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1993 Supreme(SC) 961
SUPREME COURT OF INDIA
K. JAYACHANDRA REDDY AND G. N. RAY, JJ.
Raju, Appellant
Versus
State of Karnataka, Respondent.
Criminal Appeal Nos. 553 with 554, of 1982,
D/- 12-10-1993.
WITH
Krishna, Appellant
Versus
State of Karnataka, Respondent.
K.R.NAGARAJA, M.VIRAPPA, NOBIN SINGH
Headnote:Indian Penal Code, 1860 - Section 376 - Conviction under. Appeal - Offence of rape established against both the accused persons - Medical evidence supporting testimony of the prosecutrix - Doctor stating that her hymen was ruptured recently and was bleeding. Injuries on her private parts noticed. Two accused and prosecutrix shared one room in a hotel. Accused being strangers to the prosecutrix - She was simple enough to repose confidence on two accused. P.W. 2 and room boy of hotel heard screaming of the prosecutrix for help - Conviction u/s. 376 sustainable - Sentence of R.I. for three years.
Held, that if the prosecutrix was little careful in not placing reliance on unknown young persons in staying in a room in a hotel, she would not have suffered the misfortune but simply because she was simple enough to repose confidence on two young men, the prosecution case should not be disbelieved particularly when convincing evidences about the commission of offence of rape were adduced. The medical evidence supports the testimony of the prosecutrix that she was raped in the previous night. The doctor has found that her hymen was ruptured recently and was bleeding. Some injuries on her private parts were also noted by the doctor. Admittedly, the accused and the prosecutrix shared one room and it is nobodys case that besides the prosecutrix and accused persons, any other person stayed in the room. The Police Constable P.W. 2 and the room boy of the hotel P.W. 4 heard screaming of the prosecutrix for help and when the door was opened one of the accused was found putting on pant. Hence we agree with the High Court that offence of rape against both the accused was established by the prosecution. Therefore, we do not find any reason to interfere with the conviction of both the accused under Section 376 I.P.C. So far as the sentence of seven years rigorous imprisonment on both the accused persons is concerned, it appears to us that it may not be unlikely that the accused persons at the beginning had a genuine desire to help the prosecutrix in reaching her brothers place quickly. But later on when she agreed to share the same room at night in the hotel the two young men became victim of sexual lust and against the consent and protest of the prosecutrix, committed rape on her. Considering the very young age of the accused persons and considering the circumstances under which there was every likelihood that they could not overcome the fit of passion and lost all sense of decency and morality and ultimately committed the offence of rape and also considering the fact that the incident had taken place long back and during the course of the proceedings upto this Court, both of them had suffered disrepute and mental agony, we think that the ends of justice would be Met if both the accused persons are awarded a lesser sentence. (Para 7)
Judgment
G. N. RAY, J. :- The Criminal Appeal No. 553 of 1982 is directed against the judgment dated August 2, 1982 passed by the Division Bench of the Karnataka High Court in Criminal Appeal No. 349 of 1980 and Criminal Appeal No. 55 of 1981. The Criminal Appeal No. 554 of 1982 is directed against the judgment dated August 2, 1982 passed by the Division Bench of the Karnataka High Court in Criminal Appeal No. 54 of 1981. As the aforesaid appeals before the High Court arose out of the decision of the learned Sessions Judge, Hassan dated June 28, 1980 passed in Sessions Case No. 23 of 1979, the said appeals were heard analoguously and were disposed of by a common judgment of the Karnataka High Court. The learned Sessions Judge, Hassan, tried both the accused/ appellants, namely, accused No. 1, Raju and accused No. 2, Krishna in Sessions Case No. 23 of 1979 for the offences under Ss. 342, 323, 506, 376 and 380 of the Indian Penal Code. The learned Sessions Judge convicted the accused No. 1, Raju, for the offence u/S. 376, IPC and sentenced him to detention till the rising of the court and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for three months. The learned Sessions Judge, however, acquitted accused No. 2 of all the charges and he also acquitted the accused No. 1 of the remaining charges. Against his conviction under S. 376, IPC, the accused No. 1, Raju, preferred Criminal Appeal No. 349 of 1980 before the Karnataka High Court and the State of Karnataka preferred Criminal Appeal No. 54 of 1981 against the accused No. 1 and accused No. 2, against the acquittal of accused No. 2 of all the charges and acquittal of the accused No. 1 in respect of other charges. The State of Karnataka also preferred Criminal appeal No. 55 of 1981 praying for enhancement of sentence against accused No. 1 so far as the conviction under S. 376 was concerned.
2. The prosecution case in short is that the prosecutrix, P.W. 3, Celina DSouza was working as a nurse in a clinic in Hosakote. She proceeded from Hosakote to attend the marriage of her brother at Sakaleshpur. She came to Bangalore at about 5.00 p.m. and caught a bus for Hassan. The said two accused persons were sitting behind her and were talking with her now and then. When they got down at Hassan, the accused persons promised that they would see that P.W. 3, Celina, would reach Sakaleshpur well in time and they took her to the house of one Marigudi for meals. She was informed that the food had been exhausted at that place and the said two persons took P.W. 3 to a restaurant. After taking food in the restaurant, they went to B.G.K. Lodge. Marigudi accompanied them and it was at the assistance of Marigudi, room No.4 in the said Lodge was secured for all the three persons although P.W. 4, Krishnagowda a room boy was initially reluctant to accommodate three persons in one room, P.W. 2 Sri A. R. Gopala, a Police Constable had been occupying the adjoining room being room No. 3, in the said Lodge. The said Police Constable had come in connection with a criminal case under S. 379, I.P.C. It is the prosecution case that a bed was spread on the ground and the prosecutrix, P.W. 3, offered to sleep on the ground provided the two accused persons would sleep on the cot. She also agreed to sleep on the cot provided the two accused persons would sleep on the ground. Ultimately, she slept on the cot and the two persons slept on the ground. After some time, the lights in the room were switched off. Some time later, accused No. 2 Krishna, went to sleep on the cot by the side of P.W. 3 saying that mosquitoes were biting him. He thereafter covered himself with her saree. He did not stop at that and made further advances and touched her body. P.W. 3 objected and she even screamed. The accused No. 1, Raju, then got up and shut her mouth by means of handkerchief and warned her not to scream. He then sent accused No. 2, Krishna, out of the room and bolted the door and made advances by touchin
