ORISSA HIGH COURT
(D.B.)
A. Pasayat and D.M. Patnaik, JJ.
Fanibhushan Behera & Ors, - Appellants
versus
State of Orissa - Respondent
Criminal Appeal Nos. 175 and 191 of 1993
And
Jail Criminal Appeal No. 205 of 1993
Decided on 7.11.1994

IMPORTANT POINT
The rupture of hymen is by no means necessary to constitute the offence of rape and even a slight penetration is sufficient to constitute the offence of rape.

Headnote:(i) Indian Penal Code, 1860 - Section 376 – Rape - Penetration is sine qua non for offence However, rupture of hymen is not necessary to constitute offence of rape. Depth of penetration is immaterial - Absence of injuries on person of victim not fatal to prosecution.

       Held: The rupture of hymen is by no means necessary to constitute the offence of rape. Eyen a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence in as much rape as vagina penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well-settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity.

       Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. 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 hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen or even an attempt at enetration is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Sec. 376, IPC. (Para 10)

       (ii) Indian Penal Code, 1860 - Section 376 Rape - Evidence of prosecutrix - Absence of injuries on person of victim - Corroboration as a condition for judicial reliance on testimony of prosecutrix- Not a matter of law but a guidance of prudence under given circumstances.

       Held: The victim of rape cannot be treated as an accomplice. Absence of injuries on the person of the victim may not be fatal to the prosecution and corroborative evidence may not be an imperative component of judicial credence in rape cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed from place to place, from age, from varying life-styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity, lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of the injuries on the person of the aggressor or aggressed. In rape cases, the Court must bear in mind, the human psychology and behavioural probability when assessing the testimonial potency of the victim's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts of clearest motives were made out? The inherent bashfulness, the innocent naivate and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbablise the hypothesis of false implications. (para 11)

       Further Held: In the case at hand apart from evidence of the prosecutrix, there is evidence of several persons who on reaching the spot had found the accused persons near the prosecutrix, and one of them naked. Absence of injuries is not of much consequence as the evidence of prosecutrix is credible, and evidence of P.Ws. 5, 6 and 10 further strengthens the credibility. Accused persons have accepted their presence at the spot. The occurrence is alleged to have been taken place on 29.5.92 at about 3.30 p.m. The examination of accused took place on 30.5.92 at about 1.45 p.m. Absence of smegma loses its significance because ‘of passage of considerable time. The medical evidence is not of such nature, as analysed out as to completely rule out rape as claimed by the victim. (para 12)

       Consequently Held: A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Sec. 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Sec. 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence, unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. Therefore, ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Our standard of decency and morality in public life is not the same as elsewhere. (Para 13)

       (iii) Indian Penal Code, 1860 - Section 3i6 Conviction under. Appeal - Gang Rape - Unshaken testimony of prosecutrix reinforced by evidence of villagers who reached spot immediately - Presence of accused at spot proved - Medical evidence that there is no sign of recent - intercourse - Probative value of such evidence. (Krishna Gopal's case, A.I.R. 1989 S.C. 2154: Relied on).

       Held: Rape is a crime and nor a medical condition, a legal term and not a diagnosis to be made by the medical officer. Whether rape had an urge or not is a legal conclusion, not a medical one. Medical opinion is only one amongst many bits of corroborative evidence to be weighed m deciding the case. Any conclusion on rape is not to be made by Doctor or police. It is for the Judge to decide. It is not necessary for any rupture of the hymen in rape. The slightest penetration is sufficient for the purpose. (Para 15)

       (iv) Sentence - Indian Penal Code, 1860 - Section 376 -Conviction under - Gang Rape. No evidence of pre-plan to commit crime - Statements recorded u/s 313 show traces of repentance - Applicability of proviso to sub - sec. (2) of Sec. 376 - Sentence of 7 years R.I.

       Held: A ward of life imprisonment is dependent on several factors. Where the act is brutal in character, leaving the victim ravished, in a given case, it may be awarded. Proviso to Sub-sec. (2) of Sec. 376, IPC enables the Court to award less than ten years' imprisonment in special circumstances. The case at hand is a sad reflection of the decadent society we live. Morals are sinking to alarmingly low depths. Three young persons, barely out of their teens have ventured into the forbidden territory of pre-marital sex. They belong to a remote village in Sundargarh district. Their realisation of the misdeed done by them, which resulted in indelible ignominy to victim of their lust is apparent, and their answers in the statements recorded under Sec. 313 of the Code show traces of repentance. They have admitted their presence at the spot. That they were in pursuit of their first tests of sex without any violent intention is amply indicated in the statement of the prosecutrix. She has stated that accused Jeet Sankar gave two to three strokes and left her. Similar is the case with accused Fani. There is no evidence of any pre-plan to commit the crime. On a chance meeting lust appears to have overtaken their conscience. In our opinion, therefore, the proviso to Sub-sec. (2) of Set. 376, IPC can be pressed into service, and seven years' rigorous imprisonment would be adequate. (para 17)

       (v) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)(xii) - Applicability - Exploitation with agreement of helpless woman - No evidence that offenders had any position of dominance - Conviction u/s 3(1)(xii) not maintainable.

       Held: In order to attract application of the provision sexual exploitation must have taken place because of the offenders' position of dominance. The word' otherwise' is significant, and clearly points out that the exploitation was with agreement of the helpless woman which she would not have agreed but for the offenders' position of dominance. It is significant to note that the expressions used in Sec. 3(l)(xii) of the Atrocities Act are "agreed" and "exploit sexually" and not "consent" and "rape". "Consent" and "agreement" are not conceptually and etymologically different. Use of the expression "would not have otherwise agreed" is intended to convey that the agreement would not have been there, but for the position of dominance. It is not a free and voluntary consent. "Exploit" means to make an illegitimate use of, to utilise for one's ends, treat selfishly as more workable material (person etc.) to make capital out of. To have carnal knowledge of a woman by use of position of dominance, is sexual exploitation if the victim would not have agreed to the act, but for the position. (Para 18) Result: Ordered accordingly.