M.F. Saldanha, J.@mdashThe Appellant Abbas stands convicted of having committed offences punishable under Sections 366 and 376 Indian Penal Code for which offences he has been awarded a sentence of rigorous imprisonment for five years and a fine of Rs. 5,000/- on each of the counts. The present appeal assails the correctness of that conviction. It was alleged that at about 8 p.m. on the night of 9.10.1991 at Koppalangady in Kaup of Udupi Taluk, that the accused is alleged to have forcibly abducted PW-6 Kumari Susheela to a lonely place at Mallarigudde and that he raped her at that place. The accused is alleged to have thereafter gone away and Susheela staggered some distance to the road and was found lying near a cashew tree by some boys who in turn informed PW-2. PW-2 and some other persons came to that spot and gave Susheela some water. In the meanwhile, her employer who is PW-1 was also looking for her because he states that the power had failed at about 7.30 p.m. that Susheela had gone out to close the gate and had not returned after that. PW-1 took a torch and went in search of her and since she was not traceable he got into a rickshaw and while he was looking for her, he came across PW-2 and ors. who informed him that his servant girl was lying on the road. It is his case that he thereafter took her to the police station and then to the hospital and that she was admitted in the hospital and discharged after two days. The evidence of the doctor PW-5 is to the effect that he examined Susheela and found unmistakable evidence of her having been raped and she therefore admitted her for necessary treatment in the hospital and also informed the police. Apart from the entries made in the medico legal register, we have on record Susheela''s complaint taken down on the same night and treated as the F.I.R. in which she has stated that when she went to close the gate, she heard somebody calling out to her and when she went in that direction she was over-powered and that cloth was stuffed into her mouth. She states that she was thereafter dragged forcibly for quite some distance, taken to a lonely place and raped after which the assailant left her at that place and she managed to come back to the road after which she received help. The police commenced their investigation, arrested the accused and ultimately charge sheeted him. The learned trial Judge after an elaborate consideration both of the factual evidence and of the law, held that both charges were established and convicted the accused and sentenced him.
2. The Appellant''s learned Advocate and the learned Government Pleader have elaborately referred to the evidence on record and then advanced their submissions both on points of fact and points of law. Like all rape cases, the areas of dispute are within a very narrow ambit and I need to further record that unlike in several other cases where the doubt is to whether or not sexual intercourse has taken place that the evidence on record in this case, both documentary and oral particularly the evidence of PW-5 Dr. Savithri conclusively establishes that Susheela had been raped on that night. The only area of dispute and the only aspect that has really been furiously debated by the learned Advocates on both sides is the question as to whether it was the accused who was responsible for this act or whether it was some other person. The Appellant''s learned Advocate has first referred to a few broad features of the case, the first being that admittedly when Susheela had gone out to close the gate due to power failure it was pitch dark. He has pointed out to me that Susheela herself has right through the narration relating to the earlier part of the incident used the expression "somebody". She has also pointed out that she was caught hold of and immediately gagged in order to avoid her from being able to scream and according to her she was virtually dragged from that place all the way to the lonely area where the incident has taken place. The learned Advocate emphasised the fact that there is nothing on record to indicate that at any stage right through the incident from the commencement to conclusion was there a full and adequate opportunity for Susheela to have taken a close look at the assailant or to have clearly identified him. He has then gone on to point out that PW-2 who is the person who came on the scene at the earliest point of time when Susheela was found lying near the cashew tree and who has spoken to her and PW-1 her employer who arrived there shortly thereafter both indicate that she was in a state of shock and was hardly speaking but that she conveyed to them that she had been sexually assaulted but neither of them in turn has said that she disclosed the name of the assailant or even a description of the person who had done it. There is some vague reference to Saheba but it has come on record that this was an expression that is generally used in that area while referring to persons belonging to the Muslim community and the learned Advocate submits that in a case of such seriousness where the whole case hinges on the question of identity that it would be insufficient for the prosecution to allege that this description sufficiently describes the accused but more importantly, rules out any other persons. The first document that is on record that is really the entry in the medico legal register which again corroborates the version of Susheela as far as she having been sexually assaulted does not throw any sufficient light on the identity aspect. The submission canvassed therefore is that at the earliest point of time the name of the accused does not seem to have been disclosed whatever be the reason, either that Susheela did not know who the assailant was or, the other remote possibility being that for reasons best known, she did not want to disclose the name. It is true that in the F.I.R. recorded on the same night she has given a general description which totally fits the accused in so far as she has pointed out that he was the person who used to drive Addo''s autorickshaw which used to come to the house everyday to take the sister of PW-1 to the bank where she was working. The submission that is canvassed is that around this time there was some communal tension in that area and that this was the reason why the accused who belonged to the Muslim community was falsely implicated.
3. On the other hand, the learned Government Pleader submitted that PW-6 Susheela has consistently maintained any right through her evidence that it was the accused and nobody else who had committed the act of rape. He also points out that the evidence of PW-1 is quite conclusive about the fact that the accused was visiting the house of PW-1 everyday to take her sister to the bank that Susheela was a resident servant with PW-1 and it is therefore quite obvious that they had seen each other several times. Under these circumstances, what is submitted is that the description of the assailant - accused given in the F.I.R. is not an incorrect or a false statement but that sometime in the course of the incident which was one of considerable duration that it was not difficult for Susheela to have been able to fix the identity of the accused and furthermore, that she has disclosed the name of the accused and his description immediately on being asked by the police at about 2 a.m. on the same night. As far as P Ws 1 and 2 are concerned, the learned Government Pleader submits that it was very clear from their description that Susheela was in a state of total shock. One of them has gone to the extent of stating that she was unconscious and the submission therefore is that admittedly she has not spoken too much and that there was really no occasion for her to have disclosed the name of the assailant as those persons were also more anxious to take her to the hospital and leave the other aspects to the doctors and the police. Also, the learned Government Pleader has submitted that we have on record the evidence of PW-8 who is the brother of the person who owns the autorickshaw and who has very clearly deposed to the effect that the accused used to drive that vehicle, that on 9.10.1991 as usual he had come back with the vehicle at about 7 or 7.30 p.m, tendered the amount of the earnings, collected his money and gone away and that he had not come back to work on the next day and even thereafter. This witness also states that he came to know that the accused was involved in some "lafda" with a girl. The learned Counsel vehemently submits that these are all factors that conclusively establish the identity of the assailant and his nexus with the offences.
4. I have carefully considered this crucial evidence from various angles. The first thing that needs to be noted is that the accused and Susheela were not strangers in so far as he was a daily visitor to that place. Under these circumstances, assuming that he was the person involved in the incident it would not at all have been difficult for her to identify him even though there was general darkness around because she contends that she had been forcibly dragged to a place approximately one mile away and raped there and an incident of that type involved close contact. It is true that she has not disclosed the name or identity of P Ws. 1 and 2 when they first found her though she has made a broad reference to the term Saheba which does fit the general description of the accused but what needs to be noted is that when the law enforcement authorities arrived on the scene that night that she has described the accused as the person who used to drive the autorickshaw which used to come to the house and there can be no ambiguity with regard to the fact that this description totally fits the accused. Again, at the time of her admission, the questions that were put to her were in relation to her physical condition and the nature of the assault to which she had been subjected and Susheela had answered those questions but to my mind there was hardly any occasion at that point of time for the doctor to ask for the identity of the assailant as that aspect is within the province of the police. The Appellant''s learned Counsel vehemently submitted that if the accused did not go for his work on the next day i.e. on 10.10.1991 that there could be so many reasons for it starting from illness right down to the possibility of fear in so far as that being a small place word with regard to the incident of the previous night would have gone around like wild fire and according to the learned Counsel if the accused had so much as felt that he may be implicated that it is sufficient ground for him not to have gone to that house where the incident had taken place. To my mind, this explanation is weak in so far as the incident has taken place at a lonely spot late at night and Susheela was thereafter put in a car and taken away to the hospital where she was admitted and the possibility of word getting around on that very night itself is remote and even if it did, it appears hardly logical that the accused would stay away from his daily duties on the assumption that he would be implicated. On the contrary, plain common sense would tell any person that if they do not turn up for their usual duties without notice or reason and if the person absconds that it is more in consonance with guilty conduct than innocence, piecing together the totality of all these factors, to my mind, the finding of the trial Court to the effect that it was the accused who was the assailant on that particular night is established beyond any manner of doubt. The trial Court was therefore justified in its finding with regard to this aspect of the case which to my mind does not deserve any interference with.
5. Coming to the incident proper, the Appellant''s learned Counsel in the first instance points out to me that the medical evidence is conclusive and that it has been established that the complainant PW-6 Susheela was an adult in so far as she is well over eighteen years. This makes a big difference in so far as the offences in question are interrelated but the gravity of the law would really come down heavily on the accused if it is established that the victim was a minor. In this case, there is no doubt that Susheela was a major. Next, what the Appellant''s learned Advocate kept emphasising repeatedly through his argument was that the medical evidence led by the prosecution itself establishes that PW-6 Susheela was accustomed to sexual intercourse. The learned Advocate went on to emphasise that in this case PW-5 Dr. Savithri has stated that a urine test was done for purposes of ascertaining pregnancy and that this test was also positive. What the learned Advocate was emphasising was that even though PW-6 is unmarried that she was found to be pregnant on the date of the incident. It is not the morality or the ethical aspect that was being debated but what the learned Advocate submitted was that in cross-examination Susheela was asked several searching questions with regard to sexual misconduct all of which she has naturally denied. Learned Advocate submitted that this is conclusive proof of the fact that she is keeping back something from the Court and that her credibility gets suspect. The learned Government Pleader submitted that this is an area with regard to Susheela''s private life and that it has absolutely nothing to do with the incident on the night of 9th October, 1991 and as per the medical evidence the condition of her clothes and all other aspects establish that she has been raped on that night and even if she was a loose charactered or promiscuous person that this would not change the complex of the offence. To this extent, the argument of the learned Government Pleader is correct but what still remains is that the submission canvassed by the learned Appellant''s Advocate to the effect that Susheela is keeping something back from the Court would still be justified as she has repeatedly denied and covered up everything including what happened as a result of that previous night.
6. The next aspect of the case that was harped upon by the Appellant''s learned Advocate was that Susheela is not a child, that she is a grown up woman and assuming that some assailant taking advantage of the darkness had tried to over power her with the idea of abducting her, that it would be virtually incredible to accept that at 7.30 or 8 p.m. it would have been possible for the assailant even if he had stuffed cloth into her mouth to drag her all the way through the town for a distance of one mile and then be able to get her to the place where the incident took place against her wishes. The learned Advocate was very critical of the efforts put forward by Susheela herself wherein at one stage she indicates that she was taken in an autorickshaw but generally she has contended that she was dragged all the way and the other aspect of the version is that she was made to smell something, that she was unconscious and she does not know anything about what happened thereafter until the time when PW-2 and ors. rescued her. What is pointed out is that there is gross variation and inconsistency with regard to the description of the earlier part of the incident and it is therefore contended that the credibility of Susheela is suspect. The learned Government Pleader has advanced the usual submission in defence of her conduct that after the shock and trauma to which she was subjected that she was naturally confused and furthermore that she would have been terror-stricken and that this is really the reason why she has faultered in her description and that the Court must overlook these minor blemishes.
7. Lastly, what the Appellant''s learned Advocate relied on very strongly was the fact that Susheela has pointed out the place where the incident took place. It was a spot on the side of the hillock in the open where there was only a little grass growing. Learned Advocate submitted that Susheela has stated that to whatever extent possible in the circumstances she struggled and fought back including to the extent of trying to bite the assailant, scratch him etc., and what is pointed out is that if she had been forcibly raped on a spot of that type that she would have sustained injuries of some seriousness on her back and the other rear parts of her body. This question was put to Susheela and she has admitted that she did sustain such injuries and the learned Advocate capitalizes on the fact that PW-5 who was aware of the fact that this was a rape case and who has done an elaborate physical and medical examination of the victim had not found any injuries of this type on Susheela. Conversely, though the accused was arrested about three days later he was also sent for medical examination but there was not a single injury on him. The submission is that this is one aspect of the case that is fatal to the prosecution because there is absolutely no explanation as to how the injuries could be absent if Susheela had been forcibly raped on that night. The only explanation which the learned Government Pleader could put forward is that PW-5 the doctor basically focussed and was concerned with the genital areas and the forensic investigations for purposes of establishing rape and that this is possibly the reason why the injuries on the back were overlooked. I find it not only difficult but impossible to accept this explanation. I do concede that the contest and quality of professional expertise and devotion to duty generally displayed by government doctors is of a low order but in PW-5 we have an exception because she is a senior experienced lady doctor and from her notings, her certificate and particularly her evidence it is clear that she must have done a thorough job. Any doctor of that type who is dealing with a rape victim and that too of a case where the incident has taken place on a rough ground and in an open area would look for the obvious injuries on the back of the body even if the victim has not pointed them out. In this case, the doctor has not noted even minor abrasions and superficial injuries on the back and it is abundant by clear that PW-5 could not have overlooked any such injuries. The irresistible conclusion is that no such injuries were there and the sequetor that arises from this state of affairs is that there is a big question mark even though sexual intercourse did take place as to whether it was with Susheela''s consent or against her wishes. She has undoubtedly stated at all times that she was forcibly raped but it is that crucial area that the Court would have to decide upon in the light of her general credibility. There is a lot of substance in the submissions put forward by the Appellant''s learned Advocate when he points out that it is close to physically impossible for a person to overpower an adult woman and drag her about one mile through a town at about 8 p.m. against her wishes and still get away with it. If the person had been gagged, then the position is different but we have on record from Susheela both the versions. If she had been dragged, then her ability to have identified the assailant virtually goes down to zero and if she had not been dragged it still becomes extremely difficult to accept that even if she could have been pulled aside into a lonely area that she could have been taken all that distance through the town against her wishes. Again therefore, the big question mark arises as to whether she was kidnapped and abducted or whether she went voluntarily. It is difficult to conclusively hold in this background that she had not gone voluntarily.
8. The last aspect of the case is as to whether even if she had accompanied the accused voluntarily assuming that she was friendly with him or for any other reason and if he had taken advantage of her and forcibly raped her, whether an offence u/s 376 Indian Penal Code would still be made out. In order to establish as to whether force was used and the incident took place against her wishes or not we have to fall back only on her evidence. It is true that she has consistently stated that some cloth had been stuffed into her mouth in order to prevent her from shouting out or screaming but what one needs to take note of all two other aspects of the case. The first is that she does not allege that the assailant was armed with a knife or deadly weapon nor does she allege that it was under these circumstances that she was traumatised and terrorised and therefore did not resist at all. In the absence of these factors, a very peculiar position arises because according to Susheela she had in fact resisted and fought back to the extent possible and again this version becomes doubtful because of the absence of the injuries that has already been noted but there is anr. aspect of the matter that is really clinching. PW-6''s version is that after getting her to the lonely spot the accused systematically took off all her clothes. Again, one needs to take note of the fact that Susheela is an adult woman and not a child and her version then is that after doing this that the accused undressed himself prior to raping her and the very suspicious question that arises is as to how the accused was able to not only overpower Susheela all through this operation but simultaneously prevent her from running away from that place. As indicated by me earlier, there is no allegation that he was armed or that he had terrorised her or for that matter he had tied her up and immobilised her. If one is dissecting the anatomy of the commission of the offence at this stage, one would find that though the act has taken place that there is a total absence of force and if that is the position, it would be equally difficult to hold in the special facts and circumstances of this case that there was lack of consent on the part of Susheela. It is here that the last argument canvassed by the Appellant''s learned Advocate assumes some significance because Susheela was accustomed to sexual intercourse and she was pregnant at that time and if she has denied every question on this aspect of the matter, the lurking suspicion that arises is as to whether there was in fact something going on between her and the accused and that because things went out of control or something of that sort, that she has thereafter summersaulted and complained against him.
9. While I don concede that the offence of rape is not only anti-social and abnoxious and that little mercy can be shown to an accused who indulges in such offences, the legislature had prescribed rigorous penalties for the commission of such offences and it is therefore that a very heavy obligation is cast on the Court dealing with such offences to examine the evidence threadbare, to examine every aspect of the evidence and the ingredients and if the offence is not established in the manner as the law prescribes that the accused cannot be subjected to the rigors of a sentence under this section. It is for this reason that I have done a rather microscopic examination not only of the record but all the different facets of the case and to my mind, there are too many grey areas on the crucial aspect of lack of consent and consequently, the accused would be entitled to the benefit of doubt.
10. For the aforesaid reasons, the appeal succeeds. The conviction and sentence awarded to the accused by the trial Court are set aside. Fine if paid is directed to be refunded. The bail bond of the accused to stand cancelled.
