Selvam @ Karuppusamy vs State

S. Nagamuthu, J.—The Appellants are accused 1 and 2 in S.C. No. 24 of 1999 on the file of the learned III Additional Assistant Sessions

Judge, Coimbatore. Totally, there are five accused. The Appellant [A.1] in Crl.A. No. 1507 of 2003 has been convicted u/s 366 I.P.C and

sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 2,500/- in default to undergo rigorous imprisonment for one year

and u/s 376(ii) I.P.C., r/w Section 109 I.P.C., to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 2,500/- in default to

undergo rigorous imprisonment for one year.

The Appellant (A.2) in Crl.A. No. 96 of 2004 has been convicted u/s 366 I.P.C and sentenced to undergo rigorous imprisonment for 7 years

and to pay a fine of Rs. 2,500/- in default to undergo rigorous imprisonment for one year and u/s 376(i) I.P.C., r/w Section 109 I.P.C., to undergo

rigorous imprisonment for 10 years and to pay a fine of Rs. 2,500/- in default to undergo rigorous imprisonment for one year.

The accused 3 to 5 have been convicted u/s 376(2) I.P.C., and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of

Rs. 5,000/- each in default to undergo rigorous imprisonment for one year. Challenging the above conviction and sentence, the accused 1 and 2

are before this Court with these appeals. It is brought to my notice that the appeals preferred by A.3 and A.5 in Crl.A. Nos. 341 and 389 of 2001

respectively have already been dismissed by this Court.

The case of the prosecution in brief is as follows:

P.W.2 is the victim girl. P.W.3 is her mother. [Her name, place of residence and other facts which would show her identity, are avoided in this

judgment in her interest]. P.W.2 was then aged about 17 years. She was employed as a Coolie at a local mill known as ""Gangadharan Mill"". She

used to go to the said Mill for work every day from her house on walk. At times, she used to do night shift between 12.00 mid night and 7.00 a.m.

Because the night shift would start at 12.00 mid night, P.W.2 used to go to the Mill by Bus at 9.00 p.m. Thereafter, she would sleep till 12.00 mid

night and then do the work. On 14.01.1996, at about 8.30 p.m., P.W.2 was proceeding from her house to go to the Mill for night shift. She was

actually going towards Udayarpalayam bus stop. When she reached the said bus stop, she found a tempo van parked near the bus stop. A man in

dark complexion and tonsured head was in the van. On seeing P.W.2., he called her thereby extending sexual overture. P.W.2 scolded him. At

that time, P.W.1 who was an employee at Sundarraj Mill came by bicycle. On seeing P.W.1, P.W.2 called him as ""Anna, Anna"". P.W.1 came

near her. P.W.2 told him about the misbehavior of the man in the van. P.W.1 who in turn scolded that man and asked P.W.2 to come along with

him in his bicycle to her Mill. Accordingly, P.W.2 sat in the carrier of the cycle and P.W.1 was riding the same. When they were nearing a school

known as ""Shyam school"", the van followed them, over took and stopped before them. The very same man with tonsured head was in the van.

There was yet another person in the driver''s seat. The man with tonsured head jumped out of the van, attacked P.W.1 and pushed him down.

Soon, he dragged P.W.2 towards the van and forced her to get into the van. P.W.2 declined and tried to resist. But the tonsured head man pushed

her into the van and directed the man in the driver''s seat to drive the van fast. At that time, he called the driver as Selvaraj (A.1). The tonsured

head man is A.2. The van proceeded via Nanjundapuram Pothanur. When the van was proceeding, A.1 asked A.2 as to what was the route

through which he had to drive the van. A.2 told to drive the vehicle through Vellalore. When the van was proceeding, a mud road branched off

from the main road. A.1 drove the vehicle through the said mud road. After some distance, the van stopped. A.2 took out a knife, put the same on

the neck of P.W.2 and directed her to follow him without making any hue and cry. P.W.2 was dragged out of the van. Then A.2 told A.1 to bring

Selvaraj"", ""Ganesan"" and Unni [A3 to A5] also. The van left. A.2 dragged her towards a bush. He threatened her with dire consequences. He

forced her to remove her clothes. P.W.2 refused. A.2 by force removed all her clothes and made her nude. Then he spread the saree and the

petticoat of P.W.2 on the ground then he forced her to lay down. A.2 laid down on her, molested her and raped her. She sustained injuries on her

chest. After he completed the neinous act of rape, P.W.2 heard the sound of a motor cycle. A.2 told P.W.2 that his friends had come. Then he

wanted her to wear dress. She accordingly did. Three persons came in two motor cycles, who are accused 3 to 5. A.1 also came along with them.

Then A.1 and A.2 told the accused 3 to 5 to take care of P.W.2. Thus leaving her in the custody of accused 3 to 5, A.1 and A.2 fled away from

the scene of occurrence. Then the accused 3 to 5 enquired P.W.2 about her name and native place. Then the third accused forced her to sit in the

pillion of the motor cycle. The other two accused traveled in the other motor cycle. Both the motor cycles were driven to a distance. They crossed

a railway lane and at a particular place, they stopped the vehicle and all the three had some discussion. Then the fourth accused took out a knife

and threatened her with dire consequence. Then all the three took her to a nearby place where one after the other raped her. Since she was

repeatedly raped, she fainted. They waited for some time until she recovered. Thereafter, the accused 3 to 5 asked her to wear the dress and then

they told her not to disclose anything to anybody and also threatened her that they will do away with her if she disclosed anything to anybody. Then

the third accused took her in the motor cycle and left her at sowripalayam. From there, P.W.2 on walk went to her house. She told P.W.3 her

mother about the happenings. Then they went to the police station.

In the mean while, P.W.1 told P.W.3 as well as P.W.4 about the occurrence. All of them searched P.W.2. When they were near Shyam

School, P.W.16, the then Sub Inspector of Police attached to Peelamedu Police Station came to the spot on some information that somebody had

been attacked near the Shyam school. P.W.1 told P.W.16, about the occurrence. The said complaint was reduced into writing by P.W.16 under

Exhibit P.1.

On the same day, P.W.16 returned to the police station at about 10.40 p.m., and registered a case in Crime No. 66 of 1996 u/s 363 I.P.C. He

forwarded the F.I.R and the original complaint to the Court. Then he handed over the case diary to P.W.17, the Inspector for further investigation.

On taking up the case for investigation, P.W.17 proceeded to the place of occurrence at 11.00 p.m., and prepared an observation mahazar in

the presence of P.W.5 and another witness. He also prepared rough sketch. Then he examined P.W.1, P. Ws.3 to 5 and few other witnesses at

the place of occurrence and recorded their statements. On 15.01.1996, at about 10.00 a.m., P.W.2 and 3 appeared in the police station. P.W.17

recorded the statement of P.W.2 and 3 and also recovered the saree and petticoat of P.W.2 under Form 95. Then he sent P.W.2 for medical

examination at Coimbatore Government Hospital. Thereafter, he altered the case into one u/s 366(A) and 376(g) I.P.C. P.W.2 went to

Government Hospital at Coimbatore at 2.35 p.m., on 15.01.1996. P.W.12, Doctor Kalanidhi examined her. P.W.2 told him that she was raped

by unknown person and she was also attacked with wooden log. The doctor-P.W.12 found two external injuries as follows:

(i)Abrasion on the right chest and

(ii)Abrasion measuring 1X1 c.m., on the forehead.

The doctor further opined that there was blood stain indicating it was a fresh injury. Then P.W.12 forwarded her to P.W.13-Gynecologist.

P.W.13 examined her and found that there were injuries on both her chest as well as external injuries in the genitalia of P.W.2. She found

abrasions in her vagina measuring 4 m.m. Two abrasions found in the vagina were also fresh. He collected pubic hair and also swab from the

vagina for chemical examination. P.W.13 opined that P.W.2 had been raped. Her opinion was marked as Exhibit P.20. She further opined that

rape would have been committed against her resistance.

P.W.17 proceeded with the investigation. He arrested A.1 on 22.01.1996 in the presence of P.W.6 and on such arrest, he gave a voluntary

confession. The same was recorded. In the said confession, he disclosed that he would identify the accused 2 to 5. He further disclosed that he

would produce the van bearing No. TN X 3696 which he had hidden elsewhere. At about 5.00 p.m., he took the police to the place where the

Van was kept and produced the same. P.W.17 recovered the same in the presence of witnesses. Thereafter, A.1 identified A.2 at about 6.00

p.m., on the very same day near Ramanathapuram Pankaja Mill Branch road. P.W.17 arrested him in the presence of P.W.7. On such arrest, he

gave a voluntary confession. Then he disclosed that he would produce the wooden log and pen knife which he had hidden at his house.

Accordingly, at about 8.00 p.m., he took the police to his house and produced the same. P.W.17 examined the other witnesses and recorded their

statements. Thereafter, P.W.17, went to the places where P.W.2 was raped and prepared observation mahazar in the presence of witnesses. Then

he produced A.1 and A.2 for judicial custody. On the same day at about 3.00 p.m., P.W.17 arrested the third accused and recovered the motor

cycle from him. Since he had injury on his thigh, he was sent for medical examination. On 24.01.1996, he arrested the fourth accused and from

whom, he recovered a knife. On the same day, he arrested the fifth accused near Coimbatore Collectorate, from whom, he recovered another

motor cycle. Then all the accused were sent for medical examination. P.W.14, the Doctor examined them and opined that they were all capable to

perform sexual intercourse with a woman. Thereafter, the investigation was taken up by P.W.18 who completed the investigation and laid charge

sheet.

Based on the above material, the trial Court framed the charges as follows:

(i)The first charge is against A.1 and A.2 for offence u/s 366 I.P.C.

(ii)Second charge is u/s 376(ii) I.P.C., against A.2

(iii)The third charge is against A.3 to A.5 for offence u/s 376(ii)(g) I.P.C.,

(iv)The fourth charge is u/s 376(2)(g) I.P.C., r/w Section 109 I.P.C. against A1.

All the accused denied the above charges. Therefore, the trial Court went ahead with the trial. On the side of the prosecution, as many as 18

witnesses have been examined and 33 documents were exhibited. When the incriminating evidences were put to the accused u/s 313 Cr.P.C., they

denied the same as false. Further, they did not choose to examine any witness nor they produced any document.

Having considered the above materials, the trial Court found the accused guilty and accordingly punished them as detailed supra in this

judgment. That is how the Appellants are before this Court with these appeals.

I have heard the learned Counsel for the Appellants and the learned Government Advocate (crl.side) appearing for the Respondent and also

perused the records carefully.

The learned Counsel for the Appellants would bring to my notice that the appeals preferred by A.3 to A.5 were also dismissed. With that

background, the learned Counsel would submit that as far as A.1 is concerned, even according to the admission made by P.W.1, she was not

raped by A.1. Therefore, the conviction u/s 376 r/w Section 109 I.P.C., is not sustainable against him, he contended. The learned Counsel would

further submit that even before the test identification parade, the accused were shown to P. Ws.1 and 2 and therefore, the identification made by

P. Ws 1 and 2 during the identification parade and in the Court for the first time cannot be given much weightage. The learned Counsel would

further submit that before the Doctor, P.W.2 had stated that she was raped by one unknown person. But according to the case of the prosecution,

P.W.2 was raped by four persons. Further, the learned Counsel would submit that the case of the prosecution is highly unbelievable and therefore,

the accused are entitled for acquittal.

The learned Government Advocate (crl.side) would stoutly oppose these criminal appeals. According to him, though it is true that P. Ws.1 and

2 have admitted during cross examination that they had occasion to see the accused prior to the identification parade and on that score, the

identification made by them in Court cannot be disbelieved. He would further submit that though it is true that before the Doctor, P.W.2 has told

that she was raped by one unknown person, the said fact was not contradicted to P.W.2 u/s 145 of the Evidence Act by the defence and

therefore, the same cannot be used now against her. The learned Government Advocate would further submit that there are no reason to reject the

evidences of P. Ws 1 and 2 since they have very categorically stated about the abduction and about the rape committed by the accused.

Therefore, according to him, no interference is warrantor at the hands of this Court.

16.I have considered the rival submissions.

17.P.W.2, the victim has vividly narrated the entire occurrence. Though she has been subjected to aggressive cross examination by four defence

counsel, she has withstood the same and she has given very consistent answers. It only shows that she is only speaking the truth and truth alone.

One important circumstance which weighs in the minds of the Court the most is that P.W.16 came to the place of occurrence and obtained

complaint from P.W.1 and registered the case even before P.W.2 was released by these accused after mass rape. This would go to show that the

kidnap is true and in respect of the subsequent rape, the evidence of P.W.2 deserves to be accepted. Apart from that, the medical evidence fully

supports the case of the prosecution. The Doctors have found abrasions on both sides of the chest of P.W.2. Apart from that, there were also

injuries in the vagina of P.W.2 which were also noticed by the doctors. It is because of these injuries, the doctors have opined that P.W.2 had

been subjected to rape. The opinion of doctors cannot be discarded for any reason.

Now coming to the identity of the assailants, the learned Counsel has taken me through the cross examination of P. Ws.1 and 2 to establish

that they have admitted that after the arrest of the accused, they had occasion to see them. May be it is true. In my considered opinion, on that

score, the evidence of P.W.2 cannot be brushed aside. It is not as though P.W.2 had a fraction of a moment to see the accused persons at the

time of occurrence. She was taken forcibly by the accused persons and they raped her one after another for a long time. When such a heinous act

is done on a girl, none in the position of P.W.2 would easily forget the identity of the culprits how long the time gap may be. The necessity for

holding test identification parade and its importance came to be considered by the Hon''ble Supreme Court on very many occasions. In Munshi

Singh Gautam (D) and Others Vs. State of M.P., ; in Harbajan Singh Vs. State of Jammu and Kashmir, ; in Malkhansingh and Others Vs. State of

Madhya Pradesh, and very recently, the Hon''ble Supreme Court in Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), after having

referred to the above judgments and various other judgments has held that even in the absence of test identification parade, if the identification

made by witness in the Court which is the substantive evidence inspires the confidence of the Court, the Court can very well act upon the same.

The Hon''ble Supreme Court has held as follows:

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence

Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are

relevant u/s 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere

identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test

identification, therefore,is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to

generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the

form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a

particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of

investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the

accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section

162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in

court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of

identification even without insisting on corroboration.

In this case, as I have already stated, there are no reasons to hold that the evidence of P. Ws.1 and 2 in respect of the identification of the

accused made by them in Court do not inspire confidence of the Court. I hold that the identification of the accused made by P. Ws.1 and 2 more

particularly by P.W.2 cannot be doubted. Thus, I do not find any reason to reject the evidence P. Ws 1 and 2. In my firm opinion, the prosecution

has proved the case beyond any reasonable doubt based on the unimpeachable evidence of P. Ws1 and 2 coupled with the medical evidence.

Nextly, the argument of the learned Counsel for the Appellants is that there was a contradictory statement made by P.W.2 before the Doctor

that she was raped by one unknown person. But according to the case of the prosecution, P.W.2 was raped by four persons. Of course, in my

considered opinion, there is such a contradiction. But, to make use of such contradiction, it is absolutely necessary for the party who wants to use

the said contradiction, to cross examine the maker of the statement u/s 145 of the Evidence Act. But the defence has failed to do so. Unless there

is cross examination in respect of such a contradiction u/s 145 of the Evidence Act, it is not available for the accused now to impeach the credit of

the witness u/s 155 of the Evidence Act. In my considered opinion, under law, in the instant case, the accused cannot take advantage of the former

statement made by P.W.2 to the Doctors. Therefore, this argument also is liable to be rejected.

The next argument put forth by the learned Counsel for the Appellants is, since P.W.2 was not raped by A.1, the conviction u/s 376 r/w

Section 109 I.P.C., is not sustainable. In my considered opinion, it is not so. Aiding constitutes abatement as defined in Section 107 of the

Evidence Act. In this case, A.1 had taken P.W.2 forcibly in the Van and left her at the place of occurrence where she was raped by A.2 and

further, he brought A.3 to 5 to the place of occurrence in motor cycles to enable them to take the victim girl to a different place to rape her. From

the above, it could be seen that A.1 actively aided the other accused to commit rape of P.W.2. For these reasons, the conviction of A1 u/s 376

r/w Section 109 I.P.C., needs only to be sustained.

In respect of the offence committed u/s 366 as against A.1 and A.2, the evidence of P. Ws1 and 2 would clearly establish the case of the

prosecution. Similarly, in respect of offence of rape committed by A.2, as I have already stated, the evidence of P.W.2 coupled with medical

evidence and other evidences would clearly establish the guilt of the Accused No. 2.

In view of all the above, I hold that the Trial Court was right in convicting these accused. I do not find any merit in these criminal appeals at all

and they deserve only to be dismissed.

In the result, the criminal appeals fail and accordingly, the same are dismissed. The conviction and sentence imposed on the Appellants are

confirmed. The trial Court is directed to take steps to secure the presence of the Appellants to commit them to prison to undergo the remaining

period of sentence, if any.