Kerala High Court
Joseph @ Baby vs The Sub Inspector Of Police on 4 April, 2014
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 4TH DAY OF APRIL 2014/14TH CHAITHRA, 1936
CRL.A.No. 590 of 2000 (B)
--------------------------
SC 187/1999 of SESSIONS COURT, KOTTAYAM
PETITIONER/PETITIONER/APPELLANT:
-------------------------------------------------
JOSEPH @ BABY,
CHERAMKUZHIYIL,
ELAMKULAM, PONKUNNAM,
KOTTAYAM.
BY ADV. SRI.BECHU KURIAN THOMAS
RESPONDENTS/RESPONDENTS/COMPLAINANTS:
-------------------------------------------------------------------
1. THE SUB INSPECTOR OF POLICE,
MUNNAR (CRIME NO.6/96)
2. THE SPECIAL INVESTIGATION TEAM,
MUNNAR POLICE STATION.
3. STATE OF KERALA, REP.BY
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
DIRECTOR GENERAL OF PROSECUTION, SHRI T ASAF ALI
ADV. SRI.SURESH BABU THOMAS
ADV. SMT.ANILA GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09-01- 2014, ALONG WITH CRIMINAL APPEAL NO.600/2000 AND
CONNECTED CASES. THE COURT ON 4-4-2014 DELIVERED THE
FOLLOWING:
K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.
-----------------------------------------------
Crl. Appeal Nos.590, 591, 599, 600, 602, 603, 604, 605,
606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616,
617, 618, 619, 627, 632, 633, 637 of 2000
-----------------------------------------------
Dated 4th April, 2014.
J U D G M E N T
Joseph Francis, J.
In Sessions Case No.187 of 1999 on the file of the Additional Sessions Court, Kottayam, 40 accused persons are charge-sheeted by the Inspector General of Police, State Crime Record Bureau, Police Headquarters, Trivandrum for the offences punishable under Sections 120 B, 363, 365, 366A, 368, 372, 373, 376, 376(2)(g), 392 and 109 read with Section 34 of the Indian Penal Code (for short, 'the IPC').
2. The prosecution case is briefly as follows : PW3, the Prosecutrix (name withheld) was aged 16 years 3 months and 23 days at the time of occurrence in 1996. She is the daughter of PW1, Mani Markose, the then Postmaster of Munnar Post Office. His wife Eathamma, the mother of the Prosecutrix was then a Nurse in Surianalle Estate. PW1, his wife and their second daughter PW3 were residing in the quarters allotted to them situated at Surianalle Estate. A1 Raju and A2 Usha along with Dharmarajan hatched out a criminal conspiracy some days Crl. Appeal No.600/2000 & connected cases 2 prior to 16.1.1996 at Adimaly to kidnap PW3 from the lawful guardianship of her parents and to secretly and wrongfully confine her to commit rape and gang rape on her and to sell her to other accused for the purpose of deriving illegal gain with intend to use her to illicit intercourse. The first accused in pursuance to the criminal conspiracy kidnapped PW3 from the lawful guardianship of her parents at 4.30 p.m. on 16.1.1996 by inducement and in pursuance thereto, PW3 left the School hostel in Munnar to join A1 at Adimaly and thereafter to go along with him to Kothamangalam. Before reaching there, the first accused disappeared. In such a perplexed situation, late in the evening at 7.30 p.m., PW3 decided to go from Kothamangalam to her maternal aunt's house at Kottayam. PW3 boarded a private bus to Muvattupuzha. In that bus, PW3 noticed the presence of A2 Usha. Thereafter, PW3 alighted at Muvattupuzha and went in an auto-rickshaw to K.S.R.T.C. Bus Station to catch a bus to Kottayam. PW3 boarded a K.S.R.T.C bus which was going to Kottayam. In that bus also PW3 noticed Crl. Appeal No.600/2000 & connected cases 3 the presence of A2 Usha. PW3 alighted at Kottayam Bus Stand. She was frightened to go through the by-lanes to reach the house of her maternal aunt. Therefore, PW3 decided to catch a bus to Mundakayam where her maternal uncle was residing. But there was no bus to Mundakayam during that night. It was at that time A2 Usha approached her calling her real name. Thereafter, A2 introduced PW3 to one person by name Sreekumar, whom PW3 realised later as Dharmarajan. Dharmarajan promised to take her to Mundakayam in the next morning. Dharmarajan took PW3 to Metro Lodge near the Bus Stand at Kottayam by mis-representing that his mother was residing in that lodge. PW3 followed him to that lodge on the belief that he would take her to her uncle's house at Mundakayam. But Dharmarajan raped PW3 during that night in that lodge. On the next day, Dharmarajan took PW3 to Ernakulam and thereafter to different places like Kumali, Kambam, Palakkad and Vanimel at Kozhikode, again to Kumali, Muvattupuzha, Aluva, Theni, Kanyakumari, Crl. Appeal No.600/2000 & connected cases 4 Thiruvananthapuram, Kuravilangad, Kottayam, again to Kumali, Muvattupuzha and again to Kottayam still again to Theni, Kumali, Kambam again to Kumali, Kottayam and to Muvattupuzha and finally enfreed her in the morning of 26.2.1996. In the meanwhile, PW3 was presented to several persons including the appellants except accused Nos.1, 2, 17, 38 and 39.
3. According to the prosecution case, four accused persons ( accused Nos.2, 17, 38 and 39) aided others to commit the said offences and other accused except A1 committed rape and gang rape on PW3. The details regarding the facts will be discussed while considering the evidence on record.
4. Before the Additional Sessions Court, on the prosecution side, PWs. 1 to 97 were examined and Exts.P1 to 182(i) were marked and Mos. 1 to 21 were identified. On the defence side, DWs. 1 to 10 were examined and Exts.D1 to 30 were marked. The learned Additional Sessions Judge, on considering the evidence on record, acquitted accused Nos. 23, Crl. Appeal No.600/2000 & connected cases 5 26, 32 and 36. Accused No.40 died during the pendency of the case and the charge against him was abated. The other accused were convicted and sentenced as follows:
"First accused is sentenced to undergo rigorous imprisonment for a period of thirteen (13) years and to pay a fine of `15,000/- and in default to undergo rigorous imprisonment for a further period of two years for the offences under section 376(2)(g) and 376(1) read with section 120B of the IPC He is also sentenced to undergo rigorous imprisonment for a period of four (4) years each and a fine of `2,000/- each and in default to undergo rigorous imprisonment for a further period of six months each for the offences under Sections 363, 365 and 366 A of the IPC. The substantive sentence shall run concurrently.
Second accused is sentenced to undergo rigorous imprisonment for a period of thirteen (13) years and to pay a fine of `15,000/- and in default to undergo rigorous imprisonment for a further period of two years for the offence under Sections 376(2)(g) and 376(1) read with Section 120B of the IPC. She is also sentenced to undergo rigorous imprisonment for a period of four (4) years each and a fine of `2,000/- each and in default to undergo rigorous imprisonment for a further period of six months each for the offences under Section 366 A and also for the offences under Crl. Appeal No.600/2000 & connected cases 6 section 363 and 365 read with Section 120 B of the IPC. The substantive sentence shall run concurrently.
Accused nos.3 to 8 and 14 are sentenced to undergo rigorous imprisonment for a period of thirteen (13) years and to pay a fine of `20,000/- and in default to undergo rigorous imprisonment for a further period of two years each under Sections 376(2)(g) of the IPC. They are also sentenced to undergo rigorous imprisonment for a period of four (4) years each and a fine of `2,000/- each and in default to undergo rigorous imprisonment for a further period of six months each for the offences under Section 363, 365 and 366A read with Section 120 B of the IPC. In view of the sentence under Section 376(2)(g) they are not separately sentenced for the offences under Sections 376(1) and 376(2)(g) read with Section 120 B of the IPC. All the substantive sentence shall run concurrently.
17th accused is sentenced to undergo rigorous imprisonment for a period of ten (10) years and to pay a fine of `10,000/- and in default to undergo rigorous imprisonment for a further period of one year for the offence under Sections 376(2)(g) and 376(1) read with Section 120B of the IPC. He is also sentenced to undergo rigorous imprisonment for a period of four (4) years each and a fine of `2,000/- and in default to undergo rigorous imprisonment for a further period of six months each for the offences under Section 363, 365 and 366 A read with Section 120 B of the IPC. All the substantive sentence shall run concurrently.
Accused nos.9 to 11, 13, 15, 16, 19 to 22, 24, 27 to Crl. Appeal No.600/2000 & connected cases 7 31, 33, 35 and 37 are sentenced to undergo rigorous imprisonment for a period of eleven (11) years and also to pay a fine of `15,000/- each and in default to undergo rigorous imprisonment for a further period of two years each for the offence under Sections 376(2)(g) of the IPC Accused no.12 is sentenced to undergo rigorous imprisonment for a period of ten (10) years and to pay a fine of `10,000/- and in default to undergo rigorous imprisonment for a further period of one year for the offence under Sections 376(2) (g) read with Section 120B of the IPC. He is also sentenced to undergo rigorous imprisonment for a period of four (4) years each and a fine of `2,000/- each and in default to undergo rigorous imprisonment for a further period of six months each for the offences under Sections 363, 365 and 366A read with Section 120 B of the IPC. In view of the sentence for the offence under Section 376(2)(g) read with Section 120 B of the IPC no separate sentence is awarded for the offence under Section 376(1) of the IPC. All the substantive sentence shall run concurrently.
Accused nos.18, 25 and 34 are sentenced to undergo rigorous imprisonment for a period of nine(9) years and to pay a fine of `10,000/- and in default to undergo rigorous imprisonment for a further period of one year under Sections 376(1) of the IPC.
Accused nos.38 and 39 are sentenced to undergo rigorous imprisonment for a period of four (4) years each and to pay a fine of `10,000/- and in default to undergo rigorous imprisonment for a further period of one year each Crl. Appeal No.600/2000 & connected cases 8 for the offence under Section 368 of the IPC On realisation of the fine, it shall be paid to PW3 as compensation under Section 357(1) of 'the Cr.P.C'. Accused are entitled to get set off under Section 428 of 'the Cr.P.C' for the period they were on remand in this case."
The above appeals are filed before this Court by different accused persons who were convicted in that case.
5. The case against Dharmarajan was tried as Sessions Case No.241 of 2001 by the Additional Sessions Court, Kottayam and he was convicted under Sections 120-B, 365 read with Sections 363, 366A, 368, 376, 376(2)(g), 372 and 392 and he was sentenced to undergo life imprisonment for offence punishable under Sections 376(2)(g) of the IPC. No separate punishment was imposed for other offences, for which he was convicted, for the reason that it was imposed with maximum punishment for the principal offence under Section 376(2)(g) of the IPC. Against that conviction and sentence, accused Dharmarajan filed Criminal Appeal No.877 of 2002 before this Crl. Appeal No.600/2000 & connected cases 9 Court.
6. A Division Bench of this Court heard all the above appeals along with Criminal Appeal No.877 of 2002 and as per the common judgment dated 20.1.2005 allowed all the appeals filed by the accused against the conviction and sentence imposed on them in S.C. No.187 of 1999. Criminal Appeal No.877 of 2002 was allowed in part, setting aside the conviction and sentence of the appellant Dharmarajan on all counts except under Sections 366 A and Section 372 of the IPC and modified the sentence passed by the Court below. For the above two offences imposed the sentence of rigorous imprisonment for five years each with a fine of `25,000/- each for the said two counts in default of payment of fine to undergo simple imprisonment for one year each. Against that judgment of acquittal of the accused who were convicted in S.C. No.187 of 1999, the State of Kerala filed Criminal Appeal Nos.1535 to 1560 of 2005 before the Honourable Supreme Court. Against the judgment in Crl. Appeal No.877 of 2002, the State of Kerala Crl. Appeal No.600/2000 & connected cases 10 filed Crl. Appeal No.1561 of 2005 before the Honourable Supreme Court. The Prosecutrix in both the above Sessions case filed Crl. Appeal No.1562 of 2005 to 1587 of 2005 before the honourable Supreme Court against the judgment of this Court. The Honourable Supreme Court, as per common judgment in Criminal Appeal No.1535 of 2005 to 1560 of 2005, 1561 of 2005 and 1562 to 1587 of 2005 dated 31.1.2013 disposed of the appeals by setting aside the common judgment of this court and remanded the matter back to this Court for fresh disposal in accordance with law. The relevant portion of the judgment of the Supreme Court reads as follows:
"By the impugned common judgment, the High Court has acquitted the 35 respondents who had been convicted in Sessions Case No.187 of 1999 only on the basis of evidence led in Sessions Case No.241 of 2001 after arriving at a finding that the Prosecutrix may not have been an unwilling partner to the sexual intercourse with the accused and the High Court does not appear to have considered the evidence in Sessions Case No.187 of 1999. What the High Court has failed to appreciate is that a Prosecutrix may be a willing Crl. Appeal No.600/2000 & connected cases 11 partner in an intercourse with the one accused in Sessions Case No.241 of 2001, but she may not be a willing partner in intercourse with the 35 other accused in Sessions Case No.187 of 1999. Whether she consented to an intercourse will ultimately depend on the facts of each case. The High Court ought to have considered the facts of each case and decided the appeals in accordance with law and in the absence of such consideration by the High Court, it will not be proper for us to decide on the culpability of each of the respondents-accused in these appeals. We, therefore, set aside the impugned common judgment of the High Court and remand the matters back to the High Court for fresh disposal in accordance with law."
7. Since the evidence was separately taken in S.C. No.187 of 1999 and in S.C. No.241 of 2001, we are disposing of the appeals filed by the appellants against the conviction and sentence in S.C. No.187 of 1999 together by a common judgment and we dispose of Crl. Appeal No.877 of 2002 filed by the accused in S.C. No.241 of 2001 by a separate judgment for the purpose of proper appreciation of evidence against each appellant. After the remand of these appeals, Exts.A1 to A10 Crl. Appeal No.600/2000 & connected cases 12 were marked on the side of the appellants.
8. Heard the learned counsel for the appellants and the learned Director General of Prosecution.
9. At the time of arguments, both sides cited a number of decisions to substantiate their respective contentions. It is not necessary to refer to all the decisions cited by both sides as it is not practical. Therefore, we are of the view that the reference to few important decisions touching on the relevant points would be sufficient.
10. In the case of rape, the testimony of prosecutrix is very crucial piece of evidence to prove the prosecution case against the accused. PW3 is the victim of the alleged rape. PW3 deposed that at the time of occurrence, she was studying in 9th Standard in Little Flower Girls' High School at Nallathanni near Munnar during the academic year 1995 - 96. At that time, she was residing in the Convent Boarding House near the school. She deposed that she knew A1 Raju. She identified A1 Raju in court. PW3 deposed that in the previous year, she used Crl. Appeal No.600/2000 & connected cases 13 to go to the tuition classes conducted by PW55 Kuttiyamma at Devikulam from the residence of PW3 at Sooryanelli. She used to go to the tuition classes by travelling in 'Companion' bus in which A1 was working as a checker. While she was travelling in that bus, A1 used to talk to her and when she began to study at Little Flower Girls' High School, Nallathanni, she fell in love with A1 and he used to come near the school gate on every Friday. At that time, A1 told her that he loved her and he was intending to marry her and to live as man and wife. PW3 deposed that at the time of occurrence, MO1 family album belonging to her was in the hands of the first accused. In the previous year, she had brought that album from her house to show it to her friend PW66 Fathima, who was also attending the tuition classes conducted by PW55 Kuttiyamma and PW66 obtained MO1 album from her to show it to her family members. On the next day, while travelling in 'Companion' bus, PW66 showed MO1 album to other friends travelling in that bus. At that time, PW3 was not travelling in that bus. A1 saw MO1 album from the bus Crl. Appeal No.600/2000 & connected cases 14 and he managed to get MO1 from PW66 on the understanding that he would hand over the same to PW3 on the next day. But, A1 did not return the album to PW3. PW3 deposed that two or three days before Christmas holidays, PW3 saw A1 near the school gate. Then A1 told her that she should come along with him for the purpose of conducting marriage between them and also instructed her to take two or three sarees of her mother and also some money and told her that she should say her name as Anjali and also to tell that she was above 18 years of age and also told her that if she was not prepared to come, he would make use of the photographs in MO1 album to make nude photos of PW3, her mother and father and paste the same on the compound wall of the school. The school re-opened on 1st January, 1996 after Christmas holidays. On that day, PW3, accompanied by her father PW1 came to Munnar by travelling in the bus. Since that bus reached Munnar a little bit late, PW1 sent PW3 to the school in an autorikshaw and on the way, PW3 alighted from the autorikshaw in order to raise money by Crl. Appeal No.600/2000 & connected cases 15 pledging her gold ring and she went to the house of a jewellery owner and when that jewellery owner became suspicious about the conduct of PW3, he informed the matter to PW1 and on getting information, PW1 reached there and took PW3 to their house. PW3 deposed that on 12.1.1996, she again saw A1 near the school gate and he told her that she should come along with him on 16.1.1996 in the evening and threatened that if she was not amenable for the same, he would paste nude photos of PW3, her mother and father on the compound wall of the school. A1 also told her to take two or three sarees of her mother and some money with her. He also told her to reach Adimali by fetching Anjali bus and PW3 agreed with that suggestion. In that week, on 12th, which was a Friday, she went to her house and on 16th, in the morning she reached the school from her house and at that time, she took two or three sarees of her mother and took `300 and also took the underskirt and blouse of her mother. PW3 deposed that on that day, as usual, she came to school along with her father. When the bus Crl. Appeal No.600/2000 & connected cases 16 reached at Munnar, PW1 fetched an autorikshaw and sent PW3 to the school along with her aunt called Mary Treesa.
11. In the evening, after attending the class, as agreed to A1, PW3 took a bag and went to Munnar bus stand and fetched Anjali bus and alighted at Adimali. At that time, A1 was there in the bus stop at Adimali and he asked her to walk towards the bus stand and told her to board PPK bus which was going to Kothamangalam. As agreed, PW3 boarded the bus and A1 also boarded that bus. PW3 deposed that at that time, a lady was sitting in that bus, who was identified by her subsequently as A2 Usha. PW3 identified the second accused Usha in court. When the bus reached at Kothamangalam, PW3 alighted from the bus and at that time, A1 was not seen in the bus. A2 Usha, who was in the bus also alighted there and when they alighted from the bus, it was about 7 p.m. PW3 got frightened as there was no bus to return to Munnar and realised that even if returned to Munnar, there will be no bus from Munnar to go to Sooryanelli. In that circumstances, PW3 Crl. Appeal No.600/2000 & connected cases 17 decided to go to the house of her maternal aunt at Thazhathangadi, Kottayam. PW3 deposed that she boarded a bus from Kothamangalam and alighted near the bridge at Moovattupuzha. From there, she fetched an autorikshaw and reached KSRTC bus stand and boarded a KSRTC bus to Kottayam and she alighted at Kottayam bus stand. In that KSRTC bus stand, PW3 saw A2 Usha, who was earlier found in the bus from Adimali. When PW3 alighted at the KSRTC bus stand at Kottayam, it was about 11.30 in the night.
12. PW3 deposed that as she did not know the bylanes to reach the house of her aunt at Thazhathangadi, she changed her plan and decided to go to the house of her uncle, PW57 Robert at Mundakkayam. She deposed that on enquiry, it was learned that the bus to Mundakkayam would be available only in the morning. PW3 noticed that the people in the bus stand were staring at her. At that time, A2 Usha approached her and called her original name. PW3 asked her how she knew her name. A2 replied that she knew her. Due to the peculiar Crl. Appeal No.600/2000 & connected cases 18 circumstances, PW3 felt security and comfort and A2 gained the confidence of her. A2 asked PW3 where she was going and PW3 told her that she was going to Mundakkayam, but the bus was available only on the next morning. Thereafter, A2 was found talking with a man who was standing a little distance away. After that A2 returned and told PW3 to tell her name only as Anjali and that she was studying in college. PW3 deposed that thereafter, A2 introduced that man as Sreekumar. A2 told PW3 that he was also going to Mundakkayam and she could depend on him. Later on, PW3 came to know the real name of that man as Dharmarajan. Dharmarajan told PW3 that the people in the bus stand were looking at them and therefore, they need not wait there and suggested to go to the nearby lodge where his mother was staying and can proceed to Mundakkayam in the next morning. PW3 identified MO4 photographs of Dharmarajan in court. Dharmarajan took PW3 to the lodge and put PW3 in a room in the lodge. When PW3 enquired about his mother, Dharmarajan told her that his Crl. Appeal No.600/2000 & connected cases 19 mother was taking bath in the next room. PW3 deposed that when she repeatedly asked about his mother, Dharmarajan locked the room from inside and when PW3 asked him to let her go, Dharmarajan pushed her to the cot. Then PW3 realised that Dharmarajan was trying to ravish her and she resisted and wept. Dharmarajan made PW3 to lie on the cot and caught on her neck and began to press her throat and threatened that he would kill her. Dharmarajan thereafter raised her skirt and removed her underwear and undressed himself and committed rape on her without her consent by forcibly inserting his penis into her vagina and engaged in copulatory movements till a dense fluid was ejected into her vagina. When PW3 pleaded him to release her, he told that she was needed for him and threatened that if she did not obey what all things he would demand, he would kill her parents.
13. On the next day (17.1.1996), Dharmarajan took her to KSRTC bus stand at Kottayam and boarded a bus to Ernakulam and got down at Ernakulam bus stand. Dharmarajan Crl. Appeal No.600/2000 & connected cases 20 hired an autorikshaw and along with PW3 went to Star Jewellery. Dharmarajan forced PW3 to handover her gold ear drops. When PW3 refused to handover the gold ear drops worn by her, Dharmarajan stamped on her legs and intimidated her. Then PW3 handed over her gold ear drops to Dharmarajan and he sold the same and obtained `400/- from the jewellery. Dharmarajan took PW3 to Anand Tourish Home situated at Chittoor Road and took Room No.113 and he stayed in that room with PW3 and in that night, Dharmarajan committed rape on her in spite of her resistance. In that night also, Dharmarajan repeated the threat made at Kottayam and that she could not escape from him and that he had people in that Tourist Home and that he was prepared to do anything.
14. PW3 deposed that on the next day (18.1.1996) Dharmarajan took PW3 to Panchayat Rest House at Kumali run by A5 Cherian. They reached there at 7.30 a.m. on 19.1.1996. PW3 deposed that A5 Cherian and Devassia (absconding accused) were there. PW3 identified A5 Cherian in court. Crl. Appeal No.600/2000 & connected cases 21 Dharmarajan took PW3 to Room No.104. When PW3 was at Kumali, she realised that his real name was not Sreekumar, but Dharmarajan. Dharmarajan kept PW3 inside the room and locked the room from outside and after some time, he came back with A5 Cherian. PW3 deposed that Dharmarajan left the 5th accused in that room and went out. A5 closed the room from inside and asked her to lie on the cot. Then PW3 disclosed her identity as the daughter of PW1, the Post Master of Munnar and pleaded to save her from there. PW3 also told A5 that he had the age of her father and then A5 told her that he needed her and he caught hold of her and forcibly laid her on the cot and committed rape on her. A5 threatened that she should not try to escape from there and went out of the room after locking the room from outside. After some time, Dharmarajan came back and threatened her and committed rape on her.
15. PW3 deposed that on the next day (20.1.1996) by 10 a.m., Dharmarajan brought A4 Reji and A7 Jose to that room and showed PW3 to them after opening the room. Crl. Appeal No.600/2000 & connected cases 22 Dharmarajan told them that PW3 was a small girl studying in a school and was brought without the knowledge of her parents. After leaving A7 in that room Dharmarajan and A4 went out of that room. Then A7 closed the room from inside. PW3 disclosed her identity to A7 and requested him to save her. PW7 asked her to lie on the cot. When PW3 refused, A7 hit on her shoulder and forcibly caused her to lie on the cot and A7 committed rape on her. Thereafter, A7 left the room. Immediately thereafter, A4 came to that room, to whom also PW3 disclosed her identify and pleaded for mercy and told him that she was brought there by playing fraud. PW3 deposed that ignoring her plea for mercy, A4 also committed rape on her and left the room after that. PW3 identified correctly A4 and A7 in court. PW3 deposed that she identified A7 in the identification parade conducted by the Magistrate at Devikulam. PW3 deposed that on the next day (21.1.1996) Dharmarajan took her to Hylux Lodge at Palakkad and took Room No.212 at 9 p.m. On that night, Dharmarajan committed rape on her. Crl. Appeal No.600/2000 & connected cases 23
16. PW3 deposed that on the next day (22.1.1996) Dharmarajan took her to the house of A16 Thulaseedharan at Vanimel near Kozhikode. PW3 came to know that A16 is a friend of Dharmarajan. PW3 deposed that on that night, they resided in that house. A16 was residing in that rented house along with two male teachers. On that night, Dharmarajan stayed in a room of that house with PW3 and committed rape on her.
17. In the morning of 23.1.1996, Dharmarajan after leaving PW3 there in the house went away. The two inmates of that house left the house to their school. PW3 deposed that A16 locked her in a room of that house and went out. After some time, A16 came back and committed rape on her. PW3 deposed that on the next day morning, Dharmarajan came back and Dharmarajan and A16 committed rape on her. PW3 identified A16 Thulaseedharan in court and in the test identification parade. PW3 deposed that she stayed in that house for three days. From there, PW3 was taken to Kozhikode Crl. Appeal No.600/2000 & connected cases 24 bus stand by Dharmarajan and A16 and thereafter, A16 went away. Dharmarajan took PW3 in an autorikshaw to the jewellery shop of PW34 Basheer by name Sufflex Jewellery. Dharmarajan compelled PW3 to handover her gold ear stud and under intimidation got it from her and sold it there.
18. Dharmarajan took PW3 to Panchayat Rest House at Kumali for the second time. They reached there at 1 a.m. on 26.1.1996. When they reached there, A3 Jamal was there. PW3 identified A3 Jamal in court. PW3 spent that night in that rest house. On the next day morning, A3 Jamal and Dharmarajan took her to Indra Hotel at Kumbam. PW3, Dharmarajan and A3 stayed there. PW3 stayed in Room No.103 and A3 stayed in Room No.304. On that night, Dharmarajan committed rape on PW3. On 27.1.1996, Dharmarajan and A3 took PW3 to Thottam Lodge at Moovattupuzha and locked her in Room No.201 of that lodge. After some time, they came back with A14 Yoosaf. PW3 identified A14 in court and also in the identification parade. A14 along with Dharmarajan and A3 took PW3 in his car to Crl. Appeal No.600/2000 & connected cases 25 Aroma Tourist Home at Aluva. Room Nos.102 and 103 were taken by them, one in the name of Dharmarajan and the other in the name of A3. At about 9.10 p.m., A3 and Dharmarajan took PW3 to the room where A14 was waiting and left her in that room. A14 locked that room from inside. Then PW3 told him that he was having the age of her father and disclosed her identity and sought his help to rescue her from the hands of Dharmarajan. A14 then told her that let his purpose be served and he committed rape on her. Subsequently, Dharmarajan and A3 committed rape on PW3 in the room taken by A3. In that night, A14 took PW3, Dharmarajan and A3 in his car and dropped them at KSRTC bus stand at Moovattupuzha. From there, PW3 was taken to the house of A39 Vilasini at Theni by A3 and Dharmarajan. Before taking PW3 to Theni, Dharmarajan and A3 took PW3 to an STD booth within Theni Telephone Exchange and as instructed by them, PW3 made a telephone call to her uncle PW57 Robert and told him that she was calling from Chalakkudy. PW57 became suspicious and he advised her Crl. Appeal No.600/2000 & connected cases 26 to cry aloud in order to get rid of from the kidnappers. But, she could not do so as Dharmarajan and A3 were standing near her and they cut off the call. When they reached the house of A39, Dharmarajan and A3 talked secretly to A39 and thereafter, they left PW3 there. PW3 was compelled to stay in that house in that night.
19. On the next day (29.1.1996) PW3 disclosed her identity to A39 and told that she was cheated and sought her help to escape. Then A39 told her that as PW3 was a girl brought by Dharmarajan, she was unable to help her. PW3 was made to stay in that house for four days. During that period, PW3 had severe fever and she was finding it difficult to pass urine and she could not even sit or lie.
20. PW3 deposed that on 1.2.1996, she was taken to the bus stop by Dharmarajan and A3. At that bus stop, A2 and PW8 Shylaja (Maya) were waiting for them. From there, PW3 was taken to Kanyakumari by A2, A3, Dharmarajan and PW8 and they reached there early morning and remained in Crl. Appeal No.600/2000 & connected cases 27 Room No.9 of Trisea lodge hired by Dharmarajan at about 2.30 a.m. on 1.2.1996. PW3 deposed that in that room, Dharmarajan committed rape on her in the presence of others. When PW3 resisted, A3 asked her to lie or otherwise he would kick her. On the next day morning, Dharmarajan and A3 went out and brought A4 Reji to the room. PW8 Maya was brought to Kanyakumari by Dharmarajan giving the hope that she would be given a chance to become a playback singer after exhibiting her skill by singing before the producer and director of a film whom Dharmarajan represented to be present in that hotel at Kanyakumari. A4 told him that cinema people had arrived and the case of PW8 had been talked to them. On that representation, A4 took PW8, PW3 and A2 along with him to Hotel Samudra.
21. When they reached the room of A4 in Hotel Samudra, A7 Jose and two others were there. Of the two persons, one was A8 Sreekumar and another man was a professor. PW3 identified in court A8 Sreekumar and in the Crl. Appeal No.600/2000 & connected cases 28 identification parade. But, PW3 could not identify that professor in the court. From there, A4 took PW3 to the room of A8. A8 was in the room of A7. PW3 cried and pleaded to A8 to spare her and ignoring her plea that she was not well, A8 committed rape on her. PW3 deposed that thereafter, the Professor committed rape on her at another room. A4 also committed rape on her in another room. PW3 deposed that thereafter, A7 also committed rape on her in that night disregarding her plea for mercy. PW3 identified A7 in court and in the test identification parade. PW3 deposed that on the next day, A8, PW8, A4, Professor and A8 took PW3 to Trivandrum in a taxi car from Kanyakumari.
22. When they reached at Thiruvananthapuram, A4 dropped others except PW3 at Nandavanam Tourist Home. A4 took PW3 in the same taxi car to the shop of PW12 Jacob Sait. A4 introduced PW3 as his niece and PW12 paid `100/- towards taxi fare. A4 along with PW3 waited in the shop for some time. PW12 took PW3 and A4 in his car to Hotel Keerthi at Crl. Appeal No.600/2000 & connected cases 29 Thiruvananthapuram and they had food from that hotel. From that hotel, PW12 took A4 and PW3 to Hotel Geeth and took a room there and PW12 returned with his car. A4 stayed with PW3 in that room in the hotel. During night, A4 committed rape on PW3. At that time, PW3 experienced severe pain and she cried. Ignoring this, A4 threatened her and even beat her. On the next day morning, A4 told PW3 that it was a hotel known to him and wanted her not to try to escape. A4 locked the room from outside, keeping PW3 in the room. Thereafter, in the evening, A4 came along with A9 Rajendran Nair. PW3 identified A9 in court. PW3 deposed that A4 showed PW3 to A9 by opening the room. A4 told him that PW3 was a school student and that she was brought there without the knowledge of her parents. A4 told PW3 to co-operate with A9 and A4 left the place. A9 locked the room from inside. PW3 told him not to do any harm to her and that she was not well. Even then, he committed rape on her. Thereafter, A4 came back to that room and A9 left the place. In that night, A4 committed rape on her. Crl. Appeal No.600/2000 & connected cases 30 On the next day, A4 took PW3 to the room of a film producer and A4 talked with him for some time and A4 took her back to her room. After some time, one person knocked at the door. A4 opened the door. Then they saw A29 Vijayakumar who knocked at the door. PW3 identified A29 Vijayakumar in court. A4 told A29 that PW3 was a school student and she was brought without the knowledge of her parents. A29 left the room telling that he would come later.
23. In the evening on the same day, A28 George Cherian came to the room of PW3. PW3 identified A28 in court and in the identification parade. At that time, A4 was also in the room. PW3 deposed that after some time, A29 came to that room. Then A4 and A28 went out of that room. A29 also committed rape on PW3 ignoring her plea for mercy. After some time, A4 and A28 came back to that room. Then A29 left the room. PW3 deposed that at the time of investigation, she had shown A29 to the police. At that night, A4 and A28 were there in the room. During that night, A28 committed rape on Crl. Appeal No.600/2000 & connected cases 31 PW3 in that room. A4 also committed rape on her at that night. At that time, A28 was also present in that room. At that night, A4 and A28 slept naked in that room keeping PW3 between them. PW3 deposed that on the next day, she was taken to Pala by A4 and A28 in a Maruti car driven by A28. When they reached at Pala, A28 dropped A4 and PW3 there. From there, A4 fetched an autorikshaw and took PW3 to Kuravilangad, to the house of A38 Mary. PW3 identified A38 in court. When they reached the house of A38, A4 spoke to A38 in secret and PW3 stayed in that house. During that night, A4 committed rape on PW3. PW3 deposed that she would think that it was on 6.2.1996.
24. PW3 deposed that on the next day, she saw A4 and the husband of A38 going out of that house. After some time, A4 came back. About 5 minutes later, one man called Stephenji came to that house. PW3 identified A10 as Stephenji in court. A4 told PW3 that A10 was calling her and she was sent to the room in which A10 was sitting. When PW3 reached Crl. Appeal No.600/2000 & connected cases 32 there, A10 closed the doors of that room from inside. To him also, PW3 disclosed her identity and prayed for mercy. Disregarding that request, A10 committed rape on her. PW3 identified A10 in the test identification parade also. When A10 left the room, A7 came to the room and A7 also committed rape on her disregarding her plea. After that, A4, A7 and A10 left the place. PW3 disclosed her identity to A38 and requested her to save her. But, A38 refused to help her saying that she needed the help of A4 and therefore, she would not help PW3 to escape. PW3 resided in that house on that day. On the next day, A4 came there. A38 told A4 about the matters, as told by PW3. Then A4 threatened PW3 that if she tried to escape, he would finish her father and mother. A4 manhandled PW3. In that night, A4 committed rape on PW3.
25. On the next day , in the morning, Dharmarajan and A6 Unnikrishnan Nair came there. PW3 identified A6 in court. Dharmarajan, A4 and A6 took PW3 in a car and on the way, they saw A8 Sreekumar. On seeing him, the car was Crl. Appeal No.600/2000 & connected cases 33 stopped and A4, A6 and Dharmarajan spoke to him. At that time, A8 was travelling in a scooter. After talking to them, A8 went away. The car proceeded to Kottayam Railway Station area. The car stopped near the Railway Station and A4 got down there and after some time, A4 came back. Dharmarajan, A6 and PW3 alighted there and the car was sent back. From there, A4 fetched an autorikshaw. Dharmarajan, A6 and PW3 boarded the autorikshaw and they reached at Hotel Floral Park near Kottayam Medical College. PW3 identified the driver who drove the car as A20 in court and also in the test identification parade. PW3 deposed that subsequently, A20 committed rape on her at Kumali Rest House.
26. PW3 deposed that at Hotel Floral Park, A8 Sreekumar was waiting for them. A8 took her to a room and committed rape on her. Before committing rape, she told him about her ill-health and she experienced severe pain at the time of committing rape.
27. From Hotel Floral park, A6 and Dharmarajan Crl. Appeal No.600/2000 & connected cases 34 again took PW3 to Kumali Panchayat Rest House. They locked PW3 in a room of that Rest House and went away. After some time, A4 and A6 came to the room along with two other persons. PW3 identified one person as A21 and the other person as A22. She had identified them in the test identification parade also. A4 and Dharmarajan talked with A21 and A22 confidentially. After that Dharmarajan told PW3 to co- operate with them. Then PW3 told Dharmarajan why she was subjected to such torture worse than killing. Then Dharmarajan threatened her that if she was not prepared to do whatever he would say, he would kill her and throw the dead body to the valley. After that Darmarajan brought A22 Jiji to the room in which PW3 was sitting. PW3 pleaded for mercy to A22. But, disregarding her plea for mercy, A22 committed rape on PW3. When A22 left the room Dharmarajan brought A21 Sunny to that room. PW3 deposed that A21 also committed rape on her. On that day, PW3 was made to stay in that Rest House. PW3 deposed that in the night, Dharmarajan and A6 committed rape Crl. Appeal No.600/2000 & connected cases 35 on her.
28. On the next day, in the afternoon Dharmarajan and A6 took PW3 to Moovattupuzha in a bus and they alighted at Moovattupuha KSRTC bus stand. PW3 deposed that A11 Aji and A15 Davood were waiting there. PW3 identified A11 and A15 in court and she also identified them in the test identification parade. A6, Dharmarajan, A11 and A15 took PW3 in a jeep and that jeep was stopped near the house where there was a marriage function. A11 and A15 talked with a person and all of them alighted from the jeep and they boarded the car belonging to the other person and they reached the house of one Varghese. PW3 identified A27 as Varghese in court and also in the test identification parade. When they reached the house of A27 Varghese, he alone was there in the house. PW3 deposed that at that house she was raped by A11, A15 and A27. PW3 deposed that before committing rape, she pleaded for mercy to each of them. After that, they took PW3 in a car to the bus stand. When they reached the bus stand, it was about Crl. Appeal No.600/2000 & connected cases 36 midnight. Dharmarajan, A6 and PW3 alighted there in the bus stand. Dharmarajan and A6 took PW3 in a KSRTC bus to Kottayam. After reaching at Kottayam, they took PW3 to Kottayam Metro Lodge which was the lodge to which PW3 was taken by Dharmarajan earlier. A6 and Dharmarajan committed rape on her at that lodge. In the evening, A6 and Dharmarajan took PW3 to Kanjirappally by bus. From Kanjirappally, they took PW3 to Kumali and from there, she was taken to Theni, to the house of A39. PW3 was made to stay in that house as she was on her monthly periods. A6 and Dharmarajan went away after putting her in that house. PW3 stayed in that house for two days.
29. After that, A3 and Dharmarajan came there and took her to Kumali Rest House. PW3 deposed that it was on 15.2.1996. PW3 was forced to stay there for about one week. During that period, PW3 was locked in a room and one Satheesan was put on guard duty. PW3 could not identify Satheesan in court. PW3 deposed that she had identified Crl. Appeal No.600/2000 & connected cases 37 Satheesan in the test identification parade conducted at Devikulam. PW3 deposed that Satheesan committed rape on her. While PW3 was staying there for seven days, A3 and Dharmarajan brought a number of persons and those persons also committed rape on her. A11 Aji, A15 Davood and A13 Aliyar were among those persons who committed rape on her. PW3 identified A13 Aliyar in court. PW3 deposed that A11, A13 and A15 came to that room two times and on those occasions, they committed rape on her. PW3 deposed that along with them, a driver also committed rape on her. PW3 deposed that the name of that driver was Babykutty. But, PW3 could not identify him in court. PW3 deposed that she had identified A13. PW3 deposed that while she was staying in Kumali Rest House, Dharmarajan and A3 brought A20 Babu and A37 Thankappan and thereafter, they closed the room from outside. PW3 identified A37 Thankappan in court. After some time, A37 came to her room and committed rape on her and left the place. Within 5 minutes, A20 Babu came to the room and committed Crl. Appeal No.600/2000 & connected cases 38 rape on her.
30. PW3 deposed that during those days, her health condition was worsened and she told them about her bodily condition and prayed for mercy. During those days, Dharmarajan and A3 brought A24 Baby and A31 Antony. PW3 was shown to them. After that Dharmarajan and A3 Jamal took PW3 to the room of A24 and A31. PW3 deposed that in spite of her plea for mercy, A24 and A31 committed rape on her. PW3 identified A24 as Babu in court. At the time of test identification parade, she identified A24 as Baby. When PW3 was asked to identify A31 Antony, witness pointed out A31 and said "ApLtLRePV ybwpoO:V". PW3 deposed that during that period, one Joshy also committed rape on her. But, she could not identify that accused in court. PW3 deposed that she had identified Joshy in the test identification parade. PW3 deposed that one Sabu also raped her. PW3 identified A25 Sabu in court and in the test identification parade. PW3 deposed that A3 and Dharmarajan had shown PW3 to A25 and they took her to the Crl. Appeal No.600/2000 & connected cases 39 room of A25. A25 also committed rape on PW3 in spite of her plea for mercy. PW3 deposed that Dharmarajan and A3 had shown PW3 to A19 Sunny. PW3 deposed that A19 also committed rape on her, disregarding her plea for mercy. PW3 deposed that during those days, A18 Rajagopalan Nair also committed rape on her. Dharmarajan and A3 had shown PW3 to A18. PW3 was taken to the room of A18 and he committed rape on her in spite of her unwillingness. When PW3 was asked to identify A18 in court, PW3 went near to A18 and said "ApLtLRePV SfLPOPO". PW3 deposed that during those days, Dharmarajan, A3 and Devassiachan committed rape on her on several occasions.
31. PW3 deposed that on 21.2.1996 A2 Usha and her husband were there in the rest house. PW3 identified A17 Mohanan@Ayyavu in Court as the so called husband of A2. PW3 identified A17 in test identification parade. PW3 deposed that on that day she had severe back pain and throat pain. A2 and A17 took PW3 to Periyar hospital and before taking her to Crl. Appeal No.600/2000 & connected cases 40 the hospital, A3 and Dharmarajan had instructed PW3 to tell the doctor only about her throat pain or otherwise they would kill her. When A2, A17 and PW3 reached the hospital, A2 gave the name of PW3 as Anjali to the doctor and therefore PW3 only told the doctor about her sore throat and she could not tell anything more to the doctor. At that time A2 and A17 were standing near to her. After some time Dharmarajan and A3 came to the hospital in a jeep and took PW3 in that jeep. Dharmarajan, A2, A3 and A17 also boarded the jeep and PW3 was taken to Kambam. When they reached at Kambam, they took two rooms in a lodge and PW3 stayed with A3 and Dharmarajan in a room. On the next day A3 came to the room with two persons and A3 showed PW3 to them. PW3 identified A35 Babu Mathew before the Court as one of the two persons who came there. A3 after leaving A35 in that room went out with other two persons. A35 committed rape on PW3 disregarding her protest. After that the other person also came to the room and committed rape on her.
Crl. Appeal No.600/2000 & connected cases 41
32. After that Dharmarajan, A2, A3 and A17 took PW3 from Kambam to Kumaly in a bus and they alighted at Kumali bus stand. After that A3 and Dharmarajan went away. A2 and A17 took PW3 to the house of the relative of A17. In that house the sister of A17 and her husband were there. A2 told them that PW3 was her younger sister. PW3 was made to stay there for two days. In that night Dharmarajan and A3 Jamal came there and after talking to A2 they went out. On the next day morning A2 and A17 took PW3 to Kumaly and they alighted at Kumaly bus stand. A3 and Dharmarajan were there. After entrusting PW3 with them, A2 and A17 left the place. A3 and Dharmarajan took PW3 to the house of a relative of A3. In that house there was an aged woman and two other women. A3 introduced PW3 to them as the sister of Dharmarajan. At that time PW3 was very tired and she had constipation, back pain and there was pain in her vagina. Due to extreme pain PW3 could not lie. Therefore the inmates called A3 and Dharmarajan to come over there. They came in that night and Crl. Appeal No.600/2000 & connected cases 42 they took PW3 in a jeep to one hospital and PW3 was admitted in that hospital. Before going to the doctor Dharmarajan told PW3 that she should tell the doctor about her back pain and constipation only. PW3 did not tell the doctor about her name. PW3 told the doctor about her back pain and constipation. In that hospital injection was given to PW3 and enema was also given.
33. From there A3 and Dharmarajan took PW3 to Muvattupuzha by bus and alighted at Muvattupuzha K.S.R.T.C bus stand. At that time A14 Muhammed Yoosaf and two others were there. PW3 identified A37 Shaji and A30 Ashraf as the two other persons in court and also in the test identification parade. A14, A33, A30, A3 and Dharmarajan took PW3 in a car to Hotel Floral Park near Kottayam Medical College. A3 and Dharmarajan put PW3 in a room and they locked the room from outside and left. After some time A14 opened the room and committed rape on PW3 without considering her request and thereafter he went out. After that A30 came to the room and Crl. Appeal No.600/2000 & connected cases 43 he also committed rape on her ignoring her request and left the place. Thereafter A33 came to the room and he also committed rape on her ignoring her request and he also left. Thereafter Dharmarajan took PW3 to another room. A3 came there and committed rape on her. After that Dharmarajan came there and he also committed rape on her. Thereafter Dharmarajan, A3, A14, A30 and A33 took PW3 in a Maruti car to Moovattupuzha to the house of A34 Anil. PW3 identified A34 in Court and in the test identification parade also. In that night A34 committed rape on her ignoring her request. On the next day morning A3 and Dharmarajan took PW3 to Moovattupuzha private bus stand and PW3 was allowed to board a bus to Kothamangalam. A3 and Dharmarajan allowed PW3 to go to her house. PW3 reached at Kothamangalam bus stand and from there she boarded a bus to Munnar and she alighted at Munnar. When PW3 was sent back to her house, A3 gave `100/- to PW3 towards bus fare. After alighting at Munnar, she went to Post Office of her father. Her father fonded and wept Crl. Appeal No.600/2000 & connected cases 44 and she was taken to her residence at Surianalle. At that time her mother was in that house. PW3 told her mother about the entire incident. On the next day PW1 the father of PW3 took PW3 to the Police Station and she stated everything to A.S.I. of Police and returned to her house. PW3 deposed that on the next day also she went to the Police Station and from there she was taken to the hospital.
34. PW1 Mani Markose is the father of PW3. At the time of occurrence he was working as a Postmaster at Munnar Post Office. PW1 deposed that in 1996 he was residing in the Nurses' Quarters allotted to his wife in the Surianalle Estate along with his wife and their second daughter PW3. When PW3 was found missing from the school on 16.1.1996 he gave Ext.P1 F.I. statement before the police on the next day. PW1 deposed that when PW3 returned to Munnar, he took her to their residence at Surianalle. PW3 told about the occurrence to his wife, who in turn told him about the incident. PW1 deposed that on the next day morning he went to Munnar Police Station Crl. Appeal No.600/2000 & connected cases 45 along with PW3 and told the A.S.I. about the occurrence and she was sent to the hospital. PW73 Dr.V.K. Bhaskaran, was working as a Civil Surgeon and Gynecologist at Taluk Headquarters Hospital, Adimali. PW73 deposed that on 28.2.1996 at 2.30 p.m., he examined PW3 and issued Ext.P95 certificate. The history of the case as stated by the victim is "16.1.1996 oOf$ 25.2.1996 vRq Dg WLsptv]$ ks BtOW% ks rs0t]sOb v\V msoLp] RRsbY]YSvuV\ ja>OWpOb n}xe] RUaO>OWpOb k}c]U](OWpOb R\pEO"
35. PW73 deposed that her gait was painful while walking. The following injuries were noted in Ext.P95 : (i) Healed nail marks of about 10 days old on either breast. (ii) Multiple circumscribed ulcers on the vulva. Hymen was torn fresh. The carunculae hymenalis was nil. Vagina admitted more than two fingers. Rugac distinct. Examination was highly painful to the patient. There was purulent discharge, foul smelling, possibly gonorrheal infection. PW73 deposed that hymen showed multiple fresh tears which are ulcerated. Crl. Appeal No.600/2000 & connected cases 46 The vulva showed multiple ulcers. The vulva and vagina were oedematus. She had severe pelvic infection. PW73 opined that there was evidence of recent sexual act and that there was no signs of evidence of resistance. He further opined that if rape was committed on intimidation and threat there need no be any bodily injury on the victim.
36. According to Modi, rape is a crime and not medical condition. Rape is a legal term and not a diagnosis to be made by the Medical Officer treating the victim. The only statement that can be made by the Medical Officer is that whether there is evidence of recent sexual activity. When the rape has occurred or not is a legal conclusion and not a medical one. The testimony of PW73 proved that when he has examined PW3 on 28.2.1996 there was evidence of recent sexual activity.
37. PW2 was working as Headmistress of Nallathanni Little Flower Girls High School at Munnar for the period 1984-1997. PW2 deposed that PW3 was admitted in Crl. Appeal No.600/2000 & connected cases 47 Std.IX of that school in 1995 June and she had been in the school register till 16.1.1996. She deposed that on 16.1.1996 she had attended Headmasters' conference at Kattappana convened by the District Education Officer and therefore she left the convent at 5.30 a.m. After the conference she reached at Munnar at 5 p.m. and attended the services at Church. PW3 was staying in the boarding of the school and when PW2 reached the school from the Church, the boarding Sister Annie Chacko informed PW2 that PW3 was missing from 4.30 p.m. onwards. The boarding of the school is functioning in another building in the same compound. PW2 deposed that she had acquaintance with PW1 who was the postmaster of Munnar. He used to come to the boarding every Saturdays and used to take PW3 to their house and take her back to the boarding on Monday morning. PW2 identified MO2 skirt and MO3 shirt as the uniform dress of the school. PW2 deposed that 15.1.1996 was a Monday which was a local holiday for Munnar due to Pongal. She deposed that though PW3 was below average in Crl. Appeal No.600/2000 & connected cases 48 her studies, she did not receive any complaint about PW3 from anywhere, either from teachers or students and that she was a good child.
38. The learned counsel for the appellants submitted that framing of charges by the court below is defective as it does not contain the time and date of commission of each offence, which is violative of Section 212(1) of the Code of Criminal Procedure (for short, 'the Cr.P.C.') The learned counsel for the appellants further submitted that separate trials ought to have been conducted as regards each accused.
39. In the present case, the prosecution alleges that the rape and gang rape were committed by different accused during the period from 16.1.1996 to 26.2.1996 and in the charge, in some instances, exact date is not mentioned. So also, apart from the date, time is also not mentioned in most of the cases.
40. It is true that the date and time of commission of alleged offences shall be given as much particularity as Crl. Appeal No.600/2000 & connected cases 49 possible in order to give the accused sufficient notice of the offences in which he stands charge sheeted. In some cases, it may not be possible to particularise the date and time of commission of the offences. In such cases, it will be sufficient to state two dates, between which the offence is alleged to have been committed.
41. In the decision reported in AIR 1963 SUPREME COURT 1696 "Chittaranjan Das v. State of W.B.", it was held as follows :
"If it is permissible to say in a charge that a particular offence was committed on or about a specified date: without specifying the particular time, it is difficult to hold that because a period of four or five or six days is indicated in the charge within which the offence is alleged to have been committed Section 222(1) has been contravened. It is true that sub-section (2) specifically deals with two kinds of offences and makes a provision in respect of them, but that is not to say that in every other case, the time must be so specifically mentioned as to indicate precisely the date and the time at which the Crl. Appeal No.600/2000 & connected cases 50 offence was committed."
42. In the decision reported in AIR 1972 SUPREME COURT 1756 "Gunwantlal v. State of M.P.", it was held :
"It is submitted, however, that the words 'on or before' might cause embarrassment and prejudice to the defence of the accused because he will not be in a position to know what the prosecution actually intends to allege. From a reference of Form XXVIII of Schedule 5 of the Code of Criminal Procedure, the mode of charging a person is that he 'on or about'....did the act complained of. In view or the forms of the charge given in the Schedule to the Code, we think that it would be fair to the appellant if the charge is amended to read 'on or about' instead of 'on or before' "
43. In the present case, about 40 accused persons are involved in the incident happened in between 16.1.1996 to 26.2.1996. It is not possible to mention in the charge the exact date and time regarding the offences committed by each accused. Therefore, there is no defect in the charge framed by Crl. Appeal No.600/2000 & connected cases 51 the court below. Section 223 of the Cr.P.C. provides that persons accused of the same offence committed in the course of the same transaction, persons accused of an offence and persons accused of abetment of, or attempt to commit such offence and persons accused of different offences committed in the course of same transaction can be charged and tried together. Since the accused are involved in different offences in the course of the same transaction, the court below is fully justified in jointly charging and trying the accused persons. Moreover, Section 464 of the Cr.P.C. provides that no finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge unless, in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Considering the facts and circumstances of the case, we are of the view that no failure of justice is occasioned due to any Crl. Appeal No.600/2000 & connected cases 52 defect in the charge.
44. The learned counsel for the appellants argued that PW3 had sufficient opportunity to escape from the accused from the very beginning and could have sought the help of police or public by raising alarm and therefore, it cannot be said that she was wrongfully confined or was used for sexual intercourse without her consent. The learned counsel further argued that when PW3 realised that A1 was not in the bus when she reached at Kothamangalam, she could have sought the help of police or others in the bus stand or at least could have contracted the Police Aid Post at Kottayam bus stand. It is also argued that PW3 could have sought the help of lodge authorities where she stayed during the period from 16.1.1996 to 25.2.1996 and she was travelling in public transport vehicles like private and KSRTC buses, auto-rickshaws and was mingling with public and could have alerted any one, and the fact that PW3 did not even attempt to alert or escape would establish that she was proceeding with the accused on her own will. This Crl. Appeal No.600/2000 & connected cases 53 argument advanced by the learned counsel for the appellants appears in the first blush attractive. But, before appreciating the conduct of PW3, we should borne in mind certain relevant facts. At that time, PW3 was aged just above 16 years only. She was persuaded by A1 to follow him due to his intimidation and threat and due to the love and affection of PW3 towards him. PW3 was persuaded to follow A1 without thinking about its consequences. When PW3 came to know that A1 duped her by disappearing from the bus to Kothamangalam, she was perplexed and would have been in a peculiar mental condition and she was not knowing what should be her next step. She could not return to Munnar or Sooryanelli as there was no bus to those places at that time in the night. The testimony of PW3 that she decided to go to Kottayam cannot be disbelieved as she was expecting to go to the house of her aunt at Kottayam or to her uncle's house at Mundakkayam. But, when PW3 reached at Kottayam KSRTC bus stand at late hours in the night, the people standing in the bus stand stared at her and at Crl. Appeal No.600/2000 & connected cases 54 that time, A2 Usha approached her in the guise to help her and introduced her to Dharmarajan, who was there in the bus stand. Dharmarajan told PW3 that his mother was staying in a lodge near the bus stand and that he would help her to reach Mundakkayam on the next day morning. Believing his words, PW3 followed Dharmarajan and she was subjected to rape by Dharmarajan by torture and he tormented her physically and mentally threatening her of her life and life of her parents. In such a situation, PW3 would have got frightened and would have believed that her life itself was in danger. It was because of this perception, PW3 obeyed and followed Dharmarajan. PW3 was later threatened by some other accused like A3 and A4.
45. The main accused Dharmarajan was a practising lawyer. Another Advocate, political leaders, Police Constable and College Professor were there among the accused who committed rape on her. They did not help her to escape even when she revealed her pathetic story. If PW3 had tried to Crl. Appeal No.600/2000 & connected cases 55 escape by raising alarm, the act of rape and gang rape on her by the accused would have become public and her involvement in a sexual offence would affect her future life and family reputation. PW3 might have chosen to suffer the ignominy rather than to disclose true facts in public, which may cast stigma on her for the rest of her life. It has come out from the testimony of PW3 that she did not seek the help of lodge authorities or public because of the constant threat and fear instilled on her by Dharmarajan and the threat was to her own life as well as the lives of her parents. As observed by the court below, the fact that the accused are persons having influence and some of them are even advocates who told her that they know how to escape from cases even after committing murder of her, would have compelled PW3 to succumb to her fate and not to cause further danger to her life by seeking the help of the public. It is relevant to note the subsequent conduct of PW3. On the first opportunity, when PW3 was set free by Dharmarajan and A3 by putting her in a bus at Moovattupuzha, Crl. Appeal No.600/2000 & connected cases 56 permitting her to go, immediately she went to PW1, her father at the Post Office at Munnar.
46. The learned counsel for the appellants invited our attention to the decision of the Apex Court reported in Lalita Kumari v. Govt. of U.P. and Others (2013 (4) KHC 552 (SC)] in which it was held that if information given clearly mentions about the commission of a cognizable offence, there is no other option for the police, but to register FIR. The learned counsel for the appellants relying on that decision, argued that when PW3 returned to Munnar after the occurrence, her statement ought to have been registered as FIR and a crime ought to have been registered on the basis of her statement and since no FIR was registered, the investigation is illegal.
47. In the present case, when PW1 came to know about the missing of PW3 from the Convent in the evening on 16.1.1996, he made local enquiries and when he was convinced that PW3 was missing, he made a complaint before the Munnar Police Station on 17.1.1996, on the basis of which Ext.P1 F.I. Crl. Appeal No.600/2000 & connected cases 57 statement was recorded by A.S.I. of Munnar Police Station and Ext.P1(a) FIR was registered under the caption 'man missing'.
48. The learned Director General of Prosecution invited our attention to the Kerala Police Manual, 1970 Volume II Clause 306(c) in which it is specifically mentioned that in case of suicides and accidental or suspicious deaths, fires, missing of persons, missing of cattle and all other occurrences, where there is reason to suspect the commission of a cognizable offence, shall be registered in the First Information Report Book. Therefore, registration of Ext.P1(a) F.I.R. on the basis of Ext.P1 F.I. statement given by PW1 cannot be treated as illegal or irregular. The Police Officer has the power to investigate the case if he has reason to suspect the commission of a cognizable offence. In this case, the police started the investigation on recording Ext.P1 F.I. statement and registering Ext.P1(a) F.I.R.
49. The learned Director General of Prosecution invited our attention to the decision of the Apex Court reported in Yanob Sheikh v. State of W.B. [(2013) 6 SCC 428], in which it Crl. Appeal No.600/2000 & connected cases 58 was held that a second F.I.R. about the same occurrence between the same persons and with similarity of scope of investigation, cannot be registered and by applying the test of similarity, it may even be hit by the proviso to Section 162 Cr.P.C.
50. Since the missing of PW3 and subsequent incidents of rape, gang rape, kidnapping etc. are part of the same occurrence, there is no necessity to register a second FIR. In the present case, on recording the statement of PW3 after her return, the police filed a report to the Judicial Magistrate for incorporating the offences under Section 376, 376 (2)(g) etc. of the Indian Penal Code (for short, 'the IPC'), after deleting the caption 'man missing'
51. It has come out in evidence that PW3 misappropriated hostel fees given to her by her father and that PW3 tried to pledge gold ornaments in order to raise money. PW3 explained that she misappropriated the hostel fees in order to give money to A1 Raju, with whom she was in love and Crl. Appeal No.600/2000 & connected cases 59 that A1 insisted her to get some money for his personal needs. PW3 also tried to pledge her gold ring to raise money for helping A1, who was in need of money. Therefore, it cannot be said that PW3 was a girl of deviant character.
52. The learned counsel for the appellants submitted that there are a number of improvements and embellishments in the statements recorded by different Investigating Officers and the statement of PW3 in court that when accused persons came near to her for committing rape, she disclosed her identity to each accused and each accused committed rape on her disregarding her plea for mercy is an improvement, which is not in her 161 statement before the police.
53. The learned counsel for the appellants invited our attention to the decision reported in Yudhishtir v. State of Madhya Pradesh (1971 SCC (Crl) 684) in which it was held that when a particular fact deposed to by witnesses does not find mention both in the FIR and in statements recorded under Crl. Appeal No.600/2000 & connected cases 60 Section 161 of Cr.P.C. it is an improvement and it cannot be considered.
54. In the present case, there is no dispute that PW82 A.S.I. Balakrishnan of Munnar Police Station investigated the case from 17.1.1996 to 27.2.1996. From 27.2.1996 to 8.3.1996 PW95 V.K.Mathew, C.I. of Munnar investigated the case. From 8.3.1996 to 14.3.1996, PW93 K.M.Mathew, C.I. of Devikulam investigated the case. PW85 A.T.Jose, Dy.S.P., Munnar investigated the case from 14.3.1996 to 19.3.1996. PW91 K.Ittoop, S.P., CBCID, Narcotic Cell investigated the case from 19.3.1996 to 6.7.1996. From 6.7.1996, till the completion of investigation, PW97 Siby Mathews (I.G. of Police) investigated the case.
55. The learned Director General of Prosecution submitted that PW3 was subjected to 49 gang rapes and 18 rapes by 37 persons for 40 days from 16.1.1996 to 26.2.1996. He submitted that in view of the above facts, there would be some omission and contradiction in the statements of PW3 Crl. Appeal No.600/2000 & connected cases 61 before the Police and at the time of examination before court.
56. In the decision reported in Matadin v. State of U.P. (AIR 1979 Supreme Court 1234), it was held that the statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the court. Where the omissions are vital, they merit consideration, but, mere small omission will not justify a finding by a court that the witnesses are liars. When PW3 was questioned by the police, she stated that she was raped by several accused. Therefore, the statement of PW3 before the court that when each accused approached her to commit rape on her, she disclosed her identity and pleaded for mercy cannot be treated as material improvement or contradiction. Since a large number of accused persons are involved in the offence, PW3 would naturally get confused and her testimony cannot be rejected on the ground of contradiction. It is too much to expect that every witness to an incident will remember all its details. Some differences and discrepancies in details must Crl. Appeal No.600/2000 & connected cases 62 occur even in cases of honest witnesses. Unless the contradictions are material, their testimony need not necessarily be discarded.
57. The learned counsel for the appellants submitted that the investigation conducted in this case is defective as the first statement of PW3 was substituted by a new statement. In the decision reported in Leela Ram v. State of Haryana [2000 (Crime) 222] it was held that any irregularity or even illegality during investigation ought not to be treated as a ground to reject the prosecution case.
58. In the decision reported C. Muniappan v. State of Tamil Nadu (A.I.R. 2010 SC 3718), it was held:
"The defect in the investigation by itself cannot be ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal Crl. Appeal No.600/2000 & connected cases 63 obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
59. The learned counsel for the appellants submitted that the statement of PW3 recorded by DW10 in his handwriting at the instructions given by PW82, P.K. Balakrishnan A.S.I. of Munnar Police Station under Section 161 of the Code of Criminal Procedure was substituted by another statement. The appellants produced photocopy of that alleged statement recorded by DW10 which is marked in these appeals as Ext.A1. When PW3 was asked about such a statement, she denied the said statement. When the photocopy of that statement was shown to PW82, he also denied it. PW82 denied the signature seen therein. The hand-writing seen in the Crl. Appeal No.600/2000 & connected cases 64 photocopy of that statement is not that of PW82, but that of DW10 who was a police constable. DW10 deposed that original of that photocopy was returned by him as instructed by PW82. DW10 admits that signature and initial seen in the photocopy are not clearly visible. According to DW10 he was asked to write that statement by PW82 on 27.2.1996. PW82 deposed that when he questioned PW3, apart from her parents nobody else was present and he personally recorded the statement of PW3 in his own handwriting. DW10 admitted in cross- examination that during that period he was working under PW95 V.K. Mathew, C.I. of Police and not under PW82. DW10 further admitted that he was assisting in the investigation in crime No.34 of 1996 from 25.2.1996. He also admitted that he had personally written the statement of six witnesses in that crime on 25.2.1996. He also admitted that he gave a report regarding the investigation conducted in Crime No.34 of 1996 on 28.2.1996 and on 29.2.1996 to PW95 and on 1.3.1996 he had gone for investigation out of Munnar and returned only on Crl. Appeal No.600/2000 & connected cases 65 3.3.1996. Considering all these aspects of the matter, it is clear that there is no documentary evidence to prove that DW10 was available in Munnar Police Station to record the statement of PW3 on 27.2.1996. Therefore it is not possible to assume that photocopy of the statement produced from the side of defence is a photocopy of the genuine statement of PW3.
60. The learned counsel for the appellants submitted that non-examination of the mother of PW3 is fatal to the prosecution case. A public prosecutor may give up witness during trial to avert proliferation of evidence which could save much time of court unless examination of such a witness would achieve some material use. The mother of PW3, if examined, would have helped in duplication of same category of evidence as deposed by PW1. Both PW1 and his wife had only hearsay knowledge about the incident as spoken to them by PW3. Therefore the public prosecutor who conducted the case before the trial court cannot be blamed for adopting the Crl. Appeal No.600/2000 & connected cases 66 course of non-examining the mother of PW3. If the accused thought that the mother's evidence would help the defence, it was open to the accused to examine her as defence witness.
61. Section 114A of the Indian Evidence Act 1872 was added by Criminal Law Amendment Act 1983 lays down that in a prosecution for rape under Clause 'a' or 'b' or 'c' or 'd' or 'e' or 'g' of Sub Section 2 of 376 of the IPC, where sexual intercourse of accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she stated in her evidence before court that she did not consent, the court shall presume that she did not consent.
62. In every rape case, the testimony of Prosecutrix or woman who has been raped is very crucial piece of evidence to prove the case against the accused. It is well settled that conviction for an offence of rape can be based on the sole testimony of prosecutrix, if it is found to be natural or trustworthy. However a court is not required to accept the testimony of prosecutrix, if her testimony is improbable and Crl. Appeal No.600/2000 & connected cases 67 belies logic. It cannot be taken as gospel truth in all circumstances and with no exception. A court needs to remind itself that persons accused of sexual assault also need its protection from false accusation or implication. False charges of rape loaded with ill motives are not uncommon.
63. In the decision reported in Narender Kumar v. State (NCT of Delhi) (2012 (7) SCC 171, it was held:
"The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the Crl. Appeal No.600/2000 & connected cases 68 case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram v. The State of Maharashtra and Uday v. State of Karnataka).
The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.
The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."
Crl. Appeal No.600/2000 & connected cases 69
64. In the decision reported in Narayan Saha v. State of Tripura (AIR 2005 SC 1452), it was held in paragraph 6 as follows:
"A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act, 1872 nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under S. 118 and and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. if the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to S. 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and Crl. Appeal No.600/2000 & connected cases 70 circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence."
65. In the decision reported in State of Uttar Pradesh v. Krishna Master (2010(12) SCC 324), it was held in paragraphs 16 and 17 as follows:
"16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and Crl. Appeal No.600/2000 & connected cases 71 discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye- witnesses examined in this case proves the prosecution case."
66. In appreciating the testimony of PW3 it has to be borne in mind that she was an unmarried girl at the time of Crl. Appeal No.600/2000 & connected cases 72 occurrence and that there was no reason as to why her statement should be disbelieved. All accused are totally strangers to PW3, except the first accused. There is no motive for false implication. The appellants have not furnished any satisfactory explanation as to why the prosecutrix had falsely implicated the appellants at the risk of her own family reputation at stake. In a rape case, false implication of accused is normally improbable. Rape leaves a permanent scar and has a serious psychological impact on the victim and also on her family members. No one would normally concoct a story of rape just to falsely implicate a person. Therefore we are of the view that the court below is fully justified in believing the testimony of PW3 regarding the occurrence.
67. In cases involving kidnapping and rape, the exact age of the prosecutrix at the time of occurrence is having much importance. PW1, the father of PW3, when examined before court could not give the date of birth of PW3. PW61, Dr.K.Sreekumari, Assistant Professor of Forensic Medicine and Crl. Appeal No.600/2000 & connected cases 73 Deputy Police Surgeon of Medical College Hospital, Thiruvananthapuram examined PW3 on 23.4.1996 and issued Ext.P87 certificate. PW61, on the basis of physical, dental and radiological findings, reported in Ext.P87 that on the date of examination, PW3 was aged between 16 and 18 years. The Registrar of Births and Deaths of Kottayam Municipality was examined as PW58. PW58 produced the Birth Register maintained by the Municipality for the period from 29.6.1979 to 4.12.1979. In page No.176 of that Register, as Serial No.2186, the date of birth of the second child of PW1 was recorded. Ext.P85 is the certified copy of that page. It is proved by Ext.P85 that a female child was born to PW1 and his wife Eathamma on 23.9.1979 at District Hospital, Kottayam and the birth was registered on 4.10.1979. The name of that child was shown as Reshnimole. The name of PW3 is not Reshnimole. There is no dispute that PW3 is having an elder sister and that PW3 is the second child of PW1 and Eathamma. Therefore, it is clear that the date of birth shown in Ext.P85 relates to PW3 Crl. Appeal No.600/2000 & connected cases 74 though her name is not shown correctly in that document. The Vikar of CSI Church, Munnar was examined as PW56. He produced the baptism register maintained by the Church for the period from 18.5.1955 to 6.6.1999. In page No.21 of that register, as Serial No.206, the baptism of PW3 was recorded. Ext.P83 is the baptism certificate issued by PW56 with reference to that entry and Ext.P84 is the certified photocopy of that page. The Baptism register would show that PW3 was baptised on 29.5.1981 and her date of birth is 23.9.1979. In view of the above evidence on record, the court below is justified in finding that PW3 was aged 16 years 3 months and 23 days as on 16.1.1996. The appellants are not disputing the age of PW3 at the time of occurrence.
68. (i) Crl. Appeal No.607 of 2000 filed by A4 Reji :
The court below convicted A4 Reji under Section 376(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for 13 years and to pay a fine of `20,000/- in default to undergo rigorous imprisonment for a further period of two years and also Crl. Appeal No.600/2000 & connected cases 75 convicted and sentenced to undergo rigorous imprisonment for 4 years each and to pay a fine of `2,000/-, in default to undergo rigorous imprisonment for six months each, for the offences under Sections 363, 365 and 366A read with Section 120B of the IPC. In view of the sentence under Section 376(2)(g), he was not sentenced separately for the offence under Section 376 (1), 376(2)(g) read with Section 120B of the IPC.
69. During the pendency of this appeal, The Director General of Prosecution filed a statement with the copy of Death Certificate showing that A4 Reji died on 2.11.2004. The learned counsel for the appellant submitted that A4 Reji committed suicide leaving a suicide note stating that he was innocent in this case. The near relatives of the appellant have not filed any application for leave to continue the appeal within 30 days of the death of A4. Therefore, Crl. Appeal No.607 of 2000 is abated due to the death of the appellant and therefore, that appeal is dismissed as abated.
70. (ii) Crl. Appeal No.612 of 2000 filed by A14 Crl. Appeal No.600/2000 & connected cases 76 Mohammed Youseph : The court below convicted A14 Mohammed Youseph along with some other accused under Section 376(2)(g) of the IPC and sentenced him to undergo rigorous imprisonment for 13 years and to pay a fine of `20,000/- , in default to undergo rigorous imprisonment for two years. He was also convicted and sentenced to undergo rigorous imprisonment for four years each and to pay a fine of `2,000/- each, in default to undergo rigorous imprisonment for six months each under Sections 363, 365 and 366A read with Section 120B of the IPC. No separate sentence was awarded under Section 376(1) and 376(2)(g) read with Section 120B of the IPC.
71. The Director General of Prosecution filed a statement with copy of Death Certificate stating that A14 Mohammed Youseph died on 23.12.2013. The near relatives of A14 have not filed any application for leave to continue the appeal till this date. Hence, Crl.Appeal No.612 of 2000 has abated and therefore, that appeal is dismissed as abated. Crl. Appeal No.600/2000 & connected cases 77
72. (iii) Crl. Appeal No.599 of 2000 filed by A5 Cherian @ Cheriachan : The court below convicted A5 Cherian @ Cheriachan under Section 376(2)(g) of the IPC and sentenced him to undergo rigorous imprisonment for 13 years and to pay a fine of `20,000/-, in default to undergo rigorous imprisonment for a further period of 2 years. He was also convicted and sentenced to undergo rigorous imprisonment for 4 years each and to pay a fine of `2,000/- each and in default to undergo rigorous imprisonment for a further period of 6 months each for offences under Sections 363, 365 and 366A read with Section 120B of the IPC. In view of the sentence under Section 376(2)
(g), he was not separately sentenced for the offences under Sections 376(1) and 376(2)(g) read with Section 120B of the IPC. All the substantive sentences were ordered to run concurrently.
73. The prosecution case against A5 is that after PW3 was taken to Panchayat Rest House, Kumali by Dharmarajan, she was kept in a room by Dharmarajan and it Crl. Appeal No.600/2000 & connected cases 78 was locked from outside and Dharmarajan went out and returned back with A5 Cherian and showed PW3 to him and thereafter left A5 in that room and went out. Thereafter, A5 locked the room from inside and PW3 disclosed her identity and also sought his help to rescue her. PW3 found that A5 was heartless and was bent upon to satisfy his lust. When PW3 was not prepared to obey his command, PW3 was made to lie on the cot by force and A5 committed rape on her.
74. The main defence of A5 is the plea of alibi. The plea of alibi is not an exception envisaged in the IPC. It is a rule of evidence recognised by Section 11 of the Evidence Act that facts inconsistent with the fact in issue are relevant. The Latin word 'alibi' means 'elsewhere'. It is used when the accused takes the plea that when the occurrence took place, he was elsewhere and that it is extremely improbable that he could have committed the crime. In the decision reported in AIR 1984 SUPREME COURT 63 "State of Maharashtra v. Narsingrao Gangaram Pimple", it was held that it is well settled that a plea Crl. Appeal No.600/2000 & connected cases 79 of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. In the decision reported in AIR 2001 SUPREME COURT 3031 "Munshi Prasad v. State of Bihar", it was held that the plea of abili postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at other place. The plea can therefore succeed only if it is shown that the accused was so far away at the place where the crime was committed - Distance thus would be a material factor in the matter of acceptability of the plea of alibi.
75. According to A5, he and his son were at Aravind Eye Hospital, Madurai for an operation for his son and they returned from Madurai only on 20.1.1996 and therefore, A5 could not be present at the Panchayat Rest House at Kumali to commit rape on PW3 on 19.1.1996. DW8 and DW9 were examined on the side of A5 to prove the plea of alibi.
76. DW8 Annamma was residing at Pala. DW8 Crl. Appeal No.600/2000 & connected cases 80 deposed that her son Kuriakose had married Leelamma, who is the sister of A5. DW8 deposed that she had undergone cataract surgery on 18.1.1996 at Aravind Eye Hospital, Madurai and that she was discharged from that hospital after three days. Ext.D28 is the discharge card issued from Aravind Eye Hospital, Madurai showing that DW8 Annamma was admitted in that hospital on 17.1.1996, operated on 18.1.1996 and was discharged on 20.1.1996. DW8 deposed that when she was admitted in that hospital, A5 and his son Boby and DW8's daughter Kuttiyamma were along with her and she was taken to that hospital from Pala in a car. DW8 deposed that Boby was also admitted in that Hospital on 17.1.1996 and he had undergone surgery on 18.1.1996 and was discharged on the next day. Ext.D29 is the copy of the case sheet showing that Boby Cherian was admitted in that hospital on 17.1.1996, undergone surgery on 18.1.1996 and was discharged on 19.1.1996. DW9 was working as a Camp Organizer in Aravind Eye Hospital, Madurai. He produced the case sheet of A5 kept Crl. Appeal No.600/2000 & connected cases 81 in that hospital, copy of which was marked as D30. DW9 deposed that A5 came to that hospital on 17.1.1996 with the complaint of defective vision. DW9 deposed that the distance between Madurai and Kumali is 110 Kms. and 3 to 3= hours journey by car is required to reach Kumali from Madurai. DW8 deposed that after the discharge of his son from the hospital on 19.1.1996, A5 stayed at Power Grid Quarters of the son-in-law of his sister. DW8 deposed that A5 was throughout in the hospital, though his son was discharged on 19.1.1996. Since the son of A5 had undergone surgery on 18.1.1996, A5 could have returned to Kumali on that date or on 19.1.1996 as Kumali is not a far away place from Madurai. A5 has not produced any document to show that he resided at Madurai till 20.1.1996. Therefore, we are of the view that A5 has failed to prove the plea of alibi as it was not impossible for A5 to be at the place of occurrence at Panchayat Rest House at Kumali on 19.1.1996 because the distance between the two places is only 110 Kms.
77. PW3 deposed that on 18.1.1996, Dharmarajan Crl. Appeal No.600/2000 & connected cases 82 took her to Panchayat Rest House at Kumali, run by A5 Cherian. PW3 deposed that they reached there at 7.30 a.m. on 19.1.1996. She deposed that A5 Cherian and Devassia (the absconding accused) were there. PW3 identified A5 in court. PW3 was taken to Room No.104 of that Rest House and she was kept inside that room and the room was locked from outside and after some time, Dharmarajan came back with A5 Cherian and Dharmarajan left the place. A5 closed the door from inside and asked PW3 to lie on the cot. PW3 deposed that when she disclosed her identity and pleaded him to save her, A5 told that he needed her and caught hold of her hair, forcibly made her lie on the cot and committed rape on her. A5 also threatened her that she should not try to escape from there and went out of the room after locking the room from outside. PW3 deposed that after some time, Dharmarajan came back and committed rape on her.
78. It is true that no test identification parade was conducted at the time of investigation, to identify A5 by PW3. Crl. Appeal No.600/2000 & connected cases 83 In the decision reported in AIR 2003 SUPREME COURT 2669 "Malkhansingh v. State of M.P." it was held that failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
79. In the present case, PW3 had sufficient opportunity to observe the features of A5, who raped her by using force. After rape, PW3 was threatened and intimidated by A5. PW3 had sufficient reason to remember his face as he had committed a heinous offence and put her to shame. Therefore, the identity of A5 cannot be doubted. PW3, the prosecutrix is a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify A5 as the perpetrator of crime if he had not actually committed the offence.
80. The next question to be considered is as to what Crl. Appeal No.600/2000 & connected cases 84 is the offence committed by A5, whether it was a rape or gang rape. In order to appreciate rival submissions Sections 375 and 376 of the IPC need to be noted. They, so far as relevant, read as follows:-
"375. Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or Crl. Appeal No.600/2000 & connected cases 85 the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.-With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
376. Punishment for rape Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons Crl. Appeal No.600/2000 & connected cases 86 to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,-
xx xx xx xx xx
(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."
81. In the decision reported in Priya Patel v. State of M.P. and another [(2006) 6 Supreme Court Cases 263], it was held in paragraph 8 as follows :
Crl. Appeal No.600/2000 & connected cases 87 "A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub-section(2)(g) provides that "whoever commits 'gang rape" shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. "Common intention" is dealt with in Section 34 IPC and provides that Crl. Appeal No.600/2000 & connected cases 88 when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their common intention" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g)"
82. In the decision reported in Pardeep Kumar v.
Union Administration, Chandigarh [(2006) 10 Supreme Crl. Appeal No.600/2000 & connected cases 89 Court Cases 608], it was held in paragraphs 10 to 12 as follows :
"10. To bring the offence of rape within the purview of Section 376(2)(g), IPC, read with Explanation 1 to this Section, it is necessary for the prosecution to prove :-
(i) that more than one person had acted in concert with the common intention to commit rape on the victim ;
(ii) that more than one accused had acted in concert in commission of crime of rape with pre-arranged plan, prior meeting of mind and with element of participation in action.
Common intention would be action in concert in pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by element of participation in action or by the proof of the fact of inaction when the action would be necessary. The prosecution would be required to prove pre- meeting of minds of accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and (iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove Crl. Appeal No.600/2000 & connected cases 90 actual commission of rape by each and every accused forming group.
11.On proof of common intention of the group of persons which would be of more than one, to commit the offence of rape, actual act of rape by even one individual forming group, would fasten the guilt on other members of the group, although he or they have not committed rape on the victim or victims.
12. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances."
83. The essence of criminal liability in terms of section 376 (2)(g) of the IPC is the existence of common intention. The partition that divides same or similar intention and common intention is often very thin, but nevertheless the distinction is real and substantial. To constitute common Crl. Appeal No.600/2000 & connected cases 91 intention, it is necessary that the intention of each person be known to all the others and be shared by them whereas this is not so in the case of same or similar intention. In the present case, it would appear that A5 approached PW3 with the intention of having illicit intercourse with her. Illicit intercourse means sexual intercourse between persons not united by marriage. The evidence on record would show that A5 came to know that PW3 was not a consenting party only when A5 tried to have sexual intercourse with her after locking the room from inside. Therefore, it cannot be said that A5 had common intention with Dharmarajan to commit rape on PW3. In that view of the matter, the only offence committed by A5 is rape, punishable under Section 376(1) of the IPC and not gang rape punishable under Section 376(2)(g). Therefore, the conviction of A5 has to be converted into Section 376(1) of IPC from Section 376(2)(g) of IPC.
84. The evidence on record is not sufficient to prove that A5 committed the offence punishable under Sections 363, Crl. Appeal No.600/2000 & connected cases 92 365 and 366A read with Section 120B of the IPC. Therefore, the conviction of A5 under the above Sections has to be set aside. There is no sufficient evidence to show that A5 was involved in the conspiracy to commit the offence under Section 376(2)(g) and 376 read with Section 120B of the IPC. Therefore, the conviction under those sections has to be set aside.
85. The next question to be considered is as to what is the proper punishment to be awarded to A5 under Section 376(1) of the IPC In the decision reported in State of Karnataka v. Puttaraja (2004 Supreme Court Cases (Crl)
300), it was held:
"Leniency in matters involving sexual offences is not only undesirable but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy. The acts which led to the conviction of the accused are not only shocking but outrageous in their contours. Rape is violation with violence of the private person of the victim, an abominable outrage by all canons."
Crl. Appeal No.600/2000 & connected cases 93
86. Sub section (1) of Section 376 of the IPC provides a minimum sentence of 7 years of imprisonment that may extend to life imprisonment or for a term that may extend to 10 years and fine for ordinary rape. Sub Section (2) of Section 376 prescribes a minimum sentence of 10 years imprisonment and fine in the case of gang rape. The proviso to Section 376 of the IPC has given discretion to the courts to award sentence less than the minimum prescribed for rape and gang rape where "there exists special and adequate reasons"
so that injustice might not be done to an accused in a particular case. Whether "there exists special and adequate reasons"
would depend upon variety of factors and the particular facts and circumstances in each case. No hard and fast rule can be laid down in that behalf on universal application.
87. The reasons which are general or common in many cases cannot be regarded as special reasons. The fact that the occurrence took place 18 years ago and that the accused might have settled in life are not special to the Crl. Appeal No.600/2000 & connected cases 94 appellant. Such reasons can be noticed in many other cases and hence they cannot be regarded as special reasons. The fact that the appellant was acquitted by this Court as per the judgment dated 20.1.2005 is also not an adequate reason to reduce the sentence from the mandatory minimum sentence prescribed, as that judgment was set aside by the Apex Court and these appeals are remanded for fresh consideration by this Court.
88. Considering the facts and circumstances of this case, we are of the view that sentencing A5 Cherian to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for two months under Section 376(1) of the IPC would meet the ends of justice.
89. Accordingly, Crl. Appeal No.599 of 2000 is allowed in part. The conviction of A5 Cherian under Section 376(2)(g) of the IPC and under Sections 363, 365, 366A read with Section 120B of the IPC and under Section 376(1) and Section 376(2)(g) read with Section 120-B of the IPC is set aside Crl. Appeal No.600/2000 & connected cases 95 and A5 Cherian is convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for two months under Section 376(1) of the IPC. The appellant is entitled to set off under Section 428 of the Cr.P.C.
90. (iv) Crl. Appeal No.609 of 2000 filed by A31 Antony @ Baji : The court below convicted A31 Antony alias Baji for the offence of gang rape under Section 376(2)(g) of the IPC and sentenced him to undergo rigorous imprisonment for 11 years and also to pay a fine of `15,000/- in default to undergo rigorous imprisonment for a period of 2 years.
91. The prosecution case against A31 Antony alias Baji is that he along with A24 Joseph alias Baby committed gang rape on PW3 on 18.2.1996 at Panchayat Rest House at Kumali. PW3 deposed that A24 committed rape on her and thereafter, A31 also committed rape on her and it was against her will and without her consent. PW3 identified A31 Antony in the test identification parade conducted by PW92 Judicial Crl. Appeal No.600/2000 & connected cases 96 Magistrate of First Class, Adimali on 10.4.1996. PW92 deposed that In that identification parade, PW3 did not identify A31 in the first round, instead, she identified one James Antony, who was a non-suspect. PW92 deposed that PW3 identified A31 in the second round of identification parade. When PW3 was asked by the court below to identify A31 Antony alias Baji, PW3 came near to A31, who was standing in the accused's dock and pointed out A31 and said "AfLRePV ybwpoO:V". PW3 was not sure that it was A31 Antony alias Baji, who committed rape on her. When PW97 Siby Mathews was asked whether PW3 had stated to him that one Antony committed rape on her, he stated that PW3 had not stated so. PW91 K.Ittoop deposed that PW3 had stated to him that one stout man called Baji had committed rape on her and that she had not given the time and date of that occurrence.
92. The learned Director General of Prosecution invited our attention to the decision of the Apex Court reported in Ram Nath Mahto v. State of Bihar (1996 Crl. L.J. 3585) in Crl. Appeal No.600/2000 & connected cases 97 which a two judges bench of the Supreme Court held that the evidence of the test identification parade is not substantive evidence, whereas evidence given in court is. However, when a witness correctly identified the accused at the test identification parade, but not in court, the evidence of the Magistrate who conducted the test identification parade that the witness correctly identified the accused at the parade supported by remarks of the trial Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial was sufficient to convict the accused. In the present case, the trial Judge has not noted the demeanour of PW3 at the time when she was asked by the trial Judge to identify the appellant. The prosecution has no case that PW3 was frightened when she was asked to identify the appellant in court.
93. In the decision reported in AIR 1960 SUPREME COURT 289 "Bharwad Mepa Dana v. State of Bombay", it was held :
Crl. Appeal No.600/2000 & connected cases 98 "It is not unusual for witnesses to make mistakes of identity when a large number of persons are concerned in committing a crime; in any event it is a question of fact to be decided in each case and is not a question of law."
94. In the decision reported in AIR 1972 SUPREME COURT 283 "Hasib v. State of Bihar" a three Judges bench of the Supreme Court relying on a three Judges bench decision of the Supreme Court reported in AIR 1960 SUPREME COURT 1340 "Vaikuntam Chandrappa v. State of A.P." held that "the substantive evidence is the statement of a witness in Court and the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. If there is no substantive evidence about the appellant having been one of the dacoits when P. W. 10 saw them on January 28, 1963 then the T. I. parade as against him cannot be of any assistance to the prosecution." Crl. Appeal No.600/2000 & connected cases 99
95. A three Judges bench of the Supreme Court in the decision reported in AIR 2003 SUPREME COURT 2669 "Malkhansingh v. State of M.P." held as follows :
"The substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine."
96. In the decision reported in AIR 2010 SUPREME COURT 3753 "Pyare Mohan Lal v. State of Jharkhand" it was held that in case of conflict between two or more judgments, the judgment of the larger bench is to be followed. Since the decision reported in AIR 1972 SUPREME COURT 283 "Hasib v. State of Bihar" is of larger bench, we are bound to follow that judgment.
97. Since PW3 failed to identify A31 in court, we are Crl. Appeal No.600/2000 & connected cases 100 of the view that it is not safe to convict A31 on the basis of test identification parade as PW3 did not identify A31 in the test identification parade in the first round and she had mistakenly identified another person called James Antony in the first round, who was a non-suspect. Therefore, we are of the view that the court below is not justified in convicting A31 under Section 376 (2)(g) of the IPC. Therefore, this appeal has to be allowed and the conviction and sentence against A31 under Section 376(2)
(g) of the IPC has to be set aside.
98. Accordingly, Crl. Appeal No.609 of 2000 filed by A31 Antony @ Baji is allowed and his conviction and sentence under Section 376(2)(g) of the IPC is set aside and he is acquitted and set at liberty. His bail bond is cancelled.
99. (v) Crl. Appeal No.616 of 2000 filed by A18 Rajagopalan Nair @ Rajan : The court below convicted accused No.18 Rajagopalan Nair @ Rajan under Section 376(1) of the IPC and he was sentenced to undergo rigorous imprisonment for a period of 9 years and to pay a fine of `10,000/-, in default Crl. Appeal No.600/2000 & connected cases 101 to undergo rigorous imprisonment for a further period of one year.
100. The prosecution case against A18 is that on 18.2.1996, while PW3 was confined in the Rest House at Kumali, A18 committed rape on her. PW3 deposed that while she was residing at Kumali Rest House, one Rajan also committed rape on her. When PW3 was asked to identify A18 from the accused's dock, PW3 went near to A18 and said "ApLtLRePV SfLPOPO". That means, PW3 was not sure about the identity of A18. PW71 Sasi was an autorikshaw driver. He deposed that in the months of January and February, 1996, he was the driver of an autorikshaw belonging to A3. PW71 turned hostile. He deposed that he had not gone to Kumali in February, 1996 with A18. PW71 further deposed that in February, 1996 he had not gone to Kumali Rest House. It is true that the statement of PW71 was recorded by the Judicial Magistrate of First Class under Section 164 of the Cr.P.C. The statement given by PW71 before the Magistrate under Section Crl. Appeal No.600/2000 & connected cases 102 164 of the Cr.P.C. is not a substantive piece of evidence. That statement can be used only to corroborate or contradict PW71. It is an admitted fact that no test identification parade was conducted to identify A18 at the time of investigation. It is well settled that the result of test identification parade is not substantive evidence. It can be used only for corroboration or contradiction. The evidence of eye witness identifying the accused as the assailant, in court is the substantive evidence. Since there is no substantive evidence to prove that A18 committed rape on PW3, the court below is not justified in convicting A18 for the offence punishable under Section 376(1) of the IPC. Therefore, this appeal has to be allowed and the conviction and sentence of A18 under Section 376(1) of the IPC has to be set aside.
101. Accordingly, Crl.Appeal No.616 of 2000 filed by A18 Rajagopalan Nair @ Rajan is allowed and the conviction and sentence passed against him under Section 376(1) of the IPC is set aside and he is acquitted and set at liberty. His bail Crl. Appeal No.600/2000 & connected cases 103 bond is cancelled.
102. (vi) Crl. Appeal No.590 of 2000 filed by A24 Joseph @ Baby : The court below convicted A24 Joseph @ Baby under Section 376(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for 11 years and also to pay a fine of `15,000/- in default to undergo rigorous imprisonment for 2 years.
103. According to the prosecution case, A24 Joseph @ Baby along with A31 Antony @ Baji committed gang rape on PW3 on 18.2.1996 at Panchayat Rest House at Kumali.
104. PW3 deposed that while she was staying at Panchayat Rest House at Kumali, one Antony and one Baby, who was a stout fellow came to her room and she was shown to them by A3 Jamal and Dharmarajan. PW3 deposed that A3 and Dharmarajan talked to them secretly and thereafter, she was taken to the room of Baby and Antony. PW3 deposed that Baby raped her first and thereafter, Antony committed rape on her. When PW3 was asked to identify Baby in court, she went near Crl. Appeal No.600/2000 & connected cases 104 to A24 and said "AfLeV mLmO". The learned counsel for the appellant submitted that the accused by name Babu is A20 Sreekumar alias Babu. Since the name of A24 is Baby, it cannot be said that PW3 identified A24 as Baby. PW3 had identified A24 in the test identification parade.
105. The learned Director General of Prosecution invited our attention to the decision of the Apex Court reported in Ram Nath Mahto v. State of Bihar (1996 Crl. L.J. 3585) in which a two judges bench of the Supreme Court held that the evidence of the test identification parade is not substantive evidence, whereas evidence given in court is. However, when a witness correctly identified the accused at the test identification parade, but not in court, the evidence of the Magistrate who conducted the test identification parade that the witness correctly identified the accused at the parade supported by remarks of the trial Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial was sufficient to convict the accused. In the Crl. Appeal No.600/2000 & connected cases 105 present case, the trial Judge has not noted the demeanour of PW3 at the time when she was asked by the trial Judge to identify the appellant. The prosecution has no case that PW3 was frightened when she was asked to identify the appellant in court.
106. In the decision reported in AIR 1960 SUPREME COURT 289 "Bharwad Mepa Dana v. State of Bombay", it was held :
"It is not unusual for witnesses to make mistakes of identity when a large number of persons are concerned in committing a crime; in any event it is a question of fact to be decided in each case and is not a question of law."
107. In the decision reported in AIR 1972 SUPREME COURT 283 "Hasib v. State of Bihar" a three Judges bench of the Supreme Court relying on a three Judges bench decision of the Supreme Court reported in AIR 1960 SUPREME COURT 1340 "Vaikuntam Chandrappa v. State of A.P." held that "the substantive evidence is the statement of a witness in Court and Crl. Appeal No.600/2000 & connected cases 106 the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. If there is no substantive evidence about the appellant having been one of the dacoits when P. W. 10 saw them on January 28, 1963 then the T. I. parade as against him cannot be of any assistance to the prosecution."
108. A three Judges bench of the Supreme Court in the decision reported in AIR 2003 SUPREME COURT 2669 "Malkhansingh v. State of M.P." held as follows :
"The substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required. However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine."
109. In the decision reported in AIR 2010 SUPREME Crl. Appeal No.600/2000 & connected cases 107 COURT 3753 "Pyare Mohan Lal v. State of Jharkhand" it was held that in case of conflict between two or more judgments, the judgment of the larger bench is to be followed. Since the decision reported in AIR 1972 SUPREME COURT 283 "Hasib v. State of Bihar" is of larger bench, we are bound to follow that judgment.
110. Since there is no substantive evidence to connect A24 Joseph @ Baby with the occurrence, we are of the view that the court below went wrong in convicting A24 under Section 376(2)(g) of the IPC. Therefore, this appeal has to be allowed and the conviction and sentence of A24 has to be set aside.
111. Accordingly, Crl. Appeal No.590 of 2000 filed by A24 Joseph @ Baby is allowed and the conviction and sentence of the appellant under Section 376(2)(g) of the IPC is set aside and he is acquitted and set at liberty. His bail bond is cancelled.
112. (vii) Crl. Appeal No.610 of 2000 filed by A12 Crl. Appeal No.600/2000 & connected cases 108 Satheesan @ Sathi and A16 Thulaseedharan @ Thulasi :The court below convicted A12 Satheesan @ Sathi under Section 376(2)(g) read with Section 120B of the IPC and he was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for one year. He was also convicted and sentenced to undergo rigorous imprisonment for 4 years each and to pay a fine of `2,000/- each, in default to undergo rigorous imprisonment for a further period of six months each under Sections 363, 365 and 366A read with Section 120B of the IPC. He was also convicted for the offence under Section 376(1) of the IPC. But, in view of the sentence for the offence under Section 376(2)(g) read with Section 120B of the IPC, no separate sentence was awarded for the offence under Section 376(1) of the IPC. All the substantive sentences were ordered to run concurrently.
113. The prosecution case against A12 Satheesan is that there was a criminal conspiracy and A1 to A8, A12, A14 Crl. Appeal No.600/2000 & connected cases 109 and Dharmarajan were members of that criminal conspiracy and the object of that conspiracy was to kidnap PW3 from the lawful guardianship and to commit rape and gang rape on her and to compel her to have illicit sexual intercourse with others and thereby gain pecuniary advantage. The further allegation is that A12 was called to the Rest House at Kumali by A3 and A3 entrusted the custody of PW3 with A12. Dharmarajan and A3 returned to Ponkunnam and came back only subsequently and A12 was keeping a guard over PW3 and while so, A12 committed rape on her.
114. PW3 deposed that from the house of A39 at Theni, Dharmarajan and A3 Jamal took PW3 to the Rest House at Kumali and she was compelled to stay there for one week. PW3 deposed that While she was in the Rest House, she was locked in a room by A3 and Dharmarajan and when they were not there, one Satheesan was instructed to keep a guard on her. PW3 deposed that during night, Satheesan committed rape on her. When PW3 was asked to identify Satheesan in Crl. Appeal No.600/2000 & connected cases 110 cout, she went near to the 12th accused and expressed her inability to identify Satheesan. She deposed that she identified Satheesan in the test identification parade. A12 was correctly identified by PW3 in the test identification parade conducted by PW92 Judicial Magistrate of the First Class as proved by Ext.P165 report. PW92 deposed that as per the instructions given by the C.J.M., Thodupuzha, he conducted test identification parade on 25.4.1996 and that PW3 identified A12 in that parade. PW25 deposed that A3 contacted A12 and along with PW25, A12 had gone to Kumali Rest House and A12 remained there and Dharmarajan and A3 returned in the autorikshaw with PW25. As observed by the court below, this evidence is sufficient to corroborate the evidence of PW3 with regard to the identity of A12. PW3 gave sufficient reasons for her inability to identify A12 in court as A12 had disguised himself by removing his moustache which he had at the time of test identification parade. When PW25 was examined subsequently on 14.1.2000, A12 had moustache. PW3 was Crl. Appeal No.600/2000 & connected cases 111 examined in November, 1999. At that time, A12 had removed his moustache. Therefore, it is clear that A12 made a successful and effective attempt to disguise himself by removing his moustache so as to make it difficult for PW3 to identify him. But, the identity of A12 is proved by the examination of PW25 and PW92.
115. The evidence on record is not sufficient to prove that A12 was also a member of the criminal conspiracy. Therefore, A12 cannot be convicted for the offence under Section 376(2)(g) read with Section 120B of the IPC and under Sections 363, 365 and 366A read with Section 120B of the IPC. Since A12 committed rape on PW13, the court below is justified in finding that A12 committed rape on PW3. Since there is no special and adequate reasons for resorting to the proviso to Section 376(1) of the IPC, we are of the view that sentencing A12 to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for two months wound meet the ends of justice. Crl. Appeal No.600/2000 & connected cases 112
116. Accordingly, this appeal is allowed in part. The conviction of A12 under Section 376(2)(g) read with Section 120B and under Sections 363, 365 and 366A read with Section 120B is set aside and A12 is convicted and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for two months under Section 376(1) of the IPC. The accused is entitled to set off under Section 428 of the Cr.P.C.
117. The court below convicted A16 Thulaseedharan @ Thulasi under Section 376(2)(g) of the IPC and sentenced him to undergo rigorous imprisonment for 11 years and also to pay a fine of `15,000/-, in default to undergo rigorous imprisonment for a period of 2 years.
118. The case against A16 Thulaseedharan is that after leaving Hylux Lodge at Palakkad, Dharmarajan took PW3 to Kozhikode and from there, to the rented house of A16 Thulaseedharan at Vanimel Panchayat and A16 committed rape on PW3 on 23.1.1996 and also committed gang rape on her by Crl. Appeal No.600/2000 & connected cases 113 him and Dharmarajan on 24.1.1996.
119. On the defence side, DW5, a neighbour of A16 was examined to show that PW3 was not under confinement in the rented house of A16 at Vanimel. The testimony of DW5 would show that he saw one girl residing in that house at some point of time. DW5 has no case that he saw PW3 in that house during the relevant time. The fact that PW3 was made to stay in that house is not disputed by A16. His case is that it was on the representation of Dharmarajan that PW3 was his sister's daughter, he allowed her to stay in that house.
120. PW3 deposed that on 22.1.1996, Dharmarajan took her to the rented house of A16 Thulaseedharan at Vanimel from Hylux Lodge at Palakkad. PW3 deposed that she was made to stay in that house for three days. She deposed that in the night of 22.1.1996, Dharmarajan stayed in a room of that house and committed rape on her. PW3 deposed that in the morning of 23.1.1996, Dharmarajan and two male teachers who were residing in that house left the house. A16 locked PW3 in a Crl. Appeal No.600/2000 & connected cases 114 room in that house and went away and after some time, A16 came back and committed rape on her. At that time, Dharmarajan was not there. PW3 deposed that on the next day morning, Dharmarajan came back and Dharmarajan and A16 committed rape on her. PW3 identified A16 Thulaseedharan in court and also in the test identification parade.
121. The essence of criminal liability in terms of Section 376(2)(g) of the IPC is the existence of common intention. The partition that divides same or similar intention and common intention is very thin, nevertheless the distinction is real and substantial. To constitute common intention, it is necessary that the intention of each person be known to all the others and be shared with them whereas this is not so in the case of similar or same intention. In the present case, even though A16 and Dharmarajan had similar or same intention to commit rape on PW3, there is no sufficient evidence to show that they had the common intention to commit rape on PW3. Therefore, A16 cannot be convicted for the offence under Crl. Appeal No.600/2000 & connected cases 115 Section 376(2)(g) of the IPC, but he is liable to be convicted under Section 376(1) of the IPC for the offence of committing rape on PW3.
122. Since there is no special and adequate reason to reduce the minimum sentence of 7 years and fine under Section 376(1) of the IPC, we are of the view that sentencing A16 Thulaseedharan to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for two months under Section 376(1) of the IPC would meet the ends of justice.
123. Accordingly, Crl. Appeal No.610 of 2000 filed by A16 Thulaseedharan is allowed in part. The conviction of A16 under Section 376(2)(g) of the IPC is set aside and his conviction under Section 376(1) of the IPC is confirmed and he is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for two months. A16 is entitled to get set off under Section 428 of the Cr.P.C.
Crl. Appeal No.600/2000 & connected cases 116
124. As regards A12 Satheesan also, this appeal is allowed in part and the conviction of A12 Satheesan under Section 376(2)(g) read with Section 120B and under Sections 363, 365 and 366A read with Section 120B of the IPC is set aside and he is convicted under Section 376(1) of the IPC and he is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for two months. A12 is also entitled to get set off under Section 428 of the Cr.P.C.
125. (viii) Crl. Appeal No.618 of 2000 filed by A9 Rajenran Nair @ Rajan and A29 Vijayakumar : The court below convicted A9 and A29 under Section 376(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for 11 years each and to pay a fine of `15,000/- each and in default to undergo rigorous imprisonment for 2 years each.
126. The learned Director General of Prosecution filed a statement with a copy of the Death Certificate stating Crl. Appeal No.600/2000 & connected cases 117 that the second appellant (A29) Vijayakumar died on 21.2.2009. Since the near relatives of that appellant did not file any application for leave to continue the appeal within 30 days of his death, the appeal filed by A29 Vijayakumar is abated.
127. The case against A9 Rajendran Nair is that on 4.2.1996, he committed gang rape on PW3 along with A4 at Hotel Geeth, Thiruvananthapuram. PW3 deposed that while she was confined in the room at Hotel Geeth, Thiruvananthapuram in the evening on 4.2.1996, A4 came along with A9 Rajendran Nair. PW3 identified A9 in court. PW3 deposed that A4 showed her to A9 and told him that PW3 was brought there without the knowledge of her parents and A4 then left the place. A9 locked the room from inside. PW3 told him not to harm her and that she was not well. PW3 deposed that disregarding her request to spare her, A9 committed rape on her. Thereafter, A4 came back to that room and A9 left the place. PW3 deposed that in that night, A4 committed rape on her. The evidence on record would show that A9 had no common intention to commit gang Crl. Appeal No.600/2000 & connected cases 118 rape on PW3 along with A4. Therefore, A9 cannot be convicted for the offence under Section 376(2)(g) of the IPC and that he is liable to be convicted under Section 376(1) of the IPC. As there is no special and adequate reasons for reducing the minimum sentence of 7 years under Section 376(1) of the IPC, we are of the view that A9 Rajendran Nair has to be sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for two months.
128. Accordingly, this appeal is allowed in part and the conviction of A9 Rajendran Nair under Section 376(2)(g) of the IPC is altered into conviction under Section 376(1) of the IPC and he is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for two months under Section 376(1) of the IPC. A9 is entitled to get set off under Section 428 of the Cr.P.C. As regards A29 Vijayakumar, the appeal is abated.
129. (ix) Crl. Appeal No.615 of 2000 filed by A25 Crl. Appeal No.600/2000 & connected cases 119 Sabu : The court below convicted A25 Sabu under Section 376 (1) of the IPC and he was sentenced to undergo rigorous imprisonment for 9 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for one year.
130. The prosecution case is that on 16.2.1996, A25 committed rape on PW3 at the Panchayat Rest House at Kumali. Ext.P104 register of Panchayat Rest House, Kumali shows that on 16.2.1996, a room was taken by A25 Sabu. Ext.P102 report of PW76, the handwriting expert proves that the room was taken by A25. PW3 deposed that while she was staying in the Panchayat Rest House, Kumali, A25 committed rape on her. PW3 identified A25 in court and in the test identification parade. PW3 deposed that A3 and Dharmarajan had showed her to A25 and they took her to the room of A25. PW3 deposed that A25 committed rape on her in spite of her plea for mercy. Since the testimony of PW3 is trustworthy, we find that the court below is fully justified in convicting A25 under Section 376(1) of the IPC.
Crl. Appeal No.600/2000 & connected cases 120
131. Considering the facts and circumstances of the case, we are of the view that sentencing A25 Sabu to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for two months under Section 376(1) of the IPC would meet the ends of justice.
132. Accordingly, Crl. Appeal No.615/2000 is allowed in part and the conviction of A25 Sabu under Section 376(1) of the IPC is confirmed. The sentence is modified as rigorous imprisonment for 7 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for two months. A25 is entitled to get set off under Section 428 of the Cr.P.C.
133. (x) Crl.Appeal No.632 of 2000 filed by A6 Unnikrishnan Nair : The court below convicted A6 along with certain other accused under Section 376(2)(g) of the IPC and he was sentenced to undergo rigorous imprisonment for 13 years and to pay a fine of `20,000/-, in default to undergo rigorous imprisonment for two years. He was also convicted and sentenced to undergo rigorous imprisonment for 4 years each Crl. Appeal No.600/2000 & connected cases 121 and to pay a fine of `2,000/- each in default to undergo rigorous imprisonment for 6 months each for the offence under Section 363, 365 and 366A read with Section 120B of the IPC. Even though he was convicted, no separate sentence was awarded under Section 376(1) and 376(2)(g) read with Section 120B of the IPC. The substantive sentences were ordered to run concurrently.
134. The prosecution case against A6 is that he along with A21, A22 and Dharmarajan committed rape on PW3 on 10.2.1996 at the Panchayat Rest House, Kumali. It is also alleged that on 12.2.1996, A6 committed gang rape on PW3 along with Dharmarajan at Metro Lodge, Kottayam. PW3 deposed that from Hotel Floral Park, A6 Unnikrishnan Nair and Dharmarajan again took PW3 to Kumali Panchayat Rest House and they locked PW3 in a room of that Rest House and went away. PW3 deposed that after some time, A4 and A6 came to the room along with two other persons (A21 and A22) and that A21 and A22 committed rape on her. PW3 deposed that in that Crl. Appeal No.600/2000 & connected cases 122 night, Dharmarajan and A6 committed rape on her. PW3 deposed that on the next day in the afternoon, Dharmarajan and A6 took PW3 to Moovattupuzha in a bus and they alighted at Moovattupuzha KSRTC bus stand. PW3 deposed that A11 Aji and A15 Davood were waiting there and she was taken to the house of A27 Varghese. PW3 deposed that at the house of A27 Varghese, she was raped by A11, A15 and A27. From that house, they took PW3 in a car to the bus stand. Dharmarajan, A6 and PW3 alighted there in the bus stand. Dharmarajan and A6 took PW3 in a KSRTC bus to Kottayam. After reaching there, they took PW3 to Kottayam Metro Lodge. PW3 deposed that A6 and Dharmarajan committed rape on her. The conduct of A6, as evidenced by the testimony of PW3 would show that A6 shared common intention with Dharmarajan to commit gang rape on PW3 and that they actually committed gang rape on PW3. Therefore, we are of the view that the court below is fully justified in convicting A6 under Section 376(2)(g) of the IPC.
135. It is also proved from the evidence adduced by Crl. Appeal No.600/2000 & connected cases 123 the prosecution that A6 was also a member of the gang who conspired with A1, A2 and Dharmarajan in committing the offence of kidnapping PW3, a minor girl and wrongfully confined her with the knowledge that she will be forced to have illicit relationship with other persons. A6 also conspired with Dharmarajan to commit rape and gang rape and therefore, A6 has committed the offences punishable under Sections 363, 365 and 366A read with section 120B and Sections 376(1) and 376(2)(g) read with Section 120B of the IPC.
136. Considering the facts and circumstances of the case, we are of the view that sentencing A6 to undergo rigorous imprisonment for 10 years and to pay a fine of `15,000/- and in default to undergo rigorous imprisonment for 3 months under Section 376(2)(g) of the IPC and also sentencing A6 under Sections 363, 365, 366A read with Section 120B of the IPC to undergo rigorous imprisonment for 3 years each would meet the ends of justice. In view of the sentence awarded under Section 376(2)(g) of the IPC, we are of the view that no Crl. Appeal No.600/2000 & connected cases 124 separate sentence need be imposed under Section 376(1) and 376(2)(g) read with Section 120B of the IPC.
137. Accordingly, Crl. Appeal No.632 of 2000 filed by A6 Unnikrishnan Nair is allowed in part. The conviction of A6 Unnikrishnan Nair under Section 376(2)(g) of the IPC and Sections 363, 365 and 366A read with Section 120B of the IPC and under Sections 376(1) and 376(2)(g) read with Section 120B of the IPC is confirmed. The sentence is modified and A6 Unnikrishnan Nair is sentenced undergo rigorous imprisonment for 10 years and to pay a fine of `15,000/-, in default to undergo rigorous imprisonment for three months under Section 376(2)(g) of the IPC.
138. A6 Unnikrishnan Nair is also convicted and sentenced to undergo rigorous imprisonment for 3 years each under Sections 363, 365 and 366A read with Section 120B of the IPC. No separate sentence is awarded under Section 376(1) and 376(2)(g) read with Section 120B of the IPC. The substantive sentences shall run concurrently. A6 Unnirkrishnan Crl. Appeal No.600/2000 & connected cases 125 Nair is entitled to get set off under Section 428 of the Cr.P.C.
139. (xi) Crl.Appeal No.614 of 2000 filed by A30 Ashraf, A33 Shaji @ Jimmy and A34 Anil @ Ani :The court below convicted A34 Anil @ Ani under Section 376(1) of the IPC and sentenced him to undergo rigorous imprisonment for 9 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for one year.
140. The prosecution case against A34 is that on 26.2.1996, A34 Anil @ Ani committed rape on PW3 at his rented house at Moovattupuha.
141. PW21 Abdul Khader deposed that he rented out his house bearing No.11/7 of Maradi Panchayat to A34 on a monthly rent of `300/- and A34 was residing in that house for about 2 years till he vacated his house due to his involvement in this case. PW3 deposed that from Hotel Floral Park, Kottayam, she was taken to Moovattupuzha in a Maruti car to the house of A34 Anil. PW3 identified A34 in court and at the time of test identification parade. PW3 deposed that in that Crl. Appeal No.600/2000 & connected cases 126 night, A34 committed rape on her, ignoring her request to spare her. Since the testimony of PW3 is trustworthy regarding the rape committed by A34, we are of the view that the court below is fully justified in finding that A34 committed rape on PW3. Considering the facts and circumstances of the case, we are of the view that sentencing A34 Anil @ Ani to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- would meet the ends of justice.
142. Accordingly, this appeal filed by A34 Anil @ Ani is allowed in part and the conviction of A34 under Section 376 (1) of the IPC is confirmed and the sentence is modified and reduced and he is sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for two months.
143. The court below convicted A30 Ashraf and A33 Shaji @ Jimmy under Section 376(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for 11 years each and to pay a fine of `15,000/- each in default to undergo Crl. Appeal No.600/2000 & connected cases 127 rigorous imprisonment for 2 years each. The prosecution case against A30 Ashraf and A33 Shaji is that on 25.2.1996, they committed gang rape along with A14 on PW3 at Hotel Floral Park near M.C.H., Kottayam. PW3 deposed that when Dharmarajan and A3 brought her to Moovattupuzha KSRTC bus stand on 25.2.1996, A14, A30 and A33 were waiting there in a car, PW3 was taken to Hotel Floral Park near to M.C.H., Kottayam. PW3 deposed that A3 and Dharmarajan put PW3 in a room in that hotel and they locked the room from outside and left. PW3 deposed that after some time, A14 opened that room and committed rape on her disregarding her request to spare her and he went out. PW3 deposed that thereafter, A30 came to the room and he also committed rape on her ignoring her request and left the place. Thereafter, A33 came to the room and he also committed rape on her ignoring her protest. The evidence on record would not show that A30 and A33 were aware of the fact that PW3 was not a consenting party to sexual intercourse. Therefore, it cannot be said that A30 and A33 Crl. Appeal No.600/2000 & connected cases 128 shared the common intention to commit gang rape on PW3. We are, therefore, of the view that they cannot be convicted under Section 376(2)(g) of the IPC, but, they have to be convicted for the offence of rape punishable under Section 376 (1) of the IPC.
144. As there is no special and adequate reasons for reducing the minimum sentence of 7 years and fine under Section 376(1) of the IPC, we are of the view that sentencing A30 and A33 to undergo rigorous imprisonment for 7 years each and to pay a fine of `10,000/- each in default to undergo rigorous imprisonment for two months each would meet the ends of justice.
145. Accordingly, Crl.Appeal No.614 of 2000 is allowed in part. The conviction of A30 Ashraf and A33 Shaji under Section 376(2)(g) of the IPC is altered into conviction under Section 376(1) of the IPC and they are sentenced to undergo rigorous imprisonment for 7 years each and to pay a fine of `10,000/- each in default to undergo rigorous Crl. Appeal No.600/2000 & connected cases 129 imprisonment for two months each. The conviction of A34 Anil @ Ani under Section 376(1) of the IPC is confirmed and the sentence is reduced to rigorous imprisonment for 7 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for two months. The appellants are entitled to set off under Section 428 of the Cr.P.C.
146. (12) Crl. Appeal No.619 of 2000 filed by A19 Mathew Joseph @ Sunny and A20 Sreekumar @ Babu and (13) Crl. Appeal No.627 of 2000 filed by A37 Thankappan : The court below convicted A19, A20 and A37 under Section 376(2)(g) of the IPC and sentenced them to undergo rigorous imprisonment for 11 years each and to pay a fine of `15,000/- each and in default to undergo rigorous imprisonment for two years each.
147. The learned Director General of Prosecution filed a statement along with a copy of the Death Certificate showing that A19 Mathew Joseph died on 7.9.2000. Since the near relatives of A19 Mathew Joseph in Crl. Appeal No.619 of 2000 did not file any application for leave to continue the Crl. Appeal No.600/2000 & connected cases 130 appeal within 30 days of his death, the appeal has abated as regards the appeal filed by him.
148. The prosecution case is that A20 Sreekumar @ Babu and A37 Thankappan committed rape on PW3 on 16.2.1996 at Kumali Panchayat Rest House. PW3 deposed that While she was staying at Kumali Rest House, Dharmarajan and A3 brought A20Babu and A37 thankappan and thereafter, they closed the room in which PW3 was staying from outside. PW3 identified A37 Thankappan in court. PW3 deposed that after some time, A37 Thankappan came to her room and committed rape on her and thereafter, he left the room. Within 5 minutes, A20 Babu came to the room and committed rape on her. The evidence on record does not show that A37 and A20 had any common intention to commit rape on PW3 as they were not aware of the fact that PW3 was not a consenting party before they entered into the room to have sexual intercourse with PW3. Therefore, A20 and A37 cannot be convicted for the offence under Section 376(2)(g) of the IPC and they can be Crl. Appeal No.600/2000 & connected cases 131 convicted for the offence of rape under Section 376(1) of the IPC.
149. As there is no special and adequate reason for reducing the minimum sentence of 7 years and fine under Section 376(1) of the IPC, we are of the view that sentencing A20 and A37 to undergo rigorous imprisonment for 7 years each and to pay a fine of `10,000/- each, in default to undergo rigorous imprisonment for two months each under Section 376 (1) of the IPC would meet the ends of justice.
150. Accordingly, Crl. Appeal No.619 of 2000 is allowed in part and the conviction of A20 Sreekumar @ Babu under Section 376(2)(g) of the IPC is altered into conviction under Section 376(1) of the IPC and he is sentenced to undergo rigorous imprisonment for 7 years together with fine of `10,000/- in default to undergo rigorous imprisonment for two months. As regards A19, Crl. Appeal No.619 of 2000 is abated. Crl. Appeal No.627 of 2000 is allowed in part and the conviction of A37 Thankappan is altered into conviction under Section 376 Crl. Appeal No.600/2000 & connected cases 132 (1) from Section 376(2)(g) of the IPC and he is sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/-, in default to undergo rigorous imprisonment for two months. A20 and A37 are entitled to set off under Section 428 of the Cr.P.C.
151. (xiv) Crl. Appeal No.606 of 2000 filed by A27 Varghese and (xv) Crl. Appeal No.613 of 2000 filed by A11 Aji, A13 Aliyar @ Ali and A15 Davood : The court below convicted A11 Aji, A13 Aliyar @ Ali, A15 Davood and A27 Varghese under Section 276(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for 11 years each and also to pay a fine of `15,000/- each in default to undergo rigorous imprisonment for two years each.
152. The prosecution case is that on 11.2.1996, A11, A15 and A27 committed gang rape on PW3 at the house of A27 Varghese. The further allegation is that A11, A13 and A15 committed gang rape on PW3 on 15.2.1996 at the Panchayat Rest House at Kumali.
Crl. Appeal No.600/2000 & connected cases 133
153. PW3 deposed that Dharmarajan and A6 took her to Moovattupuzha in a bus and they alighted at Moovattupuzha KSRTC bus stand. PW3 deposed that A11 Aji and A15 Davood were waiting there. PW3 identified A11 Aji and A15 Davood in court and she also identified them in test identification parade. A6, Dharmarajan, A11 and A15 took PW3 in a Jeep and the Jeep was stopped near a house wherein a marriage function was going on and A11 and A15 talked with a person and all of them alighted from the Jeep and they boarded a car belonging to the other person and they reached the house of A27 Varghese. PW3 identified A27 Varghese in court and also in the test identification parade. PW3 deposed that at that house, she was raped by A11, A15 and A27 and that before committing rape, she pleaded for mercy to each of them.
154. PW3 deposed that from Theni, she was taken to Kumali Rest House by A3 and Dharmarajan and she was forced to stay in that Rest House for one week. PW3 deposed that while she was staying there for 7 days, A3 and Crl. Appeal No.600/2000 & connected cases 134 Dharmarajan brought a number of persons and those persons also committed rape on her. PW3 deposed that A11 Aji, A13 Aliyar and A15 Davood were among those persons who committed rape on her. PW3 identified A13 Aliyar in court. PW3 deposed that A11, A13 and A15 came to the room two times and on those occasions, they committed rape on her. Since the testimony of PW3 is trustworthy, we are of the view that the court below is fully justified in finding that A11, A13, A15 and A27 committed gang rape on PW3, in furtherance of their common intention and as such, they have committed the offence of gang rape punishable under Section 376(2)(g) of the IPC. Therefore, the court below is justified in convicting them under Section 376(2)(g) of the IPC. Considering the facts and circumstances of the case, we are of the view that sentencing the appellants under Section 376(2)(g) of the IPC for rigorous imprisonment for 10 years each and to pay a fine of `15,000/- each, in default to undergo rigorous imprisonment for 3 months each would meet the ends of justice.
Crl. Appeal No.600/2000 & connected cases 135
155. Accordingly, Crl.Appeal No.606 of 2000 is allowed in part. The conviction of A27 Varghese under Section 376(2)(g) is confirmed and the sentence is slightly modified and reduced to rigorous imprisonment for 10 years and to pay fine of `15,000/-, in default to undergo rigorous imprisonment for three months. The appellant is entitled to get set off under Section 428 of the Cr.P.C.
156. Crl.Appeal No.613 of 2000 is allowed in part. The conviction of A11 Aji, A13 Aliyar @ Ali and A15 Davood under Section 376(2)(g) is confirmed. The sentence is slightly modified and reduced and they are sentenced to undergo rigorous imprisonment for 10 years each and to pay fine of `15,000/- each, in default to undergo rigorous imprisonment for 3 months each. The appellants are entitled to get set off under Section 428 of the Cr.P.C.
157. (xvi) Crl. Appeal No.605 of 2000 filed by A35 Babu Mathew : The court below convicted A35 Babu Mathew under Section 376(2)(g) of the IPC and sentenced him to Crl. Appeal No.600/2000 & connected cases 136 undergo rigorous imprisonment for 11 years and to pay a fine of `15,000/-, in default to undergo rigorous imprisonment for 2 years.
158. PW3 deposed that from Periyar Hospital, Dharmarajan and A3 took PW3 in a Jeep. Dharmarajan, A2, A3 and A17 also boarded that Jeep and PW3 was taken to Cambam. When they reached Cambam, they took two rooms in a lodge and PW3 stayed there with A3 and Dharmarajan in a room. PW3 deposed that on the next day, A3 came to the room with two persons and A3 showed PW3 to them. PW3 identified A35 Babu Mathew in court and in the test identification parade as one of the two persons. But, PW3 could not identify the other person. PW3 deposed that A3, after leaving A35 in that room went out with the other person. PW3 deposed that A35 committed rape on her disregarding her protest. The other persons also came to the room and committed rape on PW3. The evidence on record would not show that when A35 approached PW3 for having sexual intercourse with her, he had Crl. Appeal No.600/2000 & connected cases 137 prior knowledge that she was not a consenting party. In the said circumstance, it is not possible to hold that A35 shared common intention to commit rape on PW3, with any other accused. Therefore, A35 cannot be convicted under Section 376(2)(g) of the IPC and he is liable to be convicted only under Section 376(1) of the IPC. Since there is no special and adequate reasons to reduce the minimum sentence of 7 years and fine under Section 376(1) of the IPC, we are of the view that sentencing A35 to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- would meet the ends of justice.
159. Accordingly, Crl. Appeal No.605 of 2000 filed by A35 Babu Mathew is allowed in part. His conviction under Sectioon 376(2)(g) of the IPC is altered into conviction under Section 376(1) and he is sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for 2 months. The appellant is entitled to get set off under Section 428 of the Crl. Appeal No.600/2000 & connected cases 138 Cr.P.C.
160. (xvii) Crl.Appeal No.600 of 2000 filed by A10 Jacob Stephen @ Stephenji : The Court below convicted A10 under Section 376(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for 11 years and also to pay a fine of `15,000/- in default to undergo rigorous imprisonment for two years.
161. The prosecution case is that on 7.2.1996 while PW3 was confined in the house of A38 Mary @ Ammini at Kuravilangadu, A7 Jose and A10 Stephen committed gang rape on PW3. PW3 deposed that while she was in the house of A38 on 7.2.1996, she saw A4 and the husband of A38 going out of that house and after some time A4 coming back. PW3 deposed that after about five minutes one man called Stephenji came there. PW3 identified A10 in Court and in the test identification parade also. PW3 deposed that A4 told her that A10 was calling her and she was sent to the room in which A10 was sitting. When PW3 reached there, A10 closed the doors of Crl. Appeal No.600/2000 & connected cases 139 that room from inside. PW3 disclosed her identity to A10 and prayed for mercy. PW3 deposed that disregarding her request, A10 committed rape on her. PW3 deposed that when A10 left the room, A7 also committed rape on her. The evidence on record shows that A10 approached PW3 for having illicit sexual intercourse and he came to know that PW3 was not a consenting party only when he tried to have sexual intercourse with her. Therefore it cannot be said that A10 had common intention with A7 to commit gang rape on PW3. We are, therefore, of the view that the offence committed by A10 is only a rape punishable under Section 376(1) of the IPC and not gang rape under Section 376(2)(g) of the IPC.
162. In the absence of any special and adequate reason for reducing the minimum sentence of 7 years, we are of the view that sentencing A10 Jacob Stephen @ Stephenji to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for 2 months under Section 376(1) of the IPC would meet the ends of Crl. Appeal No.600/2000 & connected cases 140 justice.
163. Accordingly Crl. Appeal No.600 of 2000 is allowed in part and the conviction of A10 Jacob Stephen @ Stephenji under Section 376(2)(g) of the IPC is set aside and he is convicted under Section 376(1) of the IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for two months. A10 is entitled to get set off under Section 428 of the Cr.P.C.
164. (xviii) Crl.Appeal No.604 of 2000 filed by A7 Jose : The court below convicted A7 Jose along with some other accused under Section 376(2)(g) and sentenced to undergo rigorous imprisonment for 13 years and to pay a fine of `20,000/- in default to undergo rigorous imprisonment for two years and he was also convicted and sentenced for four years each and a fine of `2,000/- each in default to undergo rigorous imprisonment for six months each for the offence Crl. Appeal No.600/2000 & connected cases 141 under Sections 363, 365, 366A read with Section 120-B of the IPC. No separate sentence for 376(1) and 376(2)(g) read with Section 120-B was awarded. All the substantiative sentences were ordered to run concurrently.
165. PW3 deposed that on 20.1.1996 at about 10 a.m. while she was staying at Panchayat rest house at Kumaly, Dharmarajan brought A4 Reji and A7 Jose to her room and showed PW3 to them after opening the room. PW3 deposed that Dharmarajan told them that she was a small girl studying in school and was brought without the knowledge of her parents. PW3 deposed that after leaving A7 in that room Dharmarajan and A4 went out of that room. Then A7 Jose closed the room from inside. PW3 identified A7 in Court and in the test identification parade. PW3 disclosed her identity to him and requested to him to save her. A7 Jose asked her to lie on the cot and when PW3 refused to do so, A7 hit her on her shoulder and forcibly caused her to lie on the cot and A7 committed rape on her. Thereafter A7 left the room and A4 Crl. Appeal No.600/2000 & connected cases 142 came to the room. To him also PW3 disclosed her identity and pleaded for mercy. Ignoring her plea for mercy, A4 also committed rape on her.
166. PW3 deposed that A4 took PW3, PW8 and A2 to Hotel Samudra and when they reached in that hotel, A7 Jose and two others were there. Of that two persons, one was A8 Sreekumar and another man was a Professor. From there A4 took PW3 to the room of A8. A8 was in the room of A7. PW3 cried and pleaded to A8 to save her and ignoring her plea, A8 committed rape on her. PW3 deposed that thereafter the professor also committed rape on her. A4 also committed rape on her in another room. PW3 deposed that thereafter A7 also committed rape on her disregarding her plea for mercy.
167. PW3 deposed that while she was staying in the house of A38 Mary @ Ammini at Kuravilangad she saw A7 and the husband of A38 going out of that house. About 5 minutes later one man called Stephenji came to that house and he committed rape on her. When A10 left the room, A7 came to Crl. Appeal No.600/2000 & connected cases 143 that room and committed rape on her. PW3 deposed that after that A4, A7 and A10 left the house.
168. The evidence on record does not conclusively prove that A7 approached PW3 with the common intention with other accused to commit gang rape on her. Therefore, A7 cannot be convicted for the offence punishable under Section 376(2)(g) of the IPC and he is liable to be convicted under Section 376(1) of the IPC. There is no evidence to show that A7 conspired with other accused to commit offence punishable under Sections 363, 365, 366 A read with Section 120-B of the IPC and the offence under Section 376(2)(g) and 376(1) read with Section 120-B of the IPC.
169. There is no special and adequate reason to reduce the minimum sentence of seven years and fine under Section 376(1) of the IPC. we are of the view that sentencing A7 Jose to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for two months under Section 376(1) would meet Crl. Appeal No.600/2000 & connected cases 144 the ends of justice.
170. Accordingly Crl.Appeal No.604 of 2000 filed by A7 Jose is allowed in part and the conviction of A7 Jose under Section 376(2)(g) of the IPC is set aside and A7 is convicted under Section 376(1) of the IPC and he is sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for two months. The conviction of A7 under Section 363, 365, 366A read with Section 120B of the IPC and under Section 376(2)(g) and section 376(1) read with Section 120-B of the IPC is set aside and he is acquitted of that offence. A7 Jose is entitled to get set off under Section 428 of the Cr.P.C.
171. (xix) Crl.Appeal No.608 of 2000 filed by A22 Jiji and (xx) Crl.Appeal No.617 of 2000 filed by A21 Sunny George :The court below convicted A21 and A22 under Section 376(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for 11 years each and also to pay a fine of `15,000/- each in default to undergo rigorous imprisonment for Crl. Appeal No.600/2000 & connected cases 145 a period of 2 years each.
172. The prosecution case against A21 and A22 is that on 10.2.1996 they committed gang rape along with A6 on PW3 while she was confined in Panchayat Rest house at Kumaly. PW3 deposed that from Hotel Florel Park, A6 and Dharmarajan again took PW3 to Kumaly rest house and they locked her in a room in the rest house and went away. PW3 deposed that after sometime A4 and A6 came to that room and with A21 and A22. PW3 identified A21 and A22 before court and in the test identification parade also. PW3 deposed that A4 and Dharmarajan talked with A21 and A22 in secret and after that Dharmarajan told PW3 to Co-operate with them and threatened her. PW3 deposed that after that Dharmarajan brought A22 Jiji to that room in which PW3 was staying. PW3 pleaded for mercy to A22 and disregarding her mercy plea, A22 committed rape on her. PW3 deposed that when A22 left the room, Dharmarajan brought A21 Sunny to that room. PW3 deposed that A21 also committed rape on her. The evidence Crl. Appeal No.600/2000 & connected cases 146 on record shows that A21 and A22 approached PW3 for having illicit intercourse with her and they had no common intention to commit gang rape on PW3. Therefore A21 and A22 cannot be convicted for the offence under Section 376(2)(g) of the IPC. Since they have independently committed rape on PW3 they are punishable under Section 376(1) of the IPC. Since there is no special and adequate reason for reducing the minimum sentence under Section 376(1) of the IPC, we are of the view that sentencing A21 and A22 to undergo rigorous imprisonment for 7 years each and to pay a fine of `10,000/- each in default to undergo rigorous imprisonment for two months would meet the ends of justice.
173. Accordingly Crl. Appeal Nos.608 and 617 of 2000 are allowed in part. The conviction of A22 and A21 under Section 376(2)(g) is set aside and they are convicted under Section 376(1) of the IPC and they are sentenced to undergo rigorous imprisonment for 7 yeas each and to pay a fine of `10,000/- each in default to undergo rigorous imprisonment for Crl. Appeal No.600/2000 & connected cases 147 two months each. They are entitled to get set off under Section 428 of the Cr.P.C.
174. (xxi) Crl.Appeal No.611 of 2000 filed by accused No.38 Mary @ Ammini : The court below convicted and sentenced A38 Mary @ Ammini for the offence under Section 368 of the IPC to undergo rigorous imprisonment for a period of four years and to pay a fine of `10,000/- and in default to undergo rigorous imprisonment for a further period of one year. A38 was found not guilty of the offence under Section 120B of the IPC and she was acquitted of that offence.
175. It is well settled that if an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State, then it is only the order of conviction that falls to be considered by the appellate court and not the order of acquittal. In this case the state has not filed any appeal challenging the order of acquittal of A38 of the offence under Section 120B of the IPC. Therefore the only question to be considered in this appeal is whether the court Crl. Appeal No.600/2000 & connected cases 148 below is justified in convicting the appellant under Section 368 of the IPC. Section 368 of the IPC reads as follows:
"368: Wrongfully concealing or keeping in confinement, kidnapped or abducted person - Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement."
176. To constitute an offence under Section 368 of the IPC, it is necessary that the prosecution must establish that
(i) the person in question has been kidnapped or abducted, (ii) The accused knew the said person has been kidnapped or abducted and (iii) The accused having such knowledge of wrongfully conceals or confines person concerned.
177. Section 368 of the IPC does not apply to the perpetrator of the offence of kidnapping or abduction but to his accomplice who knowingly conceals, kidnapped or abducted Crl. Appeal No.600/2000 & connected cases 149 person. So far as the second ingredient is concerned, it is an inference to be drawn by the court from various circumstances. Whether there has been wrongful concealment or confinement under section 368 of the IPC, is a matter to be considered from the facts and circumstances of a particular case. Section 368 of the IPC requires concealment or confinement but not merely giving food or shelter.
178. The prosecution case against A38 is that A4 brought PW3 to her house at Kuravilangad and confined PW3 in that house from the night of 6.2.1996 till she was taken from there by A6 and Dharmarajan in the morning of 10.2.1996. In the statement filed by A38 at the time of questioning her under Section 313 of the Cr.P.C., it was admitted by her that PW3 stayed in that house during the relevant time. The case of A38 is that A4 being a relative of her husband came there with PW3 and wanted to permit PW3 to stay there for two days and accordingly PW3 was allowed to stay in that house. The further case of A38 is that PW3 was living there just like a member of Crl. Appeal No.600/2000 & connected cases 150 that house and was not under confinement and she came to know about the details of PW3 only when it was narrated by PW3.
179. PW3 deposed that from Pala, A4 fetched an autorikshaw and took PW3 to Kuravilangad to the house of A38 Mary @ Ammini. When they reached the house of A38, A4 spoke to A38 in secret and PW3 stayed there. PW3 deposed that while she was staying in that house A4, A7 and A10 committed rape on her. According to PW3, she disclosed her identity to A38 but she did not help her to escape from the clutches of A4 and other accused. PW3 has no case that A38 locked PW3 in her room or obstructed her from escaping from that house. PW3 has no case that A38 threatened her from escaping from the house of A38. Scene mahasar of the house of A38 shows that in the room of that house there is an independent door which can be opened towards outside of the house. Therefore it cannot be said that PW3 was wrongfully concealed or confined by A38 in her house. Therefore the court Crl. Appeal No.600/2000 & connected cases 151 below is not justified in convicting A38 Mary @ Ammini under Section 368 of the IPC. Therefore Crl. Appeal No.611 of 2000 filed by A38 has to be allowed and the conviction and sentence of A38 under Section 368 has to be set aside. Accordingly Crl. Appeal No.611 of 2000 is allowed and the conviction of A38 Mary @ Ammini under Section 368 of the IPC is set aside and she is acquitted and set her liberty. Her bail bond is cancelled.
180. (xxii) Crl.Appeal No.633 of 2000 filed by accused No.39 Vilasini : The court below convicted A39 Vilasini under Section 368 of the IPC and sentenced her to undergo rigorous imprisonment for four years and to pay a fine of `10,000/- and in default to undergo rigorous imprisonment for a further period of one year.
181. The prosecution case against A39 is that from the bus stand of Muvattupuzha, PW3 was taken to the house of A39 Vilasini at Theni by A3 and Dharmarajan and PW3 was confined in that house from 28.1.1996 to 1.2.1996 and on Crl. Appeal No.600/2000 & connected cases 152 subsequent occasion from 13.2.1996 to 15.2.1996. We have already discussed about the ingredients of Section 368 of the IPC while dealing with Crl Appeal No.611 of 2000 filed by A38 Mary @ Ammini.
182. PW3 deposed that when she was taken to the house of A39 Vilasini on the first occasion by A3 and Dharmarajan, A3 talked secretly with A39 and thereafter A3 and Dharmarajan left the place. PW3 deposed that on the next day (29.1.1996) she disclosed her identity to A39 and told her that she was cheated and sought the help of A39 to escape. PW3 deposed that then A39 told her that PW3 was a girl brought by Dharmarajan and that she was unable to help her.
183. PW3 deposed that from Kanjirappilly, A6 and Dharmarajan took PW3 to Theni and from there she was taken to the house of A39 and she was made to stay in the house and she was on her monthly periods and that A6 and Dharmarajan went away after putting her in that house. PW3 has no case that when PW3 stayed in that house of A39 on two occasions Crl. Appeal No.600/2000 & connected cases 153 A39 forcefully detained her in the house against her will. There is no evidence to show that A39 obstructed PW3 from going out from that house. PW3 has no case that she was subjected to rape while she was staying in that house on both occasions. Since there is no evidence to show that A39 wrongfully concealed or confined PW3 in her house, A39 cannot be convicted for that offence punishable under Section 368 of the IPC. Therefore we are of the view that this appeal has to be allowed and the conviction and sentence of A39 under Section 368 of the IPC has to be set aside. Accordingly Crl. Appeal No.633 of 2000 is allowed and the conviction and sentence against A39 Vilasini under Section 368 of the the IPC is set aside and she is acquitted and set her liberty. Her bail bond is cancelled.
184. (xxiii) Crl. Appeal No.591 of 2000 filed By A28 George @ Georgekutty, S/o.Cherian : The Court below convicted A28 George S/o.Cherian under Section 376(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for 11 Crl. Appeal No.600/2000 & connected cases 154 years and to pay a fine of `15,000/- in default to undergo rigorous imprisonment for two years.
185. PW3 deposed that while she was staying in a room at Hotel Geeth at Trivandrum in the morning on 5.2.1996, A4 took PW3 to the room of a Film Producer and A4 talked to him for some time and A4 took her back to her room. PW3 deposed that after sometime one person knocked at door and A4 opened the door. Then they saw A29 Vijayakumar, who knocked at the door. PW3 identified A29 in Court. A4 told A29 that PW3 was a school girl and that she was brought there without the knowledge of her parents. A29 left the room saying that he would come later. PW3 deposed that in the same day in that morning A28 Georgekutty came to her room. PW3 identified A28 in court and in the identification parade also. PW3 deposed that at that time A4 was also there in that room. After some time A29 came to that room. Then A4 and A28 went out of that room. PW3 deposed that A29 committed rape on her ignoring her plea for mercy. PW3 deposed after some Crl. Appeal No.600/2000 & connected cases 155 time A4 and A28 came back to that room. A29 left the room. PW3 deposed that at the time of investigation she had shown A28 to the police. PW3 deposed that in that night A4 and A28 were there in the room. During that night A28 committed rape on PW3 in that room. In that night A4 also committed rape on her. PW3 deposed that in that night A4 and A28 slept naked in that room keeping her in between them. PW3 deposed that on the next day she was taken to Pala by A4 and A28 in the Maruti car driven by A28. When they reached at Pala, A28 dropped A4 and PW3 there.
186. The learned counsel for the appellant submitted that in the testimony given by PW3 it is not stated that she disclosed her identity to A28 Georgekutty and that she had shown signs of unwillingness to have sexual intercourse with him. The learned counsel for the appellant submitted A4 might have threatened PW3 and might have instructed PW3 not to show any act of resistance in having sexual intercourse with A28 and that might be the reason for not disclosing her identity Crl. Appeal No.600/2000 & connected cases 156 to A28. The learned counsel for the appellant submitted that in the 161 statement given by PW3 to PW95 V.K.Mathew, there is a mention about the quarrel between A4 and A28 and that A4 requested A28 to take PW3 with him and then A28 refused and he threw away the bags of PW3 and A4 and drove away his car. The learned counsel for the appellant submitted that the prosecution purposefully suppressed that 161 statement.
187. In the decision reported in Deelip Singh v. State of Bihar (AIR 2005 SUPREME COURT 203) it was held in paragraph 18 to 20 as follows:
"18.Indian Penal Code does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90. Section 90 reads as follows :
"90. Consent known to be given under fear or misconception - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act Crl. Appeal No.600/2000 & connected cases 157 knows or has reason to believe, that the consent was given in consequence of such fear or misconception......."
19.Consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries.
20.The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been Crl. Appeal No.600/2000 & connected cases 158 given. This is the scheme of Section 90 which is couched in negative terminology."
188. For the offence of rape to exist, it is necessary on the part of the accused to know that what he has done is being done without the consent of the woman and he means to do the act without her consent. There are cases wherein a woman does not really consent but her conduct is such that it would lead to the person to believe that she consents to what is being done.
189. In the decision reported in Director of Public Prosecutions v. Morgan (1975(2) All England Law Reports 347 (H.L.), it was held that:
"The Crime of rape consisted in having sexual intercourse with a woman with intent to do so without her consent or with indifference as to whether or not she consented. It could not be committed if that essential mens rea were absent. Accordingly, if an accused in fact believed that the woman had consented, whether or not that belief was based on reasonable grounds, he could Crl. Appeal No.600/2000 & connected cases 159 not be found guilty of rape."
190. In the present case, it is not proved beyond reasonable doubt that when A28 was engaged in sexual intercourse with PW3, he was fully aware of the fact that PW3 was not a consenting party. In the testimony given by PW3, it was not stated by her that she did not consent for the sexual intercourse with A28 and that it was against her will. In the absence of such evidence, we are of the view that the prosecution has not succeeded in proving that A28 committed rape on PW3. Therefore the conviction of A28 George @ Georgekutty under Section 376(2)(g) of the IPC has to be set aside by allowing the appeal.
191. Accordingly Crl. Appeal No.591 of 2000 is allowed and the conviction and sentence of A28 George @Georgekutty under Section 376(2)(g) is set aside and he is found not guilty of that offence and he is acquitted and set at liberty. His bail bond is cancelled.
192. (xxiv) Crl.Appeal No.602 of 2000 filed by A3 Crl. Appeal No.600/2000 & connected cases 160 P.K.Jamal and A8 Sree Kumar: The court below convicted A3 Jamal and A8 Sree Kumar under Section 376(2)(g) of the IPC and sentenced to undergo rigorous imprisonment for 13 years each and to pay a fine of `20,000/- each in default to undergo rigorous imprisonment for two years each and they were also convicted and sentenced to undergo rigorous imprisonment for four years each and a fine of `2,000/- each in default to undergo rigorous imprisonment for six months each under sections 363, 365 and 366 A read with Section 120-B of the IPC. No separate sentence was awarded under Section 376(2)(g) and 376(1) read with Section 120-B of the the IPC even though they were convicted for those offence.
193. The learned Director General of Prosecution filed a statement with a Death Certificate stating that A8 Sree Kumar died on 12.12.2008. The near relatives of A8 have not filed any application for leave to continue appeal within 30 days of his death. Hence Crl.Appeal No.602 of 2000 is partly abated due to the death of 2nd appellant/ A8 Sree Kumar. Crl. Appeal No.600/2000 & connected cases 161
194. PW3 deposed that Dharmarajan took her to Panchayat Rest House at Kumaly for the second time and they reached there at 1 a.m. on 26.1.1996. PW3 deposed that when they reached there A3 Jamal was there. PW3 identified A3 Jamal in Court. She stayed there in that night. On the next day A3 Jamal and Dharmarajan took PW3 to Indra Hotel, Kambam. PW3, Dharmarajan and A3 stayed there. On 27.1.1996 Dharmarajan and A3 took PW3 to Thottam lodge at Muvattupuzha and they locked her in room No.20 of that lodge. After some time they came back with A14 Yousuf. PW3 identified A14 Yousuf in Court and also in the test identification parade. PW3 deposed that A14 along with Dharmarajan and A3 took PW3 in his car to Aroma Tourist Hotel at Aluva. Room No.102 and 103 were taken by them, one room in the name of Dharmarajan and another room in the name of A3. PW3 deposed that at about 9 p.m. A3 and Dharmarajan took PW3 to the room, where A14 was waiting and left her in that room. A14 locked that room from inside. Then PW3 told him that he Crl. Appeal No.600/2000 & connected cases 162 was having age of her father and disclosed her identity and sought help to escape from the hands of Dharmarajan. A14 then told her that let his purpose be served and committed rape on her. PW3 deposed that subsequently A3 and Dharmarajan committed rape on her in the room taken by A3. In that night A14 took A3, Dharmarajan and PW3 in his car and dropped them at K.S.R.T.C. bus stand at Muvattupuzha. From there PW3 was taken to the house of A39 Vilasini at Theni by A3 and Dharmarajan. PW3 deposed that before taking PW3 to Theni, Dharmarajan and A3 took her to S.T.D. booth at Theni Telephone Exchange and as instructed by them she made a call to her maternal uncle, PW57 T.J. Robert and told him that she was calling from Chalakudy. PW57 became suspicious and he advised her to cry aloud in order to get rid of from the kidnappers. PW3 deposed that she could not do so due to the presence of A3 and Dharmarajan near her and they cut off the phone. When they reached at the house of A39, Dharmarajan and A3 talked secretly to A39 and thereafter they left PW3 Crl. Appeal No.600/2000 & connected cases 163 there.
195. PW3 deposed that on 1.2.1996 she was taken to the bus stop by Dharmarajan and A3. At the bus stop, A2 Usha and PW8 Shailaja were waiting for them. From there PW3 was taken to Kanyakumari by A2, A3, Dharmarajan and PW8 and they reached there early morning at about 2.30 a.m. and stayed at room No.9 of Trisee lodge hired by Dharmarajan. PW3 deposed that in that room Dharmarajan committed rape on her in the presence of others. PW8 deposed that she witnessed this incident. When PW3 resisted A3 asked her to lie down or otherwise he would kick her. On the next day morning Dharmarajan and A3 went out and brought A4 Reji to that room.
196. PW3 deposed that while she was staying in the house of A39 at Theni, A3 and Dharmarajan came there and took her to Kumaly Panchayat Rest House on 15.2.1996. PW3 deposed that she was forced to stay there for about one week. During that period PW3 was locked in a room and one Crl. Appeal No.600/2000 & connected cases 164 Satheesan was put on guard duty. PW3 deposed that while she was staying there, Dharmarajan and A3 brought a number of persons and those persons also committed rape on her. She deposed that during those days, Dharmarajan, A3 and Devassy @Devasiachan committed rape on her several times.
197. PW3 deposed that on 21.2.1996 she had severe back pain and throat pain. A2 and A17 took her to Periyar hospital. Before taking PW3 to the hospital, A3 and Dharmarajan had instructed PW3 to tell the doctor only about her throat pain otherwise they would kill her. As instructed by them, PW3 told the doctor about her throat pain only. PW3 deposed that after some time Dharmarajan and A3 came to the hospital in a jeep and took PW3 in that jeep. A2, A3 and A17 also boarded the jeep and PW3 was taken to Kambam. When they reached at Kumbam, they took two rooms in a lodge. PW3 stayed with A3 and Dharmarajan in a room. On the next day A3 came to the room with two persons and those two persons committed rape on her. After that Dharmarajan, A2, A3 and Crl. Appeal No.600/2000 & connected cases 165 A17 took PW3 from Kanyakumari in a bus and they alighted at Kumaly bus stand. After that A3 and Dharmarajan went away. A2 and A17 took PW3 to the house of a relative of A17. PW3 was made to stay in that house for two days. In that night A3 Jamal and Dharmarajan came there and after talking with A2 they went away. On the next day A2 and A17 took PW3 to Kumaly and they alighted at Kumaly bus stand. A3 and Dharmarajan were there. After entrusting PW3 with them A2 and A17 left the place. A3 and Dharmarajan took PW3 to the house of a relative of A3. In that house, there was an aged women and two other women. A3 introduced PW3 to them as the sister of Dharmarajan. At that time PW3 was very tired and she had constipation and back pain. A3 and Dharmarajan took PW3 in a jeep to one hospital and PW3 was admitted in that hospital. On the next day A3 and Dharmarajan got discharged PW3 and they took PW3 to Muvattupuzha by bus and alighted at Muvattupuzha at K.S.R.T.C bus station. PW3 deposed that at that time A14 Yoosaf and two others were there. PW3 Crl. Appeal No.600/2000 & connected cases 166 identified A33 Shaji and A30 Ashraf as the other two persons in Court and in the test identification parade also. A14, A33, A30, A3 and Dharmarajan took PW3 in a car to the Hotel Florel Park near Kottayam Medical College Hospital. A3 and Dharmarajan put PW3 in a room and they locked the room from outside and left. PW3 deposed that after some A14 opened the room and raped her without considering her request and thereafter he went out. PW3 deposed that after that A30 came to that room and he also committed rape on her ignoring her request and left the place. PW3 deposed that thereafter A33 came to the room and he also committed rape on her ignoring her request and he also left. Thereafter Dharmarajan took PW3 to another room. A3 came to that room and committed rape on her. After that Dharmarajan also came there and committed rape on her. PW3 deposed that thereafter Dharmarajan, A3, A14, A30 and A33 took PW3 in a Maruti car to Muvattupuzha to the house of A34 Anil. PW3 identified A34 in Court and in test identification parade also. PW3 deposed that in that night A34 committed Crl. Appeal No.600/2000 & connected cases 167 raped on her ignoring her plea for mercy. On the next day morning A3 an Dharmarajan took PW3 to Muvattupuzha private bus stand and PW3 was allowed to go to her house and A3 gave `100/- to her as bus fare. Since the testimony of PW3 is trustworthy, we believe her testimony.
198. The next question to be considered is as what are the offences committed by A3 Jamal. The common intention, essentially being a state of mind, can only be gathered by inferences drawn from the facts and circumstances established in a given case. The decisions involving similar facts cannot be used as a precedent to determine conclusion of facts in the present case. It is well settled that the question of common intention is a question of fact and not one of law.
199. Since Section 34 of the IPC stipulates of a pre- arranged plan or prior meeting of minds, the inference whether a criminal act has been committed in furtherance of common intention should only be raised if circumstances irresistibly lead to it.
Crl. Appeal No.600/2000 & connected cases 168
200. Explanation I to Section 376(2)(g) of the IPC provides that 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 sub-section.
201. The conduct of A3 Jamal and Dharmarajan would show that they had common intention to commit gang rape on PW3 and they committed gang rape on her. The facts and circumstances proved in this case would show that A3 had conspired with Dharmarajan to commit offences punishable under Sections 363, 365 and 366A of the IPC. They had also conspired to commit the offence under Sections 376(1) and 376 (2)(g) of the the IPC. Therefore, we are of the view that the court below is fully justified in convicting A3 Jamal under Section 376(2)(g) of the IPC and also under Sections 363, 365 and 366A read with Section 120B of the IPC and also under Section 376(1) and 376(2)(g) read with Section 120B of the IPC.
202. Considering the facts and circumstances of the Crl. Appeal No.600/2000 & connected cases 169 case, we are of the view that sentencing A3 Jamal to undergo rigorous imprisonment for 10 years and to pay a fine of `15,000/- in default to undergo rigorous imprisonment for 3 months under Section 376(2)(g) of the IPC and sentencing A3 Jamal to undergo rigorous imprisonment for 3 years each under Section 363, 365 and 366A read with Section 120-B of the IPC would meet the ends of justice. Since A3 is convicted for the major offences, there is no necessity to award separate sentence under Sections 376(1) and 376(2)(g) read with Section 120-B of the IPC. Accordingly Crl. Appeal No.602 of 2000 is allowed in part. The conviction of A3 Jamal under Section 376(2)(g) of the IPC and under Sections 363, 365 and 366A read with Section 120-B of the IPC and Sections 376(2)(g) and 376(1) read with Section 120-B of the IPC is confirmed. The sentence is modified and A3 Jamal is sentenced to undergo rigorous imprisonment for 10 years under Section 376(2)(g) of the IPC and to pay a fine of `15,000/- in default to undergo rigorous imprisonment for three months. A3 Jamal is also Crl. Appeal No.600/2000 & connected cases 170 sentenced to undergo rigorous imprisonment for three years each under Sections 363, 365 and 366A read with Section 120- B of the IPC. Since A3 Jamal is convicted for the major offences, there is no separate sentence under Section 376(2)(g) and 376 (1) read with Section 120 of the IPC. The substantiative sentence shall run concurrently. A3 Jamal is entitled to get set off under Section 428 of the Cr.P.C.
203. (xxv) Crl.Appeal No.637 of 2000 filed by A1 Raju & (xxvi) Crl. Appeal No.603 of 2000 filed by A2 Usha and A17 Mohanan@Ayyavu : The Court below convicted A1 Raju under Sections 376(2)(g) and 376(1) read with Section 120-B of the IPC and sentenced to undergo rigorous imprisonment for a period of 13 years and to pay a fine of `15,000/- and in default to undergo rigorous imprisonment for two years. He was also convicted and sentenced to undergo rigorous imprisonment for a period of four years each and to pay a fine of `2,000/- in default to undergo rigorous imprisonment for a period of six months each under Sections 363, 365, 366A of the IPC. The Crl. Appeal No.600/2000 & connected cases 171 substantive sentence was ordered to run concurrently.
204. The court below convicted A2 Usha and sentenced to undergo rigorous imprisonment for a period of 13 years and to pay a fine of `15,000/- and in default to undergo rigorous imprisonment for two years for the offences under Sections 376(2)(g) and 376(1) read with Section 120-B of the IPC. A2 Usha is also convicted and sentenced to undergo rigorous imprisonment for 4 years each and a to pay a fine of `2,000/- each in default to undergo rigorous imprisonment for a period fo six months each for the offences under Section 366A and also for the offences under Sections 363 and 365 read with Section 120B of the IPC. The substantive sentence was ordered to run concurrently.
205. The court below convicted and sentenced A17 Mohanan @ Ayyavu to undergo rigorous imprisonment for 10 years and to pay a fine of `10,000/- in default to undergo rigorous imprisonment for a further period of one year and for the offences under Section 376(2)(g) and 376(1) read with Crl. Appeal No.600/2000 & connected cases 172 Section 120-B of the IPC. He was also convicted and sentenced to undergo rigorous imprisonment for 4 years each and a fine of `2,000/- each and in default to undergo rigorous imprisonment for six months each for the offences under Sections 363, 365 and 366A read with Section 120-B of the IPC. All the substantive sentences were ordered to run concurrently.
206. According to the prosecution case, A1 Raju and A2 Usha along with Dharmarajan hatched out a criminal conspiracy some day near 16.1.1996 while at Adimaly and agreed to do illegal act to kidnap PW3, a girl aged just above 16 years and to confine her, to commit rape and gang rape on her and to sell her to other accused for the purpose of deriving illegal gain and for using her to illicit intercourse with other accused.
207. In the decision reported in Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (AIR 1971 SUPREME COURT 885) it was held:
"Criminal conspiracy postulates an agreement between Crl. Appeal No.600/2000 & connected cases 173 two or more persons to do, or cause to be done, an illegal act or an act which is not illegal. by illegal, means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is some what wider in amplitude than abetment by conspiracy as contemplated by Sec. 107, I. P. C. A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto."
208. In the decision reported in State of Himachal Pradesh v. Krishan Lal Pardhan (A.I.R. 1987 S.C. 773), it was Crl. Appeal No.600/2000 & connected cases 174 held:
"The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof if pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences."
209. There is no dispute that PW3 was studying in the IX standard of Little Flower Girls High School at Nallathanni near Munnar and was residing in the convent hostel at the time of occurrence and she was aged just above 16 years. PW2 who was working as headmistress of that school with reference to Ext.P114, Attendance register of IXA of that school proved that PW3 attended the class on 16.1.1996. Thereafter she did not attend the classes. The testimony of PW2 further proved that PW3 was missing from the hostel in the evening on 16.1.1996. PW1 gave Ext.P1 F.I. statement before the police regarding the missing of PW3 on 17.1.1996. PW3 deposed that she was in Crl. Appeal No.600/2000 & connected cases 175 love with A1 Raju and she was enticed by him to go along with him. Believing his promise to marry her, she left the school. PW3 deposed that A1 threatened her that he would make use of MO1 Album, which was in his possession to make nude photographs of her mother and father and would paste them on the walls of the school and would tarnish the image of her family, unless she accompany him on 16.1.1996. PW3 deposed that on 16.1.1996 in the evening as instructed by A1, she went to Munnar Bus stand and boarded Anjali bus and reached at Adimaly where A1 was waiting for her. PW3 deposed that as instructed by A1 she boarded P.P.K. bus from Adimaly. Believing the words of A1 that he would be there in the bus, she occupied back seat of that bus and he subsequently vanished from the scene leaving PW3 in the hands of A2. Before kidnapping, A1 had instructed PW3 to state her name as Anjali and state her age above 18 years and as studying in the college class. When PW3 alighted at Kottayam bus stand, A2 Usha called her by real name and gave the same instructions Crl. Appeal No.600/2000 & connected cases 176 about name, age and educational status as stated to PW3 by A1. Dharmarajan got custody of PW3 on 16.1.1996 at mid night from K.S.R.T.C. bus stand at Kottayam. Dharmarajan took PW3 to Metro Lodge, Kottayam where he had reserved room from 2.1.1996 onwards.
210. The learned counsel for the appellants argued that according to PW3, when she alighted from the bus at Kothamangalam A1 was not in the bus and the decision to proceed to Kottayam was her own and as such A1 and A2 could not be found to be engaged in criminal conspiracy to kidnap her to Kottayam, where Dharmarajan was staying at Metro Lodge. This argument cannot be accepted in view of the fact when PW3 reached Kothamangalam in the night there was no bus to Munnar or to Sooryanalli and she could not have expected to go back to the convent at that time of night. PW3 deposed that A1 was well aware of the fact that the near relatives of the PW3 are residing at Kottayam and Mundakayam. Therefore it can be assumed that A1 was aware of the fact that PW3 would go to Crl. Appeal No.600/2000 & connected cases 177 Kottayam or Mundakayam as there was no bus from Kothamangalam to Munnar or Sooryanalli at that particular time of night. Moreover as an employee in a private bus, A1 might have been aware of the fact that there was no bus to Munnar or Sooryanalli from Kothamangalam at that particular time of night.
211. When A1 was questioned under Section 313 of the Cr.P.C. , he filed a statement to the effect that he was never in love with PW3 and he had no sexual attraction to her. This statement of A1 appears to be true. If he had genuine love towards PW3, he would not have conspired with A2 and Dharmarajan to kidnap and entrust PW3 in the custody of A2 for handing over her to Dharmarajan.
212. DW2 was examined on the side of A1 to prove that A1 did not accompany PW3 on 16.1.1996. DW2 was the Secretary of Adimaly Private Bus Operators' Association. He deposed that A1 was on duty in K.V.T. bus plying from through Adimaly - Panickakudy route, which reached Adimaly only at Crl. Appeal No.600/2000 & connected cases 178
7.p.m. on 16.1.1996. DW2 was the former employer of A1. DW2 was conducting an Auto spare shop at Adimaly. The court below disbelieved the testimony of DW2 stating that as he was running an Auto Spare shop at Adimaly, he would not sit at the announcement counter at bus stand in his capacity as the secretary of association and even if he was so sitting he would not have noted each bus and even if noted he would not remember the details. The reasons stated by the court below in disbelieving the testimony of DW2 are justifiable.
213. PW60 was an auto rickshaw driver. He deposed that while he parked his auto rickshaw near Jubilee Stores at Adimaly, he saw A1 and A2 talking together and he heard A1 telling to A2 that the girl whom he agreed to be brought would come there and would board P.P.K. bus and would go to Kothamangalam and A2 has to take her to Dharmarajan and that A2 nodded her head agreeing with the proposal of A1. PW60 deposed that after some time he saw PW3 alighting from Anjali bus with a big shopper in her hands Crl. Appeal No.600/2000 & connected cases 179 and that A1 talked with PW3. A1 walked in front followed by PW3 and A2. As there is nothing to discredit the testimony of PW60, the court below is justified in believing the testimony of PW60.
214. The testimony of PW8 Shailaja shows that Dharmarajan and A2 Usha were known to each other and that they enticed her to go along with them for getting a chance to become a play back singer. A2 and Dharmarajan belong to the same village called Ponkunnam. PW3 deposed that on 1.2.1996 while she was taken to bus stop at Kanjirappilly by Dharmarajan and A3 at that bus stop A2 Usha and PW8 Shailaja were waiting for them. From there PW3 was taken to Kanyakumary by A2, A3, Dharmarajan and PW8. The testimony of PW60 was that he saw A1 and A2 talking together about the arrival of PW3 at Adimaly bus stand. These are clear evidence of the fact that A1 and A2 conspired together and A2 conspired with Dharmarajan to kidnap PW3 from the lawful guardianship of her parents. The conduct of A2 in travelling in the very same Crl. Appeal No.600/2000 & connected cases 180 bus in which A1 made PW3 to travel from Adimaly to Kothamangalam and her subsequent presence at Muvattupuzha and Kottayam and the active part played by A2 would prove that A2 was conspiring with A1 in kidnapping PW3 from the lawful guardianship of PW1 and in handing over her to Dharmarajan for confining her and to commit rape and gang rape and gave her to other accused to commit gang rape and rape. Since A1 and A2 conspired to kidnap PW3 from lawful guardianship of PW1 without consent of PW1, A1 and A2 committed offence punishable under Section 363 of the IPC. As A1 and A2 kidnapped PW3 in pursuance of their criminal conspiracy with Dharmarajan with intention to confine her, A1 and A2 committed the offence punishable under Section 365 read with Section 120B of the IPC. As A1 and A2 procured PW3 who was then a minor for illicit intercourse with Dharmarajan and other accused, A1 and A2 committed offence punishable under Section 366 A read with Section 120B of the IPC. Since A1 and A2 were involved in criminal conspiracy with Crl. Appeal No.600/2000 & connected cases 181 Dharmarajan for commission of offences punishable under Sections 367(2)(g) and 376(1) of the IPC, the conviction of A1 Raju and A2 Usha under Sections 376(2)(g) and 376(1) read with section 120B of the IPC has to be confirmed.
215. Section 120B of the IPC provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. Section 109 of the IPC provides that whoever abets any offence shall be punished, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Therefore, the sentence provided under Section 120B of the IPC lays the same sentence provided for the offence conspired and committed in further of the conspiracy. Crl. Appeal No.600/2000 & connected cases 182 Considering facts and circumstances of the case, we are of the view that sentencing A1 and A2 under Section 376(2)(g) and Section 376 (1) read with Section 120B of the IPC to undergo rigorous imprisonment for 10 years each and to pay a fine of `15,000/- each in default to undergo rigorous imprisonment for 3 months each would be just and reasonable. Likewise sentencing A1 and A2 to undergo rigorous imprisonment for 3 years each under Sections 363, 365 and 366A read with Section 120B of the IPC would be just and reasonable.
216. As regards the evidence against A17 is concerned there is no evidence to show that A17 had any direct involvement in the occurrence. A17 appeared in the scene only on 21.2.1996. PW3 deposed that A2 Usha and her husband A17 were in the Kumaly Rest house. PW3 identified A17 Mohanan in court and in the test identification parade. PW3 deposed that on that night she had severe back pain and throat pain. A2 and A17 took PW3 to Periyar Hospital and before taking her to that hospital A3 and Dharmarajan had instructed Crl. Appeal No.600/2000 & connected cases 183 PW3 to tell the doctor only about her throat pain or otherwise they would kill her. PW3 deposed that when A2, A17 and PW3 reached the hospital A2 gave the name of PW3 as Anjali to the doctor and therefore PW3 only told the doctor about her throat pain and she could not tell the doctor anything more. At that time A2 and A17 were standing near. After some time Dharmarajan and A3 came to the hospital in a jeep and took PW3 in that jeep. Dharmarajan, A2, A3 and A17 also boarded the jeep and PW3 was taken to Kambam. When they reached at Kambam they took two rooms in a lodge. While PW3 was staying in that lodge, A35 and another person committed rape on her. After that Dharmarajan, A2, A3 and A17 took PW3 to the house of the relative of A17. In that house sister of A17 and her husband were there. A2 told them that PW3 was her younger sister. PW3 was made to stay there for two days. In that night Dharmarajan and A3 Jamal came there and after talking with A2 they went out. On the next day morning A2 and A17 took PW3 to Kumaly and they alighted at Kumaly Bus Crl. Appeal No.600/2000 & connected cases 184 stand. Dharmarajan and A3 were there. After entrusting PW3 with them, A2 and A17 left the place. From this evidence on record it cannot be said that A17 conspired with other accused for the commission of offence under Sections 376(2)(g) and 376 (1) read with Section 120B of the IPC or any other offence under Sections 363, 365 and 366A read with Section 120B of the IPC. Therefore we are of the view that conviction of A17 for the offences has to be set aside.
217. Accordingly Crl. Appeal No.603 of 2000 is allowed in part. The conviction of A17 Mohanan @ Ayyavu under Sections 376(2)(g) and 376(1) read with Section 120B is set aside. The conviction of A17 under Sections 363, 365 and 366 read with Section 120-B of the IPC is also set aside and he is acquitted and set at liberty. His bail bond is cancelled.
218. As regards to A2 in Crl.Appeal No.603 of 2000, the conviction of A2 under Sections 376(1) and 376(2)(g) read with Section 120-B of the IPC is confirmed and the sentence is modified and reduced to rigorous imprisonment for 10 years Crl. Appeal No.600/2000 & connected cases 185 and to pay a fine of `15,000/- in default to undergo rigorous imprisonment for three months. The conviction under Section 366, 365 and 366-A read with Section 120-B is also confirmed. The sentence is modified and reduced to rigorous imprisonment for three years each under Sections 363, 365 and 366A read with Section 120-B of the IPC. The substantive sentence shall run concurrently. A2 Usha is entitled to get set off under Section 428 of the Cr.P.C.
219. Crl.Appeal No.637 of 2000 filed by A1 Raju is allowed in part. The conviction of A1 under Sections 376(2)(g) and 376(1)read with Section 120B of the IPC is confirmed and the conviction under Sections 363, 365 and 366A read with Section 120B is also confirmed. The sentence is modified and reduced to rigorous imprisonment for 10 years and to pay a fine of `15,000/- in default to undergo rigorous imprisonment for 3 months under Sections 376(2)(g) and 376(1) read with Section 120B of the IPC. A1 Raju is sentenced to undergo rigorous imprisonment for three years each under Sections 363, Crl. Appeal No.600/2000 & connected cases 186 365 and 366A of the IPC. The substantive sentence shall run concurrently. A1 Raju is entitled to get set off under Section 428 of the Cr.P.C.
220. The court below is directed to execute the modified sentence on receipt of a copy of this judgment. If fine amount is realised from the convicted accused, the same shall be paid to PW3 as compensation under Section 357 of the Code of Criminal Procedure.
K.T.SANKARAN, JUDGE.
M.L.JOSEPH FRANCIS, JUDGE.
tgs/dl