JUDGMENT
P.K. Patra, J.
1. The appellant has challenged the judgment dated 8-7-1998 passed by Shri D. K. Sahu, Sessions Judge, Balasore-Bhadrak, Balasore in S. T. No. 237 of 1997 convicting the appellant under section 376(1) Indian Penal Code (for short ‘I. P. C.) and sentencing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a further period of two months.
2. Briefly stated, the prosecution case is as follows : The informant (p. w. 2) is the father of the victim girl (p. w. 1) and the appellant (hereinafter referred to as accused’) is their neighbour in village Narahatipur under Remuna Police Station in the district of Balasore. On 3-12-1996 the informant and his wife had been to the house of a relative and during their absence at about 4.00 p. m. the victim girl (p. w. 1) aged about ten years, had been to the grazing field to bring back goats. It is alleged that the accused called p. w. 1 and when she did not respond he rushed towards her, gagged her mouth with bis napkin and laid her down and committed rape on her and threatened her with murder if she disclosed the occurrence to anybody. P. w. 2 and his wife returned to their house in the night of 4-12-1996 and p. w. 1 narrated the occurrence. P. w. 2 went to the house of the accused and challenged him; but the accused became angry and asked him to do whatever he liked. Hence in the morning of 5-12-1996 p. w. 1 went to Remuna Police Station and lodged a written report (Ext. 1) before the officer-in-charge of the said police station (p. w. 6) who registered the case and took up investigation. During the investigation p. w. 6 examined the victim girl and other witnesses, sent the victim girl to the District Headquarters Hospital, Balasore for her medical examination, seized a pant on production by p. w. 1. The accused was arrested by one Assistant Sub-Inspector of Police Station on the direction of p. w. 6 when he proceeded on leave. The accused was sent to the hospital for medical examination and thereafter
he was forwarded to the court in custody. After completion of investigation p. w. 6 submitted charge-sheet under section 376, I. P. C. against the accused who stood his trial.
3. The defence plea is one of denial and false implication.
4. Shri J. M. Mohanty, learned counsel for the appellant and the learned Additional Standing Counsel were heard at length. While Shri Mohanty contended that the impugned judgment is unsustainable and is liable to be set aside due to improper appreciation of evidence on lecord, the learned Addl. Standing Counsel supported the impugned judgment.
5. In order to bring home the charge against the accused, prosecution has examined as many as’six witnesses; out of whom p. w. 1 is the victim girl and p. w. 2 is her father and informant in this case. P. w. 3 is the medical officer who medically examined the accused. P. w. 4 is the Radiologist who conducted ossification test of the victim girl. P. w. 5 is a co-villager of the informant and eye-witness to the occurrence who turned hostile and did not support the prosecution case. P. w. 6 is the Investigating Officer in this case. Defence has examined two witnesses in support of its plea. D. w. 1 is the wife of the accused and d. w. 2 is the wife of the brother of the accused, who have stated that the accused was not capable of having sexual intercourse because of his small penis which has been negatived by the medical officer (p. w. 3). The learned Sessions Judge has rightly disbelieved the statements of d; ws. 1 and 2.
6. The learned Sessions Judge placed reliance on the testimony of the victim girl (p. w. 1) and held that she has been corroborated by her father (p. w. 2) and the medical evidence on record.
7. The prosecutrix (p. w. 1) has stated that she had put on a frock and a pant when she had teen to the field to drive goats and that the accused gagged her mouth with a napkin and took her to the road side bush, removed her wearing pant upto the knee, laid her down and inserted his penis inside her vagina. She has further stated that the accused did not remove her frock and that the accused had put on a lungi which he lifted before
committing rape. Though her wearing pant (M. O. I.) has-been seized on production by her under the seizutelist (Ext. 5), no stain of blood or semen was found on it and she has explained that she had washed the same. The lungi of the accused has not been seized. P. w. 1 has stated that there was bleeding from her vagina and she suffered severe pain. After returning back to her house she did not disclose the occurrence to her maternal grandmother who was present in her house or to anyother person before disclosing the same to her father. According to her one co-villager had seen the occurrence and the accused left her seeing that person who is none other than p. w. 5. As stated by p. w. 2, p. w. 5 disclosed him the occurrence. The house of the accused adjoins the house of the informant, intervened by a fence and he is a married person without any issue. He earns his livelihood as a labourer so also the informant earns his livelihood as a labourer. Though it is stated in the F. I. R. (Ext. 1) that the victim girl was aged about ten years, she has stated in court that she attained puberty five months before the alleged occurrence and that the accused had sexual intercourse with her for about five minutes and by the time he left her, there was no ejaculation. P. w. 1 has further stated that she – did not voluntarily disclose the occurrence to p. w. 2; but she disclosed the same to him after he learnt about the occurrence from p. w. 5 and asked her about the occurrence and she was also assaulted by her father after disclosure of the occurrence to him. P. w. 1 has stated to have disclosed the occurrence to her father (p. w. 2) and none else whereas in the F. I. R. it is stated that her parents learnt about the occurrence from her. The mother of p. w. 1 has not been examined. P. w. 2 has stated to have learnt about the occurrence from p. w. 5 and to have assaulted p. w. 1 out of anger. In his statement in cross-examination P.w.. 2 has stated that p.w. 5 had given a proposal for the marriage of p. w. 1 with his son and that he did not agree to that proposal and that p. w. 5 had accompanied him to, the police station; but p. w. 5 has totally denied the same and has turned hostile and was cross-examined by the prosecution. Thus the sole testimony of the prosecutris
(p. w. 1) is not free from doubt for the infirmities and improbabilities found in her statement and she cannot be said to have been corroborated by her father (p. w. 2). The finding of the trial court on tbis score cannot be sustainad.
8. The medical evidence on record does not support the
prosecution case. P. w. 4 who conducted ossification test on p.w. 1
has opined that her age was ten to twelve years as per his report
(Ext. 3). P. w. 3 who medically examined the accused has stated
that the accused was capable of having sexual intercourse but no
sign of recent intercourse was found as per the report (Ext. 2).
The medical officer who medically examined the prosecutrix
(p. w. 1) has not been examined in this case. According to p. w. 4,
he received requisition from Dr. Mayarani Hazra for conducting
ossification test of the victim girl; but the said Dr. Mayarani
Hazra has not been examined in support of the prosecution case.
Dr. D. M. Samantaray who examined the vaginal swab of the
victim girl, collected by Dr. Hazra, has also not been examined in
support of the prosecution case. The above named two medical
officers have not been examined in support of the prosecution
case, probably because their reports were adverse to the prosecu
tion case.
9. 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 in 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 well settled in law that absence of injury on the private part of the victim or stains of semen or spermatozoa is of no consequence and could not negative the offence of rape. It is also well settled principle of law that where the medical evidence was to the effect that there are no signs 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 the sexual intercourse, it would not be safe to convict the accused on her uncorroborated testimony.
10. In the present case, as discu?sed earlier, the statement of the prosecutrix (p. w. 1) is bristling with informities and improbabilities and has not been corroborated by the only eye-witness to the occurrence as well as from the medical evidence on record. The conduct of the prosecutrix appears to be doubtful inasmuch as sbe did not report the occurrence to her maternal grandmother immediately afrer returning to the house or to anybody else during the same day and that she has stated to have washed the wearing pant (M. O. I) which was stated to have been stained with blood. Above all, the statement of the prosecutrix (p. w. 1) that the accused committed rape on her by removing her pant upto the knee and without removing her frock, is found to be incredible inasmuch as the accused could not have committed any sexual intercourse with her when she had put on the pant, by removing the same upto the knee and without completely removing the same. There are no mark of any injury on the private part or body of the victim girl as well as of the accused and their wearing apparels were not stained with Semen or blood. The accused could not have threatened p, w. 2, had he really committed sexual intercourse with p. w. 1, and p, w. 2 could have convened a Panchayati to bring the occurrence to the notice of the gentlemen of the village; but he fp. w. 2) has not done so.
11. For the aforesaid reasons, it will be quite unsafe to convict the accused placing reliance on the uncorroborated testimony of the prosecutrix (p. w. 1). The learned Sessions Judge has failed to appreciate the evidence on record in its proper perspective and has erred in placing reliance on the uncorroborated testimony of the prosecutrix (p. w. 1) to convict the accused. Hence the accused cannot be convicted of the charge and he will be entitled to an acquittal. The impugned judgment is unsustainable and is liable to be set aside.
12. In the result, the Criminal Appeal is allowed The impugned Judgment dated 8-7-1998 passed by the Sessions Judge, Bhadrak-Balasore, Balasore in S.T. No. 237 of 1997 is set aside. The conviction of the accused u/s. 376, I. P. C. and the sentence passed thereunder are set aside. The accused is found not guilty and is acquitted of the charge. He be set at liberty forthwith if his detention is not required in connection with any
other case.
13. Crl. appeal allowed.