STATE OF KARNATAKA Vs. GURUPADAYYA BALAYYA KARADI

JUDGEMENT

(1.) THOUGH the accused in the present case faces serious charges of having trespassed into the residential house of complainant Chandrawwa at about 1 PM. On 6. 2. 1995 and having raped her thereafter, involving offences punishable under Sections 451 and 376 IPC. , the case has thrown up some fundamental aspects of the law relating to these offences. The complainant Chandrawwa was aged about 20 years at the relevant time and there is no dispute about the fact that she was not a minor. She had been married two years earlier but due to certain domestic problems she had returned to her parents house and was residing there. On 6. 2. 1995 her father had left the house and so had her mother and at the time of the incident namely, at about 1 PM. She was alone in the house. It is her case that the accused Gurupadayya came to the house and made certain enquiries about her father and mother and after verifying carefully that they were not around and that they were not likely to return for sometime is alleged to have entered the house and bolted the inner door. Thereafter, according to the victim the accused overpowered her and committed the act of rape. Her version is that she was not a consenting party or rather though she resisted by trying to shout, she was prevented from doing so because the accused felled her down, closed her mouth with one hand, silenced her and furthermore, the accused caught hold of her so forcefully that it became impossible for her to escape. She alleges that the accused had completed the act of rape when PW. 2 Tippawwa who is her aunty came there to take her for some function and when she started calling out to Chandrawwa, the accused panicked, he opened the door and fled from that place. PW. 2 states that it was the accused who opened the door and that he was in the process of trying to put his clothes in place when he fled from that place. She found the victim in a disturbed and disheveled condition and on asking her, Chandrawwa told PW. 2 that the accused had overpowered her and raped her. The matter was thereafter reported to the police after the arrival of her parents and the police sent the victim to the hospital for necessary medical examination. The accused was arrested and also subjected to medical examination. The doctor undertook the necessary swab test etc. and after completion of the entire investigation the accused was charge sheeted and sent up for trial.

(2.) THE learned Sessions Judge accepted the evidence of the victim Chandrawwa and further held that this evidence is corroborated by the evidence of PW. 2 Tippawwa who arrived at the house virtually minutes after the alleged incident, who saw the accused running away virtually in a half-clothed condition and the other supportive evidence and the Court also accepted the explanation of the victim that since she had taken a bath immediately after the incident and also washed her clothes before going to the police station that whatever secondary signs of rape either on her body or on her clothes were not traceable. The accused was convicted by the trial Court and sentenced to five years rigorous imprisonment and a fine of Rs. 2000/- for the offence under S. 376 IPC. And to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- for the offence punishable under S. 451 IPC. The accused who is aggrieved by the conviction and sentence has preferred Criminal Appeal 778/98. The State has preferred Criminal Appeal 1090/98 praying for enhancement of sentence on the ground that the Court ought to have awarded a sentence of seven years rigorous imprisonment for the offence punishable under S. 376 IPC. unless valid and cogent grounds have been adduced for awarding a lesser sentence. We have heard both the appeals together on merits. We have heard the arguments advanced by the two learned Counsel and we have also done a threadbare review of the record because the facts of this case represent a rather serious and unfortunate state of affairs and, in the event of the charge having been proved, it would certainly have been a case for enhancement of sentence.

(3.) APPEARING on behalf of the appellant-accused, Mr. Nayak, learned Counsel submitted after taking us through the evidence on record that there is one factor that is absolutely glaring in the present case. He submits that the victim is a young woman of 20, the accused was a little older namely 45 an the incident is alleged to have taken place in a residential house in the village and the record establishes that there were a number of other residential structure in the very close proximity. The first submission advanced by the learned Counsel is that in cases of the present type, it is very necessary for the Court to take a board view of the record for purposes of considering both the probability and the possibility of an offence of this type taking place. There is no allegation that the accused was armed with a deadly weapon or that he had attacked and immobilised the victim and Mr. Nayaks submission is that in broad day light in the heart of the village the sheer probability or possibility of the accused venturing to commit the offence of rape is very highly improbable. Learned Counsels submission is that the first and most important ingredient which the prosecution is required to establish and what is condition precedent in law particularly in the case of sexual offences alleged against a major woman is the fact that the sequel intercourse has taken place forcefully or in other words, without the consent of the victim and against the wished of the victim. Conversely, the entire thrust of the argument placed before us proceeds on the footing that if the victim was a consenting party as is more likely and had decided to take advantage of the absence of her parents, that then the rest of the prosecution evidence would be more than fully explained. The learned Counsel submits that in that event there would be no question of the victim raising an alarm and others rushing to the spot to her rescue at the peril of the aggressor and secondly, his submission is that the total absence of even the slightest abrasion or injury mark on the person of the victim, the total absence of her clothes having been torn, the fact that even the glass bangles that she was wearing were intact and the fact that there were no signs of struggle within the house by way of damage or disturbance etc. would all point in favour of the theory that assuming something happened in the house on that afternoon that it was with the consent of Chandrawwa and not without her consent.