semen on her clothes. These also by themselves do not exclude the question of rape though their presence may be indicative of and lend corroboration to seminal discharge. A seminal dischargs is not necessary to establish the offence of rape. Penetration is enough to constitute the offence, There may not have any seminal discharge also and hence absence of seminal stains or spermatozoa in the vaginal secretion cannot nagative a case of rape. In the Manipur case, 1963 (2) Cri. L. J. 715 (supra) absence of semen on the clothes of the victim was not taken as a factor to rule out the possibility of rape. In a prosecution for offence Under Section 376, IPC, the fact which has always to be kept in view in appreciating the evidence is that unless there is any enmity or malice against the accused, the prosecutrix as the person whose reputation, honour and dignity have been violated would always be anxious to see the real offender brought to book than excusing him and implicating a stranger as the person who had violated her. Such a conduct on her part would be extremely improbable. Here in this case absolutely no enmity of PW 5 with the appellant has been established or even pleaded. PW 5 is a destitute, poor working woman and had nothing against the appellant and hence there is no reason as to why she should falsely implicate him in the crime. It is of particular significance that she named the appellant as the person who had raped her, from the very beginning. As regards his identity it has been specifically stated by her that she had been able to recognise him hearing the talk between the appellant and Chhotu Mahanandia. The appellant apparently is a person previously known to her and hence there is nothing unusual to identify him by hearing his voice. More so, the name of the appellant was also uttered during the talks.
13. In view of such facts, it is not possible to agree with the learned counsel for the appellant that the version of PW 5 is in any way improbable or the medical evidence does in any way discredit her statement.
14. In the result, the appeal has no merit and is dismissed.