V. Jagannathan, J.@mdashThe two sisters (both victims of rape), who were working in the quarry of one Subhash Jain and being the residents of Badaga Mijaru Village, Ashwathapura (sic), on 2.6.2004, after completing their work, were waiting for the bus near Sampige of Puttige Village by the side of the road to go to their place and it was around 6.00 p.m. and at that time, the appellants herein come there in an autorikshaw which was driven by A-1 Santhosh Moolya and the auto stopped in front of the two sisters and than, A-1 called the two sisters to get into the auto as the two accused were going towards Ashwathapura side. Accordingly, both the sisters sat in the auto and A-2 Surendra Gowda sat by their side and A-1 was driving the autorikshaw. There was rain coming at that tune and the autorikshaw was taken towards a lonely place after leaving the main road and moved in the kachcha road. The two sisters, out of fear, asked the two accused as to where the auto was being taken. By that time, the auto customs to a halt at a (sic) place and the accused persons pulled the two sisters out of the autorikshaw and after covering their mouth with hands, the accused threatened to kill the two sisters if they gave rise to any shouting. Thereafter, both the sisters were made to lie on the ground and their clothes were removed. A-1 had forcible intercourse with the older sister and A-2 did the same with the younger sister. Despite the efforts made by the two sisters to avoid from being raped by the two accused, they could not succeed and after the forcible intercourse, the accused, while leaving the place, threatened the sisters by telling them that they will have to allow the accused to do the similar act of having intercourse with the two sisters even in the future, failing which the two sisters would be done to death, and they also threatened the sisters not to inform anybody about the incident After the accused left the scene of offence, the two sisters managed to get up and put on their clothes and walked to their house and informed about the incident to their mother. It is also the complaint version that the two sisters were seen by Yamunappa while they boarded the autorikshaw in which the two accused came near the bus stop and picked the two sisters. The reason for lodging the formal complaint with the police is also stated in the complaint as the life threat given by the accused.
2. Following the complaint being lodged as per Ex.P-1 before P.W.13 Ithappa, P.S.I., a case was registered in Crime No. (sic)/2004 for the offences punishable u/s 376 and 506 read with 34 of the I.P.C. against the two secured and the F.I.R. was sent as per Ex.P-9 to the court. P.W.12 Pushparaj carried the F.I.R. and delivered it to the Magistrate. P.W.16 took up the investigation and recorded the statements of the witnesses including P.W.14, mother of the victims, and also had the spot panchanama conducted as per Ex.P-2 in the presence of the panch witness P.W.9 and the autorikshaw was also seized from its owner P.W.6 under panchanama Ex.P-4. The victims were subjected to the medical examination by P.W.7 Dr. Vijaya, who issued the reports as par Exs.P-5 and P-6 respectively after examining the two victim P.W.1 - elder sister, and P.W.2 - younger sister. After collecting the sketch map of the scene of offence through the engineer P.W.11 U. Ravindra kini as per Ex.P-8 and recording the statement of the quarry owner P.W.4 Subhash Jain, under whom the victim were working, and that of P.W.5 Nonayya Gowda, a worker of the quarry where the two sisters were also working, and that of P.W.15 Kishore, who confirmed the occupation of A-2 as the trailer driver, and on completion of the entire investigation, P.W.16 submitted the charge-sheet against the two accused.
3. As the accused persons pleaded not guilty to the charge framed against them, the prosecution examined in all 16 witnesses, most of whom have been referred to above, and on being questioned u/s 313 of the Cr.P.C., the two accused denied the prosecution case in its entirety and the only stand taken by them in reply to the last question put to them was that there was enmity between the father of the accused and P.W.4 Subhash Jain, the quarry owner, and therefore, out of enmity factor, a false case has been filed against the two accused. On their part, the accused did not choose to lead any evidence. In the course of the entire evidence, the prosecution, apart from examing the 16 witnesses, got marked the documents Exe.P-1 to P-9 and M. Os.1 to 5 were the material objects produced in support of the prosecution case.
4. The learned trial judge, after appreciating the evidence on record, came to the conclusion that the testimony of the victims of rape i.e., P.Ws.1 and 2, inspires confidence to accept the same as reliable and truthful and did not find anything fatal in their evidence to distrust the testimony of the two victims of rape. At the same time, the trial court also took note of the discrepancies and contradictions as well as the lapse on the part of the investigating agency, but held that the said discrepancies and contradictions were not serious enough so as to affect the credibility of the testimony of P.Ws.1 and 2 and, for the wary same reason, the trial court also found that the delay in lodging the complaint was also not very fatal in view of the explanation offered by the prosecution through P.Ws.1 and 2. In coming to the said conclusion, the learned trial judge placed reliance on several decisions of the Apex Court and also of this Court. In the end, the trial court was satisfied that the prosecution had brought home the guilt of the accused beyond all reasonable doubt and the said finding of the trial court led to the conviction of the two accused for the offences punishable under Sections 376 and 506 of the I.P.C. Both the accused were sentenced to 7 years rigorous imprisonment and to pay a fine of Rs. 10,000/- each and in default of payment of fine, to undergo 3 months rigorous imprisonment for the offence of rape committed by them and, as far as the offence punishable u/s 506(2) of the I.P.C. is concerned, the trial court sentenced the two accused to 3 months rigorous imprisonment and ordered that the substantive sentences shall run concurrently with set off being given to the accused in accordance with Section 428 of the Cr.P.C.
5. Aggrieved by the conviction and sentence passed as aforesaid against the two accused by the trial court, they have preferred this appeal.
6. I have heard the learned Counsel Shri P.P. Hegde for the appellants and the learned Government Pleaders Shri H.C. Siddagangaiah and also Shri M.G. Anjana Murthy. I have also carefully perused the entire material on record.
7. The learned Counsel for the appellants put forward three main contentions to support his argument for reversing the judgment of the trial court. The first one is that, there is inordinate delay in lodging the complaint and the F.I.R. was registered after 42 days of the alleged incident and no explanation is forthcoming as to why there was so much of delay on the part of the two victims to lodge the complaint In this connection, it was argued that the evidence of P.W.2 in particular will go to show that immediately after the incident in question, the victims went to the police station and they also met P.W.4 Subhash Jain and the accused were also brought to the scene of offence and all these go to indicate that the complaint could have been lodged immediately after the incident in question, but, for no good reason, the victims have delayed in lodging the complaint and this gives rise to the possibility of embellishment inasmuch as meeting of minds must have taken place in order to fekely rope in the accused. As such, the delay in lodging the complaint is a serious infirmity giving rise to doubt the prosecution case.
8. The second contention put forward in that, a look at the cross-examination of P.W.2 would go to show that the said witness contradicts P.W.1, the other sister, in several respects and they pertain to the police not seizing the bangle pieces from the place of occurrence, the clothes of the two victims being not recovered immediately after the incident and the complaint also not being registered at the earliest instance though P.W.2 says that she and her sister went and informed the police about the incident. Thus, the contradictions in the testimony of P.W.2 when compared to that of P.W.1, give rise to doubt the veracity of the testimony of the two victims.
9. The third ground urged is that the medical evidence placed on record through P.W.7 and P.W.8 does not help in corroborating the testimony of the two victims, P.Ws.1 and 2. P.W.7 Dr. Vijaya has opined that she did not find any injuries on the private part of P.W.1 and, as far as P.W.2 is concerned, the doctor has opined that whether the said victim had been habituated to continuous intercourse or not cannot be stated by her. Absence of injuries on the body of P.Ws.1 and 2 therefore, is indicative of the accused persons being enmity the father of the accused had with P.W.4 Subhash Jain, the quarry owner. As far as the evidence of P.W.8 Dr. Badruddin is concerned, referring to the evidence of the said doctor, it is submitted that even the said doctor does not speak to A-1 being involved in the commission of the offence of rape and the evidence on the whole of the two doctors does not assist the testimony of P.Ws.1 and 2. In view of the medical evidence not corroborating the testimony of the two victims, it is unsafe to rely on the interested version of the two victims to convict the appellants for the offence of rape.
10. In support of the above contentions, the learned Counsel for the appellents took me through the entire evidence on record and more particularly, he focussed on the cross-examination part of P.Ws.1 and 2. The decisions referred to in this regard by the learned Counsel for the appellants are those which are reported in
11. On the other hand, the learned Government Pleader for the State supported the judgment of the trial court and submitted that the testimony of the victims of rape can be accepted at their evidence suffer from no serious infirmity and having regard to the appreciation of evidence of the rape victims and also referring to the decisions of the Apex Court, which have been taken note of by the learned trial judge in the course of his judgment, it is contended that no case has been made out by the appellants for reversing the judgment of conviction and there are no compelling reasons also to upset the trial courts judgment. In this regard, the evidence of the material witnesses was also referred to.
12. In the light of the aforesaid submissions made by the learned Counsel for the parties and the rulings cited, the point for consideration is whether the judgment of conviction and sentence passed by the trial court can be said to be sustainable in law.
13. Before I deal with the contentions put forward by the learned Counsel for the appellants, a look into the testimony of the two victim of rape becomes necessary at this juncture.
14. P.W.1 is the elder of the two sisters and she has deposed in her evidence that when she and her younger sister (P.W.2) were waiting near the bus stop at Sompige in order to go to their place at Ashwathapura, the two accused came in an autorikshaw and it was driven by A-1. She has stated that as they knew the two accused because they were also doing quarry work and as A-1 Santhosh asked the two sisters to get into the auto because they were also going towards Ashwathapura, P.W.1 and her sister sat to the autorikshaw along with A-2 Surendra. It is in her evidence that the auto left the main road and went off in the muddy road and it was stopped after some distance and it was raining at that time. She has also stated that A-1 pulled her out of the auto and A-2 putted her sister and though the sisters shouted, they were prevented from raising their voice by covering their mouths and the accused parsons forcibly made the two sisters to lie down on the ground. She has stated that A-1 Santhosh made her fall to the ground and A-2 did the same to her sister P.W.2. The clothes worn by the two sisters were torn and thereafter, they were made naked by the accused. She then has deposed to the effect that A-1 had forcible intercourse with her and similarly A-2 had forcible intercourse with her sister P.W.2.
15. P.W.1 has also stated that both she and her sister tried to escape from the clutches of the two accused, but they could not succeed and as there were no houses nearby and it was a lonely area with tot of trees, the accused persons, after committing rape on the two sisters, left by threatening the victims not to inform the incident to anyone lost they would kill them. They also asked the two sisters to make themselves available to the accused for similar such acts in the future. P.W.1 has then stated that she and her sister had injuries on their body as well as on their back and also in their private parts and the sarees worn by them had mud smear and later on, the two sisters wore their clothes and came home and informed their mother about the incident.
16. P.W.1 has stated in her evidence that they also informed about the incident to the writer by name Nonayya Gowda, who, in turn, informed the owner Subhash Jain. P.W. 1 was asked to lodge the complaint but, out of fear, she did not do so because, the accused had threatened to take their lives. However, the witness says that, after a month and twelve days and, after mustering courage and in order to ensure that such acts of rape are not committed on ether girls, the complaint was finally lodged with Moodabidre police as per Ex.P-1.
17. Though PW.1 has been subjected to a very lengthy cross-examination, nothing has been elicited to a dislodge or discredit the crore of her testimony. In fact, a look at the suggestions put to P.W.1 in the cross-examination gives an indication that the victim was asked to give all other details of the incident of rape which details she herself had not mentioned in the course of her examination-in-chief. The witness has denied the suggestion that she was not forcibly raped by the accused and that she lodged a false complaint at the instance of the quarry owner Subhash Jain.
18. P.W.2 is the younger sister and also the victim of rape and she has stated almost in identical fashion like P.W.1 with regard to the incident of raps right from the moment the two accused carried the two sister in the auto rickshawand thereafter A-1 committing rape on P.W.1 and A-2 committing the same act on her. Thus, P.W.1''s evidence is fully supported by that of P.W.2 in all material particulars.
19. In the cross-examination of P.W.2, insofar as the act committed by the two accused is concerned, nothing has been brought out to disbelieve her version. No doubt, in the course of the cross-examination of P.W.2, it has been brought out that both the sisters informed the incident to Subhash Jain and also to the police and the police brought the accused to the scene of offence and the two sisters pointed out the broken bangle pieces lying at the spot and the police failing to seize the same and P.W.2 also has stated that they went to the police station and informed the P.S.I. about the incident. It is also elicited from the mouth of P.W.2 that the quarry owner Subhash Jain also came to the police station and spoke to the P.S.I. and the police also assaulted the two accused. The defence also has brought out from P.W.2 in the course of her cross-examination that there was dispute between the quarry owners and the quarry area of one Shanker was by the side of the quarry place of Subhash Jain and following Subhash Jain commencing the quarry work, working in that the said place being given to him and, in this connection, there was quarrel between Subhash and A-2''s father.
20. Thus, from the evidence of P.Ws.1 and 2, it is established that both the victims have stated consistently with regard to the rape incident and how the two accused raped the two sisters. In fact, P.W.1 happens to be a married woman. Having thus found the testimony of the two victims having a ring of truth in what they say, I now proceed to examine the medical evidence on record.
21. P.W.7 Dr. Vijaya has deposed in her evidence that on 14.7.2004, at 7.30 p.m., she examined P.W.1 and found an injury on the back of P.W.1 end also on the waist and she has issued certificate as per Ex. P-5. The doctor has also stated that she did not notice any injury on the private part of P.W.1 nor ware there any injuries around the private part and has put the age of P.W.1 between 20 and 25 years.
22. As far as P.W.3 is concerned, P.W.7 doctor has stated that, on examination her, she found injuries on the right side of the back which was a scratch injury and also similar injury on the left leg and several scratch injuries on the left foot as well as on the left elbow. The doctor opines that the said victim P.W.2 had been subjected to intercourse, but she cannot say whether it was forcible intercourse or not and she did not find any injuries near or surrounding the private part of P.W.2 and she puts the age of P.W.2 between 18 and 20 years and Ex.P-6 is the wound certificate issued in this regard.
23. In the cross-examination of P.W.7 doctor, she has stated that she cannot say with certainty as to whether the victims had been subjected to continuous intercourse or not and also says that the injuries found on the back of P.W.2 were possible while doing the quarry work.
24. P.W.8 Dr. Badruddin has opined in the course of his evidence that both the accused are capable of having sexual intercourse and he did not notice any injuries on their body. Ex.P-7 is the certificate issued by him in this regard.
25. Though the medical evidence does not give the indication of any injuries being found on the private parts of P.Ws.1 and 2, what is to be kept in view is that the two victims were not taken to the doctor immediately after the incident, but they ware taken almost after a month and fourteen days. In such circumstances, it is unlikely that any signs of sexual intercourse will be visible by examining the private parts of the two victims and so also the injuries on other parts of the body. P.W.1 happens to be a married women and, therefore, it is unlikely to find any material in the evidence of the doctor to show that P.W.1 was not accustomed to intercourse. The very fact that P.W.1 has deposed in her evidence that she is a married woman having children itself indicates that she is accustomed to sexual intercourse and, as such, under such circumstances, it will be difficult to expect the doctor to indicate the signs of sexual intercourse having taken place for the first time on P.W.1.
26. Having regard to the reliable and trustworthy testimony of P.Ws.1 and 2 and both the witnesses (sic) each other in material particulars with regard to the act of rape committed by the two accused on them as deposed to by them, no indication of forcible rape in the medical evidence of the two doctors cannot be construed as a fatal infirmity in the prosecution case particularly having regard to the law laid down by the Apex Court with regard to the appreciation of evidence of the rape victims.
27. It is a settled law that the testimony of rape victim can be acted upon even without corroboration provided her testimony inspires confidence in the mind of the court to accept the same. In this regard, the observations of the Apex Court in the case of
it is sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violatee the victim''s privacy and personal integrity, but inevitably causes serious psychological at well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader minor contradictions or insignificant discrepancies in the statement the prosecutrix, which are not of a fatal nature, to throw out as otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit relience on her testimony, it may look for evidence which may lend (sic) to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
28. In the case of H. Chardrakanth v. State of Karnataka, reported in 2003(1) Crimes 357, it has been held by this Court that where the evidence of the prosecutrix is believed to be A truthful witness, no further corroboration can be insisted and it also went on to observe that the mere fact that there was no injury on the body of thus prosecutrix would not by itself discredit the evidence of the prosecutrix when the case of State of Karnataka v. Menjanna reported in 2000 (2) Crimes 302 (SC), it has been held that non-production of the victim for medical examination is not fatal to the prosecution case.
29. In the light of the aforesaid law laid down by the Apex Court and also of this Court, the mere fact that the medical evidence of P.Ws.7 and 8 do not lend support to the testimony of P.Ws.1 and 2 itself is not a serious (sic) in the prosecution case when both the victims depose, in their evidence about the manner in which they were subjected to forcible rape by two accused. In fact, P.W.1 happens to be a married woman and it is rather difficult to conceive of P.W.1 coming forward and making an allegation of rape on her by A-1 at the cost of her honour and respect in the society particularly in a traditional bound society like ours.
30. Coming to the delay factor, it is strongly contended by the learned Counsel for the appellants that the delay of 42 days in lodging the complaint is fatal to the prosecution case. No doubt these is a delay of one month and 12 days in lodging the complaint Both P.Ws. 1 and 2 have given the explanation for the delay in approaching the police, Both of them stated in their evidence that they were put under threat by the accused and they were told that if they reveal the incident to anyone, they would be killed. Inspite of this, both the victims went and informed the matter to their mother and then to PW.4 Subhash Jain and also informed one Ramani a Women''s organisation leader and after mustering of courage, they finally lodged the complaint in writing through P.W.1 as per Ex.P1. In the said circumstances, not only the delay in lodging the FIR has been properly explained, but in the case of this nature, one does not expect the victims to file the complaint without loss off time Therefore, in the light of the law laid down by the Apex Court in the case of
31. As for a the contradictions in the testimony of P.W.2 as pointed out by the appellants'' Counsel is concerned, they are not serious enough so as to dislodge the pith and substance of testimony of P.W.1 and P.W.2. It is a well settled law that inconsistencies and contradictions which are of minor nature cannot be given much importance unless it is shown that contradictions and inconsistencies goes to the root of the matter so as to render the prosecution case doubtful Therefore, as has been observed by the Apex Court in the case of State of Madhya Pradesh v. Mansingh and Ors. 2007 (2) SCC (CRL) 390, minor discrepancies do not corrode the credibility of an otherwise acceptable evidence. As far as de(sic) in the prosecution case is concerred, it is submitted by the appellants'' Counsel that though P.W.2 pointed out that the bangles found lying at the scene of offence the police did not (sic) the bangle places and it is also argued that evidence with regard to seizure of cloths of P.W.1 and P.W.2 is very in consistent because the mother of the victim P.W.14 gives a different date and the date mentioned by the police offices all together is different one and therefore, the evidence with regard to seizure of cloths is not convincing. As far as the said defects are concerned, no doubt there are lapses in the investigation but nevertheless, such lapses cannot be made a good ground to reject the prosecution version which is trustworthy and reliable, in the very same decision referred to above, i.e., Mansingh''s case, the Apex Court has also observed that deficiencies in the investigation cannot be a ground to discard the prosecution version, which is authentic, credible and cogent. Therefore, the infirmities pointed out by the appellants'' counsel with regard to lapses in the investigation and contradictions in the testimony of P.W.2 do not in my view affect the case of the prosecution case as projected through the reliable and convincing testimony of P.W.1 and 2.
32. In the of the judgment being dictated, the learned Counsel for the appellants also put forward another ground, i.e.P.Ws1 and 2 the two victims were the consenting parties to the intercourse by the two accused. This submission of the appellant only requires to be noticed for being rejected because it is highly inconceivable in a tradition bound society like sure to accept two sisters out of which one is married to go along with the accused persons and submit themselves to intercourse by the accused in a lonely place and that too after removing all the clothes. As such, a situation can never arise and no woman that too, a married woman in the Presence of her sister will expose her modesty being ravished by the accused persons that too with their consent. As such, the said ground urged by the appellants'' Counsel therefore, cannot be given any consideration and further more, no such defence was also taken by the accused as could be seen from their reply given under 313 statement and also as could be seen from the nature of cross-examination of two victims P.Ws.1 and 2.
33. In the light of the foregoing analysis of the evidence, in my opinion, the rulings referred to by the appellant''s Counsel are inapplicable to the case on hand as the facts and circumstances in the said case are entirely different. Each case requires to be examined in the light of its own facts and circumstances and testimony of the victims and their evidence on record and viewed from the said angle, all the decisions rendered by the appellants'' counsel cannot come to the aid of the appellants.
34. The learned trial Judge has left no stone unturned in assessing the evidence from every angle and particularly in the light of the grounds urged before the learned trial Judge on behalf of the accused which grounds are almost similar to the grounds urged before this Court in this appeal. The learned trial Judge has also taken note of various decisions of the Apex Court and also of this Court in meeting all the grounds urged before him, and hence I do not find any error being committed by the trial Judge either in appreciating the evidence on record or in the application of principles of law as laid down by the Apex Court in evaluating the evidence of rape victims.
35. As the grounds urged by the appellants'' Counsel do not carry much weight and as the trial court has analysed the evidence of all the witnesses in a proper perspective and as it has rightly found the testimony of P.Ws 1 and 2 is reliable and convincing, no compelling grounds have been made out by the appellants, for this Court to upset the judgment of conviction and sentence passed by the learned trial Judge.
As such, this appeal lacks merit and hence, I pass the following order:
The appeal is dismissed.
