Madras High Court
Mayavan @ Ravi Rauya And Gokulakrishnan ... vs State Rep. By Inspector Of ... on 7 June, 2002
Equivalent citations: 2002CRILJ4426
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. The appellants/A1 and A2 were convicted for the offences under Sections 363, 366 and 376(2)(g) I.P.C. and sentenced to undergo R.I. for two years and to pay a fine of Rs.1,000/- each for the offence under Section 363 I.P.C.; R.I. for three years and to pay a fine of Rs.1,000/- each for the offence under Section 366 I.P.C. and R.I. for 10 years and to pay a fine of Rs.3,000/- each for the offence under Section 376(2)(g) I.P.C. and the sentences were directed to run concurrently. Aggrieved by the above conviction and sentence, both the accused (A1 and A2) have filed this appeal before this Court.
2. The facts of the case in short are as follows:-
"(a) P.W.1 Shanthi is a school-going girl studying IX Standard, aged about 14 years. Her father P.W.2 Mariappan is working as a coolie. Geethalakshmi (A3) is the daughter of one Krishnasamy, cousin of P.W.2. The said Geethalakshmi was running a Computer Centre at Kaladipet. P.Ws.1 and 2 are residing in Manali Pudhu Nagar. Geethalakshmi (A3) and Shanthi (P.W.1) were moving closely.
(b) On 7.3.1998, Geethalakshmi (A3) came to the house of P.W.2 and requested him to allow P.W.1 to accompany her to go to Chengleput to get the stipend for the Computer course. Accordingly, P.W.1 was allowed to go along with Geethalakshmi (A3). Both of them came to Parrys Bus Stand. There, Mayavan (A1) and Gokulakrishnan (A2) were standing waiting for the arrival of P.W.1 and A3.
(c) Then, all the four persons got into the bus, which proceeded to Tiruvannamalai. In the bus, A1 and A2 were introduced to P.W.1 by A3. When the bus reached Tiruvannamalai, they got down. P.W.1 was informed that Chengleput programme was cancelled. A2, second appellant was directed by A1, first appellant to book rooms in the lodge. After A2 left for booking rooms, A1 purchased two Churidhars, one for P.W.1 and another for A3.
(d) Thereafter, all the three went to the N.S. Lodge at Tiruvannamalai. Room No.305, which is a double room, was occupied by A2 Gokulakrishnan and Room No.306, family room was occupied by P.W.1, A1 and A3. Some time later, in the Room No.306, both A1 and A3 compelled P.W.1 to remove her Churidhar. When she refused, they threatened that she would not be allowed to go home. After removing the Churidhar, she was compelled to consume two tablets. A1 also mixed Whisky along with Pepsi and gave it to P.W.1 for drinking. On compulsion, she drank. Thereafter, she was forcibly taken to the bed and she was raped by A1.
(e) Next day morning, by threatening her that she babbled something while sleeping and the same was recorded in Tape Recorder, A1 again compelled her to have sexual intercourse. Thereafter, A1 to A3 took her to various places like Temple and Ashram at Tiruvannamalai and came back to the room. On compulsion, again she was raped by both A1 and A2 after insisting her to consume Brandy mixed with Pepsi.
(f) On 9.3.1998 morning, A1 compelled P.W.1 to suck his penis. Thereafter, the lodge was vacated and all the four went to the bus stand in a Taxi. Then, they got into the Chennai bus and ultimately, they reached Chennai in the night of 9.3.1998. Then, A1 and A2 took an Auto and brought both P.W.1 and A3 and dropped them near their house.
(g) After reaching the house, P.W.2 father and her mother asked the reason from P.W.1 and A3 as to why there was a delay. A3 said that there was an accident and due to the accident, they were confined in a place for some days. When the parents of P.W.1 persisted P.W.1 to give the real reason, next day, she gave the facts.
(h) On knowing the complete details, P.W.2, the father of P.W.1 took P.W.1 along with his wife to the police station on 13.3.1998 at about 12.00 Noon and P.W.1 gave a complaint Ex.P1 to P.W.14 Inspector of Police. On receipt of the complaint, P.W.14 registered the case in Crime No.155/98 under Sections 366-A, 342 and 376 I.P.C. against all the three accused. On the same day, A1 and A3 were arrested.
(i) As directed by P.W.14, P.W.13 Sub Inspector of Police on 14.3.1998 went to Tiruvannamalai and recovered Lodge Register from the Lodge Manager P.W.4 which showed that all the accused were staying in Room Nos.305 and 306 on the relevant dates.
(j) P.W.14 sent P.W.1 for medical examination. P.W.12, the Doctor conducted oscification test and examined the body of the victim. She gave opinion that P.W.1 was aged between 14 years and 16 years and gave certificate Ex.P15 that she was subjected to sexual intercourse.
(k) In the meantime, A2 surrendered before the Court. Thereafter, P.W.14 obtained police custody and both of them were examined by P.W.11 Doctor, who gave potent certificates Exs.P11 and P13. P.W.14 sent the articles and clothes recovered from the victim for chemical examination. After obtaining the report, P.W.14 filed the charge sheet against the accused for the offences under Sections 366, 363 and 376 read with 109 and 114 I.P.C."
3. After charges were framed against all the three accused, the trial went on. During the course of trial, on the side of prosecution, P.Ws.1 to 14 were examined, Exs.P1 to P33 were filed and M.Os.1 to 10 were marked.
4. When these materials were put to the accused during the questioning under Section 313 Cr.P.C., the appellants/A1 and A2 denied their complicity in the crime and stated that they were charge sheeted in a false case. A3 filed a written statement stating that A1 Mayavan mesmerized her and consequently, she became a tool under the hands of A1 and she was also subjected to sexual intercourse by A1 and A2 on various occasions on compulsion and due to that, she got conceived and gave birth to a child. In brief, according to A3, she was also another victim at the hands of A1 and A2.
5. The trial Court, on considering the materials placed before it, found all the accused guilty for the above said offences. A1 and A2 were convicted for the offence under Section 363 I.P.C. and sentenced to undergo R.I. for two years and to pay a fine of Rs.1,000/- each; under Section 366 I.P.C. to undergo R.I. for three years and to pay a fine of Rs.1,000/- each and under Section 376(2)(g) I.P.C. to undergo R.I. for 10 years and to pay a fine of Rs.3,000/- each. A3 was convicted for the offences under Sections 363 and 366 I.P.C. with similar sentences imposed upon the other accused and however, since she gave birth to a child recently, she was sentenced to undergo R.I. for 7 years and to pay a fine of Rs.2,000/- for the offence under Section 376 read with 109 and 114 I.P.C.
6. As noted above, the appellants/A1 and A2 alone have filed this appeal.
7. Mr.N.T. Vanamamalai, the learned senior counsel would make the following contentions, while challenging the conviction and sentence imposed upon the appellants:
"The occurrence took place on 7.3.1998 and 8.3.1998, but the complaint was lodged only on 13.3.1998. This five days delay was not properly explained. Evan according to P.W.1, she was taken to several places like temples and other Saints' Ashrams in and around Tiruvannamalai, but she did not make any protest or had not informed any person including the Manager of the Lodge regarding the rape committed on her. Even in the complaint, she did not specifically state that she was raped, but she mentioned only suspicion. Therefore, the details given in the deposition stating that she was raped on several occasions by A1 and A2 is quite contradictory to the complaint. According to prosecution, the rape was committed in Room No.306. But, in the complaint, P.W.1 stated that the Room number is 207. Though P.W.1 stated that she was raped by A1 and A2, in the cross-examination, she stated that two persons who raped her belong to Kasimedu and they were not charged. Furthermore, the Lodge Register Ex.P2 shows that there is a correction in the date showing the stay of the accused in the lodge. Moreover, there is no mention in the complaint that A2 committed rape on her. But, only in the deposition, P.W.1 stated that A2 also committed rape. Therefore, when the victim P.W.1 is not a reliable witness, the prosecution case cannot be accepted. Consequently, the appellants are liable to be acquitted."
8. Mr.E.Raja, the learned Additional Public Prosecutor appearing for the respondent would elaborately contend that the evidence of P.W.1 is creditworthy and the same can be acted upon, as it is corroborated by other evidence and as such, the conviction and sentence are liable to be confirmed.
9. I have carefully considered the submissions made by the counsel for both the parties.
10. On going through the deposition and other records, I am unable to hold that any of the grounds urged by the counsel for the appellants would deserve acceptance.
11. It is true that the occurrence took place on 7.3.1998 and 8.3.1998 and P.W.1 along with A3 came back home on 9.3.1998 night. Only next day, P.W.1 with great reluctance tried to give some details of the occurrence to her parents. Even for two days on 11th and 12th, she was not able to give the full details, since she felt ashamed to give the details of the occurrence. P.W.2 father also would state that he was reluctant to give complaint to the police immediately, since he was afraid that his daughter's life would be spoiled. This explanation for the delay has been given both in the complaint Ex.P1 and in the deposition by P.W.1 and P.W.2.
12. The reading of the deposition of P.W.1 would shock anyone's conscience as to how a school-going girl of 14 years was subjected to rape on two days on 7.3.1998 and 8.3.1998. On the first day, two tablets were given to her. Whisky and Brandy were mixed with Pepsi and she was asked to consume the same. Thereafter, she was raped, that too in the presence of A3, who is a cousin of P.W.1. It is also noticed that on 8th, both A1 and A2 raped P.W.1 one after another in the evening. The climax is that on 9th morning, she was compelled to suck the penis of A1 and after secretion of semen, she was insisted to swallow the same. While we go through the deposition of P.W.1, we really get shocked as to how P.W.1 was subjected to sexual intercourse by the inhuman method in order to satisfy lust. When those incidents are shocking, one could comprehend as to how P.W.1 and her parents would be reluctant to give those horrible details to the police.
13. Under those circumstances, the mere delay in rape cases would not be a ground to reject the prosecution case, as this Court as well as the Supreme Court would hold time and again that Indian women are invariably slow and hesitant to complain about the sexual assaults and therefore, we cannot expect that the women would come to the police station straightaway.
14. Merely because the complaint was not lodged promptly, it would not raise the inference that the complaint was false. The reluctance on the part of the victim as well as her parents to go to the police and to the public is because of the society's attitude towards such women. In this case, as correctly held by the trial Court, the delay in launching the complaint has been properly explained by P.W.1, the victim and P.W.2, the father of the victim.
15. It is stated that P.W.1 did not make any protest or had not informed any person at Tiruvannamalai regarding the incident of rape. It is the case of the prosecution through P.W.1 that she was raped on several occasions by threatening that unless she consents for sexual intercourse, she would not be allowed to go home. Moreover, she was asked to consume Brandy and Whisky and thereafter, the rape was committed by A1 and A2.
16. Though P.W.4, the Manager of the Lodge would state that A1 to A3 and P.W.1 stayed and went out casually, the evidence of P.W.6, a Saint at Tiruvannamalai, who was approached by A1 to A3 along with P.W.1 would clearly show that P.W.1 was not normal at that time. As a matter of fact, P.W.6 would specifically state that when the victim came to him along with the accused, she was found mumbling with pain and making a sound as "Appa, Amma". The relevant portion is this:
@rpd;d bgz; vd;dplk; tUk;nghJ @mg;gh mk;kh@ vd;W KdfYld; te;jhh;/ ehd; Vd; ,g;go ,e;j bgz; tUfpwJ/ Myaj;jpw;F tUk;nghJ ,g;go tuf;Tlhnj vd;W nfl;nld;/@ So, when such is the evidence of P.W.6, the argument advanced by the counsel for the appellants with reference to the failure to report about the incident to anybody else at Tiruvannamalai would not merit consideration.
17. The learned senior counsel would strenuously stress the point that there is a variation between the complaint, chief examination and cross-examination. But, the reading of the entire deposition and the F.I.R. would not go to show that P.W.1 has made a false accusation against the accused. During the course of cross-examination of P.Ws.1 and 2, nothing was elicited from them that both of them had any animosity against A1 and A2. This apart, the statement of A3 under Section 313 Cr.P.C. would also prove that A3 also was subjected to the same treatment by A1 and A2 on various occasions.
18. Furthermore, the evidence of P.W.1 with regard to the occurrence, which took place on 7th, 8th and 9th has been clearly corroborated by other independent acceptable evidence. According to P.W.1, she was taken from the custody of the father P.W.2 by A3 under the pretext that both of them would go to Chengleput to collect the Computer stipend. P.W.2 would corroborate this aspect by stating that P.W.1 was taken by A3 after obtaining permission from him. Instead of taking to Chengleput, P.W.1 was taken to Tiruvannamalai in a bus after joining with A1 and A2. In fact, the appellants/A1 and A2 were introduced to P.W.1 by mentioning their names. A3 also stated to P.W.1 that Chengleput programme was cancelled and therefore, they were proceeding to Tiruvannamalai. At Tiruvannamalai, A1 bought Churidhars for both A3 and P.W.1. Thereafter, they occupied two rooms, one is double room (No.305) and another is family room (No.306). Ex.P2 would show that all the four stayed in these rooms. Apart from that, the other records, namely Exs.P3 to P6 would show that A1 to A3 used to come and stay in the same lodge often. The writing of A2 and the signature of A1 have been identified by P.W.4, the Manager of N.S.Lodge, Tiruvannamalai.
19. This aspect of the evidence spoken to by P.W.4 has not been seriously challenged by A1 and A2. Though it is submitted that date has been corrected, that would not suffice to hold that the evidence of P.W.4 who stated that all the four persons stayed from 7.3.1998 to 9.3.1998 in the lodge is false. Apart from that, A3 herself would state in her statement that she was taken to Tiruvannamalai by A1 and A2 and she had also sexual intercourse with them on previous occasions.
20. The very important evidence in this case is the evidence of P.W.6, who is a Saint. According to prosecution, A1 to A3 along with P.W.1 came to the Ashram of P.W.6 for getting his blessings. P.W.6's speech also was recorded in a cassette through a Tape Recorder. This Tape Recorder was played in the Court and his voice was identified by P.W.6. Besides this, P.W.6 also identified all the accused stating that they came and approached him for getting Asirvatham on the relevant day along with a small girl. P.W.6 being a Samiyar running a school at Tiruvannamalai and giving Asirvatham to the disciples was traced only after obtaining statement from A1. It is A1 who pointed out P.W.6 at Tiruvannamalai. There is no necessity for P.W.6 to speak falsehood against A1 to A3 by stating that A1 to A3 came to his Ashram on Monday along with a girl who was not seemed to be normal.
21. According to prosecution, on 9.3.1998, all the four travelled in a Taxi to the Ashram of P.W.6 and from there, they came to Tiruvannamalai Bus Stand in order to get a bus to go to Chennai. The Taxi driver has been examined as P.W.5.
22. That apart, the evidence of P.W.1 has been clearly corroborated by the medical evidence as well. P.W.12 Dr. Tahera Begum examined the victim P.W.1 and conducted oscification test. She issued Ex.P15 certificate stating that vagina admits one finger, pain and tenderness present. She also found in hymen haalid lacerations in 5, 7, 9, 11 O' clock positions. She further stated in Ex.P15 that tenderness and pain were present in both the breasts. Ex.P16, the age certificate issued by P.W.12 would show that P.W.1 is aged about above 14 years and below 16 years.
23. The clothes recovered from P.W.1 are 8 items. Of them, 3 items were found to contain human blood as per the Serologist's report Ex.P25. P.W.11 Doctor would state that both A1 and A2 are not impotents through the certificates Exs.P11 and P13 respectively.
24. These materials would clearly indicate that the testimony of P.W.1 is trustworthy and the same has been amply corroborated by the evidence of P.Ws.4 and 6 who speak about their presence at Tiruvannamalai on those days and P.W.12 Doctor who speaks about the injuries found on the private parts of the victim.
25. It is submitted that A2's name was not mentioned in the F.I.R. as one of the rapists. This submission cannot be accepted, in view of the fact that initially, P.W.1 who was in shocking condition could not be able to give elaborate details with reference to the occurrence took place in a lodge at Tiruvannamalai for three days. But however, it must be pointed out that in the complaint itself, it is stated that all the four went to Tiruvannamalai and stayed in two rooms. P.W.4 would state that A2 stayed in Room No.305 on 7th and next day, i.e. on 8th he vacated that room and all the four stayed in Room No.306 itself. This also would indicate that the evidence of P.W.1 with regard to the rape committed by both of them is reliable and acceptable.
26. Under those circumstances, there is no reason to hold that the conviction and sentence imposed upon the appellants are not valid. Consequently, the same are confirmed and the appeal is dismissed.