Case: Raja  Vs. State Of Karnataka

3. The prosecution was set rolling by an oral report by the prosecutrix with the Sampangiramanagara Police Station between 2.00 A.M. and 3.00 A.M. of 11.10.1997, which was in Tamil language and was translated and recorded by S. Shiva Lingaia, ASI, whereafter a case was registered under Sections 366, 376(g), 392 r/w 34 IPC.4. The prosecutrix revealed that she was a resident of No.81, Jasari Kaleeli, Rustum ji Compound, Richmond Road, Bangalore and was earning her livelihood by rendering services as a maid in the house of Shilpa Shetty at Shanti Nagar, Bangalore. According to her, because of theof her husband, she shifted to Bangalore about 8 months prior to the incident by separating from him.She alleged that at about 7.30 P.M. in the previous evening, while she was coming back from work and was at the Richmond Park, an auto rickshaw ,with two persons in it including the driver stopped by her side and she was pulled inside. According to her, after travelling some distance, two other persons also got into the auto rickshaw. The miscreants then blindfolded her, by her chudidar cloth and took her to an auto garage where there was no light. The prosecutrix stated that the abductors lit a candle, spread 2 seats of the auto rickshaw on the ground, laid her forcibly thereon and in spite of her resistance and objections, forcibly undressed her and raped her by turn. She disclosed that 3 of the four persons ravished her. Out of them, two committed the act twice and the third only once.The prosecutrix further stated that one of the persons brought dosa and idli and also offered the same to her, whereafter they tried to repeat the same act, to which she protested for which she was kicked and fisted and further they snatched her Tali (mangalsootre) goldThey then made her to wear her clothes, brought her in the auto rickshaw to a vacant place and discarded her. According to her, these violators were addressing each other as Raju, Venu, Parkash and Francis and claimed that she could identify them, if produced. Investigation followed and in the course thereof, the appellants were apprehended. The fourth person Francis could not be nabbed as he absconded. As a matter of fact, after the submission of theagainst the appellants, the trial was conducted by segregating the absconding accused. They denied the charge under the above provisions of law.5. At the trial, the prosecution examined 11 witnesses and also marked several documents and exhibited material objects seized during the investigation. The appellants rendered their statements under Section 313 Cr.P.C. reiterating their innocence and also examined one witness in defence. The trial court, to reiterate, acquitted the appellants of the charges levelled against them. The High Court by the impugned decision has reversed the acquittal and the appellants thus stand convicted under Sections 376(g) and 392 IPC r/w 34 IPC and have been sentenced to suffer rigorous imprisonment for 10 years.

Reasoning:
, she admitted that she was not married to Sarvana though she claimed him to be her husband in herShe disclosed more than once that the accused persons used to tease her for aboutmonths prior to the incident and that she used to talk to them as well. In view of this admission of hers , the identification by the prosecutrix of the accused persons in the TIP pales into insignificance. She contradicted herself in theby stating that three of the four did rape her for the second time. She was also inconsistent with regard to the writer of her complaint.Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct.Her post incident conduct and movements are also noticeably unusual. Instead of hurrying back home in a distressed, humiliated and a devastated state, she stayed back in and around the place of occurrence, enquired about the same from persons whom she claims to have met in the late hours of night, returned to the spot to identify the garage and even look at the broken glass bangles, discarded litter etc. According to her, she wandered around the place and as disclosed by her in her evidence, to collect information so as to teach the accused persons a lesson. Her avengeful attitude in the facts and circumstances, as disclosed by her, if true, demonstrably evinces a conduct manifested by a feeling of frustration stoked by an intense feeling of deprivation of something expected, desired or promised. Her confident movements alone past midnight, in that state are also out of the ordinary. Her testimony that she met a cyclist to whom she narrated her tale of woe and that on his information, the Hoysala police came to the spot and that thereafter she was taken to successive police stations before lodging the complaint at Sampangiramanagara police station as well has to be accepted with a grain of salt.20. PW8, who medically examined her, opined in clear terms that she was accustomed to sexual intercourse and that no sign of forcible intercourse was discernible. This assumes great significance in view of the allegation of forcible rape by 3 to 4 adult persons more than once. The medical opinion that she was accustomed to sexual inter course when admittedly she was living separately from her husband for 1 and ½ years before the incident also has its own implication. The medical evidence as such in the attendant facts and circumstances in a way belies the allegation of gang rape.21. The evidence of PW2 Geeta who admittedly had offered shelter to the prosecutrix and her minor daughter, though had been declared hostile, her testimony as a whole cannot be brushed aside. In her testimony, this witness indicated that the prosecutrix used to take financial help from the accused persons and that she used to indulge in dubious late night activities for which her husband had deserted her. The defence plea of false implication as the accused persons had declined to oblige the prosecutrix qua her demand for financial help therefore cannot be lightly discarded in the overall factual scenario. Her version therefore is a plausible one and thus fit in with the defence plea to demolish the prosecution case.22. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii v. State of M.P. (1991) 3 SCC 627   and Koli Lakhman Bhai Chanabhai v. State of Gujarat (1999) 8 SCC 624.  It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record.23. The seizures said to have been effected by the investigating agency also do not inspire confidence. Not only PW 4 Muthu denied that the seizure of ear studs had been made in his presence, DW1 on oath had stated that this item of jewellery had in fact been purchased by the police from a local shop which he could identify on the basis of the symbol `MP inscribed thereon. In any view of the matter, the seized articles per se in absence of any evidence of corroboration of charge would not, irrefutably prove the involvement of the appellants in the offence alleged.24. This Court in Raju (supra), while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth.The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape orphysical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged.25.the scope of interference with a judgment of acquittal, this Court in Sunil Kumar Shabukumar Gupta (Dr.) (supra) echoed the hallowed proposition that if two views are possible, the appellate court should not ordinarily interfere therewith though its view may appear to be the more probable one. While emphasizing that the trial court has the benefit of watching the demeanour of the witnesses and is thus the best judge of their credibility, it was held that every accused is presumed to be innocent unless his guilt is proved and that his presumption of innocence gets reinforced with his acquittal by the trial courts verdict. It was reiterated that only in exceptionable cases and under compelling circumstances, where the judgement of acquittal is found to be perverse i.e. if the findings have been arrived at by ignoring or excluding relevant materials or by taking into consideration irrelevant/inadmissible material and are against the weight of evidence or are so outrageously in defiance of logic so as to suffer from the vice of irrationality, that interference by the appellate court would be called for.26. That the appellate court is under an obligation to consider and identify the error in the decision of the trial court and then to decide whether the error is gross enough to warrant interference was underlined by this Court in Shyamal Saha (supra). It was emphasized that the appellate court is not expected to merely substitute its opinion for that of the trial court and that it has to exercise its discretion very cautiously to correct an error of law or fact, if any and significant enough to warrant reversal of the verdict of the trial court.27. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellants. Having regard to the evidence on record as a whole, it is not possible for this Court to unhesitatingly hold that the charge levelled against the appellants has been proved beyond reasonable doubt. In our estimate, the view taken by the Trial Court is the overwhelmingly possible one. In contrast, the findings of the High Court are decipherably strained in favour of the prosecution by overlooking many irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case unworthy of credit. Noticeably, the High Court has exonerated the appellants of the charge of abduction under Section 366 IPC, which is an inseverable component of the string of offences alleged against them. Judged by the known parameters of law, the view adopted by the High Court is not a plausible one when juxtaposed to that of the Trial Court