Santhosh Moolya & Anr vs State Of Karnataka

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

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.

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

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. ... .... "

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

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. 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

12 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

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 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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