MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 3. 12. 98 passed by the learned Special Judge S. C. /s. T. (Prevention of Atrocities) Act Cases cum Addl. Sessions Judge, Pratapgarh, convicting the appellant of offence under Section 376 IPC and sentencing him to `seven years' rigorous imprisonment and to pay a fine of Rs. one thousand and in default, to further undergo three months' rigorous imprisonment. The appellant has also been convicted for the offence under Section 366 IPC and sentenced to five years' rigorous imprisonment and to pay a fine of Rs. five hundred and in default, to further undergo two months' rigorous imprisonment. He has further been convicted of offence under Section 3 (2) (v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, hereinafter referred-to as `the S. C. /s. T. Act' and sentenced to imprisonment for life and to pay a fine of Rs. five hundred and in default, to further undergo two months' simple imprisonment. All the substantive sentences have been ordered to run concurrently.
(2.) THE brief facts of the case are that on 20. 06. 1992 at about 7. 30 AM, one Mst. Laxmi lodged an oral First Information Report at Police Station, Pratapgarh, stating inter alia that on the last evening at about 8 PM, she alongwith three other girls namely Kanta, Bhuri and Kani were at the Bus Stand, Banswara awaiting bus for going to Surpur. At that time, the truck bearing No. NP41-A5271 arrived and the driver of the truck offered them to board the truck and assured that he would drop them at their respective destinations, Accordingly, they boarded and occupied the seats in the cabin of the truck. THE driver did not stop the truck at Surpur inspite of their protest and proceeded towards Suhagpura. THE truck was stopped on the way prior to Suhagpura. THEy were asked to get down. Another truck also arrived there. THE accused persons asked Bhuri and Kanta to board the other truck. THEn, both the trucks moved together and passed through village Suhagpura. THEy stopped near village Timarva. THE driver of the truck accused Pappu Khan committed rape on her in the cabin of the truck. On resistance, she was being assaulted. She also stated that accused Balu Committed rape on Mst. Bhuri. After committing rape, they were being taken in unknown direction. At about 5 AM when truck stopped at Dhariavad Octroi Outpost, they saw some policemen standing. Seeing them, they raised cry which attracted the attention of the policemen. THE driver and the Khalasi seeing the policemen jumped the truck and ran away. THEy got down from the truck and narrated the entire incident to the policemen. On this information, police registered a case of the offences under Sections 363, 366 and 376 IPC and Section 3 (2) (v) of S. C. /s. T. Act. Both the trucks were seized. THE informant and the other girls were sent for medical examination. THE accused persons were arrested. After usual investigation, police laid a chargesheet against the appellant Pappu Khan and accused Balu for the aforesaid offences. The accused appellants denied the charge and claimed trial. The prosecution in support of its case examined as many as eight witnesses and produced number of documents. Both the accused persons in their statements u/sec. 313 Cr. P. C. stated that they have been falsely implicated. As Mst. Bhuri did not appear in the witness box, the learned Judge found no evidence against the accused Balu and, therefore, acquitted him of the charges levelled against him. Relying on the testimony of prosecutrix Mst. Laxmi corroborated by medical evidence, the learned Judge convicted and sentenced the appellant as stated above. Assailing the conviction it is contended by Mr. B. N. Kalla, learned counsel appearing for the appellant, that the learned trial Judge has committed error in convicting the appellant on the sole testimony of Mst. Laxmi without any corroborative evidence. Alternatively, it is submitted that it was case of consent and, as such, the conviction of the appellant for the offence u/s. 376 IPC and allied offences is not sustainable. In support of the proposition that the conviction cannot be sus-sustained for the offence under Section 376 IPC without corroboration of the statement of the prosecutrix, learned counsel has placed reliance on a decision of the Apex Court in Bharwada Bhoginbhai Harjibhai vs. State of Gujarat (1 ). We have carefully gone through the said decision. In our view, the learned counsel has completely misread the decision. In para 11 repelling such contention, the court observed that on principle, the evidence of a victim of sexual assault stands at par with evidence of an injured witness. Just as a witness who has sustained an injury, is the best witness in the sense that he is least likely to excul-pate the real offender, the evidence of victim of sex offence is entitled to great weight even without corroboration. The court further observed that to insist on corroboration of the evidence of a victim of a sex offence is nothing but adding insult to the injury. The court held thus- " We are, therefore, of the opinion that if the evidence of the victim does not suffer from any basic infirmity, 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 follo-wing qualification; Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the `probabilities factor' is found to be out of tune. " Thus, as a general rule, the evidence of a victim of sexual assault, does not require any corroboration unless the evidence of the victim suffers from any basic infirmity or in a case, where a woman having attained the majority, is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation or in a case when the `probabilities factor' is found to be out of tune.
(3.) WE have scanned the prosecution evidence. PW 7 Mst. Laxmi in her statement has given the narration of the incident as given in the F. I. R. which we have already stated. Thus, it is not necessary to re-state the same. In the cross examination, there is no suggestion that the appellant indulged in sexual inter-cou-rse with her consent. She of-course admitted that she alongwith other girls boarded the truck on their own but this can not be construed as consent to sexual intercourse. They boarded the truck as the accused had told that he will drop them at their respective places. Nothing has been elicited in the cross examination on the basis of which it can be said that her evidence suffers from any infirmity, much less the basic infirmity. Thus, in our view, her statement is credit worthy. Pw 1 Govindlal Tiwari, a police constable, has stated that on 20. 6. 92, he was posted at Octroi Outpost of Dhariavad alongwith some other police personnels. At that time, two trucks arrived and they stopped at the barrier of the Octroi Outpost. They heard the cries for help of some girls from the truck. They rushed to the truck. Seeing them, the truck driver and the Khalasi ran away leaving the truck on the spot. The girls were in distress and weeping. He alongwith other police constables brought them down from the truck. The girls disclosed that the accused persons committed rape on them. On a specific question, it was disclosed by Mst. Laxmi that Pappu had committed rape on her. Mst. Bhuri also disclosed that she was being raped by Balia. He brought the girls to the Police Station. Nothing has been elicited in the cross examination to discredit the statement of this witness. Pw 2 Narainlal has stated almost in the same line. Pw 3 Ashok Kumar and Pw 4 Narainlal did not support the prosecution case and, as such, they were declared hostile. Pw 5 Dr. Sukesh Sharma has stated that on 20. 6. 92 on the request of the police, he medically examined Mst. Laxmi and Mst. Bhuri. He opined that as per the report of Dr. K. L. Porwal, Radiologist, Mst. Laxmi was 22 years of age and she was habitual to sexual intercourse. He also proved the injury report Ex. P. 5. He noticed following injuries on her person: " 1. Swelling 15cm x 10. 5cm on the lest elbow; 2.Swelling 12. 5cm x 4. 5cm on the right shoulder; 3.Swelling 5cm x 4cm on the right leg upper 1/2 ant. aspect. " ;