Moolya & ANR. Vs. State of Karnataka  INSC 307 (26 April 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 479
OF 2009 Santhosh Moolya & Anr. .... Appellant(s) Versus State of Karnataka
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
Background facts in a nutshell are as under:
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.
sisters sat by his side. It was raining at that time.
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, 2
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 3 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
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.
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 4 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.
have heard Mr. Vijay Kumar, learned amicus curiae appearing for the
appellants-accused and Mr. Sanjay R. Hegde, learned counsel appearing for the
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.
further submitted that in view of the contradiction in the evidence of PWs 1
and 2, it is not safe to rely on their 5 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.
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.
to him, since both the Courts have accepted the case of prosecution, there is
no valid ground for interference by this Court.
Discussion on merits:
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
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 7
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.
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.
8 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 too
without further corroboration. In State of 9 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 10 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. ...
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:
FIR by a Hindu lady is to be lodged with regard to commission of offence like
rape, many questions would 11 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.
the prosecutrix must have also gone through great turmoil and only after giving
it a serious thought, must have decided to lodge the FIR."
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.
material aspects were duly considered by the trial Court and accepted by the
High Court. We concur with the same.
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 12 not affected their grievance, hence we
reject the said contention also.
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 some time, 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 13 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
both the Courts have rightly accepted the statement of prosecutrix.
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)