SANTOSH MOOLYA AND ANR. v. STATE OF KARNATAKA {Criminal Appeal No. 479 of 2009) APRIL 26, 2010 [P. SATHASIVAM AND R.M. LODHA, JJ.] Penal Code, 1860: s.376 – Conviction for commission
of rape – Two sisters victim of rape – Delay of 42 days in C lodging complaint – Effect on prosecution case – Held: The victims explained that the delay was on account of their illiteracy and fear due to threat call of accused persons – In · a case of rape, when victims are illiterate, their statements have to be accepted in toto without further corroboration – o Courts to keep in mind that no self respecting woman would put her honour at stake by falsely alleging commission of rape on her – Evidence of victims found to be cogent, reliable and must be accepted – Conviction upheld – Crime against
women – Delayllaches – Evidence of rape victim – E Corroboration of. Prosecution case was that the victims were sisters and they were raped by the appellants. After the rape, appellants threatened the victims that if they inform any
one about the rape, they would kill them. The next day, F victims informed the incident to PW-4 and PW-5 who asked them to lodge a complaint but they hesitated to do so. After a month and 14 days, PW-1 victim lodged a
complaint. Victims were sent for medical examination and on the same day, both the appellants were arrested. Trial G court convicted appellants under Section 376 and Section 506 IPC. High Court affirmed the same. Hence
the appeal. Dismissing the appeal, the Court HELD: 1.1. The victims were sisters and both of them explained how they suffered at the hands of the accused.
PW 1 was the elder sister. In her evidence, she deposed that on 02.06.2004, she and her younger sister PW 2 after completing their work were waiting near the bus stop in · order to go to their place. The second accused-A-2 came
in an auto-rickshaw which was driven by A1. She knew both the accused since they were also doing quarry work under their employer. According to PW 1, A-1 asked them to get into the auto because they were also going to the
same place. Believing his statement, PW 1 and her sister c 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 preyented from
raising their voice since the accused covered their mouth and forced both of them to lie 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. PW1 further stated that both she and her sister tried to escape from the clutches of the two accused but could not succeed as
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 incid.ent. In the same way, PW 2 also explained and narrated how she suffered and was raped at the
h~nds of A2. [Paras 5, 6] [1099-C-G; 1099-H; 1100-A-B] 1.2. It is seen from the evidence of PWs 1 am;I 2 that on reaching their home, apart from informing their [2010) 4 S.C.R. A mother, they also informed PW5 about the incident who,
in turn, informed their owner PW 4. 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 B confidence and courage, finally a complaint 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 were uneducated, there
c was no male member in their family for their assistance and they settled in the present village to eke out their livelihood. 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 0 A1 and A2. In those circumstances, the evidence of PWs 1 and 2 and their complaint cannot be rejected as unacceptable. In a case of rape, particularly when the
victims are illiterate, uneducated, their statements have to be accepted in toto without further corroboration. Any E 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
F commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. [Paras 7, 8] [1100-C-G; 1102-E-F] State of Punjab v. Gurmit Singh and Others (1996) 2
G SCC 384; Rajinder@ Raju v State of H.P. JT (2009) 9 SC 9; Sohan Singh and Another v. State of Bihar (2010) 1 SCC 68, relied on. 1.3. The evidence of PW 1, PW 2, owner of the quarry
PW 4 and mother of the victim PW-14, explained the delay of 42 days in lodging the complaint. In addition to the same, except the victims, no male member was 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. 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, c it was unlikely that any sign of sexual intercourse would be feasible by examining the private part of the victims. Added to it, PW 1 was a married woman and having
children which indicate that she was accustomed to sexual intercourse and in view of the same, it would be difficult to E!xpect 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 would not lead to any inference that the accused had not committed forcible sexual intercourse on the prosecutrix.
There was no reason to disbelieve the statement of the victims PWs 1 and 2. On the other hand, their oral testimony was found to be cogent, reliable, convincing and trustworthy and must be accepted. [Paras 10, 12]
[1103-A-C; 1103-E-H; 1104-A] Case Law Reference: (1996) 2 sec 384 JT (2009) 9 SC 9 (201 O) 1 sec 68 relied on relied on relied on Para 7 Para 8 Para 9 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 479 of 2009. From the Judgment & Order dated 13.3.2008 of th.e High Court of Karnataka at Bangalore in Criminal Appeal No. 1498 of 2007. Vijay Kumar, A.C. and Rameshwar Das for the Appellants.
Sanjay R. Hegde, Anil Mishra and Aditya Jain for the Respondent. The Judgment of the Court was delivered by 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,
D Dakshina Kannada, Mangalore dated 1/3.9.2007 in S.C. No. 13 of 2005. 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 F 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 G 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 H gave rise to any shouting. Thereafter, both the victims were SANTOSH MOOLYA AND ANR. v. STATE OF
KARNATAKA [P. SATHASIVAM, J.] made to lie on the ground and their clothes were removed. Santhosh Moolya, 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 c but they hesitate to file the complaint. OnJ4.07.2004, 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 lthappa, P .S. I. PW-13 and registered as Crime No. 62/2004 for the offence under Sections 376 & 506 read with Section 34 of 1.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 ace.used persons. On the next day, i.e. on 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 Ill Addi. 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 l.P.C. and registered the case in C.C. No. 537of 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 A 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 l.P.C. and further held to undergo rigorous imprisonment for three months for offence punishable under Section 506(2) l.P.C. Aggrieved by B 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 c 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 E 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 testimony F 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
G 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 accust;!d, they did not make a formal complaint immediately after the incident. According to him, inasmuch as the delay was properly explained by the
H 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.
5. Discussion on merits: The victims me sisters and both of t~em explained how they suffered at the hands ©f the accused.f PW 1 is the elder sister. In her evidence, she ;has deposed that on 0?.06.2004 she and her younger sister PW 2 after completing their work were waiting near the buf s0p at Sampigelin order to go to their place at Ashwathapura. The secqnd accused – A-2 came in an auto-rickshaw which was/driven by A 1. She explained that · D they know both the accused since they were also doing quarry work under their employer. Ajccording to PW 1. Sa.nthosh
Moolya – A-1 asked them to get into the auto because they were also going to their place i.e. Ashwathapura. Belie\(ing 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 au~o. 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 down on the ground. By threat. they made both PWs 1 and 2 to lie on the ground and remcved their clothes and they were made naked. She narrated that
thereafter, A 1 had a forcible intercourse with her and A2 with her sister PW 2. 6. While narrating what had happened after forcible intercourse by A 1 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 A 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 B 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 PWS
C who, in turn, informed their owner Subhash Jain PW 4. PW 1 explained that. though PW 4 asked them to make a complaint, peca~e of ~e threat ~os_ed by A-1 and. A-2 and out of_ f~ar /fhe.Y/,_mi g f)Ot inform the incident to the police and after gaming D Wft
· e polic~/ on 14.07 .2004. Though there was a delay of 42 / . 9m~9E.·.· ce. a,9d courage, finally a complaint (Ex. P1) was lodged d '. s.in lotjglng 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 E 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 F their illiteracy and fear due to the threat call of A 1 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
G corroboration. In State of 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 SANTOSH MOOLYA AND ANR. v. STATE OF
KARNATAKA [P. SATHASIVAM, J.] 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 c 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 o(
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 goodwrrness 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 c · 1102 imperative component of judicial credence in every case 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 ap~reciating 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@ F Raju vs. State 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
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 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 A 1 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 A reason to 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.
C D.G. Appeal dismissed.