RAJU KRISHNA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) 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 analoguously 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 No. 1, Raju and accused No. 2, Krishna in Sessions Case No. 23 of 1979 for the offences under Ss. 342, 323, 506, 376 and 380 of the Indian Penal Code. The learned Sessions Judge convicted the accused No. 1, Raju, for the offence u/S. 376, IPC and sentenced him to detention till the rising 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 No. 2 of all the charges and he also acquitted the accused No. 1 of the remaining charges. Against his conviction under S. 376, IPC, the accused No. 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 No. 1 and accused No. 2, against the acquittal of accused No. 2 of all the charges and acquittal of the accused No. 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 No. 1 so far as the conviction under S. 376 was concerned.

(2.) The prosecution case in short is that the prosecutrix, P.W. 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 page No. W. 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 P.W. 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 P.W. 4, Krishnagowda a room boy was initially reluctant to accommodate three persons in one room, P.W. 2 Sri 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 S. 379, I.P.C. It is the prosecution case that a bed was spread on the ground and the prosecutrix, P.W. 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 No. 2 Krishna, went to sleep on the cot by the side of P.W. 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. P.W. 3 objected and she even screamed. The accused No. 1, Raju, then got up and shut her mouth by means of handkerchief and warned her not to scream. He then sent accused No. 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. The accused No. 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 No. 1 opened the door when the accused No. 2 came in. Accused No. 1 went out. Accused No. 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 No. 2 opened the door when accused No. 1 entered the room and accused No. 2 went out. The accused No. 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 No. 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 P.W. 2 as to what had happened to her. In the meantime, the accused No. 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 Ss. 342, 376 and 380, IPC was started against both the accused persons. The statement of the Police Constable P.W. 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 part.

(3.) The learned Sessions Judge inter alia came to the finding that the offence of rape was established so far as accused No. 1 was concerned but the offence of rape against accused No. 2 and other offences alleged against both the accused could not be established beyond reasonable doubts. The learned Sessions Judge therefore acquitted the accused No. 2 from all the charges and acquitted accused No. 1 in respect of other charges except for offence under S. 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 No. 1 in a fit of passion committed the rape, the learned Sessions Judge sentenced the accused No. 1 for detention till the rising of the Court with a fine of Rs. 500/-.