Supreme Court Cases
1994 AIR 222 1994 SCC (1) 453 JT 1993 (6) 498 1993 SCALE (4)220
Supreme Court Cases
1994 AIR 222 1994 SCC (1) 453 JT 1993 (6) 498 1993 SCALE (4)220
RAY, G.N. (J) RAY, G.N. (J) REDDY, K. JAYACHANDRA (J)
CITATION: 1994 AIR 222 1994 SCC (1) 453 JT 1993 (6) 498 1993 SCALE (4)220
The Judgment of the Court was delivered by G.N. RAY, J.- The Criminal Appeal No. 553 of 1982 is directed against the judgment dated August 2, 1982 passed by the Division Bench of the Karnataka High Court in Criminal Appeal No. 349 of 1980 and Criminal Appeal No. 55 of 1981.
The Criminal Appeal No. 554 of 1982 is directed against the judgment dated August 2, 1982 passed by the Division Bench of the Karnataka High Court in Criminal Appeal No. 54 of 1981. As the aforesaid appeals before the High Court arose out of the decision of the learned Sessions Judge, Hassan dated June 28, 1980 passed in Sessions Case No.. 23 of 1979, the said appeals were heard analogously and were disposed of by a common judgment of the Karnataka High Court. The learned Sessions Judge, Hassan, tried both the accused/appellants, namely, accused 1, Raju and accused 2, Krishna in Sessions Case No. 23 of 1979 for the offences under Sections 342, 323, 506, 376 and 380 of the Indian Penal Code. The learned Sessions Judge convicted the accused 1, Raju, for the offence under Section 376 IPC and sentenced him to detention till the rising 455 of the court and to pay a fine of Rs 500 in default to undergo rigorous imprisonment for three months. The learned Sessions Judge, however, acquitted accused 2 of all the charges and he also acquitted the accused 1 of the remaining charges. Against his conviction under Section 376 IPC, the accused 1, Raju, preferred Criminal Appeal No. 349 of 1980 before the Karnataka High Court and the State of Karnataka preferred Criminal Appeal No. 54 of 1981 against the accused 1 and accused 2, against the acquittal of accused 2 of all the charges and acquittal of the accused 1 in respect of other charges. The State of Karnataka also preferred Criminal Appeal No. 55 of 1981 praying for enhancement of sentence against accused 1 so far as the conviction under Section 376 was concerned.
2. The prosecution case in short is that the prosecutrix, PW 3, Celina D'Souza was working as a nurse in a clinic in Hosakote. She proceeded from Hosakote to attend the marriage of her brother at Sakaleshpur. She came to Bangalore at about 5.00 p.m. and caught a bus for Hassan.
The said two accused persons were sitting behind her and were talking with her now and then. When they got down at Hassan, the accused persons promised that they would see that PW 3, Celina, would reach Sakaleshpur well in time and they took her to the house of one Marigudi for meals. She was informed that the food had been exhausted at that place and the said two persons took PW 3 to a restaurant. After taking food in the restaurant, they went to B.G.K. Lodge.
Marigudi accompanied them and it was at the assistance of Marigudi, room No. 4 in the said lodge was secured for all the three persons although PW 4, Krishnegowda a room boy was initially reluctant to accommodate three persons in one room. PW 2 Shri A.R. Gopala, a Police Constable had been occupying the adjoining room being room No. 3, in the said lodge. The said Police Constable had come in connection with a criminal case under Section 379 IPC. It is the prosecution case that a bed was spread on the ground and the prosecutrix, PW 3, offered to sleep on the ground provided the two accused persons would sleep on the cot. She also agreed to sleep on the cot provided the two accused persons would sleep on the ground. Ultimately, she slept on the cot and the two persons slept on the ground. After some time, the lights in the room were switched off. Some time later, accused 2, Krishna, went to sleep on the cot by the side of PW 3 saying that mosquitoes were biting him. He thereafter covered himself with her saree. He did not stop at that and made further advances and touched her body. PW 3 objected and she even screamed. The accused 1, Raju, then got up and shut her mouth by means of handkerchief and warned her not to scream. He then sent accused 2, Krishna, out of the room and bolted the door and made advances by touching her body.
He did not pay any heed to her remonstration. Accused 1 wanted to have sexual intercourse with her but the prosecutrix told him that if he would marry her then he would get such opportunity. By that time, there was knocking at the door and the accused 1 opened the door when the accused 2 came in. Accused 1 went out. Accused 2 pointed a knife at her and forcibly had sexual intercourse with her after holding her mouth tight. The door was again knocked and the accused 2 opened the door when 456 accused 1 entered the room and accused 2 went out. Accused 1 thereafter also held her mouth tight and had intercourse with her. The prosecutrix somehow managed to open out her mouth and screamed. The room boy and others began to tap on the door of the room. Accused 1 by that time was putting on his clothes and when the room was opened, he went out. The prosecutrix complained to the Police Constable PW 2 as to what had happened to her. In the meantime, accused 2 brought her the vanity bag which she had left at Marigudi's place. She opened her bag and found that a sum of Rs 400 which she had kept in that bag, was missing. By about 7.00 a.m. she went to Hassan Police Station where she made the complaint of the offence committed by the accused persons and a case being Crime No. 130 of 1978 for offences under Sections 342, 376 and 380 IPC was started against both the accused persons. The statement of the Police Constable PW 2, was also recorded on the same day and the police seized the bed sheet cover and the register of the lodge. The prosecutrix was sent for medical examination and Dr G.
Sarojamma, Assistant Surgeon, conducted the medical examination and opined that the prosecutrix had been subjected to sexual intercourse recently and her hymen had been freshly ruptured and was bleeding and there were also some injuries on her private parts.
3. The learned Sessions Judge inter alia came to the finding that the offence of rape was established so far as accused 1 was concerned but the offence of rape against accused 2 and other offences alleged against both the accused could not be established beyond reasonable doubts.
The learned Sessions Judge therefore acquitted the accused 2 from all the charges and acquitted accused 1 in respect of other charges except for offence under Section 376 IPC.
Considering the young age of the accused and also considering the fact that the prosecutrix voluntarily came and stayed in the same room and the accused 1 in a fit of passion committed the rape, the learned Sessions Judge sentenced accused 1 for detention till the rising of the Court with a fine of Rs 500.
4. In disposing of the aforesaid appeals, the Division Bench of the High Court was, however, of the view that the case of rape against both the accused had been clearly established. The High Court was of the view that PW 2, Police Constable, who was not known to the accused persons and had no occasion to falsely implicate them had stated that while he had been occupying the adjoining room he heard the protest and scream of the prosecutrix and when the door was opened, he found accused 1 dressing up and when accused 2 returned with the vanity bag, the prosecutrix also told him that the accused 2 was the other man who had also committed rape on her. PW 4, the room boy of the lodge, also stated that it was at the instance of Marigudi the room was allotted to the said three persons and in the early morning hearing the screams of the prosecutrix from inside the room he came and PW 2 also came out and banged the door for opening it. The High Court inter alia came to the finding that from the medical evidence it was established that rape was committed on the prosecutrix very recently and the signs of such rape were rioted by the doctor. The High Court was of the view 457 that both the accused persons had shared the room with the prosecutrix and they had committed rape despite protest made by the prosecutrix. The High Court was, therefore, of the view that conviction under Section 376 IPC was warranted against accused 2 also and both the accused should therefore be convicted for the offence under Section 376 IPC. So far as other offences are concerned, the High Court was of the view that such offences could not be established beyond all reasonable doubt and so far as the allegation of theft of money from the vanity bag was concerned, the High Court was of the view that admittedly the vanity bag was left at the house of Marigudi and it was not unlikely that the amount was missing at the residence of Marigudi. In that view of the matter, the High Court upheld the conviction of accused 1 under Section 376 IPC and also convicted accused 2 under Section 376 IPC and allowing the State appeal against accused 1 enhanced the conviction of accused 1 and sentenced both the accused to suffer rigorous imprisonment for seven years. The appeal preferred by accused 1 was dismissed by the High Court. As aforesaid, such decision of the High Court is under challenge in these appeals.
5. The learned counsel for the appellants has submitted that PW 3, prosecutrix, was not uneducated and without any exposure to the society. It is also nobody's case that she was so simple that she was inclined to accept any suggestion and directions of the accused persons. Both the accused persons were unknown to her and according to the prosecution case they had travelled in the same bus from Bangalore to Hassan. They were young men aged about 24 years and 21 years and it was quite unlikely that the prosecutrix would move with such unknown young men so freely particularly at night and would agree to share the same room in the hotel unless she volunteered. The aforesaid facts clearly indicate that the prosecutrix had voluntarily allowed the accused persons to have a merry time and to have sexual intercourse with her. The prosecutrix being a major and having consented for the sexual intercourse, there was no occasion to hold the accused persons guilty of the offence of rape. The learned counsel has also submitted that the prosecutrix was aged about 21 years and she was not ill or weak. She could fairly resist any attempt of rape by the accused persons particularly when such act was committed each time by one person alone in the room. It is not the case of the prosecutrix that both of them were present simultaneously at the time of committing the rape and one assisted the other to have forcible sexual intercourse. The learned counsel has submitted that in the facts of the case, the prosecutrix could have come out of the room or at least screamed or shouted in such a manner that other inmates of the hotel would have come in for her rescue when the first rape was committed. In the aforesaid circumstances, the offence of rape should not have been accepted by the High Court and acquittal of the accused 2 should not have been interfered with by the High Court. The learned counsel submitted that the lenient sentence imposed on accused 1 for special reasons should not have been set aside by the High Court. The learned counsel has also submitted that although the learned Sessions Judge found accused 1 458 guilty of the offence, considering the circumstances of the case, a token punishment was given by the learned Sessions Judge by indicating cogent reasons for such lenient punishment. In the facts and circumstances of the case, it is quite evident that the prosecutrix herself caused inducement to the accused who was a young man and only on such inducement and under a grave provocation he had lost the mental frame and in a fit of passion which was very natural in that age committed the offence of rape. The learned counsel for the appellants has also submitted that in any event the conviction of accused 2 is not warranted.
Excepting the accusation by the prosecutrix, there is no convincing evidence to hold him guilty of the offence of rape. Even if it is assumed that there is ample scope to have grave suspicion also against him, conviction on suspicion cannot be based. The learned counsel, therefore, has submitted that the appeal of accused 2 should be allowed.
6. Mr Veerappa, learned counsel for the State of Karnataka, however, disputed the contentions made by the learned counsel for the appellants and he has submitted that the prosecutrix in her simplicity and respect for inherent human goodness, placed reliance on two young men who promised to help her in an unknown place so that she could reach early to attend her brother's marriage. If she was little wise and cautious, perhaps she would not have reposed such reliance on two unknown young men and would not have suffered the misfortune. Though educated, she was simple in heart having respect for goodness of mankind. For such reason, she placed reliance on the said young men. Simply for reposing trust and confidence on the accused, the prosecution case should not be disbelieved. Mr Veerappa has submitted that admittedly, the prosecutrix and the two young men had been sharing the same room and the PW 2, Police Constable who cannot have any bias against any of the two accused to falsely implicate them in a serious offence of rape has deposed to the effect that being occupant of adjoining room he heard protest of the prosecutrix when rape was committed on her and he heard shouts for help. When he came and tapped the door of the room being occupied by the prosecutrix and the accused persons he found one of the accused putting on pants. The screaming of the prosecutrix and her shouts for help were also heard by PW 4 who was the room attendant of the hotel and the said attendant also had no reason to falsely implicate the accused persons. Mr Veerappa has also submitted that the medical evidence has clearly established that she was subjected to rape and her hymen was ruptured and was bleeding. Injuries on her private parts were also noted by the doctor who examined her. If the accused had not done any misdeed but only extended a helping hand to her, it is not expected that she would allege falsely that she had been ravished by the accused. Mr Veerappa has submitted that the High Court was justified in affirming the conviction of accused and also convicting accused 2 for the offence under Section 376 IPC.
Considering the fact that both the accused persons had betrayed the trust reposed on them by the prosecutrix and considering the fact that both the said accused persons in a designed manner ravished the prosecutrix, the High Court sentenced both the accused persons for seven years' rigorous 459 imprisonment. In the facts of the case, such conviction and sentence should not be interfered with.
7. After giving our anxious consideration to the facts and circumstances of the case and the materials on record and the submissions made by the learned counsels for the parties, it appears to us that the offence of rape has been established against both the accused persons and the case of the prosecution so far as the offence of rape is concerned should not be disbelieved. In our view, Mr Veerappa is justified in his submissions that if the prosecutrix was little careful in not placing reliance on unknown young persons in staying in a room in a hotel, she would not have suffered the misfortune but simply because she was simple enough to repose confidence in two young men, the prosecution case should not be disbelieved particularly when convincing evidences about the commission of offence of rape were adduced. The medical evidence supports the testimony of the prosecutrix that she was raped in the previous night.
The doctor has found that her hymen was ruptured recently and was bleeding. Some injuries on her private parts were also noted by the doctor. Admittedly, the accused and the prosecutrix shared one room and it is nobody's case that besides the prosecutrix and accused persons, any other person stayed in the room. The Police Constable PW 2 and the room boy of the hotel PW 4 heard screaming of the prosecutrix for help and when the door was opened one of the accused was found putting on pant. Hence, we, agree with the High Court that offence of rape against both the accused was established by the prosecution. Therefore, we do not find any reason to interfere with the conviction of both the accused under Section 376 IPC. So far as the sentence of seven years' rigorous imprisonment on both the accused persons is concerned, it appears to us that it may not be unlikely that the accused persons at the beginning had a genuine desire to help the prosecutrix in reaching her brother's place quickly. But later on when she agreed to share the same room at night in the hotel the two young men became victims of sexual lust and against the consent and protest of the prosecutrix, committed rape on her.
Considering the very young age of the accused persons and considering the circumstances under which there was every likelihood that they could not overcome the fit of passion and lost all sense of decency and morality and ultimately committed the offence of rape and also considering the fact that the incident had taken place long back and during the course of the proceedings up to this Court, both of them had suffered disrepute and mental agony, we think that the ends of justice would be met if both the accused persons are awarded a lesser sentence. We, therefore, direct that both the accused persons should suffer rigorous imprisonment for three years. To the above extent, the judgment of the High Court stands modified in these appeals. It appears that the appellants have been released on bail during the pendency of these appeals. They should, therefore, be taken into custody to suffer the sentence imposed on them.