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 : (1979) I SCC 212 at page 219. 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 have to be drawn not with dead uniformity but realistic diversity, lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny The same observation holds good regarding the presence or absence of the injuries on the person of the aggressor or aggressed. In rape cases, the Court must bear in mind, the human psychology and behavioural probability when assessing the testimonial potency of the victim's verson. What girl would foist a rape charge on a stranger unless a remarkable set of facts of clearest motives were made out 7 The inherent bashfulness, the Innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implications.
11. In the case at hand apart from evidence of the prosecutrix,. there is evidence of several persons who on reaching the spot had found the accused persons near the prosecutrix, and one of them naked. Absence of injuries is not of much consequence as the evidence of posecutrix is credible, and evidence of PWs 5, 6 and 10 further strengthens the credibility. Accused persons have accepted their presence at the spot. V The occurrence is alleged to have been taken place on 29-5-1992 at about 3-30 p.m. The examination of accused took place on 30.5.1992 at about 1-45 p.m. Absence of smegma Ioses its significance because of passage of considerable time. The medical evidence is not of such nature, as analysed out as to completely rule out rape as claimed by the victim.
12. A 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 evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive 8nd conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance-to her testimony short of corroboration required in the casa of an accomplice, The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence, unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. Therefore, ordinarily the evidence . of a proseoutrix who does not lack understanding muust be accepted. The degree of proof required must not be higher than is expected of an injured witness. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with en accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Our standard of decency and morality in public life is not the same as elsewhere.
13. The question is whether in view of the absolutely unshaken testimony of the prosecutrix which has been re-inforced by the evidence of villagers who reached the spot immediately, medical evidence to the effect that there is no sign of recent intercourse would attach to the vulnerability to the evidence of the prosecutrix and others. In State of U. P. v. Krishna Gopal and another : AIR 1989 SC 2154, it was observed that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses are the eye and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye-witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touch-stone for the test of such credibility. The evidence must be treated for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses their performance in the witness box; their power of observation etc, Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
14. Rape is a crime and not a medical condition, a legal term and not a diagnosis to be made by the medcal officer. Whether rape had an urge or not is a legal conclusion, not a madical one. Medical opinion is only one amongst many bits of corroborative evidence to be weighed in deciding the case. Any conclusion on rape is not to be made by doctor or police. It is for the Judge to decide. It is not necessary for any rupture of the hymen in rape. The slightest penetration is sufficient for the purpose.
15. Applying those requirements to the facts of the case the inevitable conclusion is that evidence of prosecutrix is acceptable and has been rightly acted upon by the learned trial Judge.. There is not even a remote suggestion that the prosecutrix had any axe to grind against the accused persons. As observed by the apex Court in Krishan Lal v. State of Haryana : AIR 1980 SC 1252, we must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called Judicial probability. Indeed, the Court loses its credibility if it rebels against realism. The law Court is not an unnatural world.
16. At this juncture it is relevant to refer to a decision of the apex Court where an order of acquittal passed by the Karnataka High Court was set aside by it in State of Karnataka v. Mahabaleshwar Gourva Naik , AIR 1992 SC 2043. In that case the medical officer had opined that the girl might have been taped by vulval penetration if not by forceful panetration in which case there would have been rupture of hymen. The following symptoms were found by the doctor :
'Hymen was intact. No bleeding or dried blood mark was seen. No discharge was seen. Fancnetta was intact ......There was no swelling.'
In the case at hand, during examination the doctor found that in vagina menstrual blood was present as reflected in the injury report. It shows that the victim girl was under menstruation period. In that view of the matter, the possibility of absence of semen is there. The possibility of absence of injury and presence of blood and semen in such stage cannot be also lost sight of. Further, the absence of injury on any other part of the body is of no significance. A young girl was pitted against the there appellants. In such a case, there is hardly any scope for resistance. Eton otherwise, as observed by the apex Court in Balwant Singh and others v. State of Punjab : AIR 1937 SC 1030, it cannot be said that whenever resistance is offered there must be some injury on the body of the victim.
'Gang rape' is dealt with in Clause (g) of Sub-section (2) and Explanation 1 to Section 375. IPC. It is provided in the Explanation that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons is deemed to have committed gang-rape. The Explanation has been introduced by the legislature with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape. {See Pramod Mehta and Ors v. The State of Bihar : AIR 1989 SC 1475). The evidence on record in the case at hand establishes gang rape. The accused persons have been rightly found guilty under Section 376. IPC.
17. Further question is whether the sentence of imprisonment for life as awarded is proper. As observed by a Division Bench of this Court in Ramroop Das v. State ; (1993) 6 OCR 120. alternative punishments are provided for in respect of offences relatable to any of the categories under Sub-Section (2) of Section 376, IPC. Imprisonment for ten years is the normal rule, while that for life is the exception. Award of life imprisonment i3 daoendant on several factors. Where the act is brutal in character, leaving the victim ravished, in a given case, it may be awarded. Proviso to Sub-Section (2) of Sec, 376, IPC enables the Court to award less then ten years' imprisonment in special circumstances. The case at hand is a sad reflection of the decadent society we live. Morals are sinking to alarmingly low depths. Three young persons, barely out of their teens have ventured into the forbidden territory of pre-marital sex. They belong to a remote village in Sundargarh district. Their realisation of the misdeed done by them, which resulted in indelible ignomy to victim of their lust is apparent and their answers in the statements recorded under Section 313 of the Code show traces of repentance. They have admitted their presence at the spot. That they were in pursuit of their first tests of sex without any violent intention is amply indicated in the statement of the prosecutrix. She has stated that accused Jeet Sankar gave two to there strokes and left her. Similar is the case with accused Fani. There is no evidence of any pre-plan to commit the crime. On a chance meeting lust appears to have overtaken their conscience. In our opinion, therefore, the proviso to Sub-Section (2) of Section 376, IPC can be pressed into service, and seven years rigorous imprisonment would be adequate.
18. Coming to the sustainability of conviction for the offence under Section 3(1)(xii) of the Atrocities Act, a reference to the said provision is necessary. The same so far as relevant reads as follows :
'3. Punishment for offences of atrocities. -
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
(i) to (xi) xxx xxx xxx
(xii) be in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed.'
The ingredients of the offence are that (i) the offender must be a person who is not a member of Scheduled Caste or Scheduled Tribe, (ii) he be in a position to dominate the will of a woman belonging to a Scheduled . Caste or a Scheduled Tribe; (iii) the said position was used to exploit the woman sexually to which she would not have otherwise agreed. In the present case the offenders are not shown to have dominated the will of the victim girl. In order to attract application of the provision sexual exploitation must have taken place because of the offenders position of dominance. The word 'otherwise' is significant, and clearly points out that the exploitation was with agreement of the helpless woman which she would not have agreed but for the offenders position of dominance. It is significant to note that the expressions used in Section 3(1)(xii) of the Atrocities Act are 'agreed' and 'exploit sexually' and not 'consent' and 'rape'. 'Consent' and 'agreement' are not conceptually and etymologically different, Use of the expression 'would not have otherwise agreed' is intended to convey that the agreement would not have been there, but for the position of dominance. It is not a free and voluntary consent. 'Exploit' means to make an illegitimate use of, to utilise for one's ends, treat selfishly as more workable material 3 person etc., to make capital out of. To have carnal knowledge of a woman by use of position of dominance, is sexual exploitation if the victim would not have agreed to the act, but for the position.In pursuance of the International convention and mandate of the Constitution of India. We Parliament in 1956 enacted 'Suppression of Immoral Traffic in Women and Girls Act'. This Act has been twice amended in years 1976 and 1986. The amending Act of 1986 has changed the title of the Act from 'Suppression' to 'Prevention' In this, the old definition of prostitution, vide Section 2(f) which meant 'the act of a female offering her body for promiscuous sexual intercourse for hire' has now. been changed to carry the meaning of 'sexual exploitation or abuse of persons for commercial purposes'. Promiscuous sexual intercourse, the important ingredient of prostitution stands replaced by the twin requirement of the exploitation or abuse of the person and secondly the abuse or exploitation should be for commercial purposes. The expression 'sexual exploitation' would include sexual intercourse without consent which forms basis for conviction for rape.
19. There is no material to show that the victim agreed to sexual exploitation, and/or the offenders had any position of dominance Thereto?}, the conviction under Section 3(1)(xii) of the Atrocities Act is not maintainable.
20. In the ultimate analysis, conviction under Section 376(2) read with Section 34, IPC is maintained, but the sentence is reduced to seven years' rigorous imprisonment. The conviction under Section 3(1)(xii) of the Atrocities Act, and consequential sentence imposed are set aside.
The appeals are allowed in part.
D.M. Patnaik, J.
21. I agree.