Chet Ram Thakur, J.
1. The appellants have been convicted under Section 376 of the Indian Penal Code and sentenced to five years' rigorous imprisonment and a fine of Rs. 250/- each. In default of payment of fine the accused have been sentenced to undergo further six months rigorous imprisonment.
2. The admitted facts are that Lachhman Singh, aged 55/56 years, is employed as a peon in the Engineering College at Chandigarh and Surjan Singh Is a Store-keeper in that College, whereas Ram Lai (P. W. 3) the father of Shakuntla prosecutrix (P. W. 1) is a washerman in the same college. Smt. Shafcuntla (P. W. 1) was suffering from some abdominal trouble and Lachhman Singh accused who also lived in a quarter adjoining to the quarter of the father of the prosecutrix had been treating her for the disease by 'Jhar Phunk i.e. exorcism, witchcraft Lachhman Singh was alleged to have been practising. As Lachhman Singh was an elderly man as also a neighbour, therefore, the mother of Shakuntla used to address him as brother and on that account Shakuntla also used to address him as her 'Mama'. Shakuntla did not get any relief from the witchcraft through which Lachhman Singh was treating her. He suggested to the mother of Shakuntla that she should be taken to a village near Solan, where he had his Guru, who would cure her through the witchcraft. The mother of Shakuntla agreed, hence on the 7th June. 1970. Lachhman Singh and Shakuntla left for Solan. Surjan Singh accused also joined them. From Solan they left for village Naoni, a distance of about 8 or 9 miles where the Guru lived. He prepared an amulet for Shakuntla. All the three remained there for the night at village Nauni.
3. On the next morning they reached Solan at about 11 A. M. The two accused told Shakuntla that there was no bus available for Chandigarh and that they should stay on at Solan for the day. Consequently, they stayed at Kiran hotel at Solan, After taking their meals they went to a local temple and after that they went to an evening cmema show.
4. The accused on return to the hotel ordered for their meals . With their meals they took liquor. However, the story of the prosecution is that Shakuntla was forced to take the liquor, whereas the contention of the accused is that she ordered for liquor as she was used to take liquor. After their meals they went to sleep on separate beds in the verandah of the hotel, which was covered from three sides and was open on one side towards the bazar. In the adjoining room was staying one Jit Ram (P. W. 8).
5. The facts which are not admitted by the accused are that at about 12 mid-night Lachhman Singh accused went to the bed of Shakuntla. He untied the string of her trouser (salwar) and raped her. After that he went away and Snirjan Singh accused also went to her bed. untied the string and raped her. The sobbing of Shakuntla aroused Jit Ram (P. W. 8). who peeped through the glass panes of the window towards the verandah, where the accused and the girl were lodged and he saw that Lachhman Singh was raping her and she was trying to resist. He went to the other room and awakened Sukh Ram (P. W. 10) bearer of the hotel and then both of them saw the incident and then they went to the police post nearby. The Incharge police post Have a ring to the S. H. O. who came there and then he along with P. Ws. 8 and 10, went to the spot. The door was got opened and he found Shakuntla on her bed and the accused on their beds.He recorded the statement Exhibit P. A. of Shakuntla and sent it to the police station, on the basis of which F. I. R, (Exhibit P. F.) was recorded. P. W. 11 i. e.. the investigating officer took thfil Kachhas of the two accused into po&i; session as also the bed-sheet where Shakuntla was sleeping. He got the two accused examined from the doctor at night time for their potency, etc. Shakuntla was also got examined through a lady-doctor, and her Salwar was also taken off by the lady-doctor, which was delivered to the police. The bed-sheet. Salwar and the two Kachhas were sent to the Chemical Examiner and the Serologist and it was opined that the bed-sheet as also the Salwar and one Kachha contained in packet No. I and which, according to the forwarding letter of the office of the Superintendent of Police, belonged to Surjan Singh, were found to contain seminal stains. However, the other Kachha which belonging to Lachhman Singh did not contain any seminal stains.
6. In this case the evidence on the basis of which the learned Sessions Judge has convicted the accused consists of the testimony of the prosecutrix (P. W. 1) the two doctors (P. W. 2 and P. W. 5) P. Ws. 8 and 10, and the reports of the Chemical Examiner and Serologist.
7. The first point agitated1 by learned Counsel for the appellants is that the statement Exhibit P. A. recorded by the police at the spot was not the first information report. The same was hit by the provisions of Section 162 Cr.PC The F. I. R. in this case was that which was given by P. Ws. 8 and 10. who immediately on seeing the occurrence went to the police station and informed the police about the commission of the offence. The answer of the learned Advocate-General to this contention of the appellants' learned Counsel is that the information given by these two persons was quite vague and indefinite and it was not reduced to writing and the F. I. R. was the one which was recorded by the S. H. O. when he went to the spot and found that a. cognizable offence had been committed. It was. therefore. Exhibit P. A. which was the F. I. R. and it was not hit by the provisions of Section 162 of the Code of Criminal Procedure and he has placed reliance on some authorities. The contention of the learned Advocate-General does not appear to be correct, inasmuch as the two persons, i.e. P. Ws. 8 and 10 had seen that rape was committed, as is evident from their statements on the record. P. W. 8 has stated that he saw the accused Lacnhman committing rape on the girl and then ha brought the bearer. Sukh Ram (P. W. 101 and he also saw the accused committing rape and then they both went to the Police post. Solan and informed the police of the occurrence. P. W. 10 stated that when he was awakened by P. W. 8 ha also went and peeped in the verandah through the glass pane and saw the accused Lachhman. who had put the legs of the girl on his shoulders and had put a part of the quilt over her mouth. The girl was trying to get rid of the man by shaking her legs and herself but the accused was not letting her free. The thekedatf (P. W. 8) asked him that in case the girl died even he and the witness will be in trouble and that the matter should be reported to the police and they accordingly rushed to the police post Solan and reported the matter to the Munshi present there. He telephoned to the S. H. O. who arrived in the police post along with two constables and they came to the hotel, Hence the only conclusion that can be deduced from the testimony of these two witnesses is that there was no vagueness in the information about the commission of a cognizable offence by the two persons staying there in that hotel along with the girl and this information, as it appears, was conveyed to the incharge of the police post and, therefore, this, in my opinion, was the first information in point of time about the commission of a cognizable case. The police proceeded to the spot in pursuance of the information imparted by the two witnesses and. therefore, investigation had already started the moment the investigating machinery was set in motion. It is a different thing that the police did not record the information which had been given to them but it was their duty to reduce the same into writing, when it was brought to their notice that a cognizable offence had taken place. Tapinder Singh v. State of Punjab : 1970CriLJ1415 is an authority relied upon by the learned Advocate-General to show that anonymous telephone message at police station that firing had taken place at a taxi stand although is information which is first in Point of time will not by itself clothe it with character of first information report. In the aforesaid case the person, giving the information on telephone, did not disclose his identity, nor did he give any further particulars and what he stated was that fire had taken place at a taxi stand. Ludhiana. This was recorded in the daily diary of the police station by the police officer responding to the telephone call and it was in view of these facts that it was held that prima facie this cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report. This authority, therefore, has it no application, because it was definite-a vague message that fire had taken place at the taxi stand without mentioning whether any cognizable offence had been committed. But in the instant case it was quite explicit that rape had been committed on a girl. Vinayak Datt Durbhatkarv. State (AIR 1970 Goa. 96) is also another authority relied on by Mm. In this case the oral statement was made by the assaulted person at the police station and then he was removed to the hospital where another Head Constable recorded his statement and that statement was challenged by the defence on the ground that the same was hit by Section 162. It was held in that case that the latter statement being the dying declaration made to a police officer during the course of investigation is taken out of the purview of Section 162 (1). In other words, the limitations imposed by Section 162 (1) are not applicable to a dying declaraton and that the oral statement made to the Head Constable earlier was not complete In itself. Therefore, this authority also has got no application to the facts of the present case, where everything was complete excepting about the verification of the name of the girl and about the names of the accused, which the police could ascertain on going at the spot. Therefore, In my opinion, the first information report was the one which had been given by the two persons to the incharge of the police post and this document Exhibit P. A. recorded during the course of investigation is definitely hit by the provisions of Section 162. In this behalf. I may also refer to State v Jagdeo (AIR 1955 NUC (All) 1516), wherein it was held that It Is not essential to mention in the Information when exactly the offence was committed nor is it essential to mention by whom It was committed or in what circumstances. The object behind the investigation itself is to ascertain these matters; it Is for the station officer to find out by investigation whether the offence was committed at all and if it was by whom and in what circumstances. The informer may aid him by stating in the information by whom and in what circumstances the offences were committed, but the law does not Impose upon him any obligation to do eo. Nor there is any provision in the Code for any preliminary inquiry prior to investigation or prior to the lodging of the information within the meaning of Section 154. The question whether an information given under Section 154 Is complete or not is not relevant. So long as it is an Information about the commission of a cognizable offence it is all the information that Is required to be given under Section 154 and, there cannot arise any question of its being incomplete and the failure of the station officer to reduce the first Information to writing does not mean that the information was not an information contemplated by Section 154. In the face of this the argument of the learned Advocate-General has got no force that the document Exhibit P. A. was the F. I. R. and that it was not hit by Section 162. The result therefore, is that the argument advanced by the learned Counsel for the appellants carries weight, However, this point was not raised by the appellants in the trial Court and, therefore. I do not attach much importance to this argument.
8. It is a common ground between the parties that the accused as also the girl took liquor. The contention of the appellants' learned Counsel is that it was the girl who had ordered for the drink as she was used to taking liquor whereas the contention of the prosecution is that the accused persons forced the girl to take liquor. In this connection. I have to advert to the evidence on the record. P. W. 1 has stated that, 'meals were ordered in the hotel by the accused. At meal time the accused took out a liquor bottle. They took liquor and asked me also to take some liquor and forced me to have some liquor. Lachhman accused forced me to take some liquor. It was finger-length deep in a glass'. The prosecutrix repelled the suggestion that she was addicted to drink and that at Kiran Hotel, Solan, she was offered liquor by the accused and she gladly accepted without any objection. She stated that she was forced to have it. There is no other evidence on record to show if the drinks were ordered by the witness. It is not disputed that the prosecutrix belongs to a poor class and sfaa cannot be expected to lead profligate life, So. the contention that she was used to drinking cannot be accepted as correct in view of her low position in life and the scanty means.
9. The further contention of the appellants' learned Counsel is that the witness viz. Shakuntla is a liar inasmuch as she has stated that she had no sexual Intercourse before that and that her hymen was ruptured and there was bleeding from her private parts and the bed-sheet was soiled with blood. The lady doo tor, who examined her. did not find any bleeding nor any swelling. The rupture of her hymen was also not recent but was old and her vagina admitted of two fingers and from the evidence it appeared that she was used to sexual intercourse. Further it is contended that she Is above 16 years of age and she has made a wrong statement about her age. Hence the learned1 counsel submits that the statement of the witness is not believable and conviction cannot be based unless her statement finds corroboration from other independent source. The learned Advocate-General has very emphatically argued that she is a girl of a Poor class with no intelligence no education and that even if she was unchaste she could not he expected to make any statement against her modesty and merely because the doctor found that her hymen was not recently torn will not negative the story of rape. The statement of the doctor was a mere opinion. The testimony of the witnesses could not be discarded on the ground that there were some contradictions in it.
10 It is a very well-settled rule that in rape cases the evidence of the complainant must be corroborated. A charge of rape is a very easy charge to make and a very difficult one to refute, and in common fairness to accused persons, the courts insist on corroboration of the complainant's story. However, the nature of the corroboration must necessarily depend on the facts of each particular case. Where rape is denied, the sort of corrbora-tion one looks for is medical evidence showing injury to the private parts of the complainant, injury to other parts of her body, which may have occasioned in a struggle, seminai stains on her clothes or the clothes of the accused, or on the places where the offence is alleged to have been committed; and in all cases importance is attached to the subsequent conduct of the complainant. Whether she makes a charge promptly or not is always relevant. (Emperor v. Mahadeo Tatya. AIR 1942 Bom 121 (FB)). In Mahla Ram v. Emperor (AIR 1924 Lah 669), also it has been held that where there is no independent evidence in support of the statement of the complainant that she was raped by the accused it would be most dangerous to base a conviction on her uncorroborated testimony alone.
11. It is true that the prosecutrix is a girl above 16 years of age as would be evident from the statement of her father and her own statement. Ram Lai (P. W. 4) is the father of the proseeutrix. He has stated that his eldest son is Nanak Chand, who is 24 years of age. Next to him is Om Parkash. who was bom three years after him, which means that he was 21 years of age in 1971, when the witness was examined. The occurrence took place in June. 1970 and that way Om Parkash must be about 20 years. He has further stated that Shakuntla was born after Om Parkash, However, he has not stated what wasi the spacing between Om Parkash and Shakuntla. The prosecu-trix herself has stated that a brother was born three years after Nanak Chand's birth to her mother, who Is no other than Om Parkash as is apparent from the statement of P. W. 4 and whose age has been fixed at 20 years on the date of the occurrence. According to her she was born 2 or 2j years after that, that is. Om Parkashj which would mean that she was about 174 or 18 years on the date of the occurrence. This finds corroboration from the statement of Dr. N. Chatterjee (PW 9). who took the skiaigram of Shakuntla and according to the ossification test conducted by him. she was found to be between 17-17i years of age. Ram Lai had stated that Shakuntla was born in the year 1955 and that she was 15 years of age in the year 1970 when he made statement But ha stands contradicted by Shakuntla herself, who has stated in portion A to A of her statement in the Committing Court that at the time of partition of the country, Nanak Chand was five years of age, which means, Nanak Chand was born somewhere in the year 1942 and. according to her three years after that Om Parkash was born to her mother, which means that Om Parkash was born somewhere in 1945 and she was born 2 or 2i years after that. That way she was born In the year 1947 or 1948 and in the year 1970 she could not be less than 21 or 22 years of age. Therefore. It is manifest from this that Shakuntla was above the age of 16 and she had definitely made a wrong statement in this behalf. Further, she stands contradicted by the statement of lady-doctor, who examined her, and who says that her breast was well developed, axillary hair and pubic hair were well developed. These are also the signs indicative of the fact that she was above 16 years of age, because in the case of girls belonging to (poor families these physical developments take place at a late stage. Hence. I am of the definite view that she was above 16 years of age on the relevant date.
12. It is also manifest from the statement of P. W. 5. who examined her immediately after the occurrence that her hymen was not recently torn, there was no bleeding, no swelling and her vagina admitted of two fingers. Again no blood was found on the bed-sheet or on the Salwar of the proseeutrix, which negatives the story of bleeding and that consequently shows that the girl was not making a true statement in this regard.
13. It Is also apparent from the record and admitted by the Advocate-General that there was no hue and cry raised by the girl. However, his contention is that she could not raise hue and cry because she was in a strange place and the accused were the only persons known to her and she had reposed her full confidence in them, who had later on betrayed her confidence by raping her and, therefore, there was no point in making a hue and cry. However, she sobbed which attracted the attention of P. W. 8 to the place. I have gone through the statements of P. Ws. 1, 8 and 10. P. W. 1 has stated that at about 12 midnight Lachhman accused went to her bed. Having approached her bed. Lachhman accused untied her Salwar string in spite of her protestation. He had at that time shut her mouth with his hands as she had then tried to raise alarm. He then committed rape with her against her wishes. After sometime Surjan accused also went to her bed. by which time Lachhaman had shifted to his own bed. When Lachhaman had left her bed she had tied the Salwar string but Surjan on approaching her bed untied it against her wishes and as she tried to cry. Lachhman accused, who was on the nearby Charpai shut her mouth and Surjan also raped her against her wishes. As she attempted to shriek. Lachhaman tried to close her mouth but still she could raise a cry. On hearing her cry some chowkidar peeped through the glass panes. Such person was in the adjoining room and had peeped through the glass panes of the door. Then according to her Surjan left her and she went out of the room in the hope of getting help of that person, who peeped in the room but by that time he had left that plaice and she then went to the bathroom, where she cleaned herself.
14. From the aforesaid statement ft would appear that she did not put up any resistance. There was no injury-mark either on the bodies of the accused or on the body of the prosecutrix. According to her. she was not a willing party to this act of coitus. First Lachhman Singh came there, he untied the string of her trouser and It appears that she yielded without any resistance and when he had gone then she says that she had tied the string of her trouser and then the other accused. Surjan. came to her bed and he also untied the string of her trouser and when she wanted to shriek, Lachhaman Singh accused gagged her mouth with his hands. But it is highly unbelievable. If her mouth had been gagged then she would have died by suffocation. This story of the prosecutrix does not inspire confidence that she was not willing and she was raped without her consent. From the circumstances, it appears that she was a consenting party to the act of coitus, committed by the two accused. If she had been quite unwilling there was no reason why she should not have cried out or tried1 to istruggle. It Is true that she was a stranger and the two accused were the only persons who were known to her. But it is a fact that the location of the place where they were putting up was such that if she had raised any hue or cry that could be easily audible to the people outside. It was a verandah which was closed on three sides and it was open towards the bazar side. P.W. 8 no doubt was awakened from his sleep from the adjoining room and he peeped through the glass panes, but that does not necessarily mean that he was awakened because of the shrieks and cries raised by the prosecutrix. It is quite probable that he was aroused from his sleep because of some stir or movement in the adjoining room which was separated only by a window or door. P. W. 8 has stated that he heard the weeping of the fiirl from the verandah. But the girl is silent about weeping. She never stated that she started weeping. Anyway, he tried to see through the glass panes from his room. According to him, it was Lachhaman accused whom he saw committing rape on the girl and then he went to Sukh Ram (P. W. 10) to awaken him and then he also saw the rape being committed and then they went to the police post. P. W. 10 supports P. W. 8 in this behalf that he was awakened by P. W. 8 and on peeping through the glass pane he saw Lacchaman Singh accused raping the girl. Both these witnesses are. however, silent about the other accused, if he also raped the girl. Both these persons were also not known to the accused. They had seen them only in the day time when they came in the hotel and it is highly improbable If in the light that was reflected into the room from the street, it was possible for these two persons to have recognised Lachhaman Singh from their room through the glass pane committing the offence of rape on the irl. Insofar as P. W. 10 is concerned he stands contradicted by -portion A to A in his statement before the police, wherein he had stated that he saw through the glass panes that the man, who had represented himself in the day time to be the brother of the girl raping her by putting the legs of the girl on his shoulders. In the Sessions Court he denied to have made this statement But P. W. 11 has deposed that this statement was made by P. W. 10 before him. Therefore, this witness stands contradicted in a very very material particular. He has now mentioned the name of Lachhaman Singh in the Court, whereas before the police he mentioned Surjan Singh as the young man who had represented himself in the day time as the brother of the girl. Both these witnesses further stand belied by the report of the Chemical Examiner and the Serologist. who did not find any seminal stains on the Kachha of Lachhman Singh. However, seminal stains were found to be there on the Kachha of Surjan Singh. Therefore, these witnesses cannot be said to corroborate the testimony of P. W. I in all the material particulars.
15. Further it would have been noticed that the prosecutrix. if she was not a willing party, should have complained or cried out as soon as the police came on the spot. But she exhibits quite an indifferent attitude as if nothing had happened. She disclosed only when she was questioned by the police that she had been raped, which means that if the police had not questioned her, she would not have disclosed the fact. This also is further indicative of the fact that she was a willing or a consenting party to the rape, if it was committed by either of the two accused or both the accused.
16. There is another discrepancy In the statements of the witnesses. P. W. I has stated that when the police came, she was on her bed and the two accused were on their own beds. But P. W. 8 says that when the police came. Sturjan Singh accused was lying on the bed of the girl, while the other accused was on the other bed. But immediately on the arrival of the police Surjan accused had left her bed and the girl at that time was sleeping. P. W. 10 has stated that on the arrival of the police the girl was found to occupy a different bed and the two accused on different beds. At that time the girl was unconscious on her bed. It was the .police, who awakened her and said that she should not worry. Therefore, there Is a material discrepancy in the statements of these three witnesses on this aspect of the case.
17. It follows from the above that fhe statement of the proseoutrix does not (find any oorroboratlon. rather there are serious and material discrepancies in. the statements of the three witnesses. The prosecutrfx has stated that she was raped by both the accused and her hymen was ruptured and blood oozed out from her vagina, which is not found to be correct. The hymen bore an old rupture, there was no bleeding and no swelling on the private parts and the vagina admitted of two fingers, which is a pointer to the fact that she was not raped or she did not have this sexual intercourse for the first time. About her being raped by these two accused also the two witnesses from whom corroboration was sought, they are unanimous on the point that it was Lachhaman Singh accused, whom they saw committing the offence of rape, whereas they have not stated anything about Surjan Singh accused. P. W. 10 stands contradicted by his statement in portion A to A made by him before the police, wherein he had stated that it was Surjan Singh, whom he had seen committing the raipe. It was night time and there was no light; only there was a reflection of the street light and it is highly improbable if the witness could clearly identify the person actually committing the rape. The statement of the prosecutrix. who has told a Me on very material particulars, cannot be made the basis for conviction unless It finds corroboration from independent source. The Kachha of Lachhaman Singh did not contain any seminal stains. It Is contended that there was absence of smegma on the penis glans of the two accused and that was a clear proof of the fact of recent act of intercourse. There is no doubt that absence of smegma leads to the Inference of recent intercourse, but at the same time it also cannot be denied that if the parts are washed then there would not be any smegma. So, the absence of the smegma,Is not necessarily a conclusive proof of the fact of recent cohabitation or sexual intercourse, but it can also lead to Inference that the parts had been washed and kept clean by the persons. So, the absence of smegma on the private parts of the accused is not suffi-| cient to raise an inference of guilt.
18. The learned Advocate-General Bad also stated that the consent of the prosecutrix had been obtained by the accused by administering drink to her. But this is also wrong because there is no sufficient evidence to hold that she had taken a sufficient quantity which had rendered her intoxicated or senseless so as not to act freely or give her consent. It was only a small dose as stated by her and, thereafter she took her meals and tihen she went to sleep and It is quite possible that at about 12 when the act is alleged to have been committed she might have been relieved of the effect of the intoxication, If at all there was any, and she was a free agent and could exercise her volition. But from the conduct of the prosecutrix, it appears that she was a consenting party and the sexual intercourse, if any. was committed with her consent. There Is no doubt that the P. Ws. 8 and 10 have got no animus against the accused; P. W. 8 was staying In the adjoining room which was separated by a window or a door and, therefore, it was quite possible that he was awakened by some noise emanating from the other side. Since there were two persons and one girl staying In the ad-loining room, therefore, he suspected some foul play and he awakened P. W. 10 and they both suspected) that the two persons may have kidnapped or abducted the girl and as such they went to the police post. But this will not lead to the Inference that the accused did commit the offence. The statement of the prosecutrix Is not corroborated in its material particulars and. therefore, no conviction can be based on the testimony of the prosecutrix. The presence of the seminal stains on her Salwar and on the bed-sheet and one Kachha also would not indicate that rape was committed. At the most It would be a proof of the fact that the sexual Intercourse was committed with the consent of the girl, who was grown up and was used to sexual inter-course.
19. In the light of the above. I, therefore, accept this appeal, set aside the conviction and sentences passed by the learned Sessions Judge and acquit the accused. The accused shall be released forthwith, unless they are required in some other offence. The fine, if paid, shall be refunded.