PANIBHUSAN BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) "Rape or Raptus is when a man has carnal knowledge of a woman by force and against her will" (Co. Ldtt. 123 b), or, as expressed more fully, "rape is the carnal knowl edge of any woman, above the age of ten years, against her will, or of a woman child, under that age, with or against her will" (Hale P.C. 628). In India, as set out in clause Five of Section 375 of Indian Penal Code, 1860 (inshort, 'IPC'), the age relating to consent is sixteen years, at present. Original age of ten has been substituted from time to time in 1891 and 1925 by twelve years, and fourteen years since 1949 it is sixteen years. The essential words is an indictment for rape are rapuit and carnaliter cognovit. Rape is no longer consid ered as sexual assault by a man on the victim. Its scar on account of physical action may be obliter ated, but it leaves in an indolent state of mind of the victim which is never healed. Here the victim whose name we do not propose to indicate, has suffered ignomity of sexual assaults, as is claimed, by three persons, present appellants. Such ant act has been described as "gang rape" in Section 376, IPC. By Explanation I, it is provided that when a women is raped by one or in a group of persons acting in furtherance of their common intention, each of the person is deemed to have committed gang rape within the meaning of Sub-Section (2) of Section 376. A higher punishment is provided by enacting that the imprisonment shall be for a term not less than ten years, or may be for life and with liability for fine also. The Explanation has been introduced by the legislature with a view to effectively deal with the growing menace of gang rapes.

(2.) The three appellants have been sentenced to undergo imprisonment for life by learned Ses sions Judge, Sundargarh on the basis of their conviction under Section 376, IPC. Additionally, they were sentenced to undergo rigorous impris onment for five years for the offence punishable under Section 3(1) (xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atroci ties) Act, 1989 (in short 'Atrocities Act').

(3.) Appellants Pani Bhusan Jeet Sankar and Dinabandhu call in question their conviction on the ground that the medical evidence clearly fal sifies the prosecution case. Strong reliance is placed on the evidence of doctors (P.Ws 13 and 14) for the purpose. It was submitted that their evidence showed absence of recent sexual inter course, absence of smegma, and absence of injury on the prosecutrix (PW 12).