JUDGMENT
M.M. Qazi, J.
1. The appellants, in this appeal, have been convicted for the offence punishable under section 376(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- each, in default whereof each appellant-accused shall undergo rigorous imprisonment for three months, by the Additional Sessions Judge, Gondia, by his judgment and order dated 4-12-1986.
2. The prosecution case, in brief, is that the prosecutrix Puranbai, who was below the age of 16 years at the relevant time, had gone to graze cattle near the lake as usual at about 10 a.m. on 5-11-1984. The appellants seeing the prosecutrix alone came near her. The appellant No. 1 Uttam alias Bhadrya asked Puranbai to let him commit sexual intercourse with her. On her refusal, the appellant No. 1 Bhadrya caught hold of the prosecutrix ‘ Puranbai and felled her down on the ground, whereas the appellant No. 2 Sanjay untied her underwear and committed rape on her. : Thereafter, the appellant No. 1 Bhadrya also committed rape on Puranbai. While all this was going on, Puranbai was shouting for help. On hearing the shouts, her brother Puran (P.W. 3), who was far off from the spot.’ of occurrence, rushed to her rescue. According to him, he saw the appellant Bhadrya committing, sexual intercourse with Puranbai. He has further deposed that appellant No. 2 Sanjay came near him and threatened him that the incident should not be disclosed to anybody. In view of this threat, Puran ran towards one Karya (P.W. 2). He told the incident to Karya and one Rushya. According to Puran, Karya and Rushya then ran towards the spot of occurrence. The prosecutrix Puranbai went crying to her house and narrated the incident to her sister Kusmabai (P.W. 4) and also to her mother when she returned after some time from the field. Puranbai also reported the said incident to her father when he returned subsequently from the field. Thereafter, her father took Puranbai to the Police Patil and the incident was narrated to him as well. The Police Patil scribed the report and thereafter both of them went to the. Police Station, Gondia (Rural) and lodged the report (Exhibit 15) at the Police Station on 6-11-1984. On the basis of this report, the offence was registered by the Investigating Officer Mr. Abdul Sattar (P.W. 9). The Investigating Officer sent Purnabai for medical examination and also effected seizure of some articles including the blue skirt of Purnabai vide Seizure Memo (Exhibit 16).
3. The appellants-accused were arrested on 6-11-1984 itself in the evening. Abdul Sattar (P.W. 9), the P.S.O., also did the other investigation such as recording statements of the witnesses etc. The seized property were also sent to the Chemical Analyser. The Chemical Analyser found that the half-pant and chaddi belonging to appellant-accused No. 1 had semen stain. The Chemical Analyser’s report (Exhibit 42) further shows that the two slides, which were brought from the hospital by the Constable and which were seized under Seizure Memo (Exhibit 40) by P.S.O. Abdul Sattar, were sent to the Chemical Analyser for examination. The Chemical Analyser detected spermatozoa on these two slides.
4. In this case, the most important evidence consists of the girl herself i.e. the prosecutrix Purnabai. The fact that she was below the age of 16 years at the time of the incident is not at all disputed. The prosecutrix has deposed that while she was all alone near the lake, both the accused forcibly committed sexual intercourse with her. She has given the details as to how the rape was committed on her. According to her, when one of them was committing rape on her, the other was holding her hands till the act was completed. She also deposed that she was all the while shouting when the accused were committing forcible sexual intercourse with her. In the cross-examination, she is not at all shaken. No omissions or contradictions, worth the name, are brought in her evidence. On the other hand, the evidence shows that a peculiar and funny suggestion was made to her in the cross-examination that she was already entangled with the appellant Sanjay which she denied. Probably, the appellant Sanjay wanted to suggest that he had a sexual intercourse with Purnabai with her consent. But, as we have observed above, the girl admittedly is a minor her age is not at all in dispute and, therefore, her consent is immaterial. It was further suggested to her that both the appellants had sexual relations with her prior to the occurrence of the present incident. This suggestion, according to us, would also show that the defence, if any, is only one of consent. The trial Court has discussed her evidence at length and has believed her evidence. We do not see any reason to take view other than the one which the Trial Judge has taken.
5. Another witness relied upon by the prosecution is Karya Waghare (P.W. 2). At the relevant time, he was also grazing she-buffaloes near the lake on the date of the incident. Karya was informed by Puran (P.W. 3) that Purnabai was shouting. He therefore, went to the spot along with Puran. He saw that Purna was going away, her underwear was lying at the spot of occurrence and went crying to her house, while the appellants ran away from the spot. This witness has further deposed that he took the underwear of Purna (art. 7) to his house which was thereafter seized from him under Seizure Memo (Exhibit 19). Karya (P.W. 2) appears to be a natural witness since he was grazing his she-buffaloes near the spot of occurrence. To this witness also, a suggestion was made on behalf of the appellant No. 2 Sanjay that there was a love affair between Purnabai and the appellant Sanjay. He, however, denied having any knowledge about it. The appellants did not stop there but further gave a suggestion that it was this witness who committed sexual intercourse with Purnabai on the day of occurrence. The said suggestion was vehemently denied.
6. The evidence of yet another witness, namely, Puran (P.W. 3) also corroborates the testimony of the prosecutrix. According to him, the prosecutrix is his cousin. While narrating the facts, we have already discussed above that according to this witness, he actually saw the appellant No. I Bhadrya committing sexual intercourse with Purnabai. In the cross-examination, some suggestions have been given to this witness but they have been denied. The testimony of this witness is not at all shaken. It was also suggested to him that it was Karya (P.W. 2) who committed sexual intercourse with Purna. Thus, in our view, the testimony of Purnabai (P.W. 1) is substantially corroborated by the evidence of Puran (P.W. 3) as well as Karya (P.W. 2).
7. P.W. 5 Atmaram is the father of the prosecutrix. He has deposed that on the date of incident, he had gone to the field and returned home only at about 7 p.m. It was thereafter that the incident was narrated to him by his daughter Purna. He got the report scribed by the Police Patil and the same was handed over at the Police Station, Gondia (Rural). Exhibit 15 is the same report. Even the evidence of Atmaram is not at all shaken in the cross-examination. The report dated 6-11-1984 which is treated as FIR implicates both the appellants. It gives all the relevant details as well. The FIR in our view, was lodged at the earliest point of time, since the Police Station was about 19 kilometers away from the village Zilmili where the prosecutrix resides. Moreover, her father Atmaram (P.W. 5) returned home only in the evening from his field. In view of the peculiar circumstances, even though the report was apparently lodged next day, we do not think that there is any delay. There was also no time for concoction. The report appears to have been faithfully recorded. There is no contradiction between the FIR and the testimony of the prosecutrix. All this would lend support to the fact that the girl has given true account of the incident.
8. The prosecution has examined Dr. Smt. Sankar (P.W. 7) who examined the prosecutrix Purna on 6-11-1984 at about 10 p.m. Dr. Smt. Sankar gave a report dated 6-11-1984 (Exhibit 27). She did not find any injury on her person or on her private parts. She, however, opined that it was not possible for her to give a definite opinion whether the prosecutrix was raped or not. The report shows that the hymen of the prosecutrix was intact. In her evidence, Dr. Smt. Sankar stated that in rare cases the hymen may remain intact in spite of sexual intercourse. She has further stated that if the girl is accustomed to sexual intercourse, there would not be internal injury to the vagina. In the cross-examination, she has stated that the age of the girl was about 14 to 15 years.
9. The appellants were also examined by Dr. Paonikar (P.W. 6) on 7-11-1984. He did not discover any injury on their person or private parts. In the cross-examination, he deposed that hymen of a lady may rupture or may not rupture in case of rape. Thus, according to both the Doctors, it is not necessary that sexual intercourse may necessarily result in the rupture of the hymen.
10. Mr. Gulhane, the learned Advocate appearing on behalf of the appellants argued that the fact that hymen was found intact belies the prosecution story. According to him, it is almost impossible that when two young men commit sexual intercourse with a young girl, her hymen can remain intact. But as we have seen above from the opinion of both the Doctors that it is not necessary that sexual intercourse may necessarily result in the rupture of a hymen, it is not possible to accept the argument of Mr. Gulhane. Mr. Gulhane relied on a decision of the Supreme Court reported in 1972 Supreme Court Cases (Cri) 827 : (1972 Cri LJ 1260) Rahim Beg v. State of (U.P.). He has invited our attention to para 26 of the judgment. In the above cited case, the girl was about 10 to 12 years old. There was also no dispute that she was virgin. In this background, their Lordships of the Supreme Court observed that the absence of injuries on the male organs of the accused would thus point out to their innocence. In the present case, the girl is not that young and it is also not known whether she was really virgin or not at the time of the incident. On the contrary, suggestions were made to her by the accused that she had sexual relations with them as well as with some other persons. Dr. Smt. Sankar, in her report (Exhibit 27), has stated that the girl was young and well-built. Having regard to all these facts, we do not think that mere absence of the injury, either on the person or private parts of the girl or the appellants, is an indication of innocence of the appellants. The trial Court has exhaustively dealt with all these aspects and has come to the correct conclusion, and in our view, has rightly recorded a finding that the appellants, who are two in number, are guilty of the offence of gang rape.
11. Mr. Gulhane contended that in order to constitute ‘gang rape’, it is necessary that there should be a group of persons. Merely two persons committing the offence of rape would not amount to ‘gang rape’. It is difficult to accept this argument. Explanation I to S. 376(2)(g) of the Indian Penal Code appears to be quite clear on this point which reads as under :
“Explanation 1.- 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 shall be deemed to have committed gang rape within the meaning of this sub-section.”
From the above wording, it appears to be clear that even if two persons commit rape, they would come within the mischief of definition of ‘gang rape’. There does not appear to be any enmity between the prosecutrix and the appellants. On the other hand, the appellant No. 2 Sanjay has claimed that the prosecutrix had sexual relations with him. In view of these facts, we do not think that the girl would implicate the appellants falsely in a heinous crime like rape.
12. Thus, in our view, the appeal is wholly without substance. The minimum sentence for such offence is 10 years but the trial Court has sentenced each of them to 7 years’ rigorous imprisonment. Though the trial Court has not given any specific reasons for reducing the minimum sentence prescribed under section 376(1), IPC a lenient view in the matter could have been taken by the trial Court, in view of the young age of the appellant-accused and the fact that no injury was inflicted on the prosecutrix Purnabai. At any rate, the trial court having taken the lenient view, there is no question of interfering with the same particularly when there is no challenge in that behalf on the part of the State.
13. The appeal is thus devoid of substance and hence dismissed. The order of conviction and sentenced passed by the Additional Sessions Judge, Gondia on 4-12-1986 is hereby maintained. The appellants shall surrender to their bail bonds forthwith.
14. Appeal dismissed.