Judgment:
P.K. Patra, J.
1. The appellant has challenged the judgment dated 8-8-1995 passed by Shri B.N. Das, Assistant Sessions Judge, Jeypore in Sessions Judge No. 30 of 1994 convicting him under Section 376 of the Indian Penal Code (hereinafter referred to as 'IPC') and sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 3,000.00, in default tp undergo rigorous imprisonment for a further period of six months.
2. Prosecution case briefly stated is as follows:--
On 5-8-1994 at about 2 p.m. the victim girl (P.W. 6), aged about 14 years, Was returning to her house in village Sana Chindiri under Koraput Town police station in the district of Koraput after taking bath in a nearby nalla when the appellant (hereinafter referred to as the 'accused') who is her co-villager dragged her to a hillock and committed rape on her inside a dilapidated hut against her will and without her consent. It is alleged that the accused threatened P.W. 6 at the point of knife and detained her till 12 midnight whereafter he took her to the village and left her near the school from where P.W. 6 went to her house and silently slept without disclosing the occurrence to any of her family members. On the following morning she narrated the occurrence to her father (P.W. 12) who convened a meeting of the villagers, but nothing could be decided in the meeting since the accused was found absent in the village and hence P.W. 6 accompanied by P.W. 12 went to Koraput Town Police Station and orally reported the occurrence which was reduced to writing as per Ext. 1 by the O.I.C. of the police-station. The O.I.C. directed P.W. 11, and S. I. of the police station, to take up investigation. During investigatipn P.W. 1 examined witnesses, visited the spot, seized the wearing apparels of the victim girl and the accused and sent the same for serological test and sent the accused and the victim girl for medical examination. After completion of investigation chargesheet was submitted against the accused who stood his trial.
The plea of defence is one of denial.
3. Miss Panda, learned counsel for theappellant, and the learned Addl. StandingCounsel were heard at length. Learned counsel for the appellant assailing the impugnedjudgment as unsustainable, contended thatthe trial Court fell into errors in basing theconviction of the accused on the uncorrobo-rated and sole testimony of the victim girl.Learned Additional Sanding Counsel supported the impugned judgment.
4. Prosecution has examined fourteenwitnesses in all to bring home the chargeagainst the accused. The trial Court placedreliance on the testimony of the victim (P.W.6) holding that the same was trustworthyand unimpeachable and corroborated by thestatements ofher parents (P.Ws. 12 and 13).P.Ws. 1 to 5 are the post-occurrence witnesses, P.Ws. 7 and 8 are the police constables who produced the accused before themedical officer for examination. P.Ws. 9 and10 are the two constables who produced thevictim girl before the medical officer formedical examination. P.W. 14 is a witness tothe seizure of the Lungi of the accused andP.W. 11 is the investigating officer in thecase. The defence has examined one witnessin support of its case.
5. Though it is stated in the FIR that P.W.6 was aged about fourteen years, at the timeof her deposition on 4-4-1995 she has givenher age to be sixteen years and in her statement in cross-examination she has statedthat she was born in the year 1974. If herstatement is believed to be true, she wasaged about twenty years at the time of the alleged occurrence in the year 1994. Though she has read up to Class V, the school admission register showing her date of birth has not been seized or produced in Court. P.W. 1, who is a cousin of P.W. 6, in his statement in cross-examination has stated that P.W. 6 was aged about eighteen to nineteen years at the time of the alleged occurrence. The X-ray examination report (Ext. 11) reveals that the age of the victim girl was between seventeen to eighteen years at the time of her examination on 7-8-1994, The medical examination report (Ext. 12) reveals that the age of the victim girl was about seventeen to eighteen years, there was no mark of violence or injury on any part of the body of P.W. 6, there was no sign of recent sexual intercourse, there were old healed tears present in the hymen, there was no foreign hair or semen on her private part and there was also no bleeding. Thus the medical evidence on record does not corroborate the statement of the victim. Though P.W. 6 has stated that she inflicted nail marks on the body of the accused and dealt kicks on him, no injury was found on the body of the accused and the recent marks of sexual intercourse on his private part was found as per the medical report, Ext. 13. The wearing apparels of the victim girl and the accused were sent to the R. F. S. L., Berhampur for examination as per the forwarding Memo, Ext. 10, but the report of the chemical examiner has not been brought on record. P.W. 6 has stated that the accused dragged her by catching hold of her right hand to a hut situated at a distance of about two furlongs from the village and when the accused undressed her she resisted and inflicted nail marks on him and that her wearing apparels were stained with mud. She has also stated that she did not disclose the occurrence to anybody in her house during the night, but disclosed the same to her mother in the morning. It appears from the seizure-list (Ext. 2) that one nylon saree, one blouse and one Saya were seized from P.W. 6 and as per the seizure-list Ext. 4, one shirt and one Lungi were seized from the accused. But as per Ext. 10 only a Saya of the victim girl and a Lungi of the accused were sent for chemical examination, which were not brought back after the chemical examination and were not produced in Court. P.W. 6 has identified the saree (M.O.I) and blouse (M.O. 2) as also the shirt of the accused (M.O. 3). The investigating Officer (P.W. 11) has stated that the place of occurrence was at a distance of about two kilometres from the bathing place which was at a distance of 300 yards from the village and that he did not find any mark of violence on the spot. As per the statement of P.W. 6, it was raining and the roof of the hut was leaking and hence her wearing saree had been stained with mud. But, there is no mention in the seizure-list (Ext. 2) that the saree was stained with mud. The above circumstances, and specially non-disclosure of the occurrence to anybody in the house during the night by P.W. 6, raise grave suspicion as to the veracity of the statement of P.W. 6.
6. It is well settled in law that the lone testimony of the victim woman can be made the sole basis for conviction and corroboration is not necessary in case the same is accepted as true and free from suspicion. Yet there must be circumstances which should support the version of the victim woman by way of corroboration. It is not necessary that there should be independentaffirmation of every material circumstance, in the sense that the independent evidence apart from testimony of the complainant should in itself be sufficient to sustain the conviction. The corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime.
7. As discussed above, the victim girl was above the age of sixteen years at the time of the alleged occurrence and her statement is not free from suspicion. Hence it will be quite unsafe to place reliance on her sole testimony without corroboration to base conviction of the accused. The trial Court has failed to appreciate the materials on record properly and has based the conviction of the accused relying on the uncorroborated testimony of P.W. 6 and as such his finding is erroneous and cannot be legally sustained and is liable to be set aside.
8. In the result, the Jail Criminal Appeal is allowed. The impugned judgment dated 8-9-1995 convicting the appellant under Section 376, IPC is set aside and the accused is found not guilty and acquitted of the charge. He be released from custody forthwith if hisdetention is not required in connection with any other case.