THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
Criminal Appeal No.277 of 2005
1. Unnikrishnan @ Unni
2. Alice .. Appellants
– Vs –
The State by Inspector of Police,
All Women Police Station,
Coimbatore. .. Respondent
Prayer:- Criminal Appeal filed under Section 374 Cr.P.C., against the judgment of the learned Sessions Judge, Magalir Neethimandram, Coimbatore in S.C.No.18 of 2004 dated 23.03.2005, convicted the 1st appellant for offences under Section 366, 376 and 506 of IPC and sentenced him to undergo R.I. for 10 years and to pay a fine of Rs.10,000/- in default to undergo S.I. for 1 year for the offence under Section 366 of IPC; to undergo R.I. for 10 years and to pay a fine of Rs.25,000/- in default to undergo S.I. for 1 year for the offence under Section 376 of IPC; to undergo R.I. for 2 years for the offence under Section 506 of IPC and convicting the 2nd appellant for the offence under Section 376 r/w 109 of IPC and sentenced her to undergo R.I. for 10 years and to pay a fine of Rs.25,000/- in default to undergo S.I. for 1 year.
For Appellants : Mr.Su.Srinivasan
For Respondent : Mr.I.Subramaniam,
Public Prosecutor, assisted by
– – – – –
J U D G M E N T
One of the virtues of a man is not to covet another’s wife. Saint Thiruvalluvar wrote two thousand years ago in 145th couplet of ‘Thirukkural‘ as follows:
“vspJvd ,y;ypwg;ghd; va;Jk;v”; “hd;Wk;
tpspahJ epw;Fk; gHp/”
“Mere triflel’ saying thus, invades the home, so he ensures. A gain of guilt that deathless aye endures.”
“He who thinks lightly of going into the wife of another acquires guilt that will abide with him imperishably and forever.”
The case on hand is of a man (A1) who, with the help of a woman (A2) allegedly attempted to covet another’s wife thereby acquiring guilt which, as said by Saint Thiruvalluvar, is imperishable forever.
2. The appellants are accused Nos. one and two respectively in S.C.No.18 of 2004 on the file of the learned Sessions Judge [Mahalir Needhimandram], Coimbatore. The trial court by judgement dated 23.03.2005 convicted the 1st appellant/A1 for offences under Section 366, 376 and 506 of IPC and sentenced him to undergo R.I. for 10 years and to pay a fine of Rs.10,000/- in default to undergo S.I. for 1 year for the offence under Section 366 of IPC; to undergo R.I. for 10 years and to pay a fine of Rs.25,000/- in default to undergo S.I. for 1 year for the offence under Section 376 of IPC; and to undergo R.I. for 2 years for the offence under Section 506 of IPC. The 2nd appellant/A2 has been convicted for the offence under Section 376 r/w 109 of IPC and sentenced to undergo R.I. for 10 years and to pay a fine of Rs.25,000/- in default to undergo S.I. for 1 year. She has been acquitted of the charge under Section 506 of IPC. Out of the above fine amount, a sum of Rs.25,000/- has been ordered to be paid as compensation to the victim [P.W.1]. Challenging the said conviction and sentence, A1 and A2 are now before this court with this criminal appeal.
3. The case of the prosecution as spoken to by P.W.1 is as follows:- P.W.1 [the victim] is the wife of P.W.2. At the time of occurrence she was 31 years old. The marriage between P.W.1 and P.W.2 was celebrated in the year 1987. They have got two children. P.W.3 is the mother of P.W.1. P.Ws.1 and 2 were residing at Manankulambu village in Kerala State. P.W.3 was residing at Coimabtore. A1 is a tenant of a portion of the house belonging to P.W.3. A1 was running a television shop in the said rented premises. In order to celebrate the marriage of the brother of P.W.1 arrangements were underway. For the said purpose, P.W.2 had come to Coimbatore and stayed along with P.W.3 at her house. During her stay, P.W.1 used to visit Sai Baba temple at Coimbatore frequently for darshan.
4. On 26.11.2002, in the morning, P.W.1 was waiting at Flower Market Bus Stand for bus to go to Sai Baba temple. At that time, A1 came in a car, stopped the same on seeing P.W.1. Blowing the horn of the car, he called P.W.1 to come near the car. P.W.1 went near the car. P.W.1 enquired her as to why she was waiting. P.W.1 told him that she was waiting for bus to go to Sai Baba temple. A1 told P.W.1 that he was also going through the way leading to Sai Baba Temple and he offered to take her in his car and to drop her in the temple. P.W.1 declined the offer. But, A1 persuaded her to get into the car. Since, A1 was repeatedly insisting , P.W.1 conceded to the request of A1 and fell into the trap. P.W.1 got into the car. There was none else in the car except A1. After some distance, A1 turned the car in a different route without proceeding to Sai Baba temple. P.W.1 questioned the same. A1 told her that he had to go to his sister’s house which was very nearer to the said place. He further told that in a two minutes time, they could return after handing over an important paper to his sister. P.W.1 believed the said words. The car further proceeded. A1 stopped the car in front of a house [the said house was later on identified as A2’s house]. A1 got down from the car and went into the house. P.W.1 was waiting in the car. After few minutes, a woman (later identified as A2) came out of the house and rushed towards the car. She told P.W.1 that A1 had informed her that P.W.1 who is the daughter of his landlady was waiting in the car. A2 requested P.W.1 to come into her house. P.W.1 told her that already she was late to go to the temple. A2 persuaded her to come into the house. Accordingly, P.W.1 got down from the car and went into the house of A2.
5. A2 made her to sit in the front room of the house. She offered P.W.1 something to eat. P.W.1 declined to take anything. Instead she wanted only drinking water. But, A2 offered to give juice to P.W.1. A2 thereafter, went into the kitchen and returned with a glass tumbler containing juice. P.W.2 drank the same. A2 sat by the side of P.W.1 and asked her name. P.W.1 told her name. At that time, A1 came out of a different room and asked P.W.1 to take juice and assured that he would return soon after washing his face. He again went into the said room. P.W.1 enquired about the name of A2 and came to know of the same. A2 told her that she was working in a private hospital. When P.W.1 and A2 were engaged in conversation, P.W.1 felt giddiness. A2 slightly taped on P.W.1’s right cheek. Thereafter, she wanted P.W.1 to open her mouth and put some liquid into her mouth. P.W.1 then became sedated. At that time, A1 is alleged to have raped her. A2 administered an injection which made her fully unconscious.
6. By about 5.00 or 5.30 p.m. when she regained consciousness, she found herself lying on the cot in a nude position. A2 was also found nude and lying by her side. P.W.1 enquired A1 and A2 as to where her dress was. A1 told her to take her dress kept behind the bed. At that time, P.W.1 further noticed that her ear studs, bangles and thali chain were missing. She also noticed an yellow thread tied around her neck. P.W.1 asked A1 and A2 as to who tied the same around her neck. A1 said that he only tied symbolising marriage between him and P.W.1. P.W.1 questioned A1 as to why they had spoiled her life to that extent. She further told that she would tell her parents about the same. A1 told her that in the event she told her parents, he would expose her nude photographs which he had taken while she was unconscious. Thereafter, P.W.1 went to the urinal and passed urine. There she experienced pain on her thighs. She also noticed her vagina with abnormal bulging. She washed her vagina. At that time, she noticed some volatile substance on her vaginal part. She returned from urinal and quarrelled with A1 and A2. She immediately wanted to go to her house. A2 went outside and brought an auto rickshaw. P.W.1 returned to her mother’s home in the said auto.
7. P.W.1 did not disclose about the said occurrence to her mother or to anybody else at that time, because her father was then unwell seriously and the marriage arrangements for his brother were in progress. She believed that if the above instance came to light, the same would be fatal to his father and also detrimental to the marriage proposal of his brother. While at home, on the same day, she vomited. On the next day also, she vomited some black substance. She also suffered from diarrhoea. She went to Dr.Manoharan (P.W.39) for treatment.
8. After three days of the above incident, A1 spoke to P.W.1 over phone and enquired whether she had not believed that he had taken nude photographs of P.W.1. He further told that she could come to the house of A2 and see the photographs which he had handed over to A2. Accordingly, P.W.1 went to the house of A2 where A2 gave a closed cover containing photographs. At that time A1 also returned to the house of A2. He himself opened the cover and took out 6 photographs. Out of the said photographs, in 4 photographs she was found lying nude by facing upwards and in other 2 photographs, she was found being hugged by A1. P.W.1 wept out of shame and depression. When P.W.1 questioned A1 as to why he was torturing her to that extent, A1 told her that the purpose of asking her to come to the house of A2 itself was to take her to “Black Thunder” [a picnic spot] to enjoy. P.W.1 refused to accompany him. Then, she returned to the house of P.W.1. Thereafter, A1 used to speak to P.W.1 frequently over phone calling her to accompany him elsewhere. But, A2 assured P.W.1 to get the photographs from A1 and hand over the same, for that she wanted Rs.10,000/- as consideration. P.W.1 told A2 that A2 could call her as soon as she got the photographs from A1. P.W.1 also assured to give the demanded amount and receive the photographs. On several occasions, P.W.1 requested A1 over phone to return the photographs. But, A1 insisted her to marry him. A1 did not return the photographs at all. Her efforts to get the photographs amicably by mediation by P.W.22 and others also failed. On few occasions, A1 intimidated P.W.1 that he would expose her by publishing the photographs.
9. After the marriage of her brother was over, she returned to Kerala. While she was at her home in Kerala, on several occasions, A1 spoke to her over phone and intimidated. On hearing the phone bell ringing, if her husband [P.W.2] happened to respond, A1 would disconnect the call. Since such thing happened frequently, P.W.2 developed some foul play. On 30th April 2002, when P.W.2 enquired P.W.1 as to why she was very tired and depressed from the day of return to Kerala, P.W.1 immediately started disclosing everything to him. On coming to know about all the happenings, P.W.2 told P.W.1 that she was wrong in not disclosing about the occurrence to him. However, he told her that she should take steps to get appropriate punishment for A1. So saying, he drove her out of matrimonial home. She thereafter returned to Coimbatore to the house of P.W.3. When she told about all the happenings, P.W.3 also told that her husband was right in driving her out of matrimonial home. Finding no other option, P.W.1 went to the house of the sister of P.W.3 and told her about the occurrence. P.W.3’s sister’s husband (P.W.24) assured her that he would persuade P.W.2. Accordingly, he went to Coimbatore and brought P.W.2. In the presence of the sister of P.W.3 and her husband, when P.W.1 further enquired the details, P.W.1 narrated everything.
10. P.W.1 and P.W.2 thereafter went to an Advocate by name Mr.C.P.Venkatraman at Coimbatore and told him about the occurrence and wanted him to take legal action. Mr.C.P.Venkatraman wanted P.W.1 to draft a complaint narrating the entire occurrence. P.W.1 accordingly drafted a complaint and gave it to Mr.C.P.Venkatraman. On reading the same, Mr.C.P.Venkatraman was not satisfied. He found some lapses and omissions in the same. Then, he called his Junior Advocate by name Ms.Seetha and directed her to draft an appropriate complaint. The said Junior Advocate corrected the complaint drafted by P.W.1 and gave the same to her Senior Advocate. Thereafter, as advised by Mr.C.P.Venkatraman, Advocate, P.W.1 forwarded the said complaint to the Governor, Chief Minister and District Collector and also to the higher officials. Mr.C.P.Venkatraman, Advocate told P.W.1 to meet him after receipt of the postal acknowledgement cards. After few days, she received acknowledgement cards. However, there was no further action taken on the complaint. Therefore, she went to the office of the District Collector, Coimbatore and submitted a copy of the said complaint. The District Collector instructed her to go to All Women Police Station, Coimbatore. Accordingly , P.W.1 and P.W.2 went to All Women Police Station on 08.07.2003. The then Inspector of Police [P.W.49] who was in charge of the police station told P.W.1 that she had not received any complaint. Then, she wanted P.W.1 to give a fresh complaint. Accordingly, P.W.1 drafted a complaint (Ex.P1) and submitted the same to the Inspector of Police, All Women Police Station, Coimbatore (P.W.49).
11. P.W.49, registered a case on the said complaint on 08.07.2003 in Cr.No.12 of 2003 for offences under Sections 376 and 109 of IPC. Ex.P.1 is the complaint and Ex.P.41 is the FIR. He forwarded the FIR and the Complaint to the learned Judicial Magistrate No.I, Coimbatore forthwith. Thereafter, she examined P.Ws.1 and 2 and recorded their statements at the police station itself.
12. P.W.20 is another important witness. According to him, P.W.1 approached one Atchaya Arumugam and other panchayatdars to mediate between her and the first accused to get back the nude photographs. According to him Atchaya Arumugam only requested him to participate in the said mediation. Accordingly, in the month of June 2002 the first accused was called for mediation. In that mediation, P.W.1 participated and she requested for the return of the nude photographs to her. But A1 declined to hand over the same and he challenged P.W.1 to take any action that could be possible for her.
13. The other incriminating evidence is that of P.W.48. He is a resident of Agali village in Palakad district. He was also the then Panchayat Board President. According to him, A2 was known to him and on very many occasions they went together for service to the poor people. He would further state that during the year 2003, A2 came to the office of P.W.48 and told him that she was on her way to go to Mannarkadu village. But P.W.48 was busy. Having waited for sometime, the second accused told P.W.48 that she would go to Mannarkadu village and return soon. At that time, he informed P.W48 that she would keep her luggage in his office and she would come after sometime and take it back. P.W.48 accordingly permitted her. Then A2 left her luggage in the office of P.W.48. Sometime thereafter the son of A2 came to P.W.48 and wanted to take back the luggage. Since he was not known to P.W.48, P.W.48 did not permit him. Instead he told him that A2 could come and take it back. But her son told that A2 was in jail in connection with a case. P.W.48 told him that after returning from jail she could come and take back the luggage. On the same day, after sometime, a person who claims to be a friend of A1 spoke to him about the luggage. P.W.48 told him that he was not known to him and therefore he wanted the said person to come in person. But he did not turned up. Because of these two incidents, P.W.48 developed suspicion about the luggage. Then he requested his office boy to keep it carefully. Thereafter, since he believed that there was some problem with the luggage, he went to his office and verified the same. It was a black colour suitcase. On 11.09.2003, he was to go to Coimbatore in connection with medical treatment to one of his friends, while so going to Coimbatore, he took the above suitcase left behind by A2 and handed over the same to P.W.49 the Inspector of Police.
14. The said suitcase (M.O.65) was number locked. It could not be therefore opened. P.W.49 summoned two witnesses namely P.W.36 Mr.Shanmugam and P.W.48. On such opening, in the suitcase MOs.48 to 64 were recovered. These materials were recovered in the presence of the said witnesses under exhibit Ex.P.21 Mahazar. Of all the MOs recovered from the said suitcase MO.48 are vital objects. They are four nude photographs of P.W.1. P.W.1 has identified the same during Trial. The other witnesses have spoken to about only certain other circumstances. The medical evidences spoken to by the Doctors would go to show that A1 is capable of performing sexual intercourse with a woman. It also further reveals that P.W.1 was used to sexual intercourse but there was no external injuries and no evidence of recent sexual intercourse in the form of any seminal stain on the body of P.W.1, since she was medically examined after seven months of the occurrence. During the course of investigation, P.W.1’s statement was recorded by P.W.43 the learned Judicial Magistrate under Section 164 Cr.P.C.
15. P.W.49 has spoken to about the investigation done. From the evidence of P.W.49, it is revealed that she prepared the Observation Mahazar and the Rough Sketch on the place of occurrence in the presence of witnesses. She conducted house search of the house of both the accused, before the arrest of the accused, but nothing incriminating was recovered. The place of occurrence was also photographed by her through a photographer (P.W.10). A1 was arrested on 08.07.2003 at 3.00 p.m. The second accused was arrested on the same day at 6.00 p.m. Both the accused were forwarded to the Court for Judicial Remand. The first accused was sent for medical examination through Court. P.W.16, Doctor Christopher Mariadoss examined the first accused and found that he was capable of performing sexual intercourse with a woman. No external injury was found on him. Ex.P.9 is the certificate issued by P.W.16 in this regard.
16. P.W.49, obtained search warrants from the learned Judicial Magistrate to conduct house search of the house and shop of A1. Similarly she got another search warrant to conduct house search of the house of A2. P.W.49 deputed the Sub-Inspector of Police Mrs.Amutha (P.W.27) to conduct house search as per warrant issued.
17. P.W.27 conducted house search of the house of A1 on 12.07.2003 at 11.45 P.M. in the presence of P.W.8 and another witness P.W.14. But in the said house nothing incriminating was recovered. At 3.30 p.m. she conducted house search in the presence of some witnesses at the shop of A1 viz., Sri Krishna & Co, T.V. Showroom. There also no incriminating material was recovered.
18. P.W.49 conducted house search at the house of A2 in the presence of P.W.14 and another witness. MOs.27 to 47 were recovered from the house of A2 (none of these material objects incriminate the accused in any manner with the crime) Ex.B10 is the house search list prepared on the spot. On the same day in the presence of P.W.13 and another witness she recovered the car bearing registration No.TN-37-K-9007, which belonged to the first accused.
19. Thereafter on 15.07.2003, on the orders of the Magistrate, P.W.49 got the custody of A2. On 16.07.2003, at 9.30 am in the Police Station, A2 gave voluntary confession in the presence of P.W.11 and one Sivalingam. The same was recorded. In the said confession, she disclosed that she had kept two video cameras in the shop of the first accused. Based on the same she took the police to the shop of A1 and produced Mos.3 to 26. They were recovered under Ex.P6 Mahazar (none of these materials incriminate the accused with the crime in any manner). Then she forwarded the second accused to the Court for judicial remand. She recovered the photographs taken from the place of occurrence from the photographer (P.W.10) on 29.07.2003. The first accused was taken into police custody on the orders of the learned Judicial magistrate. On 30.07.2003, in the presence of P.W.35 and another witness he gave a confession but nothing was recovered out of the said confession. P.W.49, then collected the call particulars in respect of Phone Nos.2479753, 2470406 and 2437092 for the period between 01.03.2003 to 08.07.2003. She examined Mrs.Annammal (P.W.37) who was the servant of P.W.1. The Tamil translation of the letter written by her as dictated by P.W.1 and addressed to the wife of the first accused was recovered from the said witness and the same is exhibited as Ex.P.51. While P.W.49 was on duty at the Police Station, P.W.48 produced the suitcase on 11.09.2003. The same was opened in the presence of P.W36 and another witness and recovered the articles including MO.48, nude photographs. She examined the Doctors and collected the medical records. Finally on completing the investigation, she laid the charge sheet on 01.10.2003, against the first accused under Sections 366, 376 and 506 of I.P.C. and under Sections 376 r/w 109 and 506 of I.P.C. against the second accused.
20. Based on the above materials, the trial court framed as many as 4 charges as follows:-
(i) The first charge is against A1 under Section 366 of IPC for having allegedly abducted P.W.1 in his car from Flower Market Bus Stop to the house of A2.
(ii) The second charge is against A1 under Section 376 of IPC on the allegation that he had committed rape on P.W.1 at the house of A2.
(iii) The third charge is against both A1 and A2 under Section 506 of IPC on the allegations that they criminally intimidated P.W.1 on 30.04.2003 and also on subsequent dates.
(iv) The fourth charge is against A2 under Section 376 r/w 109 of IPC for having abetted the commission of crime of rape by A1 at the house of A2.
21. The accused denied the charges. Therefore, the trial court went ahead with the trial. In order to establish the charges, the prosecution examined as many as 49 witnesses and marked 51 documents besides 66 materials objects.
22. When the above incriminating materials were put to A1 and A2 under Section 313 of Cr.P.C. , they denied the same as false. However, they did not chose to examine any witness nor did they exhibit any document. Having considered the above materials, the trial court convicted both A1 and A2 and sentenced them as detailed in the second paragraph of this judgement. Aggrieved over the same, the appellants are now before this court with this criminal appeal.
23. In this appeal, the learned counsel appearing for the appellants mainly focussed his arguments on the following grounds:-
(i) Though the occurrence is said to have taken place on 26.11.2002, the complaint to the police was made only on 08.07.2003 i.e., nearly after 7 months for which absolutely there is no explanation.
(ii) The complaint was drafted in consultation with two Advocates by name Mr.C.P.Venkatraman and Ms.Seetha. The complaint drafted by P.W.1 at the first instance with the help of the Advocates was sent to the District Collector, Hon’ble Chief Minister and Higher Police Officials but the same has not been brought on record and the same has been completed suppressed.
(iii) Ex.P.1 complaint was given to the police only on 08.07.2003. This complaint was drafted at the police station by P.W.1 and P.W.2. The said complaint is, therefore, hit by Section 162 of Cr.P.C.
(iv) The failure on the part of P.W.1 in not disclosing about the alleged occurrence to anybody for about 7 months is an unnatural conduct of P.W.1 which creates serious doubts in the case of the prosecution.
(v) The conduct of P.Ws.2 and 3 in throwing P.W.1 out of their respective houses would clearly go to indicate that P.W.1 was not of good character and they themselves did not believe the version of P.W.1. The evidence of P.W.1 cannot be believed at all.
(vi) The evidence of P.W.1 that she gave a similar complaint against P.W.22 would go to show that P.W.1 was in the habit of making false complaints and, therefore, she cannot be believed.
(vii) The photographs [M.O.48] showing P.W.1 nude were not recovered from the accused and there is no evidence connecting the photographs with any of the accused and so the same cannot be used against the accused.
(viii) The photographs marked as [M.O.48] are not admissible in evidence in the absence of negatives of the same.
(ix) There are lot of material contradictions between various evidences which go to the very root of the case of the prosecution. Thus the prosecution has not proved the charges beyond reasonable doubts.
24. The learned counsel for the appellants argued extensively highlighting the above grounds. In conclusion , he submitted that the trial court has failed to consider all the above aspects and, therefore, the appellants are entitled for acquittal.
25. The learned Public Prosecutor representing the State would stoutly oppose this criminal appeal. According to him, the delay in preferring the complaint is immaterial inasmuch as P.W.1 herself has explained away the delay in a plausible manner. According to her, since the marriage arrangements for her brother was underway and since her father was seriously ill at that time, she did not think of disclosing about the occurrence to anybody or to give a complaint to the police. This explanation is quite natural and, therefore, the same is to be accepted, he contended.
26. Though Ex.P1 is subsequent in point of time and though the earlier complaints preferred to the police and higher-ups have not been brought on record, the same have not caused any serious dent in the case of the prosecution. He would further state that an offence of rape, that too committed in a gruesome manner, cannot be lightly viewed like that of any other offence so as to acquit the culprits on the ground that there has occurred some delay in preferring the complaint or on the ground of suppression of earlier complaint.
27. He would further contend that there is nothing unnatural in the conduct of P.Ws. 1 to 3 and there are no reasons to reject their evidences. The photographs (M.O.48 [series]) would clearly go to establish that P.W.1 was photographed after undressing her in an inhumane manner. The photographs were recovered from the custody of P.W.48 as the suitcase containing the same were handed over to him by A2. These photographs would also clearly go to further strengthen the evidence of P.W.1. The failure of production of negatives of M.O.48 photographs [series] would not make the photographs inadmissible in evidence inasmuch as M.O.48 photographs [series] are itself primary evidence.
28. He went on to argue that though there were certain contradictions and improbabilities pointed out by the learned counsel appearing for the appellants, on that score, the entire case of the prosecution cannot be thrown out. Thus, according to the learned Public Prosecutor, the appeal deserves to be dismissed.
29. I have considered the above submissions very anxiously and also gone through the records thoroughly.
30. Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the Right to Life contained in Article 21. Right to Life does not merely mean animal existence but means something more, namely the right to live with human dignity. Right to Life would, therefore, include all those aspects of life which go to make a life meaningful, complete and worth living. The case on hand, is one such unfortunate case where it is alleged that P.W.1 was allegedly raped and thereafter she was stripped nude and photographed by A1 so as to pressurise her to concede to the lustful desire of A1 as and when required. Nevertheless, the accused against whom such serious allegations are made is entitled to have a fair trial which forms part of the right to life guaranteed under Article 21 of the Constitution of India. It could be seen that this case has caused lot of commotion in the public attracting publicity by the press and media. The Hon’ble Supreme Court in State of Maharashtra v. Rajendra Jawanmal Gandhi, reported in 1998 SCC (Cri) 76 has cautioned that every judge has to guard himself against any such pressure and should strictly be guided by the rule of law. With the above background, both legal and factual, let me now proceed to analyse the evidence available on record.
31. The prosecution relies mainly on the evidence of P.W.1 to prove the charge of rape against A1 and the charge of abatement of rape against A2. The question is whether it will be safe to sustain the conviction of the accused solely on the basis of the evidence of P.W.1 in the absence of any corroboration from any other source. Expecting corroboration from any other source is only a rule of caution and not a rule of evidence. It is not a universal law that the court should expect corroboration invariably in all cases to the evidence of the victim of crime of rape. It all depends upon the veracity of the victim and the reliability of the evidence of such witness. It is not uncommon that in a case where the evidence of a victim, if, inspires confidence of the court, without looking for any corroboration from any other source, the court does act upon the uncorroborated testimony of such witness to sustain the conviction. Mostly, the offence of rape is committed in a closed room or in an isolated place. Such crimes are mostly committed meticulously without leaving any incriminating evidence against the culprits except the evidence of the prosecutrix herself. It is because of this reason, the Hon’ble Supreme Court has been consistently taking the view that in a case of rape, it is not necessary for the court to look for corroboration from any other source. In general, Indian women who are known for their modesty and culture will not go with any false complaint of rape. This is not a legal presumption. But, such factual presumption is also possible in Indian conditions. With this let me now move on the the evidence of P.W.1.
32. In order to assail the evidence of P.W.1 and to make it unbelievable, the learned counsel appearing for the appellant would submit that there had been inordinate delay of more than seven months in preferring complaint for which absolutely there has been no explanation offered. This delay according to the learned counsel is fatal to the case of the prosecution.
33. But the learned Public Prosecutor would submit that the delay has been explained away. As a matter of fact, according to the learned Public Prosecutor, P.W.1 herself has explained the delay in as much as she has stated that she did not disclose the occurrence to anybody including her husband, mother and her relatives because of the fact that her father was ailing and further the marriage arrangement for her brother would get spoiled if the occurrence came to light.
34. In my considered opinion, in a case of rape, where the offence affects the entire psychology of the woman and also tends to bring her to ridicule in the eye of the public, the victim of such rape cannot be expected to either disclose about the sexual violence made on her forthwith to anybody or to go to the police promptly with a complaint. In this case, admittedly, P.W.1 was a married woman living with her husband and having two children. She has stated that she did not disclose the occurrence to anybody because such disclosure would spoil her marital life and would also spoil the marriage arrangements of his brother. This explanation has been accepted by the Trial Court and rightly so.
35. Yet another fact which needs to be mentioned is that the first accused disclosed to her that he had the nude photographs of her taken at the time of occurrence. He also intimidated her that he would publish the photographs so as to bring further ridicule to her if she disclosed the occurrence to anybody. This was yet another reason as to why P.W.1 did not disclose about the occurrence to anybody.
36. She did not stop with that. She went to the Panchayadars and with their help she tried to atleast get the photographs from the custody of the first accused. This has been proved by the evidence of P.Ws.20. P.W.20 is a local man and a leading politician. He is the friend of one Atchaya Arumugam, Velliangiri and Marudachalam. According to him, Atchaya Arumugam, Velliangiri and Marudachalam requested him to participate in the compromise talks between P.W.1 and the first accused so as to persuade the first accused to hand over the nude photographs of P.W.1. He has further stated that this Panchayat itself was convened on the request made by P.W.1. P.W.1 participated in the said Panchayat. The first accused told that he would not return the photographs. Thus every attempt made by these mediators to persuade the first accused to return the photographs failed. P.W.1, during cross examination, has further stated that she would not have gone to the police to prefer a complaint if the first accused had returned the photographs to her. This will go a long way to show that P.W.1 did not want to disclose the occurrence to anybody as well to the police only in order to save her modesty. She was thus very particular only to get back the photographs and to hide the occurrence from the eyes of the public. Since that also failed, thereafter, she went to Advocate Mr.C.P.Venkatraman to draft a complaint and thereafter she went to the police with the complaint. From the narration of the facts by P.Ws.1 to 3 and P.W.20, the pain of P.W.1 could be perceived. With heavy heart, she was all along frantically trying to get back the photographs. All these facts would only go to explain the delay in preferring the complaint to the Police. Thus, I hold that the delay has been properly explained by P.W.1 and the said delay, though erroneous, has not created any doubt in the case of the prosecution.
37. Nextly, it is contended by the learned counsel that the complaint was drafted with the help of a Senior Advocate as well as a Junior Advocate which would go to show that P.W.1 did not come forward with the truth. But the learned Public Prosecutor would contend that P.W.1 and her husband had gone to the Advocate only to seek his help. There is nothing wrong in the same. In my considered opinion too, going by the heinous nature of the crime there is nothing unnatural in the conduct of P.Ws.1 and 2 in going to an Advocate to have legal consultation. The intention of P.Ws.1 and 2 all along was to get the nude photographs from the custody of the accused. Therefore, they had gone to the Advocate to take action in this regard. Having such consultation with a Lawyer cannot create doubt in the case of the prosecution in all situations. It all depends upon the facts and circumstances of each case.
38. P.W.1 would further state that she herself drafted the complaint and gave the same to the Advocate Mr.C.P.Venkataraman. From the evidence it is seen that Mr.C.P.Venkataraman also did not draft anything out of his own imagination. He rightly instructed P.W.1 to draft the complaint narrating only the facts. P.W.1 did so. But on going through the complaint he was not satisfied because the complaint did not contain all the details disclosed to him orally. Therefore, he had instructed his Junior Advocate to correct the same. The complaint was thereafter corrected only incorporating the facts which were earlier omitted. Though drafting a complaint after discussion with a lawyer will normally create a doubt in the genuineness of the case, in this case, going by the peculiar facts and circumstances, I am of the view that the same would not create any doubt.
39. The learned counsel would nextly contend that the complaint in Ex.P1 which came into being long after the complaint given to the District Collector and higher police officials is hit by Section 162 of the Cr.P.C. and therefore no reliance can be had on the same. Though attractive, the said argument deserves only to be rejected. As per Section 162 of Cr.P.C any statement which is made by a witness during the course of investigation alone is hit by the said provision. But in this case, Ex.P1 is the first and earliest complaint to the police upon which the case was registered and thus law was set in motion. The previous complaint given to the District Collector did not reach the police till then. It was received by the police only subsequent to the registration of the case. The same has also been marked in evidence as Ex.P.17. In my considered opinion, since Ex.P.17 came into being at the hands of the Investigating Officer subsequent to the registration of the case, it is not admissible evidence. The said statement viz., Ex.P.17 therefore cannot be used for corroboration of the evidence of P.W.1. However, the same has been erroneously marked in evidence by the Trial Court. Thus, I hold that Ex.P1 is not inadmissible in evidence as the bar contained in Section 162 Cr.P.C. is not at all applicable.
40. The next contention of the learned counsel for the appellant is based on the evidence of P.Ws.2 and 3. He would point out that P.W.2, the husband, sent her out of the matrimonial home on knowing the occurrence. Similarly, when P.W.2 informed P.W.3, she also sent her out of her home. According to the learned counsel this would only go to show that P.W.1 was not a woman of good character. Therefore according to him she is not believable. But, I am not persuaded by this argument. The conduct of P.W.2 in getting persuaded by his sister’s husband and then joining P.W.2 to go to Collector’s office to prefer complaint and then to the Police Station needs to be considered. This would give an inference that at the first instance P.W.2 would have been depressed on knowing the occurrence and later on he would have realised his mistake in sending P.W.1 out of home. Thus, the conduct of P.Ws.2 and 3 will not give rise to a presumption that P.W.1 is a woman of bad character. Assuming that P.W.1 is a woman of questionable character that will not automatically render her evidence unbelievable so as to absolve these accused from their liability.
41. The next contention of the learned counsel is on the basis of the evidence of P.W.22. P.W.22 has stated that P.W.1 gave a false complaint against him. The evidence of P.W.22 is nothing but a caution to this Court to appreciate the evidence of P.W.1 carefully. The learned counsel would also bring to my notice that after the judgment in this case, P.W.1 has made a similar complaint against one Mr.Rahunath, wherein, she has stated that on 28.06.2010, while she was waiting in Palakad bus stand, she was similarly taken in a car, sedated and raped by that accused. On the said complaint, a case has been registered in Crime No.24 of 2011 on the file of the Palakadu Town South Police Station under Sections 366, 354 and 342 of I.P.C against the said Rehunath. Requesting the Court to rely on the same, the learned counsel would submit that P.W.1 is in the habit of making such false complaints of rape. At this juncture, I would like to state that a copy of the said FIR was sought to be produced in evidence in this appeal, for which the appellant filed Crl.M.P.No.38 of 2011 and the same was dismissed by this Court on 10.06.2011, stating that the said statement, being a subsequent statement, cannot be used even to contradict P.W.1. Therefore, the attempt made by the learned counsel for the appellant to make reliance of the said FIR cannot be conceded to.
42. The next contention of the appellant is that, assuming that P.W.1 can be believed, even then there is no evidence to prove the charge of rape. In order to prove rape, the prosecution makes reliance only on the evidence of P.W.1. According to her evidence, as soon as she entered into the house of A2, she was made to drink juice and on taking the same, she became unconscious. Therefore, she was not able to realise what was happening to her. When she regained consciousness in the evening by about 5.00-5.30 p.m. she found herself lying on the bed in nude position. She could not be expected to explicitly state whether the first accused had sexual intercourse with her or not as she was fully unconscious. In her evidence, she has only stated that while she was in sedation, she was spoiled. She has not stated anything about penetration. She has further stated that she had an urge to pass urine and when she went to the toilet to pass urine, she found some volatile substance in her vagina and so she washed the same. At this juncture, it is pertinent to mention that P.W.1 is fairly an old woman having two children and living in marital life for more than 16 years. Therefore, she must be knowing as to what semen is and how it would stain the vagina during sexual intercourse. But she has not stated that what was found by her in her vagina was semen. She has only stated that she noted in her vagina a volatile substance. Such volatile substance noticed by P.W.1 might even be vaginal discharge of her own. Unless the said possibility is ruled out, it cannot be safely concluded that the substance was semen. Thus even the evidence of P.W.1 does not prove the presence of semen so as to indicate a sign of rape.
43. P.W.1 has further stated that when she regained consciousness, she found the first accused lying by her side. He was also nude. This will not go to prove that he had sexual intercourse with her.
44. Normally when a woman is raped under sedation, such rape can be proved by circumstantial evidence. One such very strong circumstance is always the medical evidence. But, in this case, there is no other circumstantial evidence available including the medical evidence to prove penetration constituting a rape. Thus, in my considered opinion, the prosecution has failed to prove the offence of rape.
45. But the evidence of P.W.1 that she found herself lying nude cannot be discarded lightly. Her further evidence that A1 was lying by her side in nude position also cannot be brushed aside. When P.W.1 was given juice and was sedated, she was in her full dress and when she was relieved off from sedation, she was nude and that too she was lying by the side of the first accused who was also nude. This part of the evidence, in my considered opinion, is inconsistent with the innocence of the accused.
46. The next aspect is regarding the nude photographs (MO.48 series). According to P.W.1, as soon as the occurrence, these two accused told her that they had taken nude photographs of her and they directed her not to disclose the same to anybody. After three days of the occurrence, A1 again called her over phone and told her that he had given the photos to A2 and P.W.1 could come over there and ascertain that such photographs had been taken. Accordingly, P.W.1 went to the house of A2 where the nude photographs of P.W.1 were shown to her. This would only go to prove that by making P.W.1 nude, after removing her thali and other jewellery from her body and also after tying a yellow thread around her neck, A1 and A2 had taken the nude photographs of P.W.1. M.Os.48 are the said nude photographs. A perusal of the same would go to show that P.W.1 is lying nude on the cot and there is also a yellow thread around her neck. Her eyes are found closed indicating that she was under sedation. A further perusal of the same would go to show that the said photographs could have been taken in full light. No woman of the stature of P.W.1 would have volunteered to have photographed in such nude position. Therefore, I have no hesitation to hold that M.O.48 series nude photographs were taken only by these two accused by force.
47. The learned counsel would contend that M.O.48 series have got no connection with the accused as they were not recovered from any of these accused. The photographs were recovered from P.W.48. P.W.48 was known to A2. Some time after the date of occurrence, A2 came to his office, left a luggage in his office and went to Ooty. After sometime i.e. after the arrest of A2, her son came to him and wanted him to return the luggage. P.W.48 told him that since he was not known to P.W.48, he could not hand over the same to him. He insisted that A2 could come and collect it. Thereafter, yet another person who claimed to be a friend of the first accused spoke to him over phone about the suitcase. Thereafter, he developed a suspicion and then went to the police station and handed over the suitcase to P.W.49. There, in the presence of Village Administrative Officer (P.W.36) and another witness, the suitcase was broke open which contained so many materials including M.O.48 nude photographs. Though P.W.48 was subjected to lengthy cross examination, nothing could be brought on record to discredit him. There is nothing attributed to P.W.48 for falsely deposing against A2. From the evidence of P.W.48, it has been clearly established by the prosecution that the suitcase and (M.O.48) nude photographs were kept in the suitcase at the office of P.W.48 only by A2. Thus the prosecution has proved that the nude photographs were in the possession of A2 when she came to the office of P.W.48. M.O.48 has been identified by P.W.1. Thus the evidence of P.W.48 and the possession of photographs (M.O.48 series) in the hands of A2 would duly corroborate the evidence of P.W.1, wherein P.W.1 has stated that she found the nude photographs in the custody of A2 three days after the occurrence. This is again corroborated by P.W.20 who attempted to mediate so as to get the photographs. Thus, it is crystal clear that these photographs (M.O.48 series) were taken only by these two accused and they had kept it secretly only with a view to intimidate P.W.1.
48. The learned counsel for the appellant would nextly contend that these M.O.48 series are not admissible evidence because the negatives have not been produced in evidence. In my considered opinion, non-production of negatives will make the photographs inadmissible if only the photographs have been taken in a camera which uses photo-films. But due to advancement in science and technology, now a days, there are digital cameras which can photograph anything without there being photo-films. From a digital camera, photos can be directly printed. In the digital camera the printout viz., photo itself is the primary evidence. In the cameras of olden days, the negative is the primary evidence and photo can be treated only as secondary evidence. The Courts have held that in the absence of primary evidence viz., negatives the photos are not admissible in evidence. Regarding this legal position, there can be no second opinion. But in these days when a photograph is taken by using a Digital camera, the photograph itself is the primary evidence and therefore the question of producing the negatives does not arise. In the case on hand, the cameras recovered from the accused are digital cameras. Therefore, insisting for negatives to make M.O.48 series admissible cannot be countenanced. I hold that M.O.48 series are admissible in evidence.
49. From the foregoing discussions, it can be put in nutshell that these two accused sedated P.W.1, undressed her, made her completely nude and took nude photographs. Though P.W.1 states that in two photographs the first accused was found hugging her, in M.O.48 series the same is not found and in all the photographs (M.O.48 series) P.W.1 alone is found nude lying on the bed.
50. For the foregoing discussions, I have every reason to hold that P.W.1 is believable and it will not be unsafe to convict the accused relying on her evidence which also draws corroboration from other evidences like MO.48 photographs etc.
51. Now what is the offence that the acts of the accused constitute? As I have already concluded the prosecution has failed to prove the offence of rape. In my considered opinion firstly, the above act of the accused would constitute an offence under punishable Section 354 of I.P.C. Section 354 of I.P.C. reads as follows:
“Section 354: Assault or criminal force to woman with intent to outrage her modesty: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
52. Section 349 I.P.C. defines as to what is ‘Force’ and Section 350 of I.P.C. defines as to what is ‘Criminal Force’. Section 349 and 350 read as under:-
“Section 349: Force:- A person is said to use force to another if he causes motion, change of motion or cessation or motion to that other, or if he causes to any substances such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other’s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other’s sense of feeling:
Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described.
Firstly, by his own bodily power.
Secondly, by disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.
Thirdly, by inducing any animal to move, to change its motion, or to cease to move.
Section 350:Criminal Force:- Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.”
53. After having a conjoint reading of these three provisions, if we analyse the facts of this case, it would make it ipso facto clear that cessation of motion on the part of P.W.1 due to sedation caused by these two accused amounts to “Force” and since the same was done with an intention to commit the offence of intimidation, it falls within the ambit of Section 350 of I.P.C. as “Criminal Force”. Thus eventually the act of the accused falls within the ambit of Section 354 of I.P.C. Though there is no specific charge under Section 354 of I.P.C. since there are charges under Sections 376 and 376 r/w 109 of I.P.C., it is legally permissible to convict both the accused under Section 354 of I.P.C. in view of Section 222 of Cr.P.C. Therefore, the accused are liable to be punished under Section 354 of I.P.C. instead of Section 376 and 376 r/w Section 109 of I.P.C.
54. Nextly, it is the evidence of P.W.1 that the first accused frequently spoke to her over phone while she was in Kerala and intimidated her using the nude photographs (M.O.48 series). Exs.P.18 to P.20 (Call registers) would clearly go to corroborate the evidence of P.W.1 that A1 frequently called her over phone. The photographs had been taken only with a view of intimidate her and to force her to agree for marriage with A1. This clearly makes out an offence under Section 506 of I.P.C. against the first accused.
55. Then comes, the conviction under Section 366 of I.P.C. It is the evidence of P.W.1 that while she was waiting for bus at Flower Market Bus stand, the first accused came in a car and enquired as to why she was waiting. P.W.1 told him that she was waiting for bus to go to Sai Baba Temple. A1 offered to take her in the car to the said temple. Believing his words, she got into the car. But instead of taking her to the Temple, A1 took her to the house of A2, where, the nude photographs were taken. Though a bird’s eye view of the evidence of P.W.1 may give an impression as though she willingly went with A1 in the car, in my considered opinion, it is not so. She was induced to get into the car by deceptive means. But for the assurance given by A1, that he would drop her in the Temple, she would not have got into the car. Thus taking a person from one place to another place by inducing that person by any deceptive means would squarely fall within the definition of abduction as defined under Section 362 of I.P.C.
56. The purpose of taking P.W.1 was only to compel her to marry the first accused. P.W.1 has stated that she found an yellow thread around her neck when she got relieved from sedation. M.O.48 photographs would go to show that there was such an yellow thread around her neck. It is common knowledge that tying a yellow thread around the neck of a woman symbolises marriage. When P.W.1 questioned the accused, they told P.W.1 that it was only the first accused who tied the yellow thread around her neck indicating marriage. Thus from the evidence of P.W.1, which is duly corroborated by M.O.No.48 nude photographs, the prosecution has proved that P.W.1 was abducted by the first accused for the purpose of compelling her to marry him. This act of the first accused squarely falls within the ambit of Section 366 of I.P.C.
57. Now coming to the quantum of punishment, going by the gravity of the offence and the way in which the same has been executed, the age of P.W.1 and the fact that her life has been ruined, I hold that both the accused deserve deterrent punishment. In my considered opinion, for the offence under Section 354 of I.P.C. both the accused are liable to be sentenced to undergo the maximum sentence of two years of rigourous imprisonment with fine of Rs.10,000/- each. For the offence under Section 506 of I.P.C. the first accused is liable to be sentenced to undergo rigourous imprisonment for two years as imposed by the Trial Court. For offence under Section 366 of I.P.C. the first accused is liable to be sentenced to undergo rigourous imprisonment for three years and to pay a fine of Rs.50,000/- in default to undergo simple imprisonment For one year.
58. Before parting with the case, I am bound to make the following observations. One Mr.Shanmugam S/o. Mr.Ramasamy who was then working as Coimbatore Town Village Administrative Officer was examined on 12.03.2004, wherein he deposed to the effect that on 31.07.2003, the first accused gave a voluntary confession. But nothing was recovered out of the same. Thus the said evidence is of no use. Again, the same witness Mr.Shanmugam S/o Mr.Ramasamy, the then V.A.O. of Coimbatore, was examined before the Trial Court on 26.07.2004. Strangely and shockingly, this time he was examined as P.W.36. As P.W.36 he has spoken to about the opening of the suitcase which was produced by P.W.48 and the recovery of M.O.48 series and other materials. Thus the record shows that one and the same witness was examined twice, once as P.W.21 and again as P.W.36. This shows that neither the appellants nor the learned Public Prosecutor nor the Trial Court had bestowed little attention to the case. I am hopeful that at least in the days to come the Trial Courts shall bestow the best attention required while conducting the trial.
59. Another aspect is that, in this case, a total number of 49 witnesses have been examined. Many witnesses are unnecessary witnesses who have not at all been examined to speak about any relevant fact or facts in issue. Simply because some persons have been cited as witnesses by the Investigating Officer, the Trial Court is not bound to examine such witnesses. The Trial Court has to look into the relevance of the said witness and then examine. Here, many witnesses cited in the charge sheet were not to speak about any relevant fact or facts in issue. This again shows that required attention was not shown by the Trial Court. I am forced to make these observations only on the hope that the Trial Courts shall bestow more attention while recording evidence.
60. In the result, the appeal is partly allowed in the following terms:
(i) The conviction of the first appellant under Section 376 of I.P.C. and conviction of the second appellant under Section 376 r/w 109 I.P.C are set aside and instead they are convicted for the offence under Section 354 of I.P.C. and are sentenced to undergo rigourous imprisonment for two years and pay a fine of Rs.10,000/- each, in default to undergo further rigourous imprisonment for one month.
(ii) the conviction and sentence imposed on the first appellant for offences under Section 506 of I.P.C. is confirmed.
(iii) the conviction of the first appellant under Section 366 is confirmed, however the sentence is modified to the effect that he shall undergo rigourous imprisonment for three years and pay a fine of Rs.50,000/- in default to undergo further rigourous imprisonment for one year.
(iv) The period of sentence already undergone by the appellants shall be set off. The Trial Court shall secure the accused and commit them to prison to undergo the remaining period of sentence, if any.
(v) Out of the fine amount, a sum of Rs.25,000/- shall be paid as compensation to P.W.1 under Section 357 of Cr.P.C. In any event, if P.W.1 either declines to receive the compensation or fails to receive the same within six months from the date of service of notice on her, the same shall go to the Exchequer of the Tamil Nadu State Government.
(vi) In all other aspects, this appeal stands dismissed.
Index : Yes
Internet : Yes
1. The Inspector of Police,
All Women Police Station,
2. The Sessions Judge,
3. The Public Prosecutor,
High Court, Madras.
PRE DELIVERY JUDGMENT
Crl.A.No.277 of 2005