Selvaraj @ Narayanasamy, Ganesan and Unni @ Unnikrishnan vs State

M. Chockalingam, J.—This judgment shall govern all the three appeals.

The appellants who were ranked as A-3 to A-5 in a case of gang rape and who stood charged and tried for the offences under S. 376(2)(g),

363 and 109 of I.P.C. have brought forth this appeal, challenging the judgment of the trial Court finding them guilty under S. 376(2)(g) of I.P.C.

and sentencing them to undergo 10 years R.I. with a fine of Rs. 5,000/- and in default of payment of fine to undergo R.I. for one year.

The brief facts necessary for the disposal of this appeal can be stated as follows:

(a) P.W.1 Sundararaj was residing in Door No. 151, Nethaji Main Road, Udayampalayam, Coimbatore and was working at Gajini Mills. On

14.1.1996 Sunday he was proceeding towards his work at about 8.30 P.M. P.W.2 Dhanalakshmi who was also residing with her parents at

Udayampalayam, Ashok Nagar was waiting at the Bus Stop at Udayampalayam at about 8.30 P.M. to do her night shift work at Kannabiran

Mills. A-2 was sitting in a Tempo with Registration No. TNS 3697 which was parked nearby, looked at P.W.2 and asked ""can you come with

me"". P.W.2 found P.W.1 crossing in his cycle and complained about the same. P.W.2 condemned the conduct of the accused. P.W.1 took P.W.2

in his cycle. When P.Ws.1 and 2 were proceeding, the same Van was stopped across the Road. A-2 got down from the van, pushed down

P.W.2 from the cycle, dragged her and asked P.W.2 to get into the van. When the same was refused, he attacked P.W.2 on her head with a stick.

The said tempo van in which P.W.2 was kidnapped, was driven by A-1. The van was taken through Vallalur and a mud Road. Afterwards, the

van was stopped. P.W.2 was taken down. The second accused intimidated her by showing a knife and took her to the nearby bushes. A-2 asked

A-1 to bring A-3 to A-5. Under threat, P.W.2 was forced to remove her clothes. When she refused, A-2 removed the same, pushed her down

and committed rape on her. At that time, all the other accused came there in two motorbikes. A-1 and A-2 informed them that they could take

care of her and so saying they left the place. P.W.2 was asked to be seated in the motorbike driven by A-3, and A-4 and A-5 proceeded in the

other motorbike. After a five minutes ride, all of them got down. Under threat, all the three accused committed rape on P.W.2 one after another.

They threatened her with dire consequence if she revealed about the same. A-3 to A-5 took P.W.2 and dropped her at Souripalayam and fled

away. P.W.2 walked a kilometer to reach her residence and informed her mother and sister who were available there.

(b) On 14.1.1996, when P.W.16 Azhagupandy, Sub Inspector of Police was in charge of the Peelamedu Police Station, on receipt of an

intimation through phone, he proceeded to the Bus Stop near Shyam School, Udayapalayam and got Ex.P1 complaint from P.W.1. On the

strength of Ex.P1 complaint, he registered a case in Crime No. 66/96 under S. 363 of I.P.C. He despatched the express F.I.R. to the concerned

Judicial Magistrate''s Court. On receipt of the copy of the FIR, P.W.17 T. Elangovan, Inspector of Police attached to B6 Police Station took up

the investigation, proceeded to the site of occurrence, prepared an Observation Mahazar and rough sketch, enquired the witnesses and recorded

their statements. On 15.1.1996, P.W.2 accompanied by her mother came to the Police Station and gave a statement, which was recorded by

P.W.17 Inspector. The Investigation Officer recovered the clothes worn by the victim girl at the time of occurrence under Ex.P30 Form 95. P.W.2

victim was sent for medical examination. P.W.12 Dr. Kalanidhi examined P.W.2 on 15.1.96 at 2.35 P.M., found two injuries on her and gave

Ex.P18 wound certificate. On 23.1.96 at 4.30 P.M., P.W.12 gave treatment to A-3 and issued Ex.P19 wound certificate.

(c) On 15.1.96, P.W.13 Dr. R. Sellammal examined P.W.2, gave Ex.P20 certificate and opined that the victim was raped. The case was altered

to S. 366A and 376(g) of I.P.C. The express F.I.R. was despatched to the concerned Judicial Magistrate''s Court. On 22.1.1996 at about 3.00

P.M., he arrested the first accused. When he volunteered to give a confessional statement, the same was recorded in the presence of two

witnesses. The admissible portion is marked as Ex.P3. Pursuant to the statement, at about 6.00 P.M., A-1 produced the tempo van, which was

recovered under a mahazar. The second accused was identified by the first accused at about 6.00 P.M., and he was also arrested. The second

accused volunteered to give a confessional statement, which was recorded in the presence of the witnesses. Pursuant to the same, the second

accused produced wooden log and pen knife which were recovered under a mahazar. The Investigation Officer examined the witnesses and

recorded their statements. On 23.1.1996 at about 7.00 A.M. both A-1 and A-2 showed to the Investigation Officer the place where they

committed the crime. The Investigation Officer made inspection of the same, prepared Ex.P31 rough sketch and recovered five rupee coin and

broken glass bangles in the presence of the witnesses. The third accused was arrested that night, and the motorcycle what was used at the time of

occurrence was also seized from him in the presence of the witnesses. The third accused was sent for treatment to the Government Hospital that

day, and he was remanded to custody.

(d) A requisition was given to the Judicial Magistrate for sending the second accused for potency test. A-4 was arrested on 24.1.1996. He gave a

confessional statement, and the same was recorded, pursuant to which he showed the place of second part of the occurrence, and he has also

produced the knife, which was used by him at the time of occurrence. The fifth accused who was arrested that day, gave a confessional statement,

and the same was also recorded. Pursuant to the same, he produced the Susiki Motorcycle which was recovered in the presence of the witnesses.

An observation mahazar and rough sketch were prepared in respect of the place of second part of the occurrence. A-4 and A-5 were sent for

judicial custody. Pursuant to an order of the Chief Judicial Magistrate, P.W.15 Mr. T.R. Gangadharan, J.M. IV, Coimbatore, conducted an

identification parade on 5.8.96, wherein P.Ws.1 and 2 identified the accused. The proceedings with respect to the identification parade is marked

as Ex.P27. On a requisition given by the Investigation Officer, all the material objects were sent for chemical analysis, and the report under Ex.P21

was received. P.W.18 Rajan, Inspector of Police, took up further investigation, enquired the Medical Officers, recorded their statement and filed a

charge sheet under Ss. 366, 376(2)(g) r/w 109 of IPC as against A-1, under S. 366, 376(1) against A-2 and under S. 376(2)(g) of IPC against

A-3 to A-5.

In order to substantiate the charges, the prosecution examined 18 witnesses and marked 33 documents and 12 material objects. After the

evidence of the prosecution was over, the appellants/accused 3 to 5 were questioned under S. 313 of Cr.P.C. as to the incriminating

circumstances in the evidence of the prosecution witnesses, and they denied them as false. On the side of the defence, two witnesses were

examined. After hearing the rival submissions and scrutiny of the available materials, the Court below found the appellants/accused guilty of the said

offences, convicted and sentenced them as stated supra.

Advancing arguments on behalf of the appellant in S.A.No. 347 of 2001, the learned counsel inter-alia made following submissions:

There was absolutely no evidence on the side of the prosecution to connect A3 to A5, who are the appellants herein, with the crime of rape

alleged to have been committed on the person of victim. When the victim was taken to the first Doctor on the very day, she has not spoken

anything about the sexual assault. After her statement was recorded as to the commission of rape, she was admitted before P.W.13 Doctor, where

she has categorically stated that she was raped only by a known person, and the lower court has convicted A2. Even as per the prosecution case,

A2 was the first person, who committed sexual assault in the first part of the occurrence, and hence, this would be indicative of the fact that the

appellants/accused 3 to 5 are implicated as an after thought. The lower court has placed much reliance on the identification parade conducted by

the prosecution. It is true that the Judicial Magistrate has conducted the parade as per the procedure known to law and filed his report and his

proceedings. But, the lower court has lost sight of the evidence given by P.W.2 that all the appellants were shown nearby her house even before

the time of identification parade. Under the stated circumstances, the lower court should not have given any credence to such an identification

parade, which was done not only after four weeks delay, but after they were properly and duly identified.

Added further the learned counsel that the occurrence has taken place during night hours and even as per the evidence of P.W.2, it was utter

darkness and no light. Under such circumstances, there was no possibility of her witnessing any culprit, and hence, her evidence will not be given

any significance and no evidentiary value could be attached. Under the stated circumstances, the lower court without proper appreciation of the

evidence has found them guilty and hence, the appellants/accused 3 to 5 are entitled to acquittal.

The learned counsel appearing for the other appellants have also adopted the above said argument.

Countering to the above contentions of the appellants'' side, the learned Government Advocate (Criminal Side) would urge that the appeals are

bereft of substance and merits. The prosecution has clearly proved the guilty of all the accused. The victim is aged about 16 years. The occurrence

has taken place, when she was stopped at bus stand and she has clearly spoken about the occurrence. A case was also registered and

investigation was on. She was kidnapped by A1 and A2, later A3 to A5 have also joined with them. She has categorically spoken to the fact that

the second accused informed the first accused, who drove the tempo van, to take other three persons, namely, Selvaraj, Ganesan and Unni, who

are the accused 3 to 5. She has also narrated that she was taken by A3 in a motor cycle to a place, where she was raped one after another by A3

to A5. She has also identified the knife before the Court and she has also identified all the three accused/appellants herein before the Court.

Added further the learned Government Advocate that in the identification parade, which has been procedurally conducted as required by law by

the Magistrate, she has clearly identified all the accused. Apart from that there was a delay of four weeks, which would in no way cause any

prejudice and the delay so caused cannot be given any importance or weight. All the accused have been properly identified by the victim. Hence,

the lower court was perfectly correct in convicting the accused as stated above. Therefore, the order of the lower court has got to be sustained.

After careful consideration of the rival submissions and careful scrutiny of the materials available, the Court is of the considered view that the

court below only on the elaborate discussion of the evidence available against the accused 1 and 2 has found the accused 1 and 2 guilty u/s 366

and 376 r/w 109 I.P.C. and rightly too. But, this Court is unable to agree with a view taken by the lower court as to the other part of the judgment

which found the accused 3 to 5 guilty. In the instant case, it is not in dispute that the occurrence has taken place during night hours and the said

place was not previously known to P.W.2, victim. P.W.2 in the course of her evidence has categorically stated that the place where the

occurrence took place was utter darkness. Apart from that it is pertinent to note that it was not the victim, who took the Investigating Officer to the

place of the occurrence to identify the same. From her evidence, it would be clear that the accused 3 to 5 were not known to her already, and

hence, it would be highly improbable that she could have seen the appellants in a darkness. Once the victim could not have seen the appellants at

the time of occurrence, it would not be possible for her to identify the appellants thereafter.

A strong doubt is cast upon the prosecution case insofar as the appellants are concerned is that after registration of a case and alteration of the

case as one for rape, she was taken before P.Ws.12 and 13. It remains to be stated that P.W.13, who examined the victim, has categorically

deposed that P.W.2 has stated to her that on 14.1.1996 at about 9.30 p.m. she was raped by one known person at Vellaloor and the same has

been recorded. P.W.13 has clearly deposed the fact that the same has been recorded in Ex.P.20, Accident Register marked through her. Had it

been true that as stated by the prosecution, P.W.2 was raped by A2 to A5, she would have definitely informed the same to the medical examiner

that she was raped by the appellants herein/accused 3 to 5 also. It remains to be stated that even according to the prosecution case she was first

raped by the second accused and when she was examined by the Doctor, she informed that she was raped by only one person. Taking into

consideration of the statement given by the victim and recorded by P.W.13 as stated above and the prosecution case that A2 committed sexual

assault on her on 14.1.1996, it would be quite evident that there is all possibility that the occurrence has taken place only as per the first part of the

prosecution case.

Further, as rightly pointed out by the learned counsel for the appellants, the trial court has relied on and given much weight to the identification

parade. It is pertinent to note that P.W.1 had nothing to say about the second part of the occurrence, in which, according to the prosecution, the

appellants were involved. Therefore, the only evidence that was available was that of P.W.2. If P.W.2''s evidence is reliable and trustworthy and

the same would inspire the confidence of the Court in a case of rape, even the uncorroborated testimony of the prosecutrix would be suffice to

sustain the conviction. But, in the instant case, this Court is of the considered view that no such evidence is available. P.W.2 has clearly spoken in

her evidence during cross examination that the appellants were shown nearby her house on the road side, and hence, she was able to witness all of

them. It is pertinent to point out that the identification parade has followed the said event. Therefore, once the appellants were shown to her even

before the identification parade coupled with the above fact that she could not have seen the appellants at the time of occurrence, there was all

possibility of her to identify them before the identification parade. Under the stated circumstances, the Court is unable to give any weight to the

identification parade.

Needless to say that the evidence adduced by the prosecution through identification parade has got to be corroborated. In the instant case, this

Court is of the clear view that the victim could not have seen the appellants at the time of occurrence and identification parade what was relied on

by the prosecution cannot be given any credence or the same cannot be construed to be a corroborative piece of evidence to the prosecution

case. The Apex Court in a case reported in Prahlad Singh Vs. State of Madhya Pradesh, has held that even if factum of rape is established beyond

reasonable doubt, the accused cannot be convicted unless there is reliable and acceptable evidence to come to a conclusion that it was the

accused who committed the rape. Needless to say that what are available before the lower court was only the identification parade proceedings.

The Court is of the view that the identification parade of the appellants at that time will be of no significance and of no avail to the prosecution for

the simple reason that P.W.2 could not have seen the appellants at the time of occurrence and the appellants were also shown to her even before

the identification parade. Hence, the lower court was perfectly correct in giving conviction against A2. Insofar as the appellants are concerned, the

Court is of the considered view that the prosecution has not proved that the appellants/accused 3 to 5 have committed sexual assault on the victim.

In view of the uncorroborated testimony and doubt, it would be highly unsafe to convict the appellants/accused 3 to 5.

Therefore, the judgment of conviction and sentence imposed by the lower court against the accused 3 to 5 have got to be set aside. Insofar as

the judgment of conviction and sentence imposed on the accused 1 and 2 by the lower court is concerned, the same shall not be disturbed. The

criminal appeals are allowed. The conviction and sentence imposed upon the appellants/accused 3 to 5 by the trial Court are set aside. They are

acquitted of the charges levelled against them. The appellants/accused 3 to 5 are directed to be set at liberty forthwith, unless they are required in

connection with any other case.