REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 479 OF 2009

Santhosh Moolya & Anr.                                   .... Appellant(s)

Versus

State of Karnataka              .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1) This appeal is filed against the final judgment and order  

dated 13.03.2008 passed by the High Court of Karnataka at  

Bangalore in Criminal Appeal No. 1498 of 2007 whereby the  

High  Court  dismissed  the  appeal  filed  by  the  appellants-

accused affirming the conviction and sentence passed by the  

Additional  District  and Sessions Judge,  Dakshina Kannada,  

Mangalore dated 1/3.9.2007 in S.C. No. 13 of 2005.

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2) Background facts in a nutshell are as under:

On 02.06.2004, two sisters (both victims of  rape),  who  

were working in the quarry of one Subhash Jain- PW-4, after  

completing their work, were waiting for the bus near Sampige  

of  Puttige  Village  by  the  side  of  the  road  to  go  to  their  

residence  in  Badaga  Mijaru  Village,  Ashwathapura,  

Santhakatte.  At about 6.00 p.m., the appellants came there in  

an autorickshaw which was driven by Santhosh Moolya (A-1)  

and stopped the auto in front of the victims asking them to get  

into the auto as they were also going towards Ashwathapura  

side.   Surendra Gowda (A-2) was already sitting in the auto.  

Both the sisters sat by his side.  It was raining at that time.  

After some time, leaving the main road, the appellant moved  

the auto towards a kutcha road.  Both the victims asked them  

as  to  where  the  auto  was  being  taken.   By  that  time,  the  

accused stopped the auto at a lonely place and pulled both the  

victims out of the auto and after covering their  mouth with  

hands,  threatened  to  kill  them  if  they  gave  rise  to  any  

shouting.  Thereafter, both the victims were made to lie on the  

ground and their  clothes  were  removed.   Santhosh Moolya,  

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A-1 raped the elder sister and Surendra Gowda, A-2 raped the  

younger  sister.   While  leaving  the  place,  both  the  accused  

threatened  the  victims  not  to  inform  any  one  about  the  

incident and also allow them to do the similar act in future  

failing which they would be killed.  After sometime, the victims  

managed  to  get  up  and  put  on  their  clothes  and  walked  

towards their house and informed the incident to their mother  

(PW-14).  On the next day, they informed the incident to one  

Nonayya Gowda, PW-5 a worker of the quarry, who, in turn,  

informed  Subhash  Jain  (PW-4),  who  told  them  to  file  a  

complaint  but  they  hesitate  to  file  the  complaint.   On  

14.07.2004,  at  about  4.30  p.m.,  Yamuna  (PW-1)  gave  

statement before the Sub-Inspector of Police, Moodbiri Police  

Station and that was reduced to writing by Ithappa, P.S.I. PW-

13 and registered as Crime No. 62/2004 for the offence under  

Sections 376 & 506 read with Section 34 of I.P.C.  C.P.I. of  

Mulki, who is PW-16, investigated the case.  PW-16 sent the  

victims to Medical Officer, Moodgidri for medical examination  

and on the same day at about 10 p.m.,  the police arrested  

both  the  accused  persons.   On  the  next  day,  i.e.  on  

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15.07.2004, PW-16 visited the scene of offence and prepared  

the Panchnama (Ex. P2) and recorded the statements and sent  

the  accused  for  medical  examination  to  the  Government  

Hospital  and thereafter,  they were produced before J.M.F.C.  

Karkala.  On the same day, PW-16 seized the clothes of the  

victims  and  the  Auto.   On  21.08.2004,  PW-16  received  

certificate of two victims of sexual assault.  PW-16 completed  

the investigation  and filed  the  charge  sheet  on 05.09.2004.  

The III Addl. Civil  Judge (Jr. Dn.) and J.M.F.C., Karkala on  

07.02.2005 took cognizance of the offence punishable under  

Sections 376 and 506 read with 34 of I.P.C. and registered the  

case in C.C. No. 537 of 2004 and committed the same to the  

Sessions Court, Mangalore as the offence alleged against the  

accused are triable by the Court of Sessions.  The prosecution  

examined 16 witnesses.  The trial Judge, on 01/03.09.2007,  

passed an order convicting and sentencing both the accused  

to undergo rigorous imprisonment for a period of seven years  

and to  pay  a  fine  of  Rs.10,000/-  and,  in  default,  to  suffer  

rigorous  imprisonment  for  three  months  for  offence  

punishable  under  Section 376 of  I.P.C.  and further  held  to  

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undergo rigorous imprisonment for three months for offence  

punishable  under  Section  506(2)  I.P.C.   Aggrieved  by  the  

conviction and sentence passed by the trial Court, both the  

accused  preferred  an  appeal  before  the  High  Court.   The  

learned  single  Judge  of  the  High  Court,  by  order  dated  

13.03.2008, dismissed the appeal affirming the conviction and  

sentence  passed  by  the  trial  Judge.   Hence,  the  appellants  

have filed this appeal by way of special leave.   

3) We have heard Mr. Vijay Kumar, learned  amicus curiae  

appearing  for  the  appellants-accused  and  Mr.  Sanjay  R.  

Hegde, learned counsel appearing for the State.                

4) Contentions:

Learned  amicus  curiae,  after  taking  us  through  the  

materials placed by the prosecution and the decision of the  

trial Judge as well as of the High Court, submitted that in view  

of inordinate delay in lodging complaint i.e. FIR was registered  

after  42  days  of  alleged  incident,  in  the  absence  of  proper  

explanation, the conviction and sentence cannot be sustained.  

He further submitted that in view of the contradiction in the  

evidence  of  PWs  1  and  2,  it  is  not  safe  to  rely  on  their  

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testimony and convict the accused.  Finally, he submitted that  

the evidence of doctors i.e., PWs 7 and 8 does not support the  

claim of PWs 1 and 2/alleged victims, in that event, it would  

not be proper to convict the accused under Section 376 IPC.  

On the other hand, learned counsel appearing for the State  

submitted that taking note of the evidence of victims PWs 1  

and 2 and the acceptable explanation offered by them for the  

delay  in  lodging  complaint  as  well  as  their  family  

circumstances and of the fact that they received threat from  

the  accused,  they  did  not  make  a  formal  complaint  

immediately after the incident.  According to him, inasmuch  

as the delay was properly explained by the prosecution, the  

courts  below  are  justified  in  convicting  and  sentencing  the  

accused for offence under Section 376.  He further pointed out  

the alleged contradictions are rather negligible or minimal.  He  

further pointed out that in view of the assertion of the victims  

PWs 1 and 2,  the prosecution claim cannot be thrown out.  

According to  him,  since  both the Courts  have accepted the  

case of prosecution, there is no valid ground for interference  

by this Court.  

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5) Discussion on merits:

The victims are sisters and both of them explained how  

they suffered at the hands of the accused.  PW 1 is the elder  

sister. In her evidence, she has deposed that on 02.06.2004  

she and her younger sister PW 2 after completing their work  

were waiting near the bus stop at Sampige in order to go to  

their place at Ashwathapura.  The second accused – A-2 came  

in an auto-rickshaw which was driven by A1.  She explained  

that they know both the accused since they were also doing  

quarry  work  under  their  employer.   According  to  PW  1,  

Santhosh  Moolya  –  A-1  asked  them  to  get  into  the  auto  

because they were also going to their place i.e. Ashwathapura.  

Believing his statement, PW 1 and her sister PW 2 entered the  

autorickshaw  and  A-2  seated  next  to  them.   She  further  

explained that after traveling sometime in the main road auto  

went  off  in  a  kutcha  road  and  it  was  stopped  after  some  

distance.  It was drizzling at that time.  She further added that  

A-1 pulled her out of the auto and A-2 pulled her sister.  Both  

of  them  were  prevented  from  raising  their  voice  since  the  

accused covered their mouth and forced both of them to lie  

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down on the ground.  By threat, they made both PWs 1 and 2  

to lie on the ground and removed their clothes and they were  

made naked.  She narrated that thereafter, A1 had a forcible  

intercourse with her and A2 with her sister PW 2.

6) While  narrating  what  had  happened  after  forcible  

intercourse by A1 and A2, PW1 explained that both she and  

her sister tried to escape from the clutches of the two accused  

but they could not succeed since there was no one to help  

them and added to it both the accused threatened that if they  

inform the incident to anyone they would kill  them.   PW 1  

further explained that she and her sister had injuries on their  

body and also in their private parts.  Their clothes were torn  

and with great difficulty on reaching home, they informed their  

mother  about  the  incident.   In  the  same  way,  PW  2  also  

explained  and narrated  how she  suffered and raped  at  the  

hands of A2.

7) It is further seen from the evidence of PWs 1 and 2 that  

on reaching their  home,  apart  from informing their  mother,  

they also informed about the incident to one Nonayya Gowda  

PW5 who, in turn, informed their owner Subhash Jain PW 4.  

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PW 1  explained  that  though  PW 4  asked  them to  make  a  

complaint, because of the threat posed by A-1 and A-2 and out  

of fear they did not inform the incident to the police and after  

gaining confidence and courage, finally a complaint (Ex. P1)  

was lodged with the police on 14.07.2004.  Though there was  

a delay of 42 days in lodging complaint to the police, PWs 1  

and  2,  in  their  evidence,  explained  that  all  their  family  

members  including  themselves  are  uneducated,  no  male  

members in their family for their assistance and they settled in  

the present village to eke out their livelihood.  Admittedly, on  

the date of the incident, they were working in quarry owned by  

PW 4 and while returning from their workplace by force A-1  

and A-2 committed rape of PWs 1 and 2.  The mother of PWs 1  

and 2 was examined as PW 14.   She also corroborated the  

assertion of PWs 1 and 2 about their illiteracy and fear due to  

the  threat  call  of  A1 and A2.   In  those  circumstances,  the  

evidence of PWs 1 and 2 and their complaint Ex.P1 cannot be  

rejected as unacceptable.  In a case of rape, particularly, the  

victims are illiterate, uneducated, their statements have to be  

accepted in toto without further corroboration.  In  State of  

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Punjab vs.  Gurmit  Singh and Others,  (1996)  2  SCC 384  

speaking for the Bench Dr. A.S. Anand, J. (as His Lordship  

then was) has observed thus:

“…  ….  The  courts  must,  while  evaluating  evidence,  remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to  make a humiliating statement against her honour such  as is involved in the commission of rape on her. In cases  involving  sexual  molestation,  supposed  considerations  which  have  no  material  effect  on  the  veracity  of  the  prosecution case or even discrepancies in the statement  of the prosecutrix should not, unless the discrepancies  are such which are of fatal nature, be allowed to throw  out an otherwise reliable prosecution case. The inherent  bashfulness of the females and the tendency to conceal  outrage  of  sexual  aggression  are  factors  which  the  courts should not overlook. The testimony of the victim  in such cases is vital and unless there are compelling  reasons  which  necessitate  looking  for  corroboration of  her statement, the courts should find no difficulty to act  on the testimony of a victim of sexual assault alone to  convict  an  accused  where  her  testimony  inspires  confidence  and  is  found  to  be  reliable.  Seeking  corroboration of her statement before relying upon the  same, as a rule, in such cases amounts to adding insult  to injury. Why should the evidence of a girl or a woman  who complains of rape or sexual molestation, be viewed  with  doubt,  disbelief  or  suspicion?  The  court  while  appreciating the evidence of a prosecutrix may look for  some  assurance  of her statement to satisfy its judicial  conscience, since she is a witness who is interested in  the outcome of the charge levelled by her, but there is  no requirement of  law to insist  upon corroboration of  her  statement  to  base  conviction  of  an  accused.  The  evidence of a victim of sexual assault stands almost on  a par with the evidence of an injured witness and to an  extent is even more reliable. Just as a witness who has  sustained some injury in the occurrence, which is not  found  to  be  self-inflicted,  is  considered  to  be  a  good  witness in the sense that he is least likely to shield the  real culprit, the evidence of a victim of a sexual offence  is  entitled  to  great  weight,  absence  of  corroboration  notwithstanding.  Corroborative  evidence  is  not  an  imperative component of judicial credence in every case  

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of  rape.  Corroboration  as  a  condition  for  judicial  reliance  on the  testimony of  the  prosecutrix  is  not  a  requirement of law but a guidance of prudence under  given circumstances. It must not be overlooked that a  woman or a girl subjected to sexual assault is not an  accomplice  to  the  crime  but  is  a  victim  of  another  person’s lust and it is improper and undesirable to test  her  evidence  with  a  certain  amount  of  suspicion,  treating  her  as  if  she  were  an accomplice.  Inferences  have  to  be  drawn  from  a  given  set  of  facts  and  circumstances  with  realistic  diversity  and  not  dead  uniformity lest that type of rigidity in the shape of rule  of law is introduced through a new form of testimonial  tyranny making justice a casualty. Courts cannot cling  to a fossil formula and insist upon corroboration even if,  taken as a whole, the case spoken of by the victim of sex  crime strikes the judicial mind as probable. …  …. ”  

8) Any  statement  of  rape  is  an  extremely  humiliating  

experience for a woman and until she is a victim of sex crime,  

she  would  not  blame  anyone  but  the  real  culprit.   While  

appreciating the evidence of the prosecutrix, the Courts must  

always keep in mind that no self-respecting woman would put  

her honour at stake by falsely alleging commission of rape on  

her and, therefore, ordinarily a look for corroboration of her  

testimony is unnecessary and uncalled for. [Vide Rajinder @  

Raju vs. Sate of H.P., JT 2009 (9) SC 9]  

9) In Sohan Singh and Another vs. State of Bihar, (2010)  

1 SCC 68, this Court has observed as under:     

“When FIR by a Hindu lady is to be lodged with regard to  commission  of  offence  like  rape,  many  questions  would  

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obviously crop up for consideration before one finally decides  to lodge the FIR.  It is difficult to appreciate the plight of the  victim who has been criminally assaulted in such a manner.  Obviously,  the  prosecutrix  must  have  also  gone  through  great turmoil and only after giving it a serious thought, must  have decided to lodge the FIR.”

10) From the evidence of PW 1, PW 2, owner of the quarry  

PW 4 and mother of the victim PW-14, we are satisfied that  

though there was a delay of 42 days in lodging the complaint,  

the same was properly explained by the victims and the other  

witnesses.  In addition to the same, we have also noticed that  

except the victims, no male member is available in their family  

to  help  them.   In  fact  they  came  to  the  village  where  the  

incident occurred to eke out their livelihood.  Further, PWs 1  

and  2  asserted  that  after  committing  rape  A-1  and  A-2  

threatened that they would kill  them if they inform anyone.  

All  these material  aspects were duly considered by the trial  

Court and accepted by the High Court. We concur with the  

same.  

11) Coming to the discrepancies in the evidence of PWs 1 and  

2, as rightly pointed out by the prosecution and accepted by  

both the Courts below, they are negligible in nature and it had  

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not  affected  their  grievance,  hence  we  reject  the  said  

contention also.      

12) It was argued that the doctors PWs 7 and 8 did not notice  

any injury on the private part of PWs 1 and 2.  It is relevant to  

note that due to threat from A1 and A2, coupled with illiteracy  

and  poverty,  the  two  victims  were  not  taken  to  the  doctor  

immediately  after  the  incident  but  they  were  taken  after  a  

month  and  14  days.   In  such  circumstances,  as  rightly  

observed by the trial Court and the High Court, it is unlikely  

that  any  sign  of  sexual  intercourse  will  be  feasible  by  

examining the private part of the victims.  Added to it, PW 1  

happens to be a married woman and having children which  

indicates that she is accustomed to sexual intercourse and in  

view of the same, it would be difficult to expect the doctor, who  

examined after quite sometime, to indicate the sign of sexual  

intercourse.  The plea that no marks of injuries were found  

either  on  the  person  of  the  accused  or  the  person  of  the  

prosecutrix does not lead to any inference that the accused  

has  not  committed  forcible  sexual  intercourse  on  the  

prosecutrix.   As  observed  earlier,  there  is  no  reason  to  

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disbelieve the statement of the victims PWs 1 and 2.  On the  

other hand, their oral testimony which is found to be cogent,  

reliable,  convincing  and  trustworthy  has  to  be  accepted.  

Further, both the Courts have rightly accepted the statement  

of prosecutrix.

13) In the light of the above discussion, we are in agreement  

with the conclusion arrived at by the trial Court as well as the  

High Court.  Consequently, we dismiss the appeal as devoid of  

any merit.    

...…………………………………J.  (P. SATHASIVAM)                                  

....…………………………………J.   (R.M. LODHA)

NEW DELHI; APRIL 26, 2010     

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