P. Sathasivam, J. - (1.) This appeal is filed against the final judgment and order dated 13.03.2008 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No. 1498 of 2007 whereby the High Court dismissed the appeal filed by the appellants- accused affirming the conviction and sentence passed by the Additional District and Sessions Judge, Dakshina Kannada, Mangalore dated 1/3.9.2007 in S.C. No. 13 of 2005.
(2.) Background facts in a nutshell are as under: On 02.06.2004, two sisters (both victims of rape), who were working in the quarry of one Subhash Jain- PW-4, after completing their work, were waiting for the bus near Sampige of Puttige Village by the side of the road to go to their residence in Badaga Mijaru Village, Ashwathapura, Santhakatte. At about 6.00 p.m., the appellants came there in an autorickshaw which was driven by Santhosh Moolya (A-1) and stopped the auto in front of the victims asking them to get into the auto as they were also going towards Ashwathapura side. Surendra Gowda (A-2) was already sitting in the auto. Both the sisters sat by his side. It was raining at that time. After some time, leaving the main road, the appellant moved the auto towards a kutcha road. Both the victims asked them as to where the auto was being taken. By that time, the accused stopped the auto at a lonely place and pulled both the victims out of the auto and after covering their mouth with hands, threatened to kill them if they gave rise to any shouting. Thereafter, both the victims were made to lie on the ground and their clothes were removed. Santhosh Moolya, A-1 raped the elder sister and Surendra Gowda, A-2 raped the younger sister. While leaving the place, both the accused threatened the victims not to inform any one about the incident and also allow them to do the similar act in future failing which they would be killed. After sometime, the victims managed to get up and put on their clothes and walked towards their house and informed the incident to their mother (PW-14). On the next day, they informed the incident to one Nonayya Gowda, PW-5 a worker of the quarry, who, in turn, informed Subhash Jain (PW-4), who told them to file a complaint but they hesitate to file the complaint. On 14.07.2004, at about 4.30 p.m., Yamuna (PW-1) gave statement before the Sub-Inspector of Police, Moodbiri Police Station and that was reduced to writing by Ithappa, P.S.I. PW- 13 and registered as Crime No. 62/2004 for the offence under Sections 376 & 506 read with Section 34 of I.P.C. C.P.I. of Mulki, who is PW-16, investigated the case. PW-16 sent the victims to Medical Officer, Moodgidri for medical examination and on the same day at about 10 p.m., the police arrested both the accused persons. On the next day, i.e. on 15.07.2004, PW-16 visited the scene of offence and prepared the Panchnama (Ex. P2) and recorded the statements and sent the accused for medical examination to the Government Hospital and thereafter, they were produced before J.M.F.C. Karkala. On the same day, PW-16 seized the clothes of the victims and the Auto. On 21.08.2004, PW-16 received certificate of two victims of sexual assault. PW-16 completed the investigation and filed the charge sheet on 05.09.2004. The III Addl. Civil Judge (Jr. Dn.) and J.M.F.C., Karkala on 07.02.2005 took cognizance of the offence punishable under Sections 376 and 506 read with 34 of I.P.C. and registered the case in C.C. No. 537 of 2004 and committed the same to the Sessions Court, Mangalore as the offence alleged against the accused are triable by the Court of Sessions. The prosecution examined 16 witnesses. The trial Judge, on 01/03.09.2007, passed an order convicting and sentencing both the accused to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 10,000/- and, in default, to suffer rigorous imprisonment for three months for offence punishable under Section 376 of I.P.C. and further held to undergo rigorous imprisonment for three months for offence punishable under Section 506(2) I.P.C. Aggrieved by the conviction and sentence passed by the trial Court, both the accused preferred an appeal before the High Court. The learned single Judge of the High Court, by order dated 13.03.2008, dismissed the appeal affirming the conviction and sentence passed by the trial Judge. Hence, the appellants have filed this appeal by way of special leave.
(3.) We have heard Mr. Vijay Kumar, learned amicus curiae appearing for the appellants-accused and Mr. Sanjay R. Hegde, learned Counsel appearing for the State.;