JUDGMENT
M.S. Patil, J.
1. The Sessions Judge, Tumkur, having acquitted the accused-respondents 1 to 5 of the charge of the offences of abduction, rape and robbery, punishable under Ss. 366, 376 & 395 IPC, the State has filed this appeal.
2. The facts of the case have been set out elaborately and in more detail in the judgment under appeal passed by the Sessions Judge. Briefly stated the facts of the prosecution, as tried to be made out at the trial from the mouth of the witnesses examined at the trial, may however be stated as follows :
PW-1 Usha is the prosecutrix and the complainant in the case. She having been married to one Pooja Venkatesh, as employee working in Indian Telephone Industries at Bangalore, was residing with him at Bangalore PW-7 Ramaiah being her father and an employee in the office of Karnataka Electricity Board at Tumkur, while working as a lineman, was residing in K.E.B. quarters allotted to him at Tumkur. He was however not keeping good health. PW-1 Usha was therefore going to Tumkur off and on to see him. On 24-7-1980, she went to Tumkur by a bus. When the bus reached the bus-stand there at about 10 p.m., she got down from the bus and engaged autorickshaw bearing registration No. MYT 5117 belonging to PW 4 Mohammed Azinullabiuddin driven by A-1 Mehaboob, to take her to her father’s house situated at K.E.B. quarters. A-1 drove the vehicle for some distance and he then gave a loud whistle. Immediately thereafter four persons including A-2 Rasheed, A-3 Khaleel and A-5 Krishna came near the autorickshaw and while two got into the autorickshaw from one side, the other two got into it from the otherside and A-1 thereafter, instead of taking PW-1 to her father’s house at K.E.B. quarters, took her with the remaining four accused in the autorickshaw towards Kunigal Gate. When PW-1 Usha questioned A-1 as to why he was going towards Kunigal Gate, he told her that route also lead to KEB quarters. Another autorickshaw bearing registration No. MYT 5463 belonging to PW-3 Umapathy and driven by A-4 Jagadish also followed them. When the autorickshaw MYT 5117 driven by A-1 reached the circle near the General Hospital, one of the four persons who had got into the autorickshaw got down and got into autorickshaw MYT 5463 which was coming behind following. Thereafter, one of the remaining three, who were sitting on either side of PW-1, caught hold of her neck and threatened to cut her throat if she resisted and snatched away an amount of Rs. 25/- as also Mangala-sutra (two Talis and gold beads) with black beads worn by her. In the meanwhile, when the two autorickshaws reached a nala near Marlur on the road to Kunigal, A-1 stopped the autorickshaw and thereafter A-1 and the remaining four accused took PW-1 to a ditch by the side of a garden land and one after another started having forcible sexual intercourse with her. PW-5 Ramachandra, a driver of another autorickshaw MYT 5073, and PW-14 Althaf Pasha, who had earlier seen PW-1 being taken in the autorickshaw MYT 5117, probably suspecting evil intentions of the accused were found making inquiries with the persons going in the vehicles passing on the road as to in which direction the autorickshaw, had gone. When PW-17 Police Constable Chandraiah of Tilak Park Police Station and another D.R.R. Police Constable one Narahari Rao, while going on night patrolling duty, learnt from PWs-5 & 14 that a girl, meaning thereby PW-1, had been taken in the autorickshaw with some evil intention, PW-17 and his companion Narahari Rao went towards Kunigal Gate. When they together went about a kilometer ahead of Kunigal Gate, they saw a group of persons coming from the side of the field. When they went ahead, they also heard crying voice of PW-1 coming from the side of nala and when they went direction, A-4 and A-5 who were present managed to run away. In the meanwhile PWs-5 & 14 also came there and with the and help of other people they caught hold of A-1, A-2 & A-3 and on enquiry, when PW-1 told that she had forcibly been ravished by the accused, after questioning A-1 to A-3 and the names of those other who ran away, PW 17 and Narahari Rao took PW-1 along with A-1 to A-3 in the autorickshaw MYT 5117 to Tilak Park Police station and produced before the Head Constable in charge of the police station. It was round about 1.30 a.m. PW-1 was almost exhausted. When the Head Constable in charge of the police station told PW-17 that the place of incident was within the jurisdiction of Tumkur Rural Police Station and advised him to take them to the concerned police station, PW-17 took them in the same autorickshaw MYT 5117 to the Tumkur Rural Police Station and produced them before the Sub Inspector of Police and orally reported him of the incident. It was about 2.30 a.m. on 25-7-1980. PW-18 G. Parameshwarappa, the PSI, who was in charge of the police station questioned PW-1 and recorded her complaint as per Ex. P-1 and on the basis of the same he registered a case in Cr. No. 71/80 for the offences punishable under Ss. 366, 376 & 395 IPC and issued FIR to the Court. He arrested A-1 to A-3 and sent them to the General Hospital, Tumkur, for medical examination of their person. He also sent PW-1 with a lady constable PW-12 G. T. Parvathamma to the hospital for medical examination. Later on, when A-4 was brought and produced before him, he sent him also to the hospital for medical examination. Thereafter, when the C.P.I came to the Police Station, he handed over the investigation of the case to him. PW-19 N. Veerabhadraiah, the CPI, verified the investigation so far made by the P.S.I. and thereafter seized the auto MYT 5117 under Panchanama Ex. P-11. He examined the place of incident and drew up panchanama. Later on when PW-1 returned from the hospital, he seized blouse MO-2 worn by her, it was torn and after medical examination he sent A-1 to A-4 to the court and obtained police custody remand. On 26-7-1980 he also seized another autorickshaw MYT 5463 and recorded the statements of witnesses including PWs-5 & 14. On 27-7-1980, he recorded the statement of PWs-3, 4, 6, 7, 17 and others and thereafter sent the four accused to court and obtained judicial custody remand. Later on when he received petty-coat MO-1 of PW-1 as also underwears MOs-7 to 10 worn by the accused from the Medical Officers, he seized them and sent them to Chemical Analyser, Forensic Science Laboratory, Bangalore. On 22-9-1980, he arrested A-5 and on the information furnished by him he recovered a pair of gold Mangalyas MOs-3 & 4 produced by PW-13 Shivanna and after completing the investigation, he sent up the charge-sheet against the accused.
3. These defence of the accused was one of total denial. The further defence tried to be made out was that PW-1 having been abandoned by her husband had taken to prostitution and the police had got foisted a false case on them, suggesting thereby PW-1 herself being a woman of immoral character no relevance at all could be placed on her evidence.
4. PW-2 B. Ghouse, PW-5 Ramachandra and PW-14 Althaf Pasha, who according to the prosecution had seen PW-1 being taken into autorickshaw, did not support the prosecution. They were totally hostile. PW-13, who according to the prosecution had produced MOs-3 & 4, also did not support the prosecution. The mahazardars, i.e. the panchas, to the panchanama regarding their seizure having not been examined and there being no evidence regarding the test identification parade in respect of A-4 & A-5, the learned Sessions Judge held that there was no reliable and satisfactory evidence against them to connect with the charge of the offences as levelled against them. In that view, he held they were entitled to be acquitted. So far as A-1 to A-3 are concerned, he held, although according to the prosecution all the three of them had been taken into custody by PW-17 and produced before the Head Constable in charge of Tilak Park Police Station with an oral report of the incident, the Head Constable of Tilak Park Police Station had not been called and examined, therefore, the prosecution version of the case that they were so apprehended and produced was not free from doubt. He also held that apart from the fact that when and where the complaint Ex. P-1 came into existence itself was doubtful, PW-1 was also probably not the author of the same. In reaching that conclusion he observed : if PW-1 had been ravished by a number of persons without her consent forcibly or against her will, she could not have been in a position to make a complaint as a normal persons as has been deposed to by the P.S.I. PW-18 and admittedly when she did not mention the names of any of the persons who allegedly committed the rape on her, in the complaint Ex. P-1 names of not only A-1 to A-3 who are said to have been apprehended were mentioned, but the names of A-4 and A-5 who according to the prosecution had run away from the place had also been mentioned and admittedly PW-1 had not given the names of any of the accused persons when the complaint Ex. P-1 was written, therefore, it was doubtful if PW-1 was the author of the complaint. He also further observed that it was also highly improbable to believe that A-1 to A-3 would have either readily given their names on questioning by PW-17 or the names of A-4 and A-5, as has been mentioned in the complaint Ex. P-1. Besides, the evidence as to which of the three accused were apprehended on the spot and which of them had run away was discrepant, in that while according to PW-1 A-1, A-3 & A-4 were caught on the spot and A-2 & A-5 had run away, according to PW-17 and PW-18, A-1 to A-3 had been caught on the spot and A-4 & A-5 had run away. Therefore, it was highly doubtful if any such incident had at all taken on the night of 24-7-1980 in the manner as deposed to by PW-1 and he held the prosecution had failed to bring home the guilty of charge of any of the offences levelled against the accused. In that view, he having acquitted, the State had filed this appeal.
5. Mr. Nanjundaiah, learned Additional State Public Prosecutor appearing for the State, fairly and very rightly too did not press the appeal as against A-4 & A-5 as also the charge of the offence of dacoity levelled against the accused. He however argued, even if the evidence regarding the recovery of MOs-3 and 4 being not satisfactory and there being no evidence regarding the test identification parade corroborating the evidence of PW-1 before the court, the case against A-4 and A-5 is views with suspicion, there is no reason whatsoever to discard the evidence of PW-1 so far as A-1 to A-3 are concerned. He submitted, although PW-1 appears to have made a mistake in pointing out A-4 instead of A-2 as among the three accused (A-1 to A-3) who wore apprehended on the spot, may be due to forgetfulness because of the lapse of time, in view of the evidence given by PW-17, who apprehended A-1 to A-3, which also finds corroboration not only from the evidence of the PSI PW-18 but also from the fact that they were also produced before the Medical Officer for medical examination, there is no room for doubt that the evidence of the happening as given by PW-1 was true and there could also have been no reason for a married woman like PW-1 to tell so with all the risks of she losing the love and affection of her husband or being looked down by the society including the members of her own family relatives, friends and neighbours, and PW-1 has given evidence in a straight forward manner as to what that had all happened. Therefore, the court below was not justified in disbelieving her evidence, particularly when the evidence given by her also finds corroboration not only from the earliest statement made by her before PW-17, but also from her statement made before her father PW-7 as recorded in the complaint Ex. P-1, and the court below was not justified in making much about the so called discrepancies here and there about the details of the happening while rejecting her evidence and the order of acquittal so far as A-1 to A-3 are concerned cannot be sustained and the appeal therefore deserves to be allowed and A-1 to A-3 discoursed to be convicted of the charge of the offence of abduction and rape as levelled against them.
6. Mr. Sridhar Hiremath, learned counsel appearing for the respondent-1, on the other hand argued that the court below, on proper appreciation of the evidence, having found the evidence not reliable and acceptable, in a case of acquittal like this, the appellate court would be slow in interfering with the order of acquittal. He also submitted, not only it is very difficult for any person to commit rape single handed on a grown up and experienced woman without meeting stuffest possible resistance from her, but if, as alleged by the prosecution and tried to be made out, a number of persons had committed rape one after the other without consent forcibly or against her will and in a place like ditch in a nala, there are chances of the prosecutrix as also the persons committing rape sustaining injuries, but no injuries were found either on the private part of the body or any other part of the body of PW-1 or on the accused persons coming in contact with rough surface of the ground, much less any injuries on the face or breast of PW-1, leave aside no injuries whatsoever were found on the person of the accused and not even any stains of semen or blood on the petty coat worn by PW-1 or the under-wears worn by them, and that showed the prosecution version of the case as tried to be made out was totally false and therefore there being no error in the appreciation of the evidence made by the court below, three are no valid reasons for interfering with the order of acquittal passed by the court below and the appeal therefore deserves to be dismissed.
7. As stated earlier, Mr. Nanjundaiah, learned Addl. State Public Prosecutor, having not pressed the appeal against A-4 and A-5, we are concerned with the case of there prosecution only as against A-1 to A-3.
8. There is no doubt as argued by Mr. Sridhar Hiremath, learned counsel for the accused-respondents, in an appeal against the order of acquittal, the appellate court would ordinarily slow in interfering with the order of acquittal, but the appellate court has full power to review the evidence upon which the order of acquittal is founded, as pointed out by their Lordships of the Supreme Court in the case of Sanwat Singh v. State of Rajasthan, ; different phrases used in some of the judgments of the Supreme Court like ‘substantial and compelling reasons’, ‘good and sufficient cogent reasons’ and ‘strong reasons’ were not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion. However, as pointed out by their Lordships, in exercising that power, the appellate court, while dealing with an order of acquittal, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal, but it must express those reasons in its judgment, which lead it to hold that the acquittal was not justifiable. In a later decision in the case of Ramabhupala Reddy v. State of Andhra Pradesh , while reiterating the law laid down in the case of Sanwat Singh, the Supreme Court has further laid down that another test that the appellate court must bear in mind is the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal and therefore if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the findings of the trial court. This is the law persistently laid down by the Supreme Court and followed in the subsequent decisions including the decision in the case of Bhim Singh v. State of Maharashtra, . The same view has been reiterated by the Supreme Court in the case of Ajit Singh v. State of Gujarat . Keeping in view this position of law and bearing in mind the guidelines indicated by their Lordships of the Supreme Court, we shall now proceed to consider the evidence adduced on behalf of the prosecution and see how far the evidence given by the witnesses regarding the occurrence is satisfactory, reliable and trustworthy, and if the Sessions Judge has committed any error in approaching the case and appreciating the evidence adduced on behalf of the prosecution.
9. Before doing so, there is not doubt the decision in the case of Pratap Mishra v. State of Orissa, relied upon by the learned counsel appearing for the accused-respondent does support the contentions advanced by Mr. Sridhar Hiremath that the absence of injuries either on the accused or on the prosecutrix shows the prosecutrix did not resist; but the absence of injuries either on there prosecutrix or on the accused is not by itself sufficient to hold that PW-1 was a consenting party. As stated by her, she was threatened and bodily carried to the ditch in the nala and raped. It may be being frightened she was unnerved or for fear of being assaulted she had not resisted, therefore, the fact that there were no injuries either on the prosecutrix or on the accused is no ground or a reason to hold that no such sexual offence had been committed. Here in the case on hand, as a matter of fact, the learned Sessions Judge has not disbelieved the evidence of occurrence as given by the prosecutrix PW-1, either because the evidence given by her was not corroborated by the evidence of the Medical Officer or no injuries on her person were found, but dealing elaborately with this aspect of the case, in the light of the contentions urged before him, he observed : although PW-11 Dr. Siddamma had stated if a criminal assault is made and there is resistance on the part of the victim there is resistance on the part of the victim there will be injuries on the body of the victim and if 3 or more persons commit criminal assault on a woman there will be some pain felt by the victim and PW-1 did not complain before her any pain on her private part, but as stated by the medical officer herself further there would be such pain or injury only if the victim is virgin and admittedly PW-1 was a married woman and used to sexual intercourse, therefore, the fact there were no injuries on the person did not necessarily mean either the story of PW-1 regarding the incident was unreliable or that she was a consenting party. On this aspect, he finally concluded, –
“Thus, medical evidence in this case …. does not either probables or improbablise the evidence of PW-1 that she had been raped by the accused persons, and that the accused persons had sexual intercourse with her forcibly against her will and without her consent ……..”
The learned Sessions Judges has disbelieved the evidence of the occurrence as given by PW-1 and the corroborating evidence given by PW-17, not because of any inherent weakness or improbabilities in their evidence, but because of PWs-5 & 14 had not supported the prosecution and the Head Constable of Tilak Park Police Station before whom in the first instance PW-1 and the three accused were produced had not been called and examined and PW-1 admittedly did not know the accused and had not given their names although their names were found mentioned in the complaint Ex. P-1.
It is this erroneous approach and appreciation of the evidence of PWs-1 & 17 made by the Sessions Judge has resulted in miscarriage of justice. Merely because PWs-5 & 14 who, according to the prosecution had also gone to the place of incident and helped PW-17 and his companion Narahari Rao in apprehending the accused, had turned hostile and not supported the prosecution case, the evidence about it given by PWs-1 & 17 cannot be discarded. Some witnesses do turn hostile to the prosecution either as being won over by the accused or because of the sympathies towards the accused long after the happening. It is quite usual some witnesses turning hostile to the prosecution. Therefore, merely because some witnesses have turned hostile to the prosecution itself would not be sufficient to discard the evidence of other witnesses. The evidence of such other witnesses examined on behalf of the prosecution to prove the particular aspect of the case has to be considered independently and accepted or rejected on its merits and not because some of the witnesses examined on behalf of the prosecution to prove the particular aspect of the case have turned hostile.
10. We have gone through the evidence of PW-1 with utmost care, particularly having in view the defence version of the case tried to be made out affecting the character of PW-1, but for the suggestions in the cross-examination which she has also stoutly denied, there is absolutely nothing to even remotely suspect that she is a woman of such easy virtues. She has given evidence in detail as to the circumstance under which she happened to go to Tumkur and how A-1, who was present with the autorickshaw, was engaged to take to her father’s house and how after going a small distance he gave whistle and how four others got into the autorickshaw and how A-1 instead of taking her to the K.E.B. quarters took her towards Kunigal gate and how she was bodily taken to a ditch and how A-1, A-2 & A-3 committed rape on her. Of course, she has made some mistake in pointing out A-2 as one of the persons who ran away on the arrival of the police. However, the fact remains, as stated by PW-17, it is A-1 to A-3 who were apprehended on the spot and taken to Tilak Park Police Station. Therefore, no much importance can be given to this discrepancy in the evidence. There is every possibility of PW-1 making mistake in pointing out the accused because of the distance of time when she was examined in the court; but, however, that does not go to the root of the matter. Neither thereby the substratum of the prosecution case is shaken nor any way disturbed. Of course, as pointed out by their Lordships of the Supreme Court in the case of Rameshwar Kalyan Singh v. State of Rajasthan , the evidence of the complainant is treated somewhat along the same lines as the evidence of an accomplice requiring corroboration for variety of reasons, but as has been laid down in the said decision, the rule which according to the cases has hardened into one of law, is not that corroboration is essentially before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge and not that there must, in every case, be corroboration before a conviction can be based on the evidence of the prosecution case. After referring to the said decision in the case of Rameshwar, in the case of Bhoginbhai Harjibhai v. State of Gujarat , their Lordships of the Supreme Court observed :
“And whilst the sands were running out in the time-glass, the crime graph of offences against women in India has been scaling new peaks from day to day. That is why an elaborate rescanning of the jurisprudential sky through the lenses of ‘logos’ and ‘ethos’, has been necessitated. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged doubt, disbelief of suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turn-key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical”.
Proceeding further their Lordships also observed :
By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making to wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because :-
(1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred, (2) she would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehended that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved act as a deterrent.
In view of these factors the victims and their relatives are not to keen to bring the culprit to books. And when in the face of those factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on part with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offence, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). 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 following 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”.
11. Here in the case on hand, PW-1 is a married woman. Not only she has stated in detail as to circumstances under which she was taken towards the ditch and was ravished there, but the very fact that on coming to know of a girl having been taken in the autorickshaw with evil intention PW-17 went towards Kunigal-gate and actually found the autorickshaw and PW-1 present there with A-1 to A-3, and PW-1 also told him that the accused had forcibly ravished and the fact that A-1 to A-3 were also apprehended there on the spot and taken to the Police Station along with PW-1 goes a long way to show that there is some ring of truth in the evidence of the occurrence as given by PW-1. Of course, the Head Constable of Tilak park Police Station, before whom they were produced, in the first instance has not been called and examined. It is also not clear from the evidence adduced on behalf of the prosecution if the Head Constable made any entries about it in the Station House Diary or merely directed PW-17 to produce before the Tumkur Rural Police Station, but in view of the contentions advanced by the learned counsel for the accused-respondents, we considered it necessary to secure the Station House Diary of Tumkur Rural Police Station. The diary was produced at the hearing and the entries made thereunder showed that in fact PW-17 produced the three accused along with PW-1 before the Tilak Park Police Station and as directed he later on took them and produced in the Tumkur Rural Police Station at about 1.15 am and orally reported to the circumstance under which the accused were found. Although the Pancha regarding the seizure of the autorickshaw examined has not either wholeheartedly supported the details as to the seizure of the autorickshaw MYT 5117 as narrated in the panchanama Ex. P-11 have not been elicited from the mouth of the panch witness, but there is no denial of the fact that the autorickshaw in question was seized. PW-4 who is the owner of the autorickshaw has stated A-1 was not only the driver of the said autorickshaw in July, 1980, but the autorickshaw which should have been brought to his house by about midnight was not brought and on the next day, when he learnt that A-1 and others having taken a girl in the autorickshaw committed rape and the police had seized the autorickshaw in that connection, he went to Tumkur Rural Police Station and found A-1 was detained in the police station and the autorickshaw was also parked there. In this view of the evidence of PW 4, the non-examination of the Head Constable of Tilak Park Police Station loses its importance. The Sessions Judge was therefore not justified in disbelieving the evidence of PWs-1 & 17 merely because the Head Constable of Tilak Park Police Station had not been called and examined.
12. Of course, admittedly A-1 to A-3 and others, who participated in the commission of the offence were strangers, she did not know them by their names and she had no previous acquaintance and the names of all the three accused and A-4 & A-5 (with whom we are not now concerned) do find place in there complaint Ex. P-1. But, merely on that account the learned Sessions Judge was not justified in reaching the conclusion that either PW-1 was not the author of the complaint or no such incident had at all taken place. A-1 to A-3 being already in custody, there could not have been any difficulty in ascertaining their names and so mentioned in the complaint on the pointing of PW-1 as to whom among them was the driver of the autorickshaw and who had got into the same. It would appear the names had been ascertained on the spot when they were apprehended and that is quite clear from what has been stated in the complaint Ex. P-1. When confronted with that portion in the complaint Ex. P-1 marked as Ex. P-1(a), PW-1 has also stated in the cross-examination that she did state so before the police when her statement was recorded. The learned Sessions Judge appears to have not understood the implication thereof while reaching the conclusion that she was not the author of the complaint. Thus, the evidence given by PW-1 not only finds corroboration from the various circumstance like presence of PW-1 at odd hours at the place of incident along with A-1 to A-3 and the earlier statement made before PW-17 about the manner in which she was ravished, but also from the earlier statement made by her in the complaint Ex. P-1. If any more corroboration was also necessary that also is not wanting. PW-7, who is no other than the father of PW-1 and who claims to have returned back to the house on the next day of the incident, has stated that not only PW-1 was sitting weeping in the house, on being enquired, she also told that she had forcibly been taken in an autorickshaw on Kunigal Road and stripped off her clothes and humiliated. Of course, at that time she did not tell him in so many words that the accused had also committed rape on her, but he later on learnt that PW-1 had been forced to have sexual intercourse against her will on the previous night. The fact that she did not tell in clear words of the sexual offence committed on her before her father, in the circumstances, is no reason to hold that the evidence given by her in this behalf is not reliable or acceptable. The evidence so far discussed clearly brings home the guilt of the offences of abduction and rape punishable under Ss. 366 & 376, IPC as against A-1 to A-3. The learned Sessions Judge was, therefore, not justified in acquitting all the accused.
13. In the result and for the reasons stated above, we make the following :
ORDER
The appeal is partly allowed. The order of acquittal passed by the court below in so far as A-4 Jagadish & A-5 Krishna are concerned is confirmed and in so far as A-1 Mehaboob, A-2 Rasheed & A-3 Khaleel are concerned it is set aside. Each of them (A-1, A-2 & A-3) is held to be guilty of the offence of abduction punishable under S. 366, IPC and convicted and sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo R.I. for a further period of one year. Each of them is also further held to be guilty of the offence of rape punishable under S. 376, IPC and sentenced to suffer R.I. for a period of five years and to pay a fine of Rs. 1000/- and in default of payment of fine to suffer R.I. for a period of one year.
14. The substantive sentences shall run concurrently. The Sessions Judge shall issue non-bailable warrant and send the accused to jail.
15. Appeal allowed.