P. S. NARAYANA, J. ( 1 ) HEARD Sri P. Prabhakar rao, the Counsel representing appellant- accused and the learned Additional Public prosecutor. ( 2 ) THIS appeal is preferred by the appellant-accused being aggrieved of the conviction and sentence imposed on him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for six months by judgment dated 4. 11. 1997 in Sessions Case no. 68 of 1997. ( 3 ) SRI P. Prabhakar Rao, learned counsel representing the appellant-accused made the following submissions: ( 4 ) THE learned Counsel had taken this court through the evidence of PW. 1 and several aspects which were admitted by pw. 1 in cross-examination and would comment that the evidence of such a witness who is in the habit of filing false cases or giving false reports should be scrutinized with care and caution. The learned Counsel also had taken this Court through the evidence available on record and would point out that the medical evidence totally belies the story of the prosecution and definitely this is a case foisted due to some political reasons, as there are factions in the village. The learned Counsel had meticulously taken this Court through the evidence of P. W. 1, P. W. 3, P. W. 4, P. W. 6, p. W. 8, P. W. 9 and also Exs. Pl to P8 and exs. Dl and D2 and would submit that there are several inherent improbabilities in the story of the prosecution and hence definitely the same cannot be believed. The learned counsel specifically pointed out that the alleged scene of offence is said to be of thorny bushes and also PW. 1 deposed that several bleeding injuries were caused to her during the course of the incident but the medical evidence is totally contrary in this regard. The learned Counsel had also explained the meaning of sexual intercourse and would contend that the medical evidence available on record totally negatives the same and it is not a case of inordinate delay between the time of the alleged incident and the time of examination by the doctor, at the best it may be 13 hours in between and hence, the medical evidence in this regard cannot be explained. At any rate the absence of injuries would definitely suggest that there was absolutely no resistance even if the incident as alleged by the prosecution may have to be taken to have occurred and these aspects clearly suggest consent on the part of the victim- prosecutrix. However the learned Counsel was conscious in stating that the defence is one of total denial and this is only in alternative and this defence need not be taken by the accused and if on the basis of inherent improbabilities this Court arrives at such a conclusion, even in such event also the accused is entitled to benefit of doubt. The learned Counsel placed reliance on certain decision in this regard to substantiate his contentions. ( 5 ) PER contra the learned Additional public Prosecutor submitted that the very fact that P. W. 1 was in the habit of filing certain cases or giving certain complaints by itself cannot be taken as a ground to reject the convincing testimony of P. W. 1, the prosecutrix in this case. The learned additional Public Prosecutor would also contend that this is a case where the parties are relatives and the accused is paternal uncle of the prosecutrix by courtesy and it is highly improbable that due to political factions P. W1 would have resorted to making such a serious false allegation against the appellant-accused. The learned counsel also would point out that apart from the evidence of P. W. I, the evidence of P. Ws. 3, 4 and 6 is available on record which would clearly go to show that the incident happened, but however in all fairness, the learned Counsel submitted that as far as incident proper is concerned the evidence of PW. l and PW. l alone is available on record. In view of the gap of about 13 hours in between time of incident and the time of medical examination, when the evidence of Doctor being only an opinion evidence, and when direct evidence is available on record, if the evidence of p. W. I if otherwise found trustworthy the same may have to be preferred and the opinion evidence may have to be ignored. The learned Additional Public Prosecutor also had drawn the attention of this Court to para-22 of the impugned judgment wherein clear findings have been recorded giving explanations in this regard, which are convincing and hence, in the light of the clear findings recorded by the learned Judge, it is not a case which would warrant any interference at the hands of this Court. ( 6 ) THE learned Public Prosecutor had also placed reliance on certain decisions. ( 7 ) HEARD both the Counsel and perused the evidence available on record. ( 8 ) THE Inspector of Police, Nandigama circle filed a charge-sheet against the accused under Section 376 of I. P. C. to the effect that on 15. 6. 1996 at about 11. 00 a. m. , when the victim/p. W. 1 was grazing her cattle in the fields of Seelam Venkata Reddy, the accused came there, dragged her by hacking her to the bushes, gagged her mouth, lifted her saree, removed his lungi and penetrated his pennies into the vagina of her and thereby committed rape on her and when she raised hue and cries, P. Ws. 3, 4, 6 and L. W. 6 v. Madhav Reddy rushed there, witnessed the incident and by seeing them the accused ran away from the scene. On the complaint of P. W. I, police recorded her statement and registered a case in Crime No. 41/1996 under section 376 of I. P. C. and investigated into the matter and the learned Judicial Magistrate of First Class, Nadigama, after completing the formalities committed the PRC No. 18 of 1996 to the Court of Sessions, Krishna, machilipatnam. Before the Court of Sessions, the prosecution examined P. Ws. l to 10 and marked Ex. P. l to P. 8 and M. Os. l and 2 and the contradictions in the evidence of P. Ws. 3 and 6 were marked as Exs. D. l and D. 2. On appreciation of the evidence available on record as already aforesaid appellant-accused was convicted and sentenced to undergo rigorous imprisonment for a period of ten years for the offence under Section 376 i. P. C. and also to pay a fine of Rs. 1,000/- and in default of payment of fine amount, he had to undergo simple imprisonment for a period of six months. 1,000/- and in default of payment of fine amount, he had to undergo simple imprisonment for a period of six months. ( 9 ) AT the outset, it is to be stated that initially, appellant-accused was in jail for sometime and subsequent thereto, even after filing the criminal appeal, bail was rejected twice and on the third application, ultimately, appellant-accused was released on bail. The period of imprisonment undergone by the appellant-accused during the period appears to be for about more than one year. It is brought to my notice that this Court on 2. 12. 1998 released the appellant-accused on bail and the judgment was delivered on 4. 11. 1997. ( 10 ) NOW it is to be seen, whether the prosecution had proved its case beyond all reasonable doubt establishing the guilt of the appellant-accused under Section 376 of I. P. C. Though, initially, charges were framed under Sections 376 and 324 of I. P. C. , for the reasons best known, the prosecution had not pursued the charge under Section 324 of I. P. C. P. W. I the prosecutrix deposed that she is a married woman, her husband is residing in Peddapuram Village, her husband beat her and driven her away by taking , liquor and hence she had been residing with her parents for about five or six years, and she would be grazing cattle at her parents house. P. W. I also deposed that the accused committed rape on her about one year back near vagu at her village. P. W. I also deposed that the accused took her to the bush by force and closed her mouth with towel, he also kicked on her back and spoiled her by committing rape. P. W. I also deposed that the other witnesses came to the spot and how the subsequent events happened. She also informed the incident to her parents, they had taken her to the veerlapadu Police Station, she narrated the incident to the Sub-Inspector and he had recorded the same and it is Ex. P. l. Subsequent thereto, she was referred to government Doctor, Nandigama and he examined and police seized her wearings i. e. , saree, langa and blouse and she identified MO. 1 is her langa and M. O. 2 is her saree. P. l. Subsequent thereto, she was referred to government Doctor, Nandigama and he examined and police seized her wearings i. e. , saree, langa and blouse and she identified MO. 1 is her langa and M. O. 2 is her saree. P. W. I also deposed that accused removed her saree and langa and fell upon her and also bite on her breast and committed rape which wife and husband do by falling on her. This witness was cross- examined at length. This witness deposed that she got two children and she had been attending coolie work and in other days she will be grazing the cattle. She also admitted that she filed the case against Markapudi jhanandam of Lingalapadu Village about six or seven years ago alleging that he committed rape on her. She did not give her evidence and the same was made compromise. She denied the suggestion that she had received Rs. l 0,000/- from jananandam and compromised the matter, but she had deposed that her villager Janga musalaiah received that amount from other side. She also deposed that she filed a case against Jamalaiah and Punnaiah with a view to outraged her modesty, but she did not filed any criminal case. She deposed that that case was filed at the instance of her aunt Narasammea, who received an amount of Rs. 4,000/- from them. She deposed that she filed a case against marapogu Ashok in Veerlapadu Police station about 3 years back, but she had denied the suggestion that she had received a sum of Rs. 5,000/- from the said M. Ashok. Again she deposed that one Janga musalaiah had received the said amount and the said Musalaiah is alive. She also deposed that she filed a case against Guduri koti Reddy, about one year ago alleging that he tried to outrage her modesty, but she did not insist the case due to the fact that the said Koti Reddy approached her. P. W. I also deposed that about one month back Badri Reddy caught hold of her and then she beat him and due to intervention of elders, the said dispute was settled in compromise. She also deposed about the scene of offence. P. W. I also deposed that about one month back Badri Reddy caught hold of her and then she beat him and due to intervention of elders, the said dispute was settled in compromise. She also deposed about the scene of offence. She specifically deposed that her brother removed ten thorns from her body and blood oozed from her body and doctor also verified those injuries and she also deposed that at the time of accused lifting she had not raised any cries and the accused was there for about one hour. When her brother came there, the accused fled away. She deposed that first her brother came there and they did not beat the accused, after arrival of her brother, narasappa and daughter of her brother came there. She also deposed that accused is related to her as paternal uncle. She also deposed that her father and brother belong to Sarpanch group and the accused belongs to Ex. Sarpanch group. P. W. I further deposed that she did not state before police stating that her brother witnessed the incident or he came to the spot at that time. She stated before police stating that accused beat her while going back after committing rape and when she raised cries. She denied the suggestion that she did not state before the police stating that the accused beat while beginning before the commission of rape. She also deposed that he beat her in the beginning only and not after commission of rape. She also denied the other suggestion and deposed that the police taken her to the place of occurrence and she had shown place of occurrence. Specific suggestions were put to her that she was in the habit of giving false complaints and collecting amounts from them. She denied that due to political rivalry the present case was filed against the accused. ( 11 ) P. W. 2 father of P. W. 1 deppsed that his daughter-P. W. 1 informed the incident and then these people approached the police. P. W. 3 is yet another witness and the brother of P. W. I. He deposed that they went to graze buffallows and on hearing cries of P. W. I, he rushed there and accused fled away from the scene by seeing him. P. W. 3 is yet another witness and the brother of P. W. I. He deposed that they went to graze buffallows and on hearing cries of P. W. I, he rushed there and accused fled away from the scene by seeing him. In the meanwhile, the other witnesses gathered and Kotaiah had taken his sister to their house and he went in search of the accused, but he could not trace the accused. Latter, they had taken p. W. 1 to Police Station and police examined her and recorded their statements. He deposed that P. W. I also informed him that the accused committed rape on her. The other witnesses corroborated the evidence of p. W. I relating to the scene of offence and what had happened, immediately after the incident and also they deposed about the relationship between them and the accused. P. W. 3 deposed that it is not true to suggest that he did not depose before police, p. W. 1 was not having any clothes on her body and they were placed aside of her and it is not true to suggest that he did not state before the police stating that after hearing his cries, L. W. 5 Chinatatli and L. W-7- kotaiah came there. This witness also deposed that he stated before police that they were in the fields of Seelam Venkata reddy, when they reached there. Most probably these questions were put to p. W. 3 to shift the scene of offence and to create a doubt relating to the place of occurrence. ( 12 ) P. W. 4 is Chinnatalli, who had deposed about what had actually happened after hearing the cries and on hearing cries, when she rushed to P. W. 1, she was weeping and P. W. 3 handed over P. W. 1 to him and went in search of the accused, and when he questioned P. W. 1, she told her that the accused spoiled her. She also deposed that P. W. 1 received injuries on her body and also blood was there on her. She cleared the blood and she had taken P. W. 1 to village and handed over to her parents and Kotayya was also present there. She was cross-examined at length and several suggestions were also put to her. She also deposed that P. W. 1 received injuries on her body and also blood was there on her. She cleared the blood and she had taken P. W. 1 to village and handed over to her parents and Kotayya was also present there. She was cross-examined at length and several suggestions were also put to her. She deposed that it is not true to suggest that she did not state before police stating that she was there at channel bund and she did not state before police that she was standing near pump-house at the time of incident and it is not true to suggest that she did not state before police stating that the accused drove away the cattle of P. W. 1 along with his she buffallows and it is not true to suggest that she did not state before police stating that the accused took away p. W. 1 by holding his hands on her neck. Certain questions were put to her relating to the scene of offence. P. W. 6 is yet another witness, who deposed that when he was going to the fields, P. W. 1 and accused were grazing their cattle and she buffallows at the pump-house of Obul Reddy and he heard cries of P. W. 1 as he was not able to walk fast, he asked P. W. 3 to go and see the cries of P. W. 1 and thereafter the accused was running away tying his lungee and he also approached P. W. 1 and he saw the bodily injuries of P. W. 1 caused by thorns. P. W. 3 entrusted P. W. 1 to him to take her stating that he wanted to approach the accused. P. W. 3 entrusted P. W. 1 to him and P. W. 4. From, there, he took P. W. 1 to house and entrusted to P. W. 2. This witness was also cross-examined and certain suggestions were put to him. This witness deposed that it is not true to suggest that he did not state before police that on hearing cries, he asked P. W. 3 by raising cries to go and see the cries of P. W. 1. This witness was also cross-examined and certain suggestions were put to him. This witness deposed that it is not true to suggest that he did not state before police that on hearing cries, he asked P. W. 3 by raising cries to go and see the cries of P. W. 1. First P. W. 3 approached to the spot of P. W. 1 and he reached thereafter five minutes after the arrival of P. W. 3 there and by the time of reaching there, the accused was there tying his lungi. Several questions were put to him relating to the scene of offence. This is the evidence available on record for the actual occurrence and to support the post incident events. ( 13 ) P. W. 5 is the Village Administrative officer of Jayanthi and he had deposed that at about one year back at the instance of Sub-Inspector of Police, this witness along with Venkata Ram Reddy went to the fields of Seelam Venkata Reddy, there they found certain trees and bushes, they had seen the scene of offence at the instance of police and Panchanama was conducted. He was the scribe of Panchanama, which is Ex. B-2, it bears his signature and also the signature of Venkata Reddy. This witness was also cross-examined. P. W. 7, the sub-Inspector of Police, who deposed that on 15. 6. 1996 at 18. 00 hours, P. W. 1 came to Police Station along with her father (P. W. 2), submitted report under Ex. P. l, he registered a case in Crime No. 41 of 1996 under Section 376 of I. P. C. and submitted express F. I. Rs to all concerned. Ex. P. 3 is the First Information Report. As per the oral instructions of Circle Inspector, he had examined P. W. 1 and P. W. 2 in Police Station and referred the victim to Government hospital, Nadigama; he proceeded to Jayanti village on the same day and examined p. W. 3, L. W. 4 i. e. , SN. Rattamma, P. W. 6 and reached the station. On the next day, he had visited scene of offence along with mediators P. W. 5, L. W. 9 Guduri venkateswar Reddy and observed the same and prepared observation report. He also prepared rough sketch of scene of offence, which is Ex. Rattamma, P. W. 6 and reached the station. On the next day, he had visited scene of offence along with mediators P. W. 5, L. W. 9 Guduri venkateswar Reddy and observed the same and prepared observation report. He also prepared rough sketch of scene of offence, which is Ex. P. 4 and on the same day he examined P. W. 4 and L. W. 6- Madhava reddy and recorded their statements. Thereafter, he entrusted the case to the Circle inspector of Police for further investigation. He also deposed that P. W. 3 stated before him as in Ex. D. l and P. W. 6 stated before him as in Ex. D. 2. Thus, the contradictions were put to this witness. P. W. 10 is the circle Inspector of Police who had deposed that he had collected the wound certificate, medical certificate i. e. , Ex. P. 5 to P. 8 and filed charge-sheet on 26. 8. 1996 against the accused under Section 376 of I. P. C. after verifying earlier investigation. ( 14 ) THE evidence of P. W. 8 and P. W. 9 is medical evidence. P. W. 9 who issued ex. P. 8, wound certificate had deposed that he examined the accused and issued a medical certificate stating that he is fit to have sexual intercourse. Evidence of P. W. 8 assumes some importance since elaborate submissions were made on the strength of this medical evidence of P. W. 8. P. W. 8 deposed that she was working as Women assistant Surgeon, Government Hospital, mylavaram, and previously she worked at nandigama from 1988 to 1997 August. On 16. 6. 1996 at 1. 00 a. m. police brought P. W. 1 for examination along with a requisition upon which she examined P. W. 1 and found the following injuries:"1. Small swelling below left forearm. 2. Abrasion above left knee joint. Gait and Velavoly is normal. Pubic hair - Nail clippings - servacal swab kept for analysis. Saree and petty coat also preserved for the examination. "ex. P. 5 is the wound certificate dated 19. 7. 1996 issued by her. On receipt of chemical analysis report from F. S. L she is of the opinion that there are no positive signs suggests of recent sexual offence occurred. Ex. P. 6 dated 16. 8. 1996 is chemical analysis report and Ex. P. 7 dated 23. 8. "ex. P. 5 is the wound certificate dated 19. 7. 1996 issued by her. On receipt of chemical analysis report from F. S. L she is of the opinion that there are no positive signs suggests of recent sexual offence occurred. Ex. P. 6 dated 16. 8. 1996 is chemical analysis report and Ex. P. 7 dated 23. 8. 1996 is the final opinion given by her after receiving Ex. P. 6. In cross-examination, this witness deposed that she had not given the dimensions of the injuries. Abrasion injuries might have caused by even rupture of nails, she did not find any bite marks on the breast of P. W. 1 and there are no contusions and she did not mention the anatomical features of sexual organs in Ex. P5 wound certificate. ( 15 ) THE three main submissions, which were canvassed at length by the learned counsel for the appellant-accused, are: firstly: P. W. 1 is in the habit of giving false reports with a view to have monetary gain and hence such evidence may have to be scrutinized with care and caution. SECONDLY: The evidence of P. W. 1 is highly exaggerated and there are no corresponding injuries reflected from the medical evidence, but the evidence of P. W. 8 is clear and categorical that there was no sexual intercourse and hence the offence of Section 376 of I. P. C. as against appellant-accused had not established by the prosecution. Yet another LAST submission is that even otherwise from all the facts put together consent may be inferred and hence definitely appellant-accused is entitled to benefit of doubt. In substance, these are the contentions. ( 16 ) MUCH comment was made relating to the character and conduct of P. W. 1 who is in the habit of giving certain reports and filing certain cases either filing false cases or giving false reports. It is no doubt true that there are admissions made by P. W. 1 in this regard. Section 53 of the Indian Evidence Act, 1872, dealing with criminal cases, previous good character relevant specifies that: in criminal proceedings, the fact that the person accused is of a good character, is relevant. It is no doubt true that there are admissions made by P. W. 1 in this regard. Section 53 of the Indian Evidence Act, 1872, dealing with criminal cases, previous good character relevant specifies that: in criminal proceedings, the fact that the person accused is of a good character, is relevant. Section 54 of the said Act dealing with previous bad character not relevant, except in reply reads:- in criminal proceedings the fact that the accused person had a bad character is irrelevant, unless evidence had been given that he had a good character, in which case it becomes relevant. Explanation 1:- This Section does not apply to cases in which the bad character of any person is itself a fact in issue. Explanation 2:- A previous conviction is relevant as evidence of bad character. Likewise Section 8 of the Indian Evidence act, 1872 dealing with motive, preparation and previous or subsequent conduct reads:- any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceedings, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation I: The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation II: When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. ( 17 ) FROM all these provisions, it is clear that in a criminal proceeding for certain purposes under the aforesaid provisions the conduct and character of the accused is relevant. Explanation II: When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. ( 17 ) FROM all these provisions, it is clear that in a criminal proceeding for certain purposes under the aforesaid provisions the conduct and character of the accused is relevant. Be that as it may, it is no doubt true that in the light of the admissions made by P. W. 1, in the cross-examination that she had filed certain cases and she had given certain reports relating to similar offences alleged to have purported against her by certain other parties, the evidence may be scrutinized with care and caution. The evidence of P. W. 1, which had been also discussed supra need not be repeated again. She had deposed about what had happened. It is no doubt true that P. W. 1, p. W. 3, P. W. 4 and also to some extent P. W. 6 had spoken about the same bleeding injuries which had been on the person of P. W. 1 at the time of occurrence. The medical evidence is conspicuously absent and it does not speak of any such injuries. It is no doubt true that there is gap of 13 hours in between the medical examination and the time of incident. It is also no doubt true that nothing had been elicited from P. W. 8, either by the prosecution or by the defence, in this regard. It is needless to say that the burden is on the prosecution to explain the same. Strong reliance was placed on madan Gopal Kakkad v. Naval Dubey and another, (1992) 3 SCC 204 , wherein the apex Court held that:"a medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the Medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert s opinion because once the expert s opinion is accepted, it is not the opinion of the Medical Officer but of the Court. 35. Nariman, J. in Queen v. Ahmed Ally (1869) 11 Sutherland WR Cr 25, while expressing his view on medical evidence had observed as follows: "the evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion. "36. Fazal Ali, J. in Pratap Misra v. State of orissa, 1977 (3) SCC 41 , had stated thus:". . It is well settled that the medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused. . . as to the exact time when the appellants may have had sexual intercourse with the prosecutrix. " 37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty-first Edition) at page 369 which reads thus: "thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the Medical Officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the Medical officer treating the victim. In such a case the Medical Officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the Medical officer treating the victim. The only statement that can be made by the Medical Officer is that there is evidence of recent sexual activity. Whether the rape had occurred or not is a legal conclusion, not a medical one. " (Emphadis supplied ). 38. In Parikh s Textbook of Medical jurisprudence and Toxicology, the following passage is found: "sexual intercourse. In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. "39. In Encyclopedia of Crime and Justice (Vol. 4) at Page 1356, it is stated: ":. . . even slight penetration is sufficient and emission is unnecessary. " 40. In Habbury s Statutes of England and wales, (Fourth Edition), Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse within the meaning of Section 44 of the Sexual Offences Act, 1956. Vide (1) r. v. Hughes, 1841 (9) Candp 752); (2) R. v. Lines. 1844 (1) Car and Kir 393, and R. v. Nicholls, 1847 (9) LT OS 179. 41. See also Harris s Criminal Law, (Twenty- second Edition) at Page 465. 42. In American Jurisprudence, it is stated that slight penetration is sufficient to complete the crime of rape. Code 263 of Penal Code of California reads thus: "rape; essentials - Penetration sufficient - the essential guilt of rape consists in the outrage to the personal feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime. " reliance was placed on Sheikh Zakir v. State of Bihar, AIR 1983 SC 911 . A reading of the deposition of the complainant shows that it had a ring of truth around it. Any sexual penetration, however slight, is sufficient to complete the crime. " reliance was placed on Sheikh Zakir v. State of Bihar, AIR 1983 SC 911 . A reading of the deposition of the complainant shows that it had a ring of truth around it. Section 133 of the Indian evidence Act says that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. But the rule of practice is that it is prudent to look for corroboration of the evidence of an accomplice by other independent evidence. This rule of practice is based on human experience and is incorporated in Illustration (b) to Section 114 of the Indian Evidence act which says that an accomplice is unworthy of credit unless he is corroborated in material particulars. Even though a victim of rape cannot be treated as an accomplice, on account of a long time of judicial decisions rendered in our country over a number of years, the evidence of the victim in a rape case is treated almost @ page-SC 915 like the evidence of an accomplice requiring corroboration. (Vide Rameshwar v. State of rajasthan, 1952 SCR 377 = AIR 1952 SC 54 = Gurucharan Singh v. State of Haryana, (1973) 2 SCR 197 = AIR 1972 SC 2661 and krishan Lal v. State of Haryana, (1980) 3 scr 305 = ( AIR 1980 SC 1252 ). It is accepted by the Indian Courts that the rule of corroboration in such cases ought to be as enunciated by Lord Reading C. J. in king v. Baskerville, (1916) 2 KB 658. Where the case is tried with the aid of a jury as in england it is necessary that a Judge should draw the attention of the jury to the above rule of practice regarding corroboration wherever such corroboration is needed. But where a case is tried by a Judge alone, as it is now being done in India, there must be an indication in the course of the judgment that the Judge had this rule in his mind when he prepared the judgment and if in a given case the Judge finds that there is no need for such corroboration he should give reasons for dispensing with the necessity for such corroboration. But if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. In the case of a grown up and married woman it is always safe to insist on such corroboration. Wherever corroboration is necessary it should be from an independent source but it is not necessary that every part of the evidence of the victim should be confirmed in every detail by independent evidence. Such corroboration can be sought from either direct evidence or circumstantial evidence or from both. The Trial Court had in the case before us found that the evidence of the complainant had been corroborated in material particulars by the evidence of sheikh Lafid (P. W. 1), Juman Nadaf (P. W. 2) and Jitrai (P. W. 4) the husband of the complainant. The High Court also had acted on the evidence of these witnesses. Sheikh lafid (P. W. 1) had stated that he saw the appellant on the body of the complainant and that the complainant had also told him about the crime. Juman Nadaf (P. W. 2) had stated that when he heard the cry of the complainant at the time of occurrence, he saw the appellant fleeing away from that place. The Trial Court and the High Court have not found any good ground to discard their testimony. Jitrai (P. W. 4) had told the court that the complainant had mentioned to him all the details of the incident within a short while after it took place. Rama Kant thakur (P. W. 5), the lawyer who drafted the complaint had stated that he had prepared the complaint, which contains all the particulars of the offence under the instructions of the complainant Apart from the evidence of Sheikh Lafid (P. W. 1) and juman Nadaf (P. W. 2) about what they saw, the statement made by the complainant to her husband immediately after the incident is admissible under Section 157 of the Indian evidence Act and had a corroborative value. After considering carefully the entire material before us including the evidence of the witnesses examined pursuant to the order made by this Court earlier in the light of the submissions made at the Bar we are of the view that the judgment of the High Court does not call for any interference under article 136 of the Constitution. After considering carefully the entire material before us including the evidence of the witnesses examined pursuant to the order made by this Court earlier in the light of the submissions made at the Bar we are of the view that the judgment of the High Court does not call for any interference under article 136 of the Constitution. ( 18 ) THERE cannot be any dispute or controversy that even on the uncorroborated testimony of the prosecutrix, if the evidence is trustworthy, conviction can be sustained. It is also no doubt true that at certain times the medical evidence may fall into insignificance due to delay. But here is a case where there is gap of only thirteen hours and the opinion relating to the sexual intercourse had been negatived by P. W. 8. In State of Kerala v. K. Govindan, 1969 crl. LJ 818, the meaning of expression of intercourse was explained in Para 19 as hereunder: "the word intercourse means sexual connection (concise Oxford Dictionary) in khanu v. Emperor, AIR 1925 Sind 286, the meaning of the word intercourse had been considered. "intercourse may be defined as mutual frequent action by members of independent organization". Then commercial intercourse, social intercourse, etc. , have been considered: and then appears; "by a metaphor the word intercourse, like the word commerce, is applied to the relations of the sexes. Here also there is the temporary visitation of one organism by a member of the other organization, for certain clearly defined and limited objects. The primary object of the visiting organization is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. " Therefore, to decide whether there is intercourse or not, what is to be considered is whether the yisiting organ is enveloped at least partially by the visited organism. In intercourse between the thighs, the visiting male organ is enveloped at least partially by the organism visited, the thighs: the thighs are kept together and tight. ( 19 ) IN Bahadursingh v. State of Madhya pradesh, 1991 Crl. In intercourse between the thighs, the visiting male organ is enveloped at least partially by the organism visited, the thighs: the thighs are kept together and tight. ( 19 ) IN Bahadursingh v. State of Madhya pradesh, 1991 Crl. LJ 753, it was held that in a case of similar fact situation, where at the time of grazing of cattle near the field, the alleged incident said to have happened, no doubt acquittal was recorded since the medical evidence had not supported the inference of rape and the prosecutrix had not spoken about the coitus specifically. ( 20 ) IN Sakariya v. State of Madhya pradesh, 1991 Crl. LJ 1925, it was held that: where the Chemical Examiner s report negatives so far as seminal stains and presence of spermatozoa in vagina and the allegation of victim having been dragged towards place of occurrence not proved as not even a scratch was found on her body. It was held that the accused entitled to be acquitted. It was also further held that the statement of the accused containing plain denial and false implication, subsequent suggestion by defence lawyer to prosecutrix about consent on her part, does not amount to admission that accused was guilty. ( 21 ) IN Shankar Tukaram v. State of maharastra, 1977 Crl. LJ 476, it was held that penetration in vulva must be established, medical evidence showing that congestion was quarter of an inch from vulva and conviction under Section 376 was set aside and accused was convicted under Section 376 read with Section 511 of I. P. C ( 22 ) THE decision in State of Maharastra v. Abdul Hafiz, 1998 (2) ALD (Crl.) 278 (SC) = AIR 1998 SC 2382 , was strongly relied on by the learned Counsel for the appellant-accused, wherein it was held that the allegation of the prosecution that rape was committed by eight persons and that too twice and that accused had pushed prosecutrix out of running train after giving kicks. However, except a small incised wound on her right hand and some minor superficial abrasions no other injury was found on her person. No evidence to show that prosecutrix raised shouts while accused were taking her forcibly to railway yard. There is possibility of prosecutrix going with accused willingly and involving accused falsely with ulterior motive and infirmities in prosecution evidence. Acquittal of accused was justified. No evidence to show that prosecutrix raised shouts while accused were taking her forcibly to railway yard. There is possibility of prosecutrix going with accused willingly and involving accused falsely with ulterior motive and infirmities in prosecution evidence. Acquittal of accused was justified. ( 23 ) IN Dilip and another v. State of m. P. , 2001 (2) ALD (Crl) 706 (SC) = AIR 2001 SC 3049 , it was held that in the instant case gang rape was alleged to have been committed at 2. 00 p. m. Truthfulness of version of prosecutrix being doubtful, cannot be relied upon and in those circumstances, the accused be entitled to acquittal. ( 24 ) IN Sudhansu Sekhar Sahoo v. State of Orissa, 2003 (1) ALD (Crl.) 360 (SC ). It was held that the evidence of prosecutrix can be the sole basis for conviction and she cannot be treated as accomplice and she is only an injured person in the incident. But the broad probabilities in the case do not conclusively prove the offence of rape. Prosecutrix asserted that she was a virgin but the medical evidence prevailed that she was habituated to sex. There is also a delay in giving the first information to the police. No injuries found on her body. Held, in the circumstances the appellant is entitled to benefit of doubt. ( 25 ) IN Vimal Suresh Kamble v. Chaluverapinake APAL S. P, 2003 (1) ALD (Crl.) 314 (SC), where the conviction based on the sole evidence of the prosecutrix, the chemical analysis report does not show the presence of any blood or semen on the clothes of the accused or of the prosecutrix or even on the bed-sheet. The victim had no injuries on her body. She took bath soon after the incident and went to sleep. In the circumstances, conviction cannot be based on the mere testimony of the prosecutrix whose evidence does not inspire confidence. ( 26 ) SUBMISSIONS at length were made about the broad probabilities and it was contended that the entire evidence to be scanned in the matters of this nature with care and caution. In the circumstances, conviction cannot be based on the mere testimony of the prosecutrix whose evidence does not inspire confidence. ( 26 ) SUBMISSIONS at length were made about the broad probabilities and it was contended that the entire evidence to be scanned in the matters of this nature with care and caution. ( 27 ) THE learned Counsel for the appellant-accused also placed strong reliance on Joseph s/o Kooveli Foulo v. State of kerala, 2000 (2) ALD (Crl.) 481 (SC) = JT 2000 (6) SC 195, Para 15: the charge under Section 376, IPC, is mainly fastened upon the appellant on the last seen together theory. The factum of rape of the deceased is sought to be proved from Ex. P. 20, a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should have had sexual intercourse before her death. Ex. P. 21, chemical report, also showed that semen was detected in one of the under skirts found on the body of the deceased. Ex. P. 8, certificate issued by P. W. 15, the doctor, also showed that the accused appellant was potent. But in the Report, Ex. P. 21, it was specifically stated that the dhoti of the appellant, subjected to chemical examination, contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grownup lady and in the process, some injuries would have been found on the vaginal/private parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years of age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. The deceased was stated to be of about 26 years of age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, ipc. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, ipc and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside. ( 28 ) THE learned Counsel for the appellant-accused also placed strong reliance on Pratap Misra v. State of Orissa, AIR 1977 SC 1307 , and Para-8 reads as under:"in the first place, the admitted position is that the prosecutrix is a fully grown up lady and habituated to sexual intercourse and was pregnant. She was experienced inasmuch as she had acted as a midwife. It is true that the learned Sessions Judge was impressed with the demeanour of this witness, but that by itself is not sufficient to prove the case if the allegation of the prosecution suffers from inherent improbabilities. The opinions of medical experts show that it is very difficult for any person to rape singlehanded a grown up and an experienced woman without meeting stiffest possible resistance from her. In the instant case, according to the evidence given by P. W. 1, a-1 entered the room and committed sexual intercourse with very great force and violence against her consent. Indeed if this was so we should have expected the stiffest possible resistance from her resulting in injury over the penis or scrotum of the accused or abrasions over other parts of the body caused by the nails of the prosecutrix. The accused were examined by p. W. 9 who did not find any injury over the penis or scrotum and he does not say that he found any injury on any other part of the body. This is rather an important circumstance which negatives the allegation of rape. The accused were examined by p. W. 9 who did not find any injury over the penis or scrotum and he does not say that he found any injury on any other part of the body. This is rather an important circumstance which negatives the allegation of rape. The prosecutrix knew full well that the appellants had entered the room with evil intention from the fact that her husband was dragged away to the verandah and the door was bolted by A-l. In these circumstances we fail to see why the prosecutrix should have silently abided to have the intercourse with the appellant without putting up any resistance, except shouting, particularly when the prosecutrix was a fully grown up lady and experienced not only in sexual intercourse but also in the art of midwifery. She knew that she was pregnant and if any violence was caused to her it may lead to abortion. This circumstance would naturally impel her to put up the stiffest possible resistance against A-l who was single-handed and was not armed with any weapon which may have silenced the prosecutrix. The theory propounded by the learned Sessions Judge was that as the appellants were N. C. C. students and sturdy persons the prosecutrix may have found it futile to put up any resistance and may have decided to submit to the onslaught on her. Such a course of conduct is wholly improbable, particularly in the case of grown up and an experienced lady like P. W. 1. Taylor, in the Principles and Practice of Medical Jurisprudence, Vol. 11, dealing with the cases of rape on a grown up woman observes as follows. "unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of struggle to avoid sexual contract or penetration, and may well feel uncertainty about the real nature of an alleged assault in its absence. A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent. . . . . Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent. . . . . Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The ageing of bruises is, as was indicated in volume I, a matter of some uncertainty in the absence of microscopy. Strong corroborative evidence of a struggle might be obtained from an examination of the accused for similar marks or bruises or scratches about the arms or face, and possibly even about his penis, though this is less likely". @ page-SC 1314"though injury is most unlikely to the penis, a man may have had his face scratched or have been bitten during a sex assault. The clothing may bear some contact traces of the woman-hairs, vaginal secretion or blood, and, though of less significance, seminal stains". The medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellants. From this the only irresistible inference can be that the prosecutrix was a consenting party which would be reinforced by other circumstances to which we shall refer hereafter. ( 29 ) IT is no doubt true that P. W. 1 had been in the habit of filing certain cases or giving certain reports. P. W. 1 is related to the accused as daughter by courtesy. The ground of attack is political rivalary. This court is not inclined to accept this defence that on the ground of these political factions, p. W. 1 would have gone to the extent of implicating the accused in such heinous crime. It is no doubt true that there is no corresponding injury on the breast of P. W. 1, though P. W. 1 deposed about it. P. W. 1 might have given some exaggerated versions relating to the causing of bleeding injuries on her body and the other aspects. It is no doubt true that there is no corresponding injury on the breast of P. W. 1, though P. W. 1 deposed about it. P. W. 1 might have given some exaggerated versions relating to the causing of bleeding injuries on her body and the other aspects. It is also no doubt true that medical evidence available on record would go to show that there was no sexual intercourse. The explanation given by the prosecution is that in between there is a gap of about thirteen hours. It is for P. W. 8, to explain and the prosecution had not put any questions in this regard. On the mere ground that always direct evidence has to prevail over medical evidence, the evidence of P. W. 8 cannot totally be discarded and in view of the medical evidence, and the exaggerated versions given by P. W. 1, this Court is of the considered opinion that it is doubtful, whether there was completed act of commission of offence so as to convict the accused under Section 376 of the Indian penal Code. The episode does not stop there. The reason being at the scene of incident, p. W. 1 raised cries and in view of the fact that some thing happened, immediately p. W. 3 rushed to the spot, he wanted to apprehend the accused, P. W. 4 and P. W. 6 came over there and P. W. 1 was handed over to them for the purpose of informing the same to her parents. The series of events which are post incidental events would definitely and clearly corroborate the evidence of P. W. 1, at least to some extent that the incident as spoken by the prosecution witness happened, but the only question is whether it is a completed act of rape to convict the accused under Section 376 of i. P. C. , or not. In the light of the evidence of P. W. 1 and also the evidence of P. W. 8, this Court is of the considered opinion that though the conviction under Section 376 of i. P. C. cannot be sustained. It is a fit case, where the accused-appellant is liable to be convicted under Section 376 of I. P. C. read with Section 511 of I. P. C. ""30. It is a fit case, where the accused-appellant is liable to be convicted under Section 376 of I. P. C. read with Section 511 of I. P. C. ""30. In the light of the foregoing findings recorded by this Court and also in the light of the clear findings recorded by the learned Judge, this Court is of the considered opinion that the appellant-accused is liable to be convicted under Section 376 read with Section 511 of I. P. C. No doubt, on the question of quantum of sentence, it is stated that the accused is having wife and four children and he had to maintain the family and taking the over all facts and circumstances into consideration, the appellant-accused is convicted under section 376 read with Section 511 of I. P. C. and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/- (Rupees one thousand only), in default of payment of fine, to suffer simple imprisonment for a period of six months. Thus, the appeal is partly allowed and the conviction and the sentence are modified accordingly. In view of the fact that the accused had undergone imprisonment for sufficiently a long time, it is needless to say that the period of detention undergone by the accused is to be set off, against the sentence of imprisonment, under section 428 of Criminal Procedure Code. It is further brought to the notice of this Court that the fine amount of Rs. 1,000/- was already paid by the appellant-accused. The bail bonds shall stand cancelled and the accused to surrender to serve rest of the sentence.