Full Judgment Text
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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