. . ,

,

KUM. NARAYANAMMA A

v.

STATE OF KARNATAKA AND ORS .

AUGUST 31, 1994

[MADAN MOHAN PUNCHHl AND K. JAYACHANDRA B

REDDY, JJ.]

Indian Penal Code 186(}-Sections 376, 114-Rape of minor girl-­

Evidence af prosecutrix co"aborati11g i11 all material particulars witlt medical

exami11acio11 and evidence of oclter wimesses-Accused convicted by trial C

coun-Higlt Coun acquiccing-Held, offence proved-Co111•ictio11 by Trial

Coun restored.

The appeall.ant·prosecutrix was gang-raped by the accused. She was

14 years old at that time. Being illitrate, she was working as an agricultural

labourer.

D

After the investig_ation, two of the three accused viz.

V. And S were• .

charged with the offence u/s. 376 IPC directly and accused M was charged

constructively with the aid of S. 114 IPC. The Trial Court convicted all the

accused. On appeal, the High Court reversed the said decision and ac­

quitted the accused, on the ground that the prosecutrix was not a· reliable E

witness as her statement was not corroborated by medical evidence. The

State Government and the prosecutrlx filed the present appeals.

Allowing the appeals, this Court

HELD : 1. The prosecutrix

was a reliable witness

•. She stood cor­

roborated on all material particulars not only by medical evidence but also

by the evidence of P.W. 2 who had appeared on the scene of the crime and

seen it being committed by the accused respondents. [803-G]

F

2. The High Court unfortunately did not appreciate that in the month G

of October when the occurrence took place, the jowar stalks would have

been more than a man's height

and when trampled upon the matted would

provide sufficiently a cushion for the crime being committed without the

prosecutrix receiving any inquiry

on her back. The surrounding crop would

also provide a cover obstructing visibility to a casual passer-by. Thus the

absence of injuries on the back

of the prosecutrix can be of no consequnece. H

799

A

B

c

800 SUPREME COURT REPORTS (1994) SUPP.2S.C.R.

[804-C·D]

3. The prosecutrix's sta.tement to the Doctor about her naming one

person

to have committed rape on her was not put to the prosecutrix during cross-examination, in the abs1mce of which it cannot be ·said that there was

a contradiction for there might

well have been an omission which the prosecult'ix could supply and render a plausible acceptable explanation.

Besides the first assault in any case

was by

S which was correct; and her

statement to the Doctor may not have been complete. But

that cannot be

the end of the matter. This particular cannot weigh against the prosecutrix. [804-E·G]

4. The prosecutrix having supplied the details of the crime to her

mother P.W. 6 the mother deposed at the trial that she was told by the

prosecutrix

that the three

named accused bad committed rape on her. The

High Court termed it as an enggeration because as is the version M bad

not committed rape. In a sem;e, M facilitated the commission. He was the

D initiator and bad an active role to play and was equally guilty. The

prosecutrix could not

be condemned if she conveyed to her mother that he

was

guill'/ of the crime of rape committed on her. It could be a difference

of perceptions. This particular also does not weigh against the prosecutrix.

E

F

[804-H, 80S·A·B]

S. When the Doctor who 1examlned the prosecutrix had opined that the

bymen'wii1s ruptured, she did not qualify her statement that it stood rup­

tured as of old or carried am1 old tear. With clear objective In view, the

Doctor must be presumed to have noticed the hymen as freshly ruptured, as

otherwise, the Doctor would not have described it in

that fashion to be

bleeding, tender

and painful.

11'be factum of admission of two fingers could

not be held adverse to the prosecutrix for it would depend upon the size

of

the fingers inserted. Experience tells that when medical experts try to opine

about the medical condition of a woman used to sexual intercourse,

It is

described as admissiJ, of two fingers easily, bot here the Docter qualified

G her statement by sayfng that it was painful and bleeding on touch. These

conditions obviously related to the hymen. The Doctor

was thns clear in her

opinion that rape bad been committed on the prosecutrix.

[805-D·F]

6. 11~at there were injuries such as irregular linear contusion on both

the breasts of the prosecutrix being 3 to 4 in number, redisb in colour, is

'H also

suggestive of force being used on her while she was subjected to the

-

NARAYANAMMAv. STATE fPUNCHHl,J.] 801

crime. [805-GJ A

7. No presumption can be made that penetration of penis in the

private

parts of rape victim must necessarily lead to the discovery of sper­

matoza.

It is a question of detail and has to be put to test by cross-examina­

tion.

Otherwise also there may be various other factors which may negative

the presence

of spermatoza such as faulty taking of the smear, its preserva-B

ti on, quality of semen etc. The absence of spermatoza prima facie could not

be allowed to tell against the version of the prosecutrlx.

[806·B·CI

8. The prosecutrlx was 14 years of age. She bad no axe to grind in

accusing

the respondents of the

crime and describing the roles played by C

them in the commission of it. The F.I.R. was lodged by her at the earliest

possible time. She was medically examined immediately thereafter within

six

hours of the commission of the crime.

She stood corroborated not only

by the medical evidence

but also by the evidence of persons who came by

and who met

her immediately after the occurence. [806·DJ

9. The evidence of P.W .2 is of great significance. He is an Independent

witness. There Is

no reason why he should speak against the accused

respondents. The prosecutrix also could not

be doubted on the

supposition

D

that her cries should have attracted some people from the neighbouring

fields,

or people returning to the village in the evening. Her word could not E

be disbelieved on mere generalities. Whosoever was close by, such as P.W .2

was attracted to the scene. He saw what was happening to the prosecutrlx.

Things spoke

to him on their own. The fact that be accompanied the brother

of the prosecutrix and the prosecutrlx to the police station

fur.her lends

credence to bis testimony. [806·E·GJ

10. The prosecutrix being below the age of consent, the respondents

cannot escape liability merely because no marks of injury on their person

suggesting resistence could be found. [806-H, 807-AJ

F

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. G

547of1988.

From the Judgment and Order dated 20.11.87 of the Karnataka High

Court in Crl. A. No. 157 of 1986.

With

H

802 SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A Criminal Appeal No. 548/88.

B

R. Jaganath, T.C. Sharma, P. Narasimhan, Ms. Rajni K. Prasad for

the Appellants.

M. Veerappa for the State.

P. Mahale for the Respondent in Nos. 2-4.

The Judgment of the Court was delivered by

PUNCHHI, J. These two appeals by special leave, one by the State

C of Karnataka and the other by the victim of the crime, are directed against

the judgment and order of the High Court of Karnataka in Criminal

Appeal

No. 157 of 1986 decided on

20th November, 1987 recording an

order of acquittal in favour of the accused-respondents.

D ium. Narayanarnma is the prosecutrix. She was about 14 years of age

on the date of the commission of the offence. She

is illiterate and used to

eke out a

living, as did her other family members, by working as an

agricultural labourer (in common parlance a "coolie").

On 3.10.1983 at

about 3.30 p.m she has gone towards the fields to cut some grass for her

cattle, and while she was returning at about 5.00 p.m. with a basket full of

E grass, she found accused No. 1, Muniyappa, aged about 23 years standing

close to a "Honge" tree on

tl1e footpath. When she got close to him, he

caught her by the hands, speaking to her suggestively with an

evil design.

Accused No. 2 Venkataswamy aged about

17 years emerged from a close­

by

fence. and caught her by the legs. Both of them bodily lifted the

F

prosecutrix by her hands and legs and took her a few feet away in the field

of one Gopalappa known

as the "field of stones". There Sorghum Gowar)

crop was standing and they dumped her on the standing jowar plants which

matted. Accused

No. 3, Somanna, aged about

20 years, who has already

present there, lifted her clothes, forcibly inserted

his organ in the private

parts of the prosecutrix

as also broke open the hooks of her blouse and

G squeezed her breasts, while

the victim was immobilised by Muniyappa who

held her

by her hands closing her mouth and Venkataswamy catching her

by the legs. Having laid up on the p;osecutrix for some time Somanna got

up and immediately thereafter Venkataswamy indulged in the same act.

At

that time, Somanna stood close by, and Muniyappa kept holding the hands

of the prosecutrix for her resistance and somewhat waned away by that

H time. She kept raising however screams and cries all

the same which

NARAYANAMMAv. STATE [PUNCHH!,J.) 803

attracted on the scene a grazier by the name of Muniswamappa, P.W.2. He A

had seen Muniyappa having immobilised the prosecutrix, Somanna stand-

ing close

by and Venkataswamy raping her.

On seeing P.W. 2, the three

accused ran

away. In the meantime the nephew of the prosecutrix, a child

about 9 years named Yellappa

P.W. 7 helped her get up and made her

wear her clothes. Then came the sister of the prosecutrix by the name

Nagrathna P.W. 5 and her mother, Venkatagiriamma, P.W.6 to whom the B

prosecutrix narrated as to what had happened to her. They then took her

to the village. In the meantime Krishnappa P.W.8, brother of the

prosecutrix arrived and he too

was told by the prosecutrix as to what had

happened to her. Then he taking his sister, the prosecutrix

as also Munis­

wamappa

P.W. 2 went to the Police Station, Bangarpet having travelled a C

distance of about 9 miles on foot where First Information Report was

lodged on the statement of the prosecutrix much before midnight. The

police then went into action by inspecting the spot wherefrom they could

recover some pieces of broken bangles belonging to the prosecutrix. The

police also took care of arresting the accused and in having them medically

examined from Dr. Basavaraju, P.W.4 on the day following the day of the D

occurrence at about 1.15 p.m. Beforehand the police had taken care to

have the prosecutrix examined by Dr. C.V. Reeta, P.W. 3 immediately after

the recording of the F.l.R. within about

six hours of the incident.

On completion of the investigation, the three accused respondents

were put up for trial, Muniyappa constructively with the aid

of section 114 E

of the India

Penal Code and the other two accused directly for the offence

of rape, besides all the three accused for peripheral offences. The trial

ended in conviction of the respondents under all counts for which they

were awarded terms of imprisonment

as disclosed in the judgment and

order of the Sessions Judge, Kolar. The High

Court reversed that decision F

and recorded order of acquittal.

According to the High Court, the prosecutrix was not a reliabie

witness

as her

statetpent was not corroborated by medical evidence. We on

closer consideration of the matter, with respect, differ from the High

Court. As we view it, the prosecutrix was a reliable witness. She stood G

corroborated on all material particulars not only by the medical evidence

but by the evidence of P .W .2 who had appeared on the scene of the crime

and seen it being committed, by the accused respondents. The particulars

which have attracted adverse comments from the High Court and which

we have smoothened in our effort are as follows :' H

A

B

c

D

E

F

G

H

804 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

(i) According to the prnsecutrix, she had been bodily lifted by

Muniyappa and Venkataswamy, respondents, taken to the field of

Gopalappa Where Somanna already present in waiting raped her

while she

was forcibly la:id on the matted jowar crop.

Since there

was no marks of injury on the back of the prosecutrix and the field

was reported to be having stones on the surface, the word of the

prosecutrix

was doubted by the High Court about the manner in

which the crime was committed. The High Court unfortunately did

not appreciate the importance of the use of jowar stalks, which in

the month of

October, when the occurrence took place would have

been more than a man''s height and when trampled upon and

matted would provide sufficiently a cushion for the crime being

committed without the prosecutrix receiving

any injury on her

back. The surrounding crop would also provide a cover obstructing

visibility to a causal passer-by. Thus

we view that the absence of

injuries on the back of tllie prosecutrix can be of no consequence

in the circumstances;

.(ii) According to Dr.

Re•eta, P.W. 3, the prosecutrix told her that

she had been caught hold of

by Muniyappa and Venkataswamy

and

was raped

by Somanna. When the prosecutrix had laid claim

in the First Information Report, and to which she struck to at the

trial, that Somanna and Venkataswamy had committed rape on her

while Muniyappa immobilised her, the High Court viewed that

there was a contradiction made

by the prosecutrix when naming

only one person

as her ravisher to Dr. Reeta,

P.W. 3. Surprisingly,

the prosecutrix's statement to Dr. Reeta about her naming one

person to have committed rape on her was not put to the

prosecutrix during cross··examination. In the absence of the same

being put to her it cannot be said that there was a contradiction

for there might well have been an omission which the prosecutrix

could supply and render a plausible acceptable explanation. Be­

sides the first assault in any case was by Somanna which was

correct; and her statement to the Doctor may not have been .

completed. But that cannot be the end of the matter. This par­

ticular, in our view, cannot weigh against the prosecutrix.

(iii) The prcsecutrix having supplied the details of the crime to her

mother P.W.6, the mother deposed at the trial that she was told

•

NARAYANAMMAv. STATE [PUNCHHI. J.] 805

by the prosecutrix that the three accused by name had committed A

rape on her. This the High Court termed as an exaggeration

because

as is the version Muniyappa had not committed rape. In

a sense, Muniyappa facilitated the commission of the crime.

He

was the initiator and had an active role to play and was equally.

guilty. The prosecutrix could not be condemned if she conveyed

to her mother that he

was guilty of the crime of rape committed

on her.

It could be a difference of perceptions. This particular also

does not weigh against the prosecutrix.

B

(iv) According to Dr. Reeta,

P.W.3 hymen of the prosecutrix was

ruptured, admitted two fingers bled on touch, was re dish in colour, C

and was painful and tender. On this basis, the Doctor opined that

these were

signs of rape. The ability of admission of two fingers

and the hymen being ruptured

was viewed by a High Court was if

the prosecutrix

was habitual to sexual intercourse. When the Doc-

tor had opined that the hymen was ruptured, she did not qualify

D

her statement that it stood ruptured as of old or carried an old

tear. With clear objective

in view, the Docfor must be presumed

to

have noticed the hymen as freshly ruptured, as otherwise, the

doctor would not have described it in that fashion to

be bleeding,

tender and painful. The factum of admission of

two fingers could

not

be held adverse to the prosecutrix for it would depend upon E

the size of the fingers inserted. Experience tells us that when

medical experts try to opine about medical condition of a woman

used to sexual intercourse, it

is described as admission of two

fingers easily, but here the Doctor qualified her statement by saying

that it

was painful and bleeding on touch. These

conditions· ob-F

viously related to the hymen. The Doctor was thus clear in her

opinion that rape had been committed on the prosecutrix. There

was no occasion for the High Court in holding it to the contrary.

(v) That there were injuries such as irregular linear contusion on

both the breasts of the prosecutrix being 3 to 4 in number, re dish

G

in colour, is also suggestive of force being used on her while she

was subjected to the crime. The High Court unfortunately did not

give weight to this piece of evidence as it deserved.

(vi) With regard to the vaginal smear examination conducted at a H

A

B

c

806 SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.

different hospital, Dr. Reeta, P.W.3 was reported that no sper­

matoza was seen on it, and the absence of sperms has been viewed

against the version

of

the prosecutrix. It was never elicited from '

the prosecutrix

as to whether the two person who committed rape

on her had reached orgasm emitting semen in her private parts.

No presumption can be made that penetration of penis in the

private parts of a rape victim must necessarily lead to the discovery

of spermatoza.

It is a

question of detail and has to be put to test

cross-examination. Otherwise also there

may be various other

factors which

may negative the presence of spermatoza such a

faulty taking of the smear, it's preservation, quality of semen etc.

The absence of spermatoza

prima facie could not be allowed to

tell against the version of the prosecutrix.

It cannot be forgotten that the prosecutrix was 14 years of age. She

had no

axe to grind in accusing

the respondents of the crime and describing

D the roles played by them in the commission of it. The F .I.R. was lodged

by her at the earliest possible time. She was medically examined immedi­

ately thereafter within six hours of the commission of the crime. She stood

corroborated not only

by the medical evidence but also by the evidence of

person who came

by and who met her immediately after the occurrence.

In particular evidence of Muniswamappa,

P.W.2 is of great significance.

E He is an independent witness. There is no reason why he should speak

against the accused respondents. The reason suggested that he had some

sort of ill-will with the respondents,

is neither here nor there. The

prosecutrix also could not be doubted on the supposition that her cries

should

have attracted some people from the neighbouring fields, or people

p returning to the village in the evening. Her word could not be disbelieved

on mere generalities. Whosoever

was close by such as Muniswamappa, P.W.2 was attracted to the scene. He saw what was happening to the

prosecutrix. Things spoke to him on their

own. The fact that he

accom­

panied the brother of the prosecutrix and the prosecntrix to the police

station further lends credence to his testimony.

G

To conclude the aforesaid discussion, we hold that the High Court

fell into error in rejecting the clear and natural testimony of the

prosecutrix.

We hold her to a reliable witness. Her evidence not only

inspires confidence but

is otherwise corroborated on all material par-

H ticulars.

She being below the age of consent, the respondents cannot escape

..

NARAYANAMMAv. STATE [PUNCHHI, J.] 807

liability merely because no marks of injury on their person suggesting , A

resistance could be found. Thus we have to reverse the judgment and order

of the

High Court restoring that of the Sessions Judge, Kolar whereunder

the respondents were veriedly sentenced, as

is evident from his judgment.

Though

we consider that the sentence awarded by the Session Judge was

not adequate being barely three years rigorous imprisonment for the crime B

of rape such as this, but at this point of time we do not wish to enhance it

in these proceedings and would be content in restoration of the orders of

the Sessions Judge, Kolar and

conViction and sentences recorded by him.

Order accordingly.

For the aforesaid reasons, these appeals are allowed in the terms and

C

manoer abovementioned

G.N. Appeal allowed