B.K. Behera, J.
1. The Court of Session has held the case of the prosecution established that the appellant was one of' the two persons-the other being Kailash said to be absconding when the appellant was tried-who took Radha Bai (P. W. 8), sitting at about midnight on the railway platform at the Khariar Road railway station in the district of Kalahandi inside a hume pipe and committed rape on her against her will and without her consent during the night of October 22/23, 1980. To bring home the charge to the appellant, whose case was one of denial and false implication, the prosecution had examined twelve witnesses On a consideration of the evidence, the learned trial Judge found that the charge had been brought home to the appellant and accordingly the appellant was convicted under Sec. 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years. The appellant has assailed the judgment and order of conviction as unfounded on the evidence.
2. Having heard the learned counsel for the appellant and the learned Standing Counsel, I find, for the reasons to follow, that the order of conviction cannot be sustained.
3. Radha Bai (P. W. 8), who was said to be the victim of sexual assault, was aged about 17 to 19 years according to the medical evidence at the time of occurrence. She was thus above the age of consent. P. W. 8 was dumb and unable to speak. She had testified in the Court by signs. Strangely, however, a part of the evidence had been recorded thus :
'My name is Radha Bai. I am D/o. Dajaram Harijan. My age is unable to say years. My home is at Mouza-Golni, Police-station-Jank, District-Kalahandi. ...'
This part of the evidence had been recorded after the oath was administered to this witness. It has not been stated therein as to how and in what manner the oath was administered to her. A girl incapable to speak could not have testified as extracted above. Her evidence had been recorded thus :
'1. She identified the accused in the dock and indicated that two persons including the accused roxcibly dragged by catching hold of her hands. She indicated by pointing out the accused to have opened her blouse and removed her wearing cloth. She further indicated that the accused made her to lie on the ground and gagged her mouth and in that process she sustained injury on her face. After she was made to lie the accused and another committed rape on her. She cried out. Hearing her cry three male persons came.
X-Exami. by the defence :
2. She denied the suggestion of the defence that the accused had not committed rape on her and she is deposing falsehood.'
Unfortunate as it might seem, the trial Court did not take care to put any questions to this witness to get at the truth and closed her evidence after recording an answer in the negative to a suggestion made by the defence.
4. If the evidence of a victim in a case of rape does not suffer from basic infirmities and the probabilities-factor does not render it unworthy of credence, as a general rule,there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the consideration that corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having levelled an accusation of rape on account of the instinct of self-preservation and when the probabilities factor is found to be out of tune. See AIR 1983 S. C. 753 : 983 Cri. L. J. 1096 (Bharwada Bhaginbbai Haribhai v. State of Gujarat).
5. In the instant case the defence had seriously been handicapped because of the physical incapacity of P. W. 8 being a dumb gill and no cross-examination worth the name had been made. There are, however, certain striking features which would militate against the theory of rape and would indicate a case of consent. It has already been indicated in this judgment that P. W. 8 was above the age of consent. There was no evidence that she had offered any resistance when she was taken from the railway platform by the appellant: who was said to be in the company of another person. It would appear from the evidence of her mother (P. W. 3) that P. W. 8 had left home and she could not be found out during the night. It would be seen from the evidence of P. W 1, who had accompanied the appellant and his companion Kailash towords the Khariar Road railway station to attend the call of nature, that after P. W. 8 had shouted, some members of the railway staff went neat her when the respondent left the place and' his companion Kailash and P. W 8 were taken to the police station. His evidence was that in the morning following the night of occurrence, the appellant was taken to the police station for interrogation His evidence would show that P. W. 8 did not raise any hulla when she was taken by the appellant and his companion.
6 There was no evidence that immediately after the occurrence, P. W. 8 had shown by signs and gestures that she had been ravishd by the two persons including the appellant. Her mother has testified that at the police station, P. W. 8 had expressed by signs in the presence of the police officer that the appellant and his companion had committed rape on her. The trial Court ought to have done well in not admitting this in evidence as it was a statement made by P. W. 8 in the course of investigation. The statement of a parson in the course of investigation may be expressed of implied. A person may point out by a finger or touch the property or the person identified or may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the person identified was concerned in the offence. All these statements; express or implied, including the signs and gestures would amount to a communication of the fact to another person and such communication made to a police officer in the course of investigation would come within the ban or Sec. 162 of the Coda of Criminal Procedure. (See AIR 1955 S. C. 104 : Ramkishan Mithanlal Sharma and Ors. v. State of Bombay).
7. The fact that P. W. 8, a girl aged 17 to 19 years then, had left the house and had been sitting on the railway platform at about midnight coupled with the medical evidence that there was an old rupture on her hymen and that her vagina admitted two fingers easily which was suggestive of habitual sexual intercourse and that there was absence of any injury on her private part would tell its own tale and militate against a theory of rape and would indicate that if the appellant had sexual intercourse with the victim (P. W. 8), it might have been with her consent. The doctor (P. W. 2) who had examined the appellant had found no signs of recent sexual intercourse.
8. Regard being had to the aforesaid evidence and the circumstances of the case, some stains of human semen noticed by the Chemical Examiner and the Serologist on the clothes of P, W. 8 or on the under garment of the appellant would be of no consequence in the absence of other evidence pointing to the guilt of the appellant.
9. For the foregoing reasons, the order of conviction of the appellant must have to be set aside.
10. In the result, the appeal succeeds and is allowed. The order of conviction and sentence passed against the appellant is set aside. The appellant be set at liberty forthwith.