High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02-07-2007CORAM:uTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL Nos.1072/2004 & 371/ 20051.Sakthivel2.Rathi @ Suresh Kumar ..Appellants in/Accused 1 to 2 Crl.A.No.1072/2004/A2 & A4Kalimuthu ..Appellant in Crl.A.No.371/2005 /A3-vs-State by the Inspector of PoliceR-3, Madukarai Police StationCoimbatore(Crime No.559 of 2001).. Respondent in both appeals/ComplainantThese appeals are filed against the Judgment made inSpl.S.C.No.47/2003 dated 27.07.2004 on the file of the Court of learnedSpecial Judge/ Principal Sessions Judge,Coimbatore.For appellants : Mr.K.V.Shanmuganathan-A1 and A2(Crl.A.No.1072/2004)(Crl.A.No.371/2005): Mr.P.M.Duraiswamy-A3For respondent : Mr.V.R.Balasubramaniam, Additiional Public Prosecutor. COMMON JUDGMENT These appeals have been preferred against the Judgment inSpl.S.C.No.47 of 2003 on the file of the learned Special Judge( PrincipalSessions Judge) Coimbatore. A1 to A3 who have charged under Section 376(2)(g) of IPC who have been convicted and sentenced to undergo ten yearsrigorous imprisonment and a fine of Rs.10,000/- each, are the appellantsherein (Crl.A.No.1072 of 2004 by A1 and A2. Crl.A.No.371 of 2005 by A3).2. The short facts of the prosecution case relevant for the purposeof deciding these appeals sans irrelevant particulars are as follows: https://hcservices.ecourts.gov.in/hcservices/ P.W.1 the victim herein is a sweeper in a private company and while shewas on her way to the workspot near the place of occurrence, A1 to A3waylaid P.W.1 Tulsi pushed her towards nearby maize field belonging to oneSenthil Gounder and committed an offence of gang rape. She immediatelyrushed to the near by Mahaliamman Temple from where she got a saree fromP.W,8 and returned home with the help of an elderly persons and since itwas late in the night, and her husband was also not in the house at thattime, the following day,she went and informed the occurrence to thePresident of Co-operative Society and according to his instructions, acomplaint was drafted with the help of the son of Panchayat BoardPresident and presented before the Madukarai Police Station on the nextday ie., on 28.12.2001 at about 3.00p.m. Ex P1 is the complaint. P.W.10,the then Sub Inspector of Police, Madukarai Police Station, hasregistered the case under Crime No.559 of 2001 under Section 376 of IPCr/w 3(i)(iii) and 3(1)(xii) of Scheduled Caste and Scheduled Tribes(Prevention of Atrocities) Act, 1989, on the basis of the Complaint Ex P1preferred by P.W.1. Ex P15 is the first information report. The copies ofthe same have been sent to the Judicial Magistrate as well as the policehigher officials.3. Taking cognizance of the offence, the learned Judicial MagistrateNo.VII, Coimbatore has issued summons to the accused, and on theirappearance, furnished copies under Section 207 of Cr.P.C. since the caseis exclusively triable by the Court of Sessions, the learned JudicialMagistrate has committed the case to the Court of Sessions. On appearanceof the accused before the Sessions Court, the learned Sessions Judge hasframed charge under Sections 3(i)(iii) and 3(i)(xii) of Scheduled Casteand Scheduled Tribes(Prevention of Atrocities) Act, 1989, and also underSection 376(2)(g) of IPC and when questioned, the accused pleaded notguilty.4. On the side of the Prosecution , P.Ws 1 to 12 were examined.Exs P1 to P32 were exhibited. M.O.1 to 6 were marked.5. P.W.1 is the victim girl Tulsi who would depose that she is aged24 and is working in a private radiator company as a sweeper and that A1and A2 belongs to Okkiliar Caste and A3 belongs to Scheduled Caste towhich she also belongs and that on the date of occurrence, while she wasgoing to work place A1 to A3 way laid her and dragged her to the maizefield belonging to one Senthil Gounder and after removing her saree andinskirt and torn her jacket A1 toA3 have forcibly raped her and that sheran away from the place of occurrence to the nearby Mahaliamman Templewithin half an hour in a nude posture and at that time, poojas wereperformed in the said Mahaliamman Temple, on hearing her call a lady byname Dhanapackiam brought a towel from the priest of the temple and alsogave water to her and at the instance of Dhanapackiam, Chandran a tailorbrought a saree for her and that she had narrated what had happened toher,to Dhanapackiam, temple priest and also to Chandran. She would furtherdepose that A1 and A2 followed her to the temple and she identified bothof them to the people present in the temple in a scooter that they are https://hcservices.ecourts.gov.in/hcservices/ the persons who have raped her and that since it became dark, shereturned to her house with the help of an elderly person and after herhusband came to the house, she went and met the President of theCooperative Society who in turn had advised her to complain with thePresident of Pichanur Panchayat. Accordingly, she went to the Presidentof Pichanur Panchayat and narrated the instance who in turn had instructedher to prefer a complaint to the police and he asked his younger son toprepare a complaint and accordingly his younger son prepared a complaintwhich was shown to her and she has signed in the complaint, after goingthrough the same and on the following day, she went to the police stationin the evening and preferred a complaint which is Ex P1. The distancebetween the place of occurrence and Madukarai Police Station is about 10km . The police had sent her to Government Hospital, Coimbatore fortreatment. Since there was no doctor available in the evening, shereturned to her house and on the next day morning , she went to thehospital. She had handed over to the police M.O.1 Nylon Jacket, M.O.2green colour inskirt, M.O.3 saree which she wore at the time ofoccurrence.5a. P.W.2 is the doctor who had examined A1 to A3 and issued Exs P2to P4 potency certificate. P.W.3 is the Tahsildar who had issuedcommunity certificaite to P.W.1 and A1 to A3 under Exs P5 to P8respectively. P.W.4 would depose that M.O.1 Jacket was seized by thepolice in his presence under Ex P9 mahazar at the hospital on 28.12.2001at about o6.00p.m.,5b. P.W.5 is Suseela who runs a tea shop near Mahaliamman Temple. Shewould say that Dhanapackiamm, received a towel from the temple priest andfrom her, she came to know that the towel is required for a woman who isstanding near the temple without any saree and that she along withDhanapackiam went and saw the said lady who was wearing only torn jacketand a towel. Chandran, a tailorgave a saree to the said lady through Dhanapackiam and after wearing thesaid saree, the lady Tulsi came to her tea shop and also informed her(P.W.5) that three persons have raped her and at that time , two personscame in a moped who were identified by Tulsi as the person who had rapedher. She has also identified A1 and A2 as the person who were riding onthe moped on the said date. She would further depose that temple priestVelusamy is now no more.5c. P.W.6 is the doctor who had examined P.W.1 on 29.12.2001 andissued Ex P10 copy of the accident register. The doctor has opined thatP.W1 had already undergone tubectomy and that nail marks were seen on herright hand and that she is not a virgin. The doctor has further deposedbefore the Court that P.W.1 has informed her that her inskirt, sareewhich was worn by her at the time of occurrence were taken away by threepersons who had gang raped her.5d. P.W.11 is the then Inspector of Police who had given Ex P16requisition to the Government Hospital, Madukarai for examining P.W.1. Ex https://hcservices.ecourts.gov.in/hcservices/ P18is the radiologist's report for fixing the age of the victim girlP.W.1. Through Ex P17, the victim girl was sent to the Government Hospitalfor examination.5e. P.W.12 is the then Deputy Superintendent of Police, PothanurDivision, Coimbatore. After hearing about the registration of the case,under Crime NO.559 of 2001 of Madukarai Police Station under Section 376(2)(g) of IPC, he immediately rushed to the Government Hospital ,Coimbatore and examined P.W.1 and had recovered M.O.1 Jacket, in thepresence of witnesses under Ex P9 mahazar and thereafter he went to theplace of occurrence and prepared Ex P11 Observation Mahazar, at about8.30p.m. On 28.12.2001 in the presence of P.W.7 and also recovered M.O.4series a pair of chappels under Ex P12 Mahazar in the presence of P.W.7.M.O.5 series are the photo's and negatives for the place of occurrencetaken through the photographer. He(P.W.12) has examined witnesses andrecorded their statements. Ex P19 is the rough sketch prepared by P.W.12.On 30.12.2001 at about 12.15p.m., he had arrested the accused and recordedthe confession statement of A1 in the presence of P.W.7 and anotherwitness. Ex P 13 is the admissible portion of the confession statement ofA1 . On the basis of the admissible portion of the confession statement ,A1, took him to a bush behind the compound wall of Pichanur radiatorcompany and took out M.O.2 inskirt and M.O.3 saree worn by the victim girlat the time of occurrence, from the hidden place, which were seized underEx P4 mahazar in the presence of P.W.7 and another witness. He had sentthe accused for chemical examination along with Ex P21 requisition letter.M.O.6 TVS moped used by the accused was recovered on 2.1.2002 from thehouse of one Gurusamy and Manickam under Ex P22. Blood samples were takenfrom P.W.1 and sent for chemical analysis. Ex P23 is the special reportsubmitted by the radiologist. Through Ex P24, letter of requisition thematerial objects connected with this case were sent to forensic sciencelaboratory for analysis. Ex P26 is the requisition letter given by theCourt. Ex P27 is the chemical analyst's report. Exs P28 and P29 are theserologists' report. Under Ex P30 letter of requisition, the materialobjects connected with this case were sent to chemical laboratory foranalysis. Ex P31 is the analyst's report.5f. P.W.8 Chandran would depose that on information fromDhanapackiam, he gave a saree to P.W.1 on 27.12.2001 at about 4.30p.m.,when she was found near the Mahaliamman Temple. P.W.8 has also deposedthat P.W1 has identified two persons who came in a moped at the time, asthe persons who had raped her. He has identified as A1 and A2 are thepersons who came on the other day in the moped and identified by P.W.1. Hehas further stated that P.W.1 had informed him that three persons haveraped her.5g. P.W.9 would depose that A1 took his moped some 2 ½ years back at11.00a.m., and on the same day night , he returned the moped. Aftercompleting investigation, P.W.12 has filed his final report against theaccused. https://hcservices.ecourts.gov.in/hcservices/

6. When incriminating circumstances under Section 313 Cr.P.C. wereput to the accused, they would deny their complicity with the crime. Theywere examined one Senthil Gounder as D.W.1.7. After going through the materials available on record before thetrial Court by the prosecution including the oral and documentaryevidence, the learned trial Judge has come to a conclusion that theoffence constituted under Section 3(1)(i) and 3(1)(xii) of of ScheduledCaste and Scheduled Tribes(Prevention of Atrocities) Act, 1989, has notbeen made out against the accused by the prosecution beyond any reasonabledoubt and accordingly acquitted A1 to A3 .But the learned trial Judge hasconvicted the accused under Section 376(2)9g) of IPC and sentenced them toundergo ten years rigorous imprisonment each with default sentence.Aggrieved by the findings of the learned Sessions Judge, A1 and A2 havepreferred Crl.A.No.1072 of 2004 and A3 has preferred Crl.A.No.371 of2005.8. Now the point for consideration in these appeals are whether thecase of the prosecution has been proved beyond any reasonable doubt tosustain the conviction against A1 to A3 under Section 376(2)(g) of IPC?9..Heard Mr.K.V .Shanmuganathan, learned counsel appearing for theappellants in Crl.A.No.1072 of 2004 and Mr.P.M.Duraisamy, learned counselappearing for the appellant in Crl.A.No.371 of 2005 andMr.V.R.Balasubramaniam, learned Additional Public Prosecutor forrespondent and carefully considered their rival submissions.10. The occurrence as per P.W.1 victim girl has occurred on27.12.2001 at about 4.30p.m., Even though ,P.W.1 has not specificallystated the time and date of occurrence, the Doctor P.W.6 who had examinedher on 29.12.2001 had deposed that P.W1 had informed her that she was gangraped on 27.12.2001 at 4.00p.m., But Ex P1 complaint was preferred byP.W.1 with Madukarai Police Station only on 28.12.2001 at about 3.30p.m.,So there is a delay of about 11 1/2hours in preferring the FirstInformation Report. The explanation given for the delay by P.W.1 is thatafter the occurrence, she ran away from the place of occurrence to nearbyMahaliamman Temple from where she was given a towel through oneDhanapackiam and also a saree from P.W.8, Chandran and that she returnedto her house with an elderly person and that since her husband was not inthe house , she waited there and after her husband returned she went toPresident of Cooperative Society and informed about the occurrence who inturn had advised her to go to the President of the Panchayat Union,Pichanur and accordingly she went there and with the help of his youngerson,(D.W.1) a complaint was prepared and read over to her and she signedthe same and on the next day ie., on 28.12.2001, she went to the policestation and preferred a complaint. So according to her evidence, thecomplaint was preferred and got ready on the night of the date ofoccurrence itself. But it is in the evidence of P.W.1 itself that thedistance between Madukarai Police Station and the Pichanur where Ex P1 wasprepared is only 10 k.m. But she has prepared the complaint only on https://hcservices.ecourts.gov.in/hcservices/

28.12.2001 at about 3.30p.m., in the evening. There is no explanationgiven by P.W.1 as to why she has not preferred the complaint with thehelp of police in the morning of 28.12.2001.11. The learned Additional Public Prosecutor relying on State ofPunjab -vs- Gurmit Singh and others(1996 Crl.L.J.1728) and contended thatin sexual offences delay in the lodging of the FIR is immaterial if thedelay is properly explained. In that case, the victim was aged 16 years,admittedly an unmarried girl and the occurrence had taken place while thevictim was studying in X standard in the Government High School, Pakhowal.At that time, matriculation examinations were going on and the examinationcentre of the prosecutrix was located in the Boys High School, Pakhowal.On 30th March 1984 at about 12.30p.m after taking her test in Geography,the prosecutrix was going to the house of her maternal uncle, DarshanSingh and when she had covered a distance of about 100 karmas from theschool, a blue ambasador car being driven by a Sikh youth aged 20/25years came from behind. In that car Gurmit Singh, Jagjit Singh alias Bawaand Ranjit Singh accused were sitting. The car stopped near her Ranjitsingh accused came out of the car and caught hold of the prosecutrix fromher arm and pushed her inside the car. Accused Jagjit Singh alias Bawa puthis hand on the mouth of the prosecutrix . while Gurmit Singh accusedthreatened the prosecutrix that in case if she raise an alarm she would bedone to death. All the three accused drove her to the tubewell ofRanjit Singh accused. She was taken to the kotha of the tubewell. Thedriver of the car after leaving the prosecutrix and the three accusedpersons then went away with the car. In the said kotha, Gurmit Singhcompelled the prosecutrix to take liquor, misrepresenting to her that itwas juice. Her refusal did not have any effect and she reluctantlyconsumed the liquor. Thereafter the accused one after another have rapedthe unfortunate victim. Next day morning at about 6.00 a.m., the accusedtook the girl in the same car and left her near the Boys HighSchool,Pakhowal where she had been abducted. The victim girl had to takeher examination in the subject of Hygiene on that date, She, after takingher examination in Hygiene, reached her village Nangal Kalam at about noontime and narrated the entire story to her mother Smt.Gurdev Kaur. P.W.7.Her father Trilok Singh P.w.6 was not present in the house at that time.He returned from his work late in the evening, to whom the mother of thevictim girl narrated the episode to her husband. Thereafter, the victim'sfather contacted Sarpanch Joginder Singh of the Village. A Panchayat wasconvened. Matter was brought to the notice of the sarpanch of VillagePakhowal also. Both the Sarpanches tried to affect a compromise on 1-4.1984 but since the panchayat could not give any fruit or relief to theprosecutrix, she along with her father proceeded to the police station,andpreferred the complaint. So for an occurrence which had taken place on30.3.1984, the complaint was preferred only on 2.4.1984. But taking intoconsideration, the explanation offered by P.W.1, the complainant, factsand circumstances of the said case, it was held bythe Honourable Apex court as follows:" In sexual offences delay in lodging of the FIR canbe due to variety of reasons particularly the https://hcservices.ecourts.gov.in/hcservices/ reluctance of the prosecutrix or her family members togo to the police and complain about the incident whichconcerns the reputation of the prosecutrix and thehonour of her family. It is only after giving it acool though that a complaint of sexual offence isgenerally lodged. Even if there is some delay inlodging FIR in respect of offence of rape, if it isproperly explained and the explanation is natural inthe facts and circumstances of the case, such delaywould not matter." 12. But in the case on hand, it is in evidence that soon afterthe occurrence P.W.1 ran away from the place of occurrence to nearbyMahaliamman Temple and narrated the occurrence to the temple priest,Dhanapackiam and P.W.8 Chandran. But Dhanapackiam was not examined in thiscase who according to the prosecution had offered the towel to P.W.1 andshe is the person who met P.W.1 soon after the occurrence at first. 13. Yet another fact which glares at the case of the prosecutionis that according to P.W.1, the complaint was preferred at Pichanur withthe help of the younger son of the President of Pichanur Panchayat Union.Even though, the person who prepared Ex P1 complaint was not examined onthe side of the prosecution,he was examined as defence witness as D.W.1.D.W.1 in his evidence disowned to have prepared Ex P1 complaint asnarrated by P.W.1. In the cross examination, P.W1 would deny thesuggestion that since P.W.1 has refused to the Panchayat decision, he issupporting the accused. The natural conduct of the victim like in thiscase is to inform the police as early as possible and to prefer acomplaint. From the evidence of P.W.1, it is seen that due deliberationhas been made with Panchayat President, Cooperative Presideint of Pichanur, and thereafter only the belated complaint has been preferred. It is inevidence that P.W.1 has identified A1 and A2 who came in the moped whenshe was taking asylum at the Mahaliamman Temple and she has alsoidentified A1 and A2 to Dhanapackiam, Temple Priest as well as P.W.8Chandran. P.W.1 would categorically depose that A1 and A2 have followedher. He would further admit that it was a full moon day and there was somepoojas were performed in the temple and there was seven or eight personspresent in the temple. But no one has taken any steps to apprehend A1 andA2 near the temple itself, after both of them were identified by P.W.1. 14. The prosecution relies on the recovery under Section 27 ofthe Evidence Act. According to P.W.12, M.O.3 saree, M.O.2 in skirt whichwere worn by the victim girl at the time of occurrence were recovered fromA1 on the basis of the confession. But P.W.1 in her cross examination hasidentified M.O.3 saree as the one given to her in the temple. Even P.W.1in her evidence in the chief examination itself would depose thatM.O.1Jacket M.O.2 inskirt and M.O.3 saree were handed over by her to thepolice in the presence of P.W.4 Paramasivam. So under such circumstances,the recovery of Inskirt M.O.2 and M.O.3 saree from A1 on his confessionfalls to the ground. A1 to A3 were arrested on 30.12.2001 itself byP.W.12. But no wearing apparels of the accused like dhothi, underwears and https://hcservices.ecourts.gov.in/hcservices/ banian were recovered from the accused by the police. The unexplaineddelay in preferring the complaint in this case , in my opinion, cuts atthe root of the prosecution case. Under such circumstances, it cannot besaid that the prosecution has proved the guilt of the accused underSection 376(2)(g) of IPC beyond any reasonable doubt to warrantconviction. The point is answered accordingly.15. In fine, the appeals are allowed and conviction and sentenceunder Section 376(2)(g) 109 of IPC awarded by the learned Special Judge(Principal Sessions Judge) ,Coimbatore in S.C.No.47 of 2003 on the file oflearned Special Judge(Principal Sessions Judge) Coimbatore is set asideand the accused/appellants are set at liberty forthwith, if they are notrequired in any other case. Bail bond executed by the appellants shallstand cancelled. Fine if paid shall be refunded to the accused.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarsgTo1. The Special Judge(Principal Sessions Judge) Coimbatore.2. The Superintendent of Central Prison, Coimbatore.3. The Public Prosecutor, High Court, Madras4.The Inspector of Police,R-3 Madukarai POlice Station, Coimbatore.1 cc to Mr.K.V.Shanmuganathan Advocate SR.NO.397661 cc to Mr.P.M.Duraiswamy Advocate SR.NO.39547MJ(co)RD 25.7.07Crl.A.Nos.1072/2004 and 371/2005