RAMESH Vs. STATE OF KAMATAKA

JUDGEMENT

(1.) The accused are appellants who were convicted for offences under Sections 448, 506 and 376, IPC for having trespassed into the house of the complainant- Parvathamma at Aidalli Village in Chickmagalur District on the midnight of 16-1-1987 and committing rape on her after threatening her with danger to life. Each of them has been sentenced to S.I. for one year under Section 448, IPC, S.I. for one year under Section 506, IPC and R.I. for 10 years under Section 376, IPC directing the sentences to run concurrently. The prosecution case is brief and simple. P.W. 10 the prosecu trix and her husband P.W. 8 Ramesh were residing at Aidalli village doing coolie work. In the same village either in the vicinity or some distance away were also living the elder brother of P.W. 10, Chandrcgowda and another Chandregowda her sister's husband as well as P.W. 2 her uncle Devegowda. At the material time they bad a son of 5 years of age and she was also carrying 4 months. Theirs was a hut, there was no facility of latching the shutters of the house, front door was only tied with a string whereas the hind shutter was closed by keeping a stick across. P.W. 8 had gone on pilgrimage to Shabarimalai about 9 or 10 days before this incident. Thus in that but were living P.W. 10 and her son P.W. 11, N. Kumar. According to the prosecution the accused trespassed into her house at midnight time threatened her at the point of knife or kathi and a club or "donne", raped her and also took promise from her that she would not divulge it to anyone and then went away. When she lit the lamp kept near her bed she identified the two accused persons. Her son who woke up was also threatened by the accused persons n0t to shout or raise alarm. After they went away she spent a sleepless night, took her bath early in the morning, washed her clothes and then went to her uncle's (P.W.2) house who was living about 2 kms. away from her house and informed him what had happened the previous night. The accused were called to his house and they confessed before him about they raping P.W. 10. There were present at that time the elder brother of P.W. 10 one Chandrcgowda, one Ramegowda and others. Shivaramu and Nageshagowda were also sent for by P. W. 2. On being told by P.W. 2 to go to the police station and file the complaint she went to the police station at Aldur about 12 kms. from that village along with one Chandregowda and filed complaint before P.W. 12 the Sub-Inspector in-charge of the police station. Having registered a case he sent her for examination by a Medical Officer in the Government Hospital. P.W. 5 examined her at11.10 p.m. but found no signs of intercourse. The accused were taken into custody the same day, after Sub-Inspector went to the village after registering the case and subjected them for medical examination at 9 p.m. before P.W. 4 the Assistant Surgeon at the Genera! Hospital, Chickmagalur. On examining both of them he also found no signs of they committing rape. Her husband however returned to the village the same morning and having come to know about his wife going to Aldur to file complaint he went with his son to Aldur. On completion of due investigation charge-sheet came to be filed.

(2.) The Sessions Court believing the evidence of the prosecution case found the accused guilty convicted and sentenced them as aforesaid. It is urged on behalf of the appellants by Sri A.J. Gunjal the learned counsel that the trial court was not justified in keeping unqualified reliance on the evidence of P, W. 10 the prosecutrix. The contradictions in her evidence and the allegations in the complaint, her immediate conduct after the incident, therebeing no signs of forcible intercourse on her, therebeing no satisfactory evidence as to with whom she went to the police station and filed the complaint, the trial court ought not to have believed her evidence. We have reappraised the evidence in the light of the arguments advanced.

(3.) We may state at the outset that if the evidence of P.W. 10 is reliable and satisfactory no corroboration could be called for. Any how there is the corroboratton to her evidence from that of her son P.W. 11. Therefore, whether her evidence should be believed to find the accused guilty is the relevant question before us. Admittedly she was 28 years of age at the time of the incident. She had a 5 years old son living with her and was carrying 4 months. Both the accused were 20 years of age as deposed to by P.W. 4. Therefore it follows that she was about 8 years older than the two accused persons. Suggestions were made to her in box that because her brother was indulging in manufacturing illicit liquor and the accused were suspected to give information to the police false case has been filed. We do not attach much importance to such suggestions to these witnesses because if at all a false case could be foisted it could be of some other nature but not of a rape involving the chastity of a woman. Therefore we have only to see if there is atleast possibility of therebeing a voluntary consent on the part of P.W. 10 for sextual submission to the accused persons. There is no explanation coming forth as to what impelled her to clean herself before going to her kith and kin. Thus when the Doctor examined practically there were no signs of intercourse on her. She has deposed falsehood that she was examined by the lady Doctor at Aldur Hospital soon after she filed complaint but according to P.W. 12 there was no lady Doctor at Aldur Hospital and he had sent her to the Doctor at Chickmagalur Government Hospital. When she has made such a false statement cannot be made out and even if it could be brushed aside as a version given to make her more reliable and truthful we have to see if her evidence is inherently incapable of being given unqualified reliance. It has come in evidence that her brother Chandregowda was living at a distance of 20 Marus away though at one stage she has stated that 2 Furlongs away. There is also a house of one Pillai in the vicinity. The learned State Public Prosecutor from the evidence told us that Chandregowda P.W. 3 was not in the village that night but returned the same morning at 7,30 a.m. Even then she could have approached him immediately with tell talc circumstances on her person of being the victim of rape. Instead of that she goes to her uncle 2 kms away at 10 a.m. and complains before him. She does not raise any hue and cry immediately after the accused left. That was not a solitary house in the locality though not a cluster of houses. There were a few houses in the neighbourhood but she did not raise any alarm atleast after the accused left the house. What she alleged in the complaint filed immediately is most material which directly contradicts with what she stated in court. She made a brief complaint that when she was alone in the house that night both the accused rushed into her house armed with a kathi and club, pointed out them to her and by force committed rape on her. In court however she gave evidence that there was no facility of latching the shutters of her house, front door was only tied with a string whereas the hind shutter was closed by keeping a stick across. At night when she was asleep she fell like some one lying on her. However she identified that they were Malayalee people of the house where she used to go for sweeping. They also told her not to raise any cry and that they would leave the place after accomplishing the purpose for which they entered the house. Thus one of them unbuttoned her jacket had intercourse with her by lifting her pitticoat and thereafter the other person had also intercourse. Her son who woke up in the meanwhile cries "Amma Amma" and then they threatened him with danger to his life in case he shouted. They also threatened him that in case he shouted his mother also could be killed. This is now her son was quietly lying. When the other accused person was raping her, the first one was silting nearby. After everything was over, that is, after intercourse was over, she woke up and then lit the lamp nearby. A-1 Ramesh compelled her to take oath that she would not disclose it to any one or else he would take her life. This is how she gave him a word on oath that she would not divulge. After lighting the lamp she saw a sickle and club lying nearby. Having taken a word from her, both of them left the house. The reason given by her for taking a bath and washing her clothes cleanly to get them dried was that the clothes were soiled perhaps due to this act of the accused persons.