Raju Vs.
State of Karnataka [1993] INSC 428 (12 October 1993)
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
ACT:
HEADNOTE:
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.
Back
