IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 288 OF 2001

State of Karnataka …Appellant

Versus

Bantara Sudhakara @ Sudha & Anr. … Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. State of Karnataka is in appeal against the judgment of

the  learned  Single  Judge  of  the  Karnataka  High  Court

directing acquittal  of  the respondents who were charged for

commission of  offence punishable  under  Section 376 of the

Indian Penal Code (in short the ‘IPC’).   

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2. Background  facts  as  projected  by  prosecution  in  a

nutshell are as follows:

P.W.1  and PW2 were  residing alongwith their  respective

parents at Madenadu and they were working as coolies in the

coffee  estate  of  Pudiyenda  Palangappa,  Appellant  No.2

(accused  no. 2) is a tailor by profession having his tailoring

shop at Aatekere, On 16-9-1989 at about 9.00 a.m., PWs, 1 &

2 went to the tailoring shop of A-2 and requested him to stitch

their blouses. At that time they gave two blouses of theirs for

the  purpose  of  measurement  along  with  new  clothes.  It  is

alleged that A-2 asked them to come on  the following  day to

take delivery of the blouses if they were stitched.  Accordingly,

on  17.9.1989  they  both  went  to  the  tailoring  shop  to  take

delivery  of  the  clothes  when  A-2  informed  them  that  the

stitching was not over, upon which both of them asked him to

return  the  blouses  given  for  measurement.  In  response  to

that, A-2 asked them to go to his house as the blouses were

left in his house. Accordingly, both of them accompanied by A-

1 & A-2 went to the house which was nearby. A-1 & A-2 went

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inside the house and as they did not come out of the house for

about 15 minutes, both PWs. 1 & 2 who were waiting outside

entered the house.  As soon as they entered the house,  A-2

bolted the door and held P.W.2 and A-1 also held PW-l. They

were  taken  to  separate  rooms  and  A-1  committed  rape  on

P.W.1  and  A-2  committed  rape  on  PW2,  Thereafter,  they

threatened both of them that they would be murdered if the

incident was revealed to anyone, Therefore,  they kept quiet,

On18-9-1989  they  went  to  Madikeri  to  the  house  of

Chandrakala  (P.W.14).  Having  stayed  in  the  house  of

Chandrakala on that night, they went to Sulia to the house of

the uncle of P.W.2. As the PWs 1 & 2 were not found in their

houses, parents of PWs. 1 & 2 sent Seshappa (PW17) who is

the elder  brother  of  PW 2 to his maternal  uncle’s  house  at

Sulia.  Accordingly, he went to the house at Sulia and found

both  of  them  and  brought  them  back  to  Madenadu,

Thereafter, they went to Madikeri Rural Police Station on 21-

9-1989 and presented a written complaint  Ex-P-l  signed by

P.W.1 which was received by P.W.26 at 6.45 p.m. On that day,

PW 26 registered a case in Madikeri Rural Police Station in Cr,

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No.233/89 and submitted  FIR as per  Ex-P.33.  On the next

day  he  sent  them  for  medical  examination  to  the  District

Hospital, Madikeri. PWs. 1 & 2 also produced clothes which

they were wearing at the time of incident which were seized.

P.W.26 went to the scene of occurrence which is the house of

A-2 where the alleged rape was committed on PWs. 1 & 2, He

drew up mahazar Ex-P4 in the house of PW2 in the presence

of panchas and seized broken bangles MOs. 8 & 9, He also

drew mahazar in the shop of A-2 as per Ex-P3 and seized the

clothes given for stitching by PWs. 1 & 2. On 23-9-1989 A-1

was arrested. PW-26 recorded the statement of A-1 who led

them to his house where he drew a mahazar as per Ex-P.33.

Thereafter, further investigation was taken up by P.W.24, the

Circle Inspector of Police. On 13-11-1989 A-2 appeared before

him  with  order  of  anticipatory  bail.   His  statement  was

recorded after arresting him.  He also produced clothes that

he was wearing at the time of incident from his house which

were seized as per Ex-P.29. Both A-1 & A-2 were subjected to

medical examination, Dr. G. Marulasiddappa (P.W 25) issued

certificate of A-1 as per Ex-P.27 and  Dr. Suryakumar (PW-3)

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issued certificate of A-2 as per Ex P.6. After receipt of the FSL

report,  he  filed a  charge  sheet.  Thereafter,  the  case  was

committed  to  the  Court  of  Sessions,  as  the  offence  alleged

against  these  accused  persons  is  in  respect  of  offence

punishable under Section 376 exclusively triable by the Court

of Sessions. On receipt of this committal order, the Court of

Sessions,  Kodagu District, registered a case (S.C. No.45/90)

and  framed  charges  against  the  accused  for  the  offence

punishable  under  Sec.  376  IPC,  and  both  the  appellants

denied the charges and claimed to be tried. To substantiate

the case of the prosecution, it examined 27 witnesses and got

marked Exs-P1 to P.34 and also MOs. 1 to 24.

3. The case of the respondents was that  in view of  some

property dispute, PWs. l & 2 filed a false case against them

and they are innocent.  

4. The trial Court found with reference to the evidence on

record,  more  particularly  the  documents  exhibited  by  the

teacher of the school (PW 16) that the age of the victims in

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each case was less than 16 years.  Therefore the trial Court

held  that  the  question  of  consent  was  irrelevant  and

immaterial.  In appeal, the High Court held that the age was

more than 16 years and there was consent and accordingly

directed acquittal.    

5. Learned counsel  for the appellant-State submitted that

the High Court has fallen into grave error by holding that the

age of each of the victims was more than 16 years.  Further

there was no plea regarding consent and therefore the High

Court on its own could not have made out a case of consent.

6. Learned counsel for the respondents on the other hand

submitted that the factual scenario clearly shows consent and

the High Court’s conclusion about the age and consent cannot

be faulted.

7. It is to be noted that the teacher-PW 16 referred to the

certificates which indicated that the date of birth of PW 1 was

5.3.1974 and the date of birth of PW2 was 1.2.1974.  Exhibits

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P.16 & P.17 are the certificates.  The High Court referred to

the evidence of the lady doctor PW 24 with reference to the X-

Ray report  which indicated  that the  age of  PWs.  1 & 2 fell

between 14 to 16 years.  The High Court observed that there

was possibility of two years variation and therefore it was to be

taken that the victims were more than 16 years of age.  The

High Court  accepted that  there was sexual  intercourse  and

rejected the plea of false implication.  Thereafter it went on to

examine the question of consent. So far as the reasonings of

the High Court are concerned they border on absurdity.  All

types  of  surmises  and  conjectures  have  been  arrived  at.

Strangely,  it  was  observed  that  PW16  the  Head  Master’s

evidence was to be discarded on the ground that the date of

birth may not have been recorded on the basis of any medical

certificate or other documentary evidence to show that these

two  girls  were  born  on  the  date  as  mentioned.   The  High

Court’s conclusions in this regard are not only fallacious but

contrary to the evidence on record. The High Court recorded a

further finding that the two certificates may not relate to the

victims though it specifically recorded that there was no such

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challenge raised by the accused.  Additionally, merely because

the doctor’s  evidence showed that the victims belong to the

age group of 14 and 16, to conclude that the two years age

has  to  be  added  to  the  upper  age  limit  is  without  any

foundation.   There  was  no  basis  for  coming  to  such  a

conclusion.  In any event, the accused persons did not take

the stand that there was any consent.  On the contrary, they

pleaded that they were falsely implicated.  In  State of H.P. v.

Shree  Kant Shekari [2004 (8)  SCC 153]  it  was observed  as

follows:  

“The factors which seem to have weighed with the  High Court  are  (i)  the  age  of  the  victim, which according to the High Court was more than 16 years; (ii) no evidence has been placed by the prosecution to show that the victim had not consented to the act; and (iii) the time of alleged  rape  as  given  by  the  victim and  her mother  was  improbabilised  by  the  medical evidence. A particular reference was made to the fact  that a child was born on 10.4.1979 and  if  the  alleged  rape  has  been  committed during the period indicated by the victim and her  mother  the  same  would  have  been altogether  different  periods.  The  delay  in lodging  the  first  information  report  was  also highlighted  to  attach  vulnerability  to  the prosecution case.

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We shall  first  deal  with the  question  of age. The radiological test indicated age of the victim between 15 to 16½ years.  The  school records  were  produced  to  establish  that  her date  of  birth  was  10.4.1979.  The  relevant documents are Ex.PW6/A to PW6/C. The High Court  was of  the view that these documents were  not  sufficient  to  establish  age  of  the victim  because  there  was  another  document Ex.PW7/A which according to the High Court did not relate to the victim.  Merely because one  document  which  was  produced  by  the prosecution  did  not,  according  to  the  High Court  relate  to  the  victim  that  was  not sufficient  to  ignore  the  evidentiary  value  of Ex.PW6/A to  Ex.PW6/C.  These  were  records regarding admission of the victim to the school and  her  period  of  study.  These  documents unerringly prove that the date of birth of the victim as  per  official  records  was 10.4.1979. Therefore, on the date of occurrence and even when the FIR was lodged on 20.11.1993 she was  about  14  years  of  age.  Therefore,  the question  of  consent  was  really  of  no consequence.      

Even otherwise the High Court seems to have  fallen  in  grave  error  in  coming  to  the conclusion that the victim has not shown that the act was not done with her consent. It was not for the victim to show that there was no consent.   Factually  also  the  conclusion  is erroneous  right  from  the  beginning  that  is from the stage when the FIR was lodged and in her evidence there was a categorical statement that  the  rape  was  forcibly  done notwithstanding  protest  by  the  victim.  The High  Court  was  therefore  wrong  in  putting burden on the victim to show that there was

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no consent. The question of consent is really a matter of defence by the accused and it  was for him to place materials to show that there was  consent.  It  is  significant  to  note  that during  cross  examination  and  the  statement recorded  under  Section  313  of  the  Code  of Criminal Procedure, 1973 (in short the ‘Code’) plea of consent was not taken or pleaded. In fact in the statement under Section 313 of the Code the plea was complete  denial  and false implication.”   

8. Above being the position, judgment of  the High Court is

clearly unsustainable and set aside.  The judgment of the trial

Court is restored. The respondents shall surrender to custody

to suffer remainder of sentence, if any.

9. Appeal is allowed.   

……………………………J. (DR. ARIJIT PASAYAT)

……………………………J. (P. SATHASIVAM)

……………………………J. (AFTAB ALAM)

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New Delhi,  July 18, 2008

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