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The Indian Penal Code
Section 376 in The Indian Penal Code
Sidheswar Ganguly vs The State Of West Bengal on 24 October, 1957
Section 378 in The Indian Penal Code
Section 375 in The Indian Penal Code

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Orissa High Court
Bhudhan Lal Sarma vs The State on 30 August, 1960
Equivalent citations: 1961 CriLJ 689
Author: G Das
Bench: G Das

JUDGMENT

G.C. Das, J.

1. This appeal by the appellant Bhudhanlal Sarma, is directed against the judgment of the learned Sessions Judge, Balasore, convicting him under Section 376, I.P.C. and sentencing him to undergo R.I. for seven years.

2. The prosecution case, briefly stated, is this: The appellant Bhudhanlal Sarma committed rape on a minor girl, Ambika Dei (P.W. 1) at about 4 p.m. on the 10th November, 1959. This girl, P.W.I having lost her mother from her infancy was being brought up by her 'Mousi', Tara Dei (P.W. 3) and her 'mousa' Sanatan Jena (P.W. 4), in their house since after the death of her mother. On the date of occurrence at about 4 p.p.m P.W. 1 after collecting cowdung in the field adjoining one Edward Goshala at Sahadeb Khunta in the town of Balasore went inside the said goshala compound to wash her hands in the tank situated therein.

Appellant works as the Manager in that Goshala. While P.W. 11 was coming after a wash in the tank, appellant called her standing in the pucca platform inside the goshala in front of the godown room. P.W. 1 went, whereafter the appellant made her naked, took her inside the godown room, made her lie down on a gunny bag lying on the floor, got upon her and put in his penis inside her vagina and pressed it. According to the prose cution, the girl felt pain and cried out, but her mouth was gagged by the appellant by a rag with one hand and held both her hands in the other.

In course of the coitus the vagina of P.W. 1 got ruptured and there was profuse bleeding. P.W. 1 could not get up after the merciless ravishment. The appellant, thereafter carried her to the tank holding a rag fixed to her vagina and there he washed her vagina in the tank. In spite of the wash, the bleeding was not checked and the appellant made P.W. 1. wear her cloth and asked her to tell P.W. 3 that a Kuncha' or stick accidentally got inside her vagina as a result of which the bleeding had occurred.

P.W. 1 thereafter carried on her head a basketful of dried cowdung cakes which she then had collected in the field and came walking with much difficulty to the house of P.W. 3. At the time she was feelingi extreme pain. P.W. 3 at once could see the girl bleeding profusely from her vagina and on her query she reported that a stick accidentally got pierced inside her vagina. P.W. 3 at once laid her on a mat on the floor and covered her bleeding vagina with a rag.

She then went out to call her husband, P.W.4, who came there immediately, P.W. 4 thereafter brought) a rickshaw in which P.Ws. 1 and 3 were carried to the head-quarters hospital, Balasore, and P.W. 4 followed them on foot. P.W. 1 was admitted into the hospital at 6 p.m. The lady doctor, P.W. 2, examined her and. on interrogation could at last as certain that some 'Maharaj' had committed rape on her. The lady doctor conducted the medicolegal examination of the girl and noted the injuries found inside the vagina of the girl.

Soon after P.W. 2 sent a report to the Officer incharge, Balasore Police Station informing that P.W. I had been admitted into the hospital for Injury to her perineum and vagina said to have been caused by rape. The Police immediately sent requisition to the doctor for the medical examination. of the girl. The same night the Police seized certain articles from the Goshala room and also arrested the appellant. After completion of the investigation a charge sheet was submitted for an offence under Section 378 of the Indian Penal Code.

3. The defence of the appellant was a plea of not guilty and complete denial of the occurrence. His defence in essence; was that the brother of P.W. 4 used to serve in the goshala but as be committed theft the appellant had discharged him from service about eight or ten days before the occurrence. It is for this enmity that a false case had been started against him. His further defence was that his wife and children used to live with him in the Goshala and he once got information that P.W.I with two or three cowherd boys was indulging in indecent acts in the goshala orchard and accordingly he chastised her and also forbade her to come inside the Goshala. Accordingly, he had been, falsely implicated in this case.

4. The learned Sessions Judge relying upon the evidence of P.W.I and the attending circumstances came to the conclusion that the appellant had! committed rape on P.W.I without her consent and against her will, and accordingly convicted him under Section 376, I.P.C. and sentenced him to undergo rigorous imprisonment as stated above.

5. Several arguments were advanced at the-Bar, the main being, physical impossibility of the actual commission of rape; no recovery of any incriminating articles; no reason on the part of the prosecutrix to screen the appellant; no marks of seminal stain in the vagina of the prosecutrix nor any mark of injury on the penis of the appellant. Certain arguments were also advanced with regard to the actual place of rape and the whole case having been engineered by one Nilamani and the discharged 'Mousa's brother, Bana.

6. Besides the evidence of P.W. 1 herself there is no eye-witness to the occurrence, The prosecution case, therefore, depended on certain circumstances that went to corroborate the evidlence of the prosecutrix. There is nothing in law to prevent a conviction on the sole testimony of the prosecutrix. Gorroboration of her evidence is not absolutely essential since she does not stand in the position of an accomplice. But the rule of prudence requires that there must be some corroboration of the evidence of the prosecutrix.

The Bombay High Court in a Pull Bench decision in the case of Emperor v. Mahadeo Tatya AIR 1942 Bom 121 laid down that it is a very well-settled rule of practice in India following the English rule, that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the Courts insist on corroboration of the complainant's story.

The nature of the corroboration must necessarily depend on the facts of each particular case. Sometimes rape is clearly proved or admitted; and the only question is whether the accused committed the offence. At other times, the association of the accused and the complainant is admitted, and the question is whether rape was committed. Where rape is denied the sort of corroboration one looks for is the medical evidence showing injury to the private parts of the complainant, injury to the other parts of her body, which may have been occasioned in a struggle, seminal stains on her clothes or the clothes of the accused, or on the places where the offence is alleged to have been committed, and in all cases importance is always attached to the subsequent conduct of the complainant.

Whether she makes a charge promptly or not is always relevant. Subsequent conduct, by itself although important, is not enough, because a witness cannot corroborate himself. In such cases the judge is bound to tell the jury that it is a rule of the court not to act on the evidence of the complainant without some corroboration and where there is no corroboration to direct them that their proper course is to return a verdict of not guilty.

7. A similar question arose before the Supreme Court in the well-known case of Rameswar v. State of Rajasthan where it was held that the rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to ithe mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained.

The tender years of the child which is the victim of a sexual offence, coupled with other circumstances appearing in the case such for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present! to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.

The Supreme Court again in the case of Sidheswar Ganguli v. State of West Bengal , further laid down that a girl who is victim of an outrageous act is, generally speaking, not an accomplice though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a conviction can be based upon.

If the jury has been apprised of the necessity, ordinarily speaking, of corroborationi of the evidence of the prosecutrix it is for the jury to decide whether or not it will convict on the uncorroborated testimony of a prosecutrix in the particular circumstanles of the case before it. It is well established that he nature and extent of corroboration necessary.

vary with the circumstances of each case. The nature of corroborative evidence should be such as to lend assurance that the evidence of the prosecutrix can be safely acted upon,

8. In the present case the learned Sessions Judge appears to have been satisfied from the demeanour of P.W.I in the witness box that she was speaking the truth and he rightly believed her evidence. It is yet to be seen whether the circumstances in this case lend assurance that the evidence of the prosecutrix can be safely acted upon. Before actually going into the evidence of the occurrence, I would like to dispose of the point regarding the age and status of the prosecutrix, for the law requires that the victim must be under 16 years of age and (or?) that sexual intercourse was made against her will and consent. The age of the victim is said to be between 10 and 11 years. P.W.I the prosecutrix herself was unable to give any idea about her age. (After referring to the evidence of P.Ws. 3 and 4 His Lordship proceeded). The next available evidence is the evidence of the lady doctor, P.W.2. She in her report, Ext. 3, dated 4-12-59, gave her opinion that P.W.I was aged between 10 and 12. The report, Ext. 3 does not contain the date on which P.W.2 based her opinion regarding the age of P.W.I. P.W.2 in her cross-examination admitted that a doctor who gives opinion regarding the age of a particular person has to furnish the data for his opinion. She, however, had not furnished any data on which the estimate is based.

The learned Sessions Judge rightly observed; "Thus, on the face of it, the opinion (Ext. 3) must be regarded as a defective report." The learned Judge stated in his judgment that he had full opportunity to closely watch the stature of her body and other physical signs of the growth of the girl for purposes of making his own estimation regarding the age of the prosecutrix. The Judge states that the height of the girl was not enough in order to make her face visible when she first took her stand in the witnessbox on account of the bars of the box intervening.

Accordingly, a stool had to be supplied to her and she was made to stand on this stool during the entire period of examination. Thus, from the external appearance of P.W.I he estimated her present age at eleven years. The Supreme Court in Sidheswar Ganguly's case referred to above had laid down that the only conclusive evidence of the girl's age may be her birth certificate, but unfortunately in this country such a document is not ordinarily available.

The Court or the Jury has to base its conclusion upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. Thus, according to the estimation of the learned Judge the age of P.W. 1 is certainly far below the statutory age of 16 years as laid down in Section 375, I.P.C.

9-10. (After discussing the evidence of P.W.I and other evidence, His Lordship proceeded). Coming now to the injuries both on the prosecutrix as well as on the person of the appellant, the prosecutrix was examined by the lady doctor, P.W. 2 whereas the appellant was examined by the Civil Assistant Surgeon of the headquarters hospital, Balasore (P.W.6) - The prosecutrix was examined by P.W. 2 on 11-11-59. She in her report found that there was a rupture of the posterior part of the hymen perineal tear 1/2" long (sic). Laceration of the posterior vaginal wall about 1" long.

There was profuse bleeding from vagina; separation of thigh was very painful. Examination also was very painful. As to the cause of injury she was of opinion that it was due probably to forcible coitus. The appellant was examined by P.W.6 and he found no marks of injury on his face hands, thigh, genitals or other parts of his body. Thus, it is found that if P.W.I, was not forcibly ravished by a strong adult, the upper part of the vaginal orifice would not have been injured. There can be such injuries only if the girl is very small one and there was forcible cohabitation. Admittedly, P.W.2 had stated that if there was forcible coitus by a strong adult with a small girl the penis of the male may sometimes be injured, The doctor P.W.6 did not find any mark of injury on the penis of the appellant. Long arguments were advanced at the Bar that this itself is a fact which entitles the appellant to an acquittal. Modi in his Treatise on Medical Jurisprudence and Toxicology, 13th Edition, while dealing with the injuries on a male person had observed at p. 325 that it is not necessary that there should always be marks of injuries on the penis in such cases.

I would rather quote the whole passage here:

In addition to scratches or laceration on the penis caused by the finger nails of the victim during a struggle, an abrasion or a laceration may be discovered on the prepuce or glans penis, but more often on the fraenum, due to the forcible introduction of the organ into the narrow vagina of a virgin especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases.

A mention is made that Mr. Modi had seen cases in which there were lacerations of the hymen, posterior commissure, perineous and even the vaginal walls of the complainant. Lyon in his Medical Jurisprudence, 10th Edition, states at page 446, while dealing with the signs of loss of virginity: These are obviously only available as evidence of rape in cases in which the female was virgo intacta previous to the commission of the offence. Rupture or laceration of the hymen is the chief sign of defloration available as evidence of rape, the various other signs of virginity being, as a rule, not lost as consequence of one intercourse.

The evidence is that the hymen of P.W.I' was ruptured and there was rupture of the posterior part of the hymen with perineal tear of 1/2" long, and laceration of the vaginal wall about 1" long. In view of the observations made by Mr. Modi and referred to above, there is no substance in the argument that because there was no marks of injury on the penis of the appellant he should at least be held! innocent of the charge.

11. With regard to the presence of marks of Seminal stains in the vaginal canal of the victim girl, P.W.I, the lady doctor, P.W.2, did not find any mark of semen inside the vaginal canal. Thera is abundant evidence on record that there was profuse bleeding as a result of the sexual intercourse. The bleeding was checked about two hours or more after the occurrence only with some medical assistance. P.Ws. 2, 3 and 4 are witnesses to the fact that there was profuse bleeding. According to P.W.l she was taken to the tank by the appellant for purposes of a wash and in fact her vagina was washed in the tank with the intention of checking the bleeding.

Further, there is no evidence on record that 'there was any seminal discharge inside the vaginal canal of the prosecutrix (P.W.1). She was never asked as to the discharge of the seminal fluid inside her vagina. 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 the hymen. Partial penetration of the penis within the labia majora of the vulva or pudendum with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law.

Thus, to constitute the offence the evidence of the lady doctor is sufficient that there was rupture of the hymen and that there was injury inside the vagina. Reliance was sought to be placed on a case reported in AIR 1946 All 191, Ram Kala v. Emperor. In that case the learned Judges held that in rape cases if the glans of the male organ is covered by uniform layer of 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 of sexual intercourse. The smegma accumulates if no bath is taken for twenty four hours. In rape cases therefore, the prosecution must get the male organ of the accused examined. If it was not examined the accused is entitled to say that if a medical legal examination of the vital or the material parts of his body had been conducted, he would have been in a position to show that the condition of those parts negatived the possibility of recent complete penetration or proved that there was no penetration.

The argument that as the medical examination had taken place more than twenty four hours after the occurrence the result would have been incon-elusive because the smegma accumulates if no bath is taken for twenty-four hours is no answer to the plea of the accused. It is the duty of the pro-secution if, according to the medical jurisprudence medical examination is capable of yielding conclusive results, to ensure that examination within a period of time when conclusive results could be achieved.

It may be remembered here that the appellant was examined by P.W. 6 on 11-11-59 at 9 A.M., although he was arrested on the night previous. find it a normal habit with the police in this State not to send the accused persons for medical examination immediately after their arrest. In this case the doctor did not find the presence of any smegma, nor did he find any injury on the penis of the appellant. In view of the direct evidence in this case supported by the evidence of P.Ws, 2, and 4 and the observations made by Mr. Modi, the decision reported in AIR 1946 All 191 can be of no avail to the appellant.

12. Some arguments were advanced at the Bar with regard to the physical impossibility of the intercourse. I must frankly admit that I could not understand the argument as advanced at the Bar. The evidence in this case is that P.W. 1 was made naked by the appellant, brought inside the room and was laid down on the floor and the appellant immediately got upon her and put in his penis inside her vagina and pressed the same hard.

If that evidence is accepted, I do not see how it could be physically impossible to have the sexual intercourse in the position in which it is described. Mr. Sahu argued that there was no incriminating article found from the house of the appellant. The appellant himself, as I have stated earlier, had led to the discovery of the towel in which marks of blood were found, but its origin could not be detected due to disintegration.

13. It was next argued that there was no reason why the victim (P.W. 1) would try to screen the appellant. The argument of the Standing Counsel on behalf of the State was that it may be due to fear or shame or both as also her future reputation. Admittedly she is an unmarried girl of 11 years and she was, according to her, feeling shame ever since she was made naked. True it is that she did not disclose the actual occurrence until the lady doctor found marks of violence inside her vaginal canal and the rupture of the hymen.

All these appear to have taken place within about two hours or a little more. If Nilmani and Bana had tried to foist this case falsely on the appellant, the defence could have asked P.W. 4, when he was in the witness box; but nothing was suggested to him. Nilmoni, according to the evidence is a C.I.D. constable. P.Ws. 3 and 4 to begin with, believed in the story of P.W. 1 regarding accident.

If they had known at that time that an offence of rape had been committed there was nothing to prevent them from taking the girl to the police station direct. Instead, the evidence disclosed that she was taken direct to the hospital for the sole purpose of arresting the flow of blood. It is the lady doctor who after certain medicolegal examination had her suspicion and interrogated the child after which she disclosed the whole story to her. There does not appear to be anything improbable about it.

14-16. The only other serious argument that was advanced was with regard to the place of rape. According to P.W. 1 the place of rape was inside the godown room near about the platform. (His Lordship after consideration of eivdence negatived this argument and after further consideration of evidence concluded).

17. In the result, all the arguments advanced by Mr. Sahu fail and accordingly, I would confirm the conviction of the appellant under Section 376, I.P.C.

18. Lastly Mr. Sahu argued on the question of sentence. The appellant had been given seven years R.I. Although the offence was committed mercilessly upon a small feeble girl like P.W. 1 causing rupture of her hymen, and other injuries to her vaginal canal with the result of profuse bleeding, I am inclined to think that the ends of justice will be well met if the sentence is reduced to a term of four years R.I. Accordingly, while affirming the conviction under Section 376, I.P.C. I would reduce the sentence to four years R.I.

Subject to this modification in the sentence, the appeal is dismissed.