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1. In the above two appeals, appellants Balaram and his son Bhagirath assail their conviction under Section 376(2)(g) of the Indian Penal Code, and sentence of rigorous imprisonment for five years and ten years respectively.

2. Prosecution case is, on 17-11-1989 about 5 p.m. the prosccutrix (P.W. 1) an unmarried girl aged 22 years reached the village of appellants and demanded Rs. 600/- from appellant Balaram which the latter was obliged to repay. Since he did not pay the amount, there was altercation between the two. When night fell appellant Balaram asked her to stay in his house and take money in the morning. The prosccutrix slept on a cot in the passage room of the appellants. In the night about 10 p.m. it was alleged that she was raped by the appellants and three other unknown persons of that village in succession. She sustained injuries on her neck chest and breast. She could not report the matter during the night hours, but in the next morning about 9 a.m. on 18-11-1989 she reported the matter at Nimapara Police Station. She was sent to Puri for medical examination at 4 p.m. At Puri she could not be medically examined on that day but on. the next day at 10 a.m. she was medically examined. The doctor with reference to the injuries on her person opined that rape could not have been ruled out.

Let us see if the present case in hand satisfies the above requirements.

6. For the present, we may first deal with the Doctor's evidence and his opinion as to the injuries on the person of P.W. 1 (injury on private part being separately dealt with). Mr. Dhal submitted that such injury could not have been possible during ravishment. The doctor found a liner injury of the size of W at the right side of the neck. There were scratches and contusions of reddish blue colour multiple in number regular in shape present on both the side of the chest and the breast. The above injuries were simple in nature and, according to him, probably caused by finger nails and pressure by lips.

I may point out that presence of such injuries on the person of the victim does not conclusively prove rape but it may prove that the victim had put a resistance. In the present case doubt arises with regard to the injuries on the victim for the reason that, according, to her, all the three unknown persons of who one pressed her mouth, the other caught hold of her arms and the third the legs and it was appellant Bhagiratha who first competed rape. She admitted in her evidence that she was completely over-powered and thus could not struggle. So, putting up any resistance did not arise. Therefore, the question arises as to how she sustained these injuries. The Doctor opined that the injuries were probably caused by finger nails and pressure by lips. In her evidence, the prosecutrix stated that, Bhagirathi was the first person who committed rape and he squeezed the breasts. She nowherew stated that because of this sqeezing she received injuries on her breasts. She also did not state that the other four persons who committed rape caused injuries by their finger nails. When P.W. 1 herself did not state how she received these injuries and who caused the injuries and whether the injuries were caused during the act, the Doctor's opinion that such injuries were probably caused by finger nails and presssing of lips cannot be said to be corroborative evidence to the evidence of the prosecutrix. The Doctor's evidence in this regard is only an opinion. In the absence of the statement of F.W. 1 before the court, this opinion becomes hyphothetical.

Secondly, the glaring inconsistency with regard to the injuries is, omission in the F.I.R. It is strange to think if she was ravished by five persons one after the other in succession and sustained the injuries on her upper of the body, this material aspect could not have been omitted in the F.I.R., where she simply stated that she was feeling pain in her breast. So much so the investigating officer (P.W. 5) who at the first instance saw P.W.1 at the police station also did not state to "have seen any mark of injury on the neck or he stated that she complained about such injuries having been received during rape.