REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 479 OF 2009
Santhosh Moolya & Anr. .... Appellant(s)
Versus
State of Karnataka .... Respondent(s)
JUDGMENT
P. Sathasivam, J.
1) This appeal is filed against the final judgment and order
dated 13.03.2008 passed by the High Court of Karnataka at
Bangalore in Criminal Appeal No. 1498 of 2007 whereby the
High Court dismissed the appeal filed by the appellants-
accused affirming the conviction and sentence passed by the
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore dated 1/3.9.2007 in S.C. No. 13 of 2005.
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2) Background facts in a nutshell are as under:
On 02.06.2004, two sisters (both victims of rape), who
were working in the quarry of one Subhash Jain- PW-4, after
completing their work, were waiting for the bus near Sampige
of Puttige Village by the side of the road to go to their
residence in Badaga Mijaru Village, Ashwathapura,
Santhakatte. At about 6.00 p.m., the appellants came there in
an autorickshaw which was driven by Santhosh Moolya (A-1)
and stopped the auto in front of the victims asking them to get
into the auto as they were also going towards Ashwathapura
side. Surendra Gowda (A-2) was already sitting in the auto.
Both the sisters sat by his side. It was raining at that time.
After some time, leaving the main road, the appellant moved
the auto towards a kutcha road. Both the victims asked them
as to where the auto was being taken. By that time, the
accused stopped the auto at a lonely place and pulled both the
victims out of the auto and after covering their mouth with
hands, threatened to kill them if they gave rise to any
shouting. Thereafter, both the victims were made to lie on the
ground and their clothes were removed. Santhosh Moolya,
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A-1 raped the elder sister and Surendra Gowda, A-2 raped the
younger sister. While leaving the place, both the accused
threatened the victims not to inform any one about the
incident and also allow them to do the similar act in future
failing which they would be killed. After sometime, the victims
managed to get up and put on their clothes and walked
towards their house and informed the incident to their mother
(PW-14). On the next day, they informed the incident to one
Nonayya Gowda, PW-5 a worker of the quarry, who, in turn,
informed Subhash Jain (PW-4), who told them to file a
complaint but they hesitate to file the complaint. On
14.07.2004, at about 4.30 p.m., Yamuna (PW-1) gave
statement before the Sub-Inspector of Police, Moodbiri Police
Station and that was reduced to writing by Ithappa, P.S.I. PW-
13 and registered as Crime No. 62/2004 for the offence under
Sections 376 & 506 read with Section 34 of I.P.C. C.P.I. of
Mulki, who is PW-16, investigated the case. PW-16 sent the
victims to Medical Officer, Moodgidri for medical examination
and on the same day at about 10 p.m., the police arrested
both the accused persons. On the next day, i.e. on
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15.07.2004, PW-16 visited the scene of offence and prepared
the Panchnama (Ex. P2) and recorded the statements and sent
the accused for medical examination to the Government
Hospital and thereafter, they were produced before J.M.F.C.
Karkala. On the same day, PW-16 seized the clothes of the
victims and the Auto. On 21.08.2004, PW-16 received
certificate of two victims of sexual assault. PW-16 completed
the investigation and filed the charge sheet on 05.09.2004.
The III Addl. Civil Judge (Jr. Dn.) and J.M.F.C., Karkala on
07.02.2005 took cognizance of the offence punishable under
Sections 376 and 506 read with 34 of I.P.C. and registered the
case in C.C. No. 537 of 2004 and committed the same to the
Sessions Court, Mangalore as the offence alleged against the
accused are triable by the Court of Sessions. The prosecution
examined 16 witnesses. The trial Judge, on 01/03.09.2007,
passed an order convicting and sentencing both the accused
to undergo rigorous imprisonment for a period of seven years
and to pay a fine of Rs.10,000/- and, in default, to suffer
rigorous imprisonment for three months for offence
punishable under Section 376 of I.P.C. and further held to
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undergo rigorous imprisonment for three months for offence
punishable under Section 506(2) I.P.C. Aggrieved by the
conviction and sentence passed by the trial Court, both the
accused preferred an appeal before the High Court. The
learned single Judge of the High Court, by order dated
13.03.2008, dismissed the appeal affirming the conviction and
sentence passed by the trial Judge. Hence, the appellants
have filed this appeal by way of special leave.
3) We have heard Mr. Vijay Kumar, learned amicus curiae
appearing for the appellants-accused and Mr. Sanjay R.
Hegde, learned counsel appearing for the State.
4) Contentions:
Learned amicus curiae, after taking us through the
materials placed by the prosecution and the decision of the
trial Judge as well as of the High Court, submitted that in view
of inordinate delay in lodging complaint i.e. FIR was registered
after 42 days of alleged incident, in the absence of proper
explanation, the conviction and sentence cannot be sustained.
He further submitted that in view of the contradiction in the
evidence of PWs 1 and 2, it is not safe to rely on their
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testimony and convict the accused. Finally, he submitted that
the evidence of doctors i.e., PWs 7 and 8 does not support the
claim of PWs 1 and 2/alleged victims, in that event, it would
not be proper to convict the accused under Section 376 IPC.
On the other hand, learned counsel appearing for the State
submitted that taking note of the evidence of victims PWs 1
and 2 and the acceptable explanation offered by them for the
delay in lodging complaint as well as their family
circumstances and of the fact that they received threat from
the accused, they did not make a formal complaint
immediately after the incident. According to him, inasmuch
as the delay was properly explained by the prosecution, the
courts below are justified in convicting and sentencing the
accused for offence under Section 376. He further pointed out
the alleged contradictions are rather negligible or minimal. He
further pointed out that in view of the assertion of the victims
PWs 1 and 2, the prosecution claim cannot be thrown out.
According to him, since both the Courts have accepted the
case of prosecution, there is no valid ground for interference
by this Court.
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5) Discussion on merits:
The victims are sisters and both of them explained how
they suffered at the hands of the accused. PW 1 is the elder
sister. In her evidence, she has deposed that on 02.06.2004
she and her younger sister PW 2 after completing their work
were waiting near the bus stop at Sampige in order to go to
their place at Ashwathapura. The second accused – A-2 came
in an auto-rickshaw which was driven by A1. She explained
that they know both the accused since they were also doing
quarry work under their employer. According to PW 1,
Santhosh Moolya – A-1 asked them to get into the auto
because they were also going to their place i.e. Ashwathapura.
Believing his statement, PW 1 and her sister PW 2 entered the
autorickshaw and A-2 seated next to them. She further
explained that after traveling sometime in the main road auto
went off in a kutcha road and it was stopped after some
distance. It was drizzling at that time. She further added that
A-1 pulled her out of the auto and A-2 pulled her sister. Both
of them were prevented from raising their voice since the
accused covered their mouth and forced both of them to lie
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down on the ground. By threat, they made both PWs 1 and 2
to lie on the ground and removed their clothes and they were
made naked. She narrated that thereafter, A1 had a forcible
intercourse with her and A2 with her sister PW 2.
6) While narrating what had happened after forcible
intercourse by A1 and A2, PW1 explained that both she and
her sister tried to escape from the clutches of the two accused
but they could not succeed since there was no one to help
them and added to it both the accused threatened that if they
inform the incident to anyone they would kill them. PW 1
further explained that she and her sister had injuries on their
body and also in their private parts. Their clothes were torn
and with great difficulty on reaching home, they informed their
mother about the incident. In the same way, PW 2 also
explained and narrated how she suffered and raped at the
hands of A2.
7) It is further seen from the evidence of PWs 1 and 2 that
on reaching their home, apart from informing their mother,
they also informed about the incident to one Nonayya Gowda
PW5 who, in turn, informed their owner Subhash Jain PW 4.
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PW 1 explained that though PW 4 asked them to make a
complaint, because of the threat posed by A-1 and A-2 and out
of fear they did not inform the incident to the police and after
gaining confidence and courage, finally a complaint (Ex. P1)
was lodged with the police on 14.07.2004. Though there was
a delay of 42 days in lodging complaint to the police, PWs 1
and 2, in their evidence, explained that all their family
members including themselves are uneducated, no male
members in their family for their assistance and they settled in
the present village to eke out their livelihood. Admittedly, on
the date of the incident, they were working in quarry owned by
PW 4 and while returning from their workplace by force A-1
and A-2 committed rape of PWs 1 and 2. The mother of PWs 1
and 2 was examined as PW 14. She also corroborated the
assertion of PWs 1 and 2 about their illiteracy and fear due to
the threat call of A1 and A2. In those circumstances, the
evidence of PWs 1 and 2 and their complaint Ex.P1 cannot be
rejected as unacceptable. In a case of rape, particularly, the
victims are illiterate, uneducated, their statements have to be
accepted in toto without further corroboration. In State of
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Punjab vs. Gurmit Singh and Others, (1996) 2 SCC 384
speaking for the Bench Dr. A.S. Anand, J. (as His Lordship
then was) has observed thus:
“… …. The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no self-
respecting woman would come forward in a court just to
make a humiliating statement against her honour such
as is involved in the commission of rape on her. In cases
involving sexual molestation, supposed considerations
which have no material effect on the veracity of the
prosecution case or even discrepancies in the statement
of the prosecutrix should not, unless the discrepancies
are such which are of fatal nature, be allowed to throw
out an otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the
courts should not overlook. The testimony of the victim
in such cases is vital and unless there are compelling
reasons which necessitate looking for corroboration of
her statement, the courts should find no difficulty to act
on the testimony of a victim of sexual assault alone to
convict an accused where her testimony inspires
confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult
to injury. Why should the evidence of a girl or a woman
who complains of rape or sexual molestation, be viewed
with doubt, disbelief or suspicion? The court while
appreciating the evidence of a prosecutrix may look for
some assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in
the outcome of the charge levelled by her, but there is
no requirement of law to insist upon corroboration of
her statement to base conviction of an accused. The
evidence of a victim of sexual assault stands almost on
a par with the evidence of an injured witness and to an
extent is even more reliable. Just as a witness who has
sustained some injury in the occurrence, which is not
found to be self-inflicted, is considered to be a good
witness in the sense that he is least likely to shield the
real culprit, the evidence of a victim of a sexual offence
is entitled to great weight, absence of corroboration
notwithstanding. Corroborative evidence is not an
imperative component of judicial credence in every case
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of rape. Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under
given circumstances. It must not be overlooked that a
woman or a girl subjected to sexual assault is not an
accomplice to the crime but is a victim of another
person’s lust and it is improper and undesirable to test
her evidence with a certain amount of suspicion,
treating her as if she were an accomplice. Inferences
have to be drawn from a given set of facts and
circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule
of law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling
to a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of sex
crime strikes the judicial mind as probable. … …. ”
8) Any statement of rape is an extremely humiliating
experience for a woman and until she is a victim of sex crime,
she would not blame anyone but the real culprit. While
appreciating the evidence of the prosecutrix, the Courts must
always keep in mind that no self-respecting woman would put
her honour at stake by falsely alleging commission of rape on
her and, therefore, ordinarily a look for corroboration of her
testimony is unnecessary and uncalled for. [Vide Rajinder @
Raju vs. Sate of H.P., JT 2009 (9) SC 9]
9) In Sohan Singh and Another vs. State of Bihar, (2010)
1 SCC 68, this Court has observed as under:
“When FIR by a Hindu lady is to be lodged with regard to
commission of offence like rape, many questions would
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obviously crop up for consideration before one finally decides
to lodge the FIR. It is difficult to appreciate the plight of the
victim who has been criminally assaulted in such a manner.
Obviously, the prosecutrix must have also gone through
great turmoil and only after giving it a serious thought, must
have decided to lodge the FIR.”
10) From the evidence of PW 1, PW 2, owner of the quarry
PW 4 and mother of the victim PW-14, we are satisfied that
though there was a delay of 42 days in lodging the complaint,
the same was properly explained by the victims and the other
witnesses. In addition to the same, we have also noticed that
except the victims, no male member is available in their family
to help them. In fact they came to the village where the
incident occurred to eke out their livelihood. Further, PWs 1
and 2 asserted that after committing rape A-1 and A-2
threatened that they would kill them if they inform anyone.
All these material aspects were duly considered by the trial
Court and accepted by the High Court. We concur with the
same.
11) Coming to the discrepancies in the evidence of PWs 1 and
2, as rightly pointed out by the prosecution and accepted by
both the Courts below, they are negligible in nature and it had
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not affected their grievance, hence we reject the said
contention also.
12) It was argued that the doctors PWs 7 and 8 did not notice
any injury on the private part of PWs 1 and 2. It is relevant to
note that due to threat from A1 and A2, coupled with illiteracy
and poverty, the two victims were not taken to the doctor
immediately after the incident but they were taken after a
month and 14 days. In such circumstances, as rightly
observed by the trial Court and the High Court, it is unlikely
that any sign of sexual intercourse will be feasible by
examining the private part of the victims. Added to it, PW 1
happens to be a married woman and having children which
indicates that she is accustomed to sexual intercourse and in
view of the same, it would be difficult to expect the doctor, who
examined after quite sometime, to indicate the sign of sexual
intercourse. The plea that no marks of injuries were found
either on the person of the accused or the person of the
prosecutrix does not lead to any inference that the accused
has not committed forcible sexual intercourse on the
prosecutrix. As observed earlier, there is no reason to
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disbelieve the statement of the victims PWs 1 and 2. On the
other hand, their oral testimony which is found to be cogent,
reliable, convincing and trustworthy has to be accepted.
Further, both the Courts have rightly accepted the statement
of prosecutrix.
13) In the light of the above discussion, we are in agreement
with the conclusion arrived at by the trial Court as well as the
High Court. Consequently, we dismiss the appeal as devoid of
any merit.
……………………………………J.
(P. SATHASIVAM)
…………………………………….J.
(R.M. LODHA)
NEW DELHI;
APRIL 26, 2010
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