The uncorroborated testimony of the prosecutrix can be the basis of conviction, and absence of injury does not exclude forcible sexual intercourse.

1. Challenge is to the judgment and order dated 10.07.2002 delivered by the 2nd Ad hoc Additional Sessions Judge, Amravati in Sessions Trial 235/2001, by and under which, the appellants are convicted of offence punishable under section 376 (2)(g) of Indian Penal Code and under section 354 read with section 34 of I.P.C. and are sentenced to suffer rigorous imprisonment for five years and fine of Rs.2000/-. Separate sentence is not awarded for offence punishable under section 354 read with section 34 of I.P.C.

2. Heard Shri R.J. Shinde, the learned counsel for the accused and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent/State.

3. The case of the prosecution as can be culled out from the First Information Report dated 27.09.2001 (Exh.14) lodged by the prosecutrix is thus:

The prosecutrix states in the First Information Report (“F.I.R.” for short) that in the afternoon of 27.09.2001 she went to the open ground behind the spinning mill situated in the M.I.D.C. area of Amravati, to answer the nature's call. The prosecutrix states in the F.I.R., that she was accosted by the appellants and one juvenile in conflict (“J.C.” for short) from behind. The J.C. held her by the hair, she was thrown on the ground and the appellants and the J.C. committed forcible sexual intercourse one after the other. The F.I.R. states that the prosecutrix fell unconscious and could recover her senses only when somebody sprinkled water on her face. The F.I.R. states that when the prosecutrix gathered senses, the two appellants and the J.C. were standing near her. At that moment, one shopkeeper by name Shahu came near her. The appellants and the J.C. started running away, the shopkeeper attempted to apprehend them and realizing that he could not do so, the shopkeeper came back to the prosecutrix. The shopkeeper Shau was told that the appellants and the J.C. had committed forcible sexual intercourse. The prosecutrix states that her clothes were soaked with blood, that she disclosed the incident to her mother after her mother returned from work at 06:00 p.m. and then the prosecutrix and her mother lodged the police report.

4. An offence punishable under section 376 (2)(g), 354 read with section 34 of I.P.C. was registered on the basis of the said report Exh.13. The prosecutrix was referred for medical examination. Doctor Mangala Gaherwar (P.W.6) examined the prosecutrix at 10:45 p.m. and did not notice any visible sign of injury on the body including the private parts of the prosecutrix. Dr. Gaherwar observes that the hymen was torn and that the vagina allows two finger easily. No bleeding was noticed. P.W.6 opined that the prosecutrix was habituated to sexual intercourse and that no definite opinion about rape could be given. The certificate issued by P.W.6 is Exh.31. The spot panchnama records that hairs, hair pin were noticed on the spot. The said articles along with the sample of earth were seized vide Exh.21, the clothes on the person of the prosecutrix were seized vide Exh.15. The clothes of the accused Prafulla and Atul were seized vide Exh.21 and 24 respectively. The completion of the investigation culminated in submission of the charge-sheet in the Court of Judicial Magistrate First Class, Court6, Amravati who committed the case to the Sessions Court.

5. The learned Sessions Judge framed charge at Exh.6, the accused pleaded not guilty and claimed to be tried. The defence, as is discernible from the text and tenor of the cross-examination is of false implication. A specific defence is taken that the prosecutrix and the juvenile were having illicit relationship and since the accused spread rumours in the locality, the prosecutrix has falsely implicated the accused. This defence apart, it is obvious from the suggestion given to the prosecutrix in the cross-examination, that another limb of the defence is that the sexual intercourse, if at all, was consensual. I will advert to this aspect in some detail at a later stage