Headnote:(i) Indian Penal Code, 1860-Sections 366 and 376-Appellants convicted for committing rape on the evidence of prosecutor, her father and the Doctor Investigating agency of the police did not accept the genuineness of the prosecution story-Prosecutrix Sled complaint-Whether High Court was justified in affirming the conviction even when the investigating agency of police could not accept prosecution story? (Yes)
       Held, We are dissatisfied with the manner of investigation of the case by the police. It is curious that in spite of the statements of the girl and her father and the medical report, the police was not satisfied even" prima lade as to the truth of the allegations against the appellants. The police officers including the Superintendent of Police, did not even consider it their duty to produce before the court the report of examination by the Chemical Examiner of the vaginal swabs of the prosecutrix as to the presence of semen and spermatozoa. There is no explanation why such a very important and vital evidence has been withheld from the court. In the circumstances, no importance whatsoever should be given to the fact that the police was not satisfied about the genuineness of the prosecution case. (Para 11)
       (ii) Indian Penal Code, 1860-Sections 366 and 376-Rape- Appellants forcefully abducting prosecutrix, committing rape, leaving her unconscious-Father searching-Recovered her in unconscious state-Took to hospital-Medically examined –By men was torn and the edges of the tear were red and painful and bled on touch-There were abrasions on her right breast-She complained pain in both her legs and at her back-Narrated story to father-Whether evidence of the prosecutrix as to rape is sufficiently corroborated by evidence of her father and medical evidence? (Yes)
       Held be that as it may, it is not correct to say that the evidence of P.W. 1 does not find any corroboration. The medical report, in our opinion supports the case of the prosecutrix that she was raped. According to the medical report the hymen was torn and the edges of the tear were red and painful and bled on touch. There were abrasions on the right breast. She complained of pain in both legs and back of neck. The High Court has rightly observed that these are the indications of first sexual intercourse of a female. According to the High Court, there was swelling on the internal walls of the vagina because of the forcible and violent intercourse by many persons. The prosecutrix (P.W.2) was subjected to a length by cross-examination, but she did not break down under the pressure of such cross-examination. It is the evidence of her father, Dalip Singh (P.W. 3), that see was found in an unconscious state and she remained unconscious till one hour before dawn. This evidence also supports the evidence of the prosecutrix. It may be that Dalip Singh is the father of the prosecutrix, but there is no ground to discard his evidence. Both the learned Additional Sessions Judge and the High Court have believed the evidence of the prosecutrix and her father and, in our opinion, there is no reason why their: evidence should not be believed. (Para 12)
       (iii) Indian Penal Code, 1860-Section 376-Rape by more than one persons Medical report Dot expressly stating the Dumber of persons who raped on prosecutrix-Prosecutrix stating them as four-Not inconsistent with medical report-High Court believing the prosecutrix-Whether correct? (Yes) (Para 13) Whether plea of false implication sustainable? (No) (Para 14)-Whether absence of injuries apart from breast establish her consent? (No) (Para 15)

Judgement Key Points

Key Points: - The police were dissatisfied with the prosecution story and did not accept it prima facie (!) . - The medical report corroborated the prosecutrix’s account of rape, supporting her injuries and first sexual intercourse (!) . - The absence of injuries apart from the breast does not establish consent (!) .

Whether the High Court was justified in affirming the conviction when the investigating police did not accept the prosecution story prima facie?

Whether the evidence of the prosecutrix is sufficiently corroborated by the father’s evidence and medical evidence?

Whether the absence of injuries apart from the breast establishes her consent?

Judgement

DUTT, J. :- These two appeals by special leave - one filed by Balwant Singh, Gurdish Singh and Nirmal Singh and the other by Saudagar Singh - are directed against the judgment of the High Court of Punjab and Haryana affirming with slight modification the order of convictions and sentences passed by the learned Additional Sessions Judge, Ludhiana. The learned Additional Sessions Judge convicted the appellants under S. 366. I.P.C. and sentenced each of them to undergo rigorous imprisonment for four years and to pay a fine of Rs. 100/-. The appellants were also convicted under S. 376, I.P.C. and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 2,000/- each. The High Court while affirming the said convictions and sentences directed that the sentences of imprisonment would run concurrently.

2. The prosecution case, in brief, is that on May 10, 1976 at 11.00 a.m., while Kumari Rajwant Kaur, aged about 19/20 years and a student of B.A. Part-II of Gobind National College, Narangwal, was going to the college to collect her certificate of passing the Pre-University Examination the Appellants, who are known to her and one Atma Singh (since acquitted), forcibly took her in a car to the canal bank and there in a grove of eucalyptus trees raped her one after another. When Atma Singh was committing rape on her, she lost consciousness.

3. The further case of the prosecution was that when Kumari Rajwant Kaur did not return home until 5.00 p.m., her father, Dalip Singh (P.W. 3), got anxious and started searching for her. About an hour after sunset in course of his search, Dalip Singh found his daughter, Rajwant Kaur, lying in an unconscious state under a banyan tree near the canal bridge. Nobody was near her at that time. Dalip, Singh, his son and his wife brought her home. In spite of medical treatment, she did not regain consciousness till one hour before dawn next day. After regaining consciousness, she narrated to her father the entire incident.

4. Her father took her to the Police Station, Dehlon, where at 11.00 a.m. she lodged the First Information Report. At 4.30 p.m. on the same day, Dr. Gurbachan Kaur, Medical Officer, Civil Hospital, Ludhiana, examined her and found, amongst other, the following :-

1. Vaginal Examination was possible with one finger. Vagina and cervix were healthy.

2. Hymen was torn posteriorly, the edges of the tear were red and painful and bled on touch.

3. Two vaginal swabs were taken and sent to the Chemical Examiner through Police for examination for semen and spermatozoa.

4. Red abrasion 1" X 1/8 " on right breast medial side.

5. Reddish abrasion 1/6" X 1/8" on right breast 2" above injury No. 8.

6. She complained of pain in both legs and back of neck. No visible marks of violence were found.

5. As many as four police officers including the Superintendent of Police investigated the case at different stages. They, however, could not accept the truth of the version of Rajwant Kaur about the incident. It is said that on the instruction of the Superintendent of Police, the case was reported to be cancelled. Rajwant Kaur naturally felt dissatisfied with the conduct of the investigating agency of the police and herself filed a complaint in the Court of the Judicial Magistrate, Ludhiana. The learned Magistrate committed the appellants and the said Atma Singh to the Court of Session for trial.

6. At the trial. the prosecutrix examined herself as P.W. 2. She also examined her father, Dalip Singh (P.W. 3) and Dr. Gurbachan Kaur (P.W. 1).

7. The defence of the appellants was that they had been falsely implicated in the case by Dalip Singh, the father of the prosecutrix, because he had an enmity against the appellants in connection with some litigations pending between them over the repayment of certain loans advanced by Dalip Singh to the appellants. The appellants also examined certain defence witnesses including the police officers who had investigated the case.

8. The learned Additional Sessio

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