T.N.R. Tirumalpad, J.C.
1. This is an appeal by the State against the acquittal of the two respondents of the charge under Section 376 I.P.C. by the Additional Sessions Judge Shri M. Radhamohan Singh. It may be mentioned here that the Sessions Judge while acquitting the respondents of rape under Section 376 I.P.C. on the ground that he was not satisfied regarding the evidence of penetration, convicted them under Section 354 I .P C. and sentenced each of them to one year's R.I. The appeal is filed by the State on the ground that the conviction should have been under Section 376 I.P.C. as there was evidence of rape and that it should not have been under Section 354. It may also be mentioned that the 2 respondents have not appealed against their conviction and sentence under Section 354 I.P.C.
2. The facts are as follows.-
On 23-6-61 at about 7-00 p.m. P.W. 15 Ibemhal Devi, aged about 26, the mother of 3 children and the wife of P.W. 7 Bira Singh was returning home alone along Kangchup Road from the house of her brother-in-law Jugeswar Singh. When she arrived near the compound of one Nabadwlp Sarma, the two respondents who were going on one cycle saw her and began following her and talking to her. This was seen by P.Ws. 1 and 5. who were also passing along that road at the time. It was a moon-lit night and P. W. 15 could also see their faces in the light of the motor vehicles which passed and also the dynamo light of the cycle and she found that they were persons unknown to her.
When the woman had reached a lonely place in the road, tha two respondents began to use indecent language to her and the first respondent started tapping her on tne back and embracing her. Thereupon P. W. 15 pushed him aside and ran to the other side of the road. But the respondents followed her to the other side and she was forcibly pushed down on her back In a muddy place on the road side where there were thorny bushes and she was gagged and threatened with a Khukri in attempting to ward of the Khukri she got injured and in that situation she was successively raped first by the first respondent and then by the second respondent, each respondent alternatively holding her to help the other in the rape. After the rape, they ran away.
3. P. W. 15, who had received injuries washed ner private parts near a nullah and then proceeded home and reported the incident to P. W. 3 her mother-in-law and P.W. 3. immediately sent P.W. 2 to fetch the victim's husband Bira Singh (P.W. 7) from the nearby Co-operative Society. On the arrival of P, Ws. 2 and 7, P.W. 15 reported the occurrence to both of them and requested her husband to take action immediately and said that she would be able to identify the culprits and further that the cuiprits were saying that they were going to some Basek in the locality, Immediately, P.Ws. 2, 7 and 15 started to the place where there was the Basek performance and on the way they saw some cyclists passing and P.W. 15 them pointed out one of them as the person who had committed rape on her that night.
They followed the cyclists who had gone to a nearby hotel and inside the hotel P.W. 15 caught hold of the second respondent and said he was one of the persons who raped her. Thereupon, the second respondent who had a Khukri with him was about to attack P.W. 15 and P.Ws, 2 and 7 intervened and a struggle ensued in which the second respondent got injured in his palm and he was arrested by the villagers who had arrived by that time and taken to a nearby house where he was said to have made an extra judicial confession before the villagers . who had apprehended him including P.W. 9.
4. When they were all thus assembled in the house, P. W. 16, A.S.I., who was in charge of the Police flying; squad and had got information about this rape arrived at the place and took charge of the second respondent. Then P. W. 16 took with him the 2nd respondent and P. W. 15 along with the latter's husband P.W. 7. While the second respondent was being taken to the hospital by P.Ws. 16. P.W. 7 went to the Police Station and gave the written report Ext. A/3 about the incident to P.W. 18, who was then in charge of the Imphal Police Station. P. W. 18. immediately recorded the statement of P.W. 7. Soon thereafter when the victim P.W. 15 was handed over at the Police Station by P.W. 16, P.W. 18 seized the Phanek worn by P.W. 15 containing mud stains and as he saw that she had injuries she was sent to the hospital.
Subsequently, she took P.W, 18 to the place of occurrence and pointed out the place where the offence was committed. From that place, a broken Urikmala which the victim was wearing the previous night was seized by the Police as well as the black hair found sticking to the thorny plants. It is not necessary to go into too many details. But it is sufficient to say that the second respondent made a confession before a Magistrate and further that the second respondent was identified in as identification parade by P.W. 1 who had seen him in the night near the victim on the road shortly before the occurrence. The first respondent, who was absconding was arrested on 18-7-61 and in the subsequent identification parade the first respondent was identified by P.W. 1 and P.W. 15. Subsequently, both the accused were committed to the Sessions and in the Sessions trial, they were convicted and sentenced as stated above.
5. Now the Sessions Judge, in his judgment has accepted the prosecution case that the two respondents followed P.W. 15. that they assaulted her, that there was a struggle and that in the course of the struggle her head and clothes got the mud stains and further that the injuries which she received were in the course of the struggle. He also accepted the evidence of P.W. 15 and P.W. 3 that immediately after the occurrence P.W. 15 had reported the rape to P.W. 3.
6. But he felt that ire order to prove the charge of rape, there must be evidence of penetration and he was not satisfied that there. was such evidence in this case. He said that the evidence of the doctor P.W. 12 did not show any sign of injury to the vulva vagina and hymen and further that P. W. 15 mentioned about penetration only in the Sessions Court and not earlier to the Police or In the Committing Court. He further said that in the place near the public road and in a Nallah fall of mud, it was doubtful whether the respondents would have committed rape. P.Ws. 15 and 3 had said that at the time of the occurrence P.W. 15 was pregnant. This was disbelieved by the Sessions Judge, mainly because the doctor P.W. 12 and the husband P.W. 7 had not stated so. One fails to understand how the question whether she was pregnant at that time was at all material as far as the charge of rape is concerned.
It was wrong on the part of the Sessions Judge to have doubted the evidence of P.W. 15, because he found the story of pregnancy spoken by her to be incapable of belief. The learned Sessions Judge went on to say that no marks of violence about the genitals and no seminal stains on the clothes of the prosecutrix or the accused were seen, but that there were marks of violence only on the body of the victim. He also criticised the police for not getting the second respondent examined medically that night to see whether his male organ showed the evidence of recent sexual intercourse. No doubt this was a lacuna and it would have been better if the second respondent had been so examined. But this lacuna need not cause us to disbelieve the evidence of the victim. Anyway, the Sessions Judge felt that the case of rape has not been proved and that only indecent assault under Section 354 .P.C. has been proved.
7. I have perused with great care the evidence given by the victim P.W. 15. I wish the learned Sessions Judge had, dealt with the evidence of P.W. 15 in his judgment. She has given a most graphic description of what was done to her that night by the two respondents. According to her, the first respondent thrust her into the Nallah where she fell on her back and her mouth was gagged by thrusting one arm to prevent her from raising an alarm and that the second respondent took out a Khukri and threatened her with death if she raised an alarm and aimed the Khukri at her and when she resisted the blow she got injuries in her palm and thereby she was over powered and in that situation both the respondents successively raped her and while the rape was being committed her legs and other parts of her body were tightly held down by the culorits.
The fact that the next morning at the place of occurrence pointed out by P.W. 15 a broken Urikmala worn by P.W. 15 as well as a hair sticking to the thorny bushes were seen and seized and the further fact that scratch marks of different sizes scattered all over the back were seen on P.W. 15 by the Lady doctor P.W. 12 showed that P.W. 15 had been forced on her back by the two respondents. There were two young men and one of them armed with a Khukri and the two persons stopped the lady at a lonely spot in the road and the occurrence took place in that lonely spot and in the manner mentioned by P.W. 15. P.W. 15 had clearly said that both of them ravished her forcibly.
8. No doubt, she used the word penetration only in the Sessions Court as stated by the Sessions Judge and from this the learned Sessions Judge seems to think that the said evidence given by her in the Sessions Court should be disbelieved. But both in the Committing Court as well as in the statement to the Police, the victim had Stated that she was ravished forcibly by the two respondents. It is not necessary that the word 'penetration should be used. After all, in the Explanation to Section 375, I. P.C. defining rape, what is stated is that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape, thereby meaning that the whole act of sexual intercourse was not necessary to constitute rape, but that mere penetration was sufficient.
Therefore when the victim states that she was ravished forcibly one after the other by the two respondents, it means that they had the whole act of sexual intercourse with her against her will and without her consent. The very injuries on the woman corroborate her statements that it was against her will and without her consent. There was corroboration of the statement of the woman from the fact that immediately afterwards she told P. W. 3 and shortly thereafter to her husband and to P.W. 2 that she had been ravished by two unknown persons whom she can identify. Both the respondents were unknown to the victim before that date and she had no reason to make a false accusation against them that she was raped if they did not actually do so and if she was able to defend herself successfully when the rape was attempted. Particularly so. In the case of a married woman like P.W. 15, she wouta not wantonly accuse unknown persons of committing rape if she was able to successfully resist them.
It is clear from the conduct of the respondents in stopping the woman in the lonely spot and throwing her into the muddy ground that their intention was to commit rape and unless the Sessions Judge is able to find from the evidence that she has been successfully able to resist the two persons armed with Khukri and thereby prevent the rape which they were trying to commit on her, he cannot reject the victim's evidence.
9. The learned Sessions Judge has quoted from the decision Empress v. Shankar ILR 5 Bom 403 in which there is a statement that unless the Court is satisfied that the conduct of the accused indicated a determination to gratify his passions at all events and in spite of all resistance a conviction for any attempted rape ought not to be arrived at. The full facts of the case are not clear from the judgment. But a reading of the judgment shows that there were no marks of violence on the victim and that the accused had desisted even before he was interrupted.
In such a case he may be convicted only under Section 354 I.P.C. of using criminal force to outrage her modesty. Bul here the facts accepted by the Sessions Judge from the evidence of P. W. 15 corroborated by the evidence of P.Ws. 2, 3 and 7, clearly showed that there has been sexual intercourse against her will by the respondents. The fact that there were no injuries in the private parts or that no semen was detected in the clothes or in the private parts does not prove that there was no rape, on the other hand the marks of violence on her body and particularly the injuries on her back and the injuries in her palm which were said to have been inflicted with the Khukri by the second respondent clearly showed that there was a determination on the part of the respondents to gratify their passions even with violence.
10. We need not rely on the extra-judicial confession made by the second respondent. The Sessions Judge was right in saying that he had been injured in the struggle and the villagers had arrested him and that at that time he was not in a proper frame of mind in which any statement made by him should be made to go against him. But he had made a judicial confession before a Magistrate. in that judicial confession he admitted that both he as well as the first respondent had sexual intercourse. But he would say that it was done with her consent and that he had sexual intercourse under the impression that she was a prostitute.
No doubt this confession will not amount to a confession of rape. But it will amount to an admission that there was sexual Intercourse. The question which will arise therefore Is not whether there was penetration or not but whether the intercourse was with her consent and not against her will. In that connection; the injuries on her body and particularly on her back and the recovery of the broken Urikmala and hair from the place, clearly showed that it was against her consent and that the statement of the second respondent that it was with her consent cannot be true.
11. For all these reasons the finding of the Sessions Judge that rape has not been proved and that only use of criminal force to outrage her modesty has been proved against the respondents is clearly wrong. The acquittal 01 the respondents under Section 376 l.P.C. is therefore set aside and they are convicted under Section 376 I.P.C. instead of under Section 354 I.P.C.
12. With regard to punishment, I have to take into consideration the fact that both the respondents are persons aged only 17 years. I have also to take into consideration the fact that the second respondent was subsequently severely injured in the struggle between him and P.Ws. 2 and 7 and that he even lost two of his fingers in one hand. It is sufficient therefore if the second respondent is given one year's R.I. which has been given by the Additional Sessions Judge. But with regard to the first respondent, a sentence of two years' R.I. is necessary.
13. The appeal is, therefore, allowed and both the respondents are convicted under Section 376 I.P.C. of rape instead of under Section 354. A sentence of two years' R.I. in place of one year is passed against the first respondent. As far as the second respondent is concerned, one years R.I. given by the Additional Sessions Judge is confirmed.