STATE OF KARNATAKA Vs. H B DEVIDAS

JUDGEMENT

(1.) on a charge of rape both the respondents arraigned as accused nos. 1 and 2 in the court below were acquitted. They were, the railway guard and the railway engine driver under the south central railway at the relevant time, i.e., on 17-6-1984 when the incident of rape of p.w. 1 premilabai is said to have taken place in the railway guard's brake van attached to the train that was to go to purli and the train was called as

(2.) the prosecution case is that when this train came to bidarrailway station platform, halted and started moving, p.w. 1 premilabai who was standing on the platform was dragged inside the brake van of accused no. 1-the railway guard and raped by him under threat. When it halted in the next station, accused no. 2-the engine driver came'to that brake van, talked something to him, got into that brake van and raped her. In fact the train was not in motion when this second rape was committed on her. She raised a hue and cry at udgir railway station where the train had stopped, people collected and she was taken to the railway police station. It was p.c. 807 of railway police outpost who was on the udgir railway platform, noticed large number of persons collected near the brake van, found All the three persons namely, both the accused and p.w. 1 in the brake van and then approached p.w. 8 another police constable at his residence at 10.30 p.m. and brought him to the platform. P.w. 1 narrated to him what had happened and there was also present a certain journalist-p.w. 6 among the crowd. P.w. 8 informed what had happened by way of a message to the purli railway police station, got a message that he should detain both the accused persons and thereafter took her to purli railway police station on 18-6-1984 where h.c. 447-p.w. 13 took her complaint and registered a case in crime no. Ao/84 under section 376, ipc. The accused were also arrested at the spot as they were also taken along with her by p.w. 8 to that police station. The clothes of that person were seized and p.w. 1 was sent for medical examination. This is how the charge-sheet came to be filed after due investigation under section 376, ipc against both the respondents-accused persons. The trial court acquitted them holding that the charge against them was not proved beyond doubt. That judgment of acquittal is challenged in this appeal and it is contended by the learned High Court government pleader that the trial court ought to have accepted the evidence of p.w. 1-the prosecutrix, the evidence of other witnesses and the trial court was not justified in disbelieving them.

(3.) we have reappraised the evidence. The evidence of p.w. 1itself, though that of a victim of alleged rape, does not inspire confidence, though evidence of such a victim should be considered on par with that of an injured witness. But what we would like to point out is that the material ingredient that the prosecution has to establish is that there was sexual assault on her without her consent or against her will. That is the most material ingredient and no presumption is raised of want of consent even when evidence is given by the prosecutrix. The evidence of such a witness has to be considered, weighed and assessed over the touchstone of probabilities keeping at the same time in view, the human conduct under peculiar circumstances.