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CASE NO.: Appeal (crl.)  97 of 2004

PETITIONER: Viswanathan & Ors

RESPONDENT: State Rep. by Inspector of Police, Tamil Nadu

DATE OF JUDGMENT: 29/04/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO.97 OF 2004 WITH CRIMINAL APPEAL NOS.100, 99, 98 and 629 of 2004 and 785 of 2005

S.B. Sinha, J.

1.      Appellants herein, who are six in number, have preferred these  appeals from a common judgment and order dated 6.3.2003 passed by the  High Court of Judicature at Madras.

2.      Appellants were convicted under Section 376(2)(g) of the Indian  Penal Code (hereinafter referred to as ’the Code’) and sentenced to undergo  rigorous imprisonment for 10 years. 3.      The incident took place on 20.11.1994.  The victim was working as a  Coolie.  She was married and had two children.  She was returning to her  home on a bicycle with her brother, Palanisamy at about 10.00 pm after  watching a movie.  Appellants herein allegedly joining hands with each  other, chased them.  They were riding on their own bicycles.  They dashed  with the bicycle of the Palanisamy.  Palanisamy and the victim fell on the  ground.  Allegedly, victim was asked to enjoy herself.  Palanisamy, when  questioned about the said conduct on the part of accused No.1 Babu, who  was known to the victim as a mason, was slapped by the accused No.1.  He  ran away out of fear.   4.      The victim was taken at a nearby place and accused No.2 to 4 and 6,  allegedly raped her one after the other.  She lost her consciousness.   5.      Palanisamy went to the village and brought some people with him.   They found the victim lying naked in an unconscious condition.  PW8,  Chinnadurai, and others poured water on her face.  She was taken home after  she regained her consciousness.  6.      She regained her composure in the evening.  They came to the Police  Station and lodged the First Information Report at about 7.00 pm on  21.11.1994.  She was medically examined at about 0720 hours on  22.11.1994.  No injury on her person, however, was found.  No injury on her  private part was also noticed.  In the FIR, accused Nos.1 to 4 were named.   Accused Nos.5 and 6 were not named.  It was said to be a moonlit night. All  the accused, however, were not put on the Test Identification Parade.  On  completion of investigation, they were charge sheeted and put on trial.   Admittedly, no charge under Section 376(2)(g) was framed.   The allegations made against them in the FIR read as under : "On the moonlight, I identify one person is Babu  who is working as a mason along with another  three persons were standing along with backside of  cycle.

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All the accused were laughed at me when I was  standing at Kariampalayam bus stop to go for  work.  I saw them.  Babu called me to come with  him.  Immediately my brother asked about this,  suddenly Babu slapped him.  Then Babu rushed  with tears in the said cycle.  All the three persons  rushed me to the damaged wall building and place  me near the tank.  I tried to escape from them.  The  three persons pushed me with force and closed the  mouth with my saree.  I cannot do anything.  I saw  all the faces in the moon light.  Babu called one  Thangavely and told him that to go with me.   Thangavelu placed on me without dress and raped  me.  Next Thangavely sent one Sakthi.  He also  raped me.  Next Babu called one Murugesan and  sent to me.  He also raped me.  Then I felt  unconscious.  I do not know about the further  matter.  When I awakened, the village people, my  brother, my uncle Chinnan and others poured  water on my face and help me to get up.  I felt  serious pain and am crying and weeping.  My  brother helped me to reach my house.  I am not  able to get up since I lay down in the bed.  In the  evening I feel better.  Immediately I and my  brother come to the police station and explain the  matter."

7.      Before the learned trial Judge 10 witnesses were examined, material  amongst them is the victim herself (PW-6) and her brother, Palanisamy  (PW-7).  Before the learned Trial Judge, the victim did not identify all the  accused.  She identified accused No.1, 2 and 3.  The names of accused Nos.5  and 6 were not mentioned by her at all.  In her deposition, she stated : "They take me to a damaged wall building at  Kariampalayam and raped me.  The first accused  sent third accused to enjoy me.  Third accused  removed all the dresses.  I felt unconscious.  He do  all the wrongs.  Then the 1, 2 accused raped me.   Then I do not know what happened.  I felt  unconscious."

8.      PW7, in his deposition, stated that he knew the accused No.1 Babu  only.  Except Babu, he did not name any other person. 9.      The learned Trial Judge, as also the High Court, as indicated  hereinbefore, found the accused guilty under Section 376(2)(g) of the Indian  Penal Code and sentenced them to undergo rigorous imprisonment for 10  years.   10.     Mr. Viswanathan and Mr. Francis, learned counsels appearing on  behalf of the appellants, in support of the appeals, would submit  (1)     The findings of the High Court as also the learned Trial Judge are not  sustainable as use of force by putting a cloth in her mouth had not  been disclosed by the prosecutrix in her deposition except in the First  Information Report.   (2)     Whereas the prosecutrix named Accused Nos.1, 2 and 4 in the FIR,  with specific allegation of commission of rape by Accused No.1 and  3, she changed her story and attributed the said act on Accused No.1,  2 and 3 in her deposition before the Court.   (3)     Her evidence is neither natural nor trustworthy as in the FIR, she  named only two persons to have committed the offence, but she  improved the said story in her deposition in Court alleging three other  persons were on the back of the cycle and in total, there were six  persons; whereas PW7 merely stated that Accused 1 and three other  persons called his sister to enjoy which clearly go to show that they  were not very clear as to how many people followed and how many

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people allegedly raped her. (4)     As no external injury was found on her body or on her private part, as  stated by Doctor R. Jayabal (PW2), the prosecution case appears to be  doubtful. (5)     Although in the First Information Report, she had named Accused  No.4, in her evidence she did not name him at all. (6)     There was no reason as to why no Test Identification Parade was held.   (7)     In absence of any charge having been framed under Section 376(2)(g)  of the Indian Penal Code which provides for a minimum punishment  of 10 years, the accused were gravely prejudiced. (8)     The delay in lodging the First Information Report has not been  satisfactorily explained. (9)     There is nothing on record to show that all the six persons had  common intention to commit the offence in question. 11.     Mr. Sundaravaradan, learned senior counsel appearing on behalf of  the State, on the other hand, would support the judgment.  12.     The fact that an incident of the nature disclosed in the FIR had taken  place is not in question.  The fact that she was found lying naked at the place  of occurrence in an unconscious state, stands proved not only by PW7 but  also by PW8, Chinnadurai. The evidence of PW8 remains uncontroverted.   He has not been cross-examined.   PW9 is the investigating officer.  He stated that the FIR was lodged at  about 7.00 pm in the evening on 21.11.1994.   She was sent to the hospital for medical examination.  Indisputably,  the prosecutrix did not suffer any injury.  For the purpose of proving  commission of the offence of rape, however, the same was not necessary as  she was a grown up girl aged between 20 to 23 years as opined by Dr.  Gopikrishnan.  She was furthermore mother of two children. 13.     She knew Accused No.1, Babu.  It was the said accused who had  taken a leading role in the whole episode.  He invited others to rape her.   Having regard to the circumstances in which she was found by the villagers  including PW8, we have no doubt in our mind that she was subjected to  rape.   The only question which arises for consideration, therefore, is as to  who were the persons responsible therefor. 14.     The allegations made in the First Information Report are not evidence.   She might have named four persons, namely, accused Nos.1 to 4 in the FIR,  but, as indicated hereinbefore, she named only accused Nos. 1 to 3 in her  deposition.  Only accused No.1, Babu, has been named by PW7 and none  other.  She, therefore, knew only the four persons.  She had not named  accused Nos.5 and 6 either in the FIR or in her deposition.   They had been arrested on the basis of the statements made by their  co-accused. They had not been put to Test Identification Parade.  The  prosecutrix, in her deposition before the learned Trial Judge, neither named  nor identified accused Nos. 4 to 6.  On what basis, therefore, their guilt is  said to have been established is not known.  Both, the learned Trial Judge as  also the High Court, in their judgments did not deal with this aspect of the  matter. 15.     In a situation of this nature, a Test Identification Parade was required  to be held at least for the purpose of identification of accused Nos. 5 and 6.   Some weight should have been given for arriving at a finding as regards the  guilt of accused Nos.5 and 6, as they had not been identified in the court. 16.     We, therefore, are of the opinion that in absence of any Test  Identification Parade having been held or they having been identified in  court, the accused Nos.4 to 6 cannot be held guilty of commission of the said  offence.  They are, in our opinion, have wrongly been convicted.         As regards the identification of the rest of the accused, we may notice  that in Devinder Singh v. State of H.P. [(2003) 1 SCC 488], it was held : "In view of these circumstances even if it is  accepted that the prosecutrix had a fleeting  glimpse of the appellants when they lighted the  torch in her room, in the absence of any other  evidence to show that the prosecutrix had occasion  to see the appellants earlier, or to know them, it  was incumbent on the prosecution to hold a test

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identification parade.  This is not a case where an  occurrence took place in broad day light and the  prosecutrix had ample opportunity of noticing the  features of the appellants.  This apart, her naming  some of the accused persons in the First  Information Report and not naming them in the  course of deposition casts a serious doubt on the  veracity of this witness."

17.     Some delay has occurred in the lodging of the FIR but keeping in  view the trauma suffered by the victim, her statement that she had regained  her composures only in the evening cannot be disbelieved particularly in  view of the evidence of PW8. 18.     In a situation of this nature and particularly having regard to the  sociological backgrounds from which PW6 and PW7 and other witnesses  hail, we are not in a position to agree with the submissions of Mr.  Viswanathan that the prosecution’s case should be thrown out only on the  ground of delay in lodging the FIR. 19.     PW7 also is a natural witness.  He was slapped.  He was put to fear.   He was chased.  He had run away to his village, collected some people and  came back to the scene of occurrence.  We do not see as to why he should be  disbelieved.  If he was to lodge a false case, he could have done so even  otherwise. 20.     Whether they were accompanied by the village people or their caste  people is not a matter of any significance.  For the similar reason, whether  PW7 was sent back by the Investigating Officer to get her clothes or not is  again not a matter of great significance.   Section 376(2)(g) of the Code reads as under : "376. Punishment for rape.\027(1) \005 (2) Whoever,-- (a)  to (f) \005  (g) commits gang rape, shall be punished with rigorous imprisonment for a  term which shall not be less than ten years but  which may be for life and shall also be liable to  fine: Provided that the court may, for adequate and  special reasons to be mentioned in the judgment,  impose a sentence of imprisonment of either  description for a term of less than ten years, Explanation I.--Where a woman is raped by one or  more in a group of persons acting in furtherance of  their common intention, each of the persons shall  be deemed to have committed gang rape within the  meaning of this sub-section."

21.     Explanation-I one appended to the said provision clearly states that  the persons who have common intention to commit the said offence would  also be liable in terms of Section 376(2)(g) of the Act.  The common  intention of all the accused need not be supported by the fact that each one  of them took part in actual commission of the offence.  The very fact that  they came on cycles and dashed with the cycle of PW7 would clearly show  that they had a common intention to commit the offence.  If they had the  common intention of committing the offence, they although were charged  under Section 376 in general, they could be convicted also under Section  376(2)(g) as the latter is merely a graver form of the offence of rape as  defined in Section 375 of the Code.  In any event, we do not find that they  were prejudiced in any manner whatsoever; as evidently : (1)     they not only gathered and obstructed her from proceeding towards  her residence with her brother in the bicycle but also deliberately  making her and her brother to fall down from the cycle; and  (2)     She was physically removed to a secluded place and at least three of  them took part in committing the offence of rape on her one by one.

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22.     The evidence of PW6 to the aforementioned extent is cogent and  convincing and has been corroborated by PW7 who not only is a witness of  the events which took place immediately prior to the actual occurrence of  rape but also a witness to the scene of occurrence where he found his sister  lying naked in an unconscious state.   The material objects were found to have semen stains.  The accused  were also tested as regards proof of potency and the doctors who examined  them categorically came to the conclusion that they were not incapable of  committing sexual intercourse.  There may be some inconsistency as pointed  by Mr. Viswanathan with regard to recovery of the clothes or sending the  same for chemical examination, but our findings on the aforementioned  grounds, in our opinion, are sufficient to prove the common intention on the  part of accused Nos.1 to 3. 23.     For the reasons aforementioned, the appeals preferred by accused  Nos.1, 2 and 3 are dismissed whereas the appeals preferred by accused Nos.  4, 5 and 6 are allowed.  They are on bail.  Whereas accused Nos.1, 2 and 3  are directed to surrender, accused Nos.4, 5 and 6 are discharged from their  bail bonds.