Madras High Court
Govindan @ Govindarajan vs State: Rep. By on 21 June, 2002
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21/06/2002
Coram
THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM
CRIMINAL APPEAL No.764 OF 1993 AND CRIMINAL APPEAL NO.765 of 1993
and
Crl.R.C.No.172 of 1994
Crl.A.No.764 of 1993:
1. Govindan @ Govindarajan
2. Selvaraj
3. Govindasamy .. Appellants
Vs.
State: rep. by
R.D.O., Hosur. .. Respondent
Crl.A.No.765 of 1993:
P.K. Balasubramanian .. Appellant
Vs.
State by the Revenue Divisional
Officer and Sub-Collector,
Hosur. .. Respondent
Crl.R.C.No.172 of 1994:
G. Kalpana Sumathi .. Petitioner
Vs.
1. State rep. by
the Inspector of Police,
Krishnagiri.
2. P.K. Balasubramanian
3. Govindan @ Govindarajan
4. Selvaraj
5. Govindasamy
6. Lakshmi .. Respondents
Criminal Appeals and Criminal Revision Case against the judgment
dated 20.12.1993 in S.C.No.16 of 1989 on the file of the Assistant
Sessions Judge, Krishnagiri.
!For Appellant in
Crl.A.No.765/93 &
2nd Respondent in
Crl.R.C.No.172/94 : Mr.R.Shanmugasundaram, S.C.
For Appellants in
Crl.A.No.764/93 : Mr.V.Gopinath, S.C.
^For Respondent in
both the appeals &
lst Respondent in
Crl.R.C.No.172/94 :Mr.S.Jayakumar, Addl.P.P.
For Petitioner in
Crl.R.C.No.172/94 :Ms.Geeta Ramaseshan
For Respondents
3 to 5 in Crl.R.C.
No.172/94 :Mr.V.Perumal
:COMMON JUDGMENT
On 20th July, 1988 at about 5.30 p.m., Kalpana Sumathi, the victim woman was proceeding with a plastic green vessel carrying in her hand to the bore-well pump situated in a school compound in order to fetch water by crossing through the police station. At that time, she had never dreamt that she would be whisked away and forcibly taken inside the police station and gang raped by four police officials one after another.
2. The irony is that victim woman was taken inside the store room of the police station by a woman Sweeper working in the police station. The incident was so horrible that she was beaten by police officials with sticks inflicting injuries all over her body and then she was raped by the police personnel from the rank of Inspector of Police to the rank of Constable one after another.
3. The uniformity in the sad episode is that while they committed gang rape inside the police station, they were in uniform and on duty. Their lustful duty did not end with that. The victim woman who became unconscious was thereafter bodily lifted to a secluded place behind the police station and was thrown off into a ditch of 7 feet depth. Without satisfying that, those police personnel on duty threw big stones on her head to finish her once for all. Thinking that she died, they went back to police station for joining their regular duties.
4. All the four police officials and the Sweeper woman, arrayed as A1 to A5, were charged for the offences of gang rape, attempt to commit murder and abetment etc. and tried. Ultimately, they were convicted and sentenced.
5. Challenging the said conviction and sentence, A1, the Inspector of Police has filed a separate appeal in Crl.A.No.765 of 1993 and A2 to A4, the Constables, have filed appeal in Crl.A.No.764 of 1993. Since the adequate sentence has not been imposed upon the accused who committed gang rape as provided in Section 376(2)(g) I.P.C., the victim Kalpana Sumathi has preferred a revision in Crl.R.C.No.172 of 1994 requesting for enhancement of sentence. Both these appeals and revision are being disposed of through this common judgment.
6. The brief facts of the shameless intrigue as unravelled by the prosecution are as follows:
"(a) Kalpana Sumathi (P.W.1) is the wife of Venkatesamurthy (P.W.3). They are residents of Thalli village. She is working as a Teacher in a private Nursery School. After their wedlock, a female child was born to them.
(b) On 20.7.1988 at about 5.30 p.m., P.W.1 Kalpana Sumathi went with a plastic vessel to fetch water from the bore-well pump situated near the Thalli Police Station. At that time, A5 Lakshmi, who was working as the Sweeper in the said police station, put a cloth on her head and after hitting her forcibly abducted and took her inside the police station. There, she was pushed inside the store-room and her head hit the wall. When she tried to go out of the room, A3 Selvaraj, the Writer, A4 Govindasamy, the Constable, A5 Lakshmi closed the door. Thereafter, A1 Balasubramanian, the Inspector of Police, A2 Govindarajan, the Head Constable, A3 Selvaraj, Writer and A4 Govindasamy, Constable committed rape one after another. Then, A2, A3 and A4 again came inside and beat the victim on her head with sticks. The victim receiving bleeding injuries on the head and other parts of the body became unconscious.
Then, A2 to A5 lifted her body and took to a secluded place through the backyard of the police station and threw the body into a pit of 7 feet depth. Then, they took two big stones and threw them on her head and left the place.
(c) In the meantime, P.W.3 Venkatesamurthy, her husband having waited till 7.30 p.m. for the arrival of P.W.1 from bore-well pump, went to the bore-well pump in search of her along with P.W.4 Sekar, P.W.5 Nagaraj and two others. She was not available there. But, P.W.3 found the plastic vessel which was carried by P.W.1 to fetch water lying on the floor near the bore-well pump. Then, P.W.3, his relatives and others arranged a Van and went to various places like Hosur and Elathagiri where their relatives reside, in search of her. Since she was not available there, P.W.3 and others came back to the village.
(d) Next day i.e. on 21.7.1988 at about 11.00 a.m. he came to know that the body of the victim was found lying in a canal at the corner of the village and so, he and others went there. To their utter shock, she was found semi-naked with injuries all over the body in a pit. However, she was found alive. P.W.6 Ramakrishnan, another Teacher immediately rushed to the police station and requested A3 Selvaraj, Writer who was available then to come to the scene for recording her statement. A3 did not evince any interest. He simply asked P.W.6 to take the victim to the hospital,if she is alive.
(e) Then, P.W.1 was taken in a Tempo and brought to the Hosur Government Hospital at 12.45 p.m. P.W.18 Dr.Padmavathy examined her and found 21 injuries all over the body. Since there was heavy bleeding, P.W.18 advised that the victim to be taken to Saint John Hospital, Bangalore. Accordingly, she was taken and admitted at 5.30 p.m. in the Bangalore Hospital. P.W.16 Dr.Norman attached to Bangalore Hospital examined her and found serious injuries and also fracture in the bone and different parts of the body. Though she was conscious, she was not able to give any details as to how she sustained injuries. Noticing her condition, P.W.17, a Psychiatric Doctor was brought and constant treatment was given to her.
(f) Meanwhile, on a complaint received from P.W.3 husband, the case was registered by Sethu Madhavan, Sub Inspector of Police of the Thalli Police Station on 21.7.1988 at about 3.30 p.m. for the offences under Sections 354, 325 and 323 I.P.C. Nonetheless, the police did not take further action in the matter. P.W.7 Subba Rao, an elder of the village on finding that no further action was taken by the police, presented a memorandum to the Collector to take further action on the complaint given by P.W.3 husband.
(g) On 28,7,1988, P.W.7 went to Bangalore Hospital and met her. On seeing him, P.W.1 wept, but did not give any details. When she was insisted for the details, she reluctantly told him that Lakshmi, Sweeper(A5) would give all the details.
(h) In the meantime, as per the orders of the Collector, P.W.19 R.D. O. came to Thalli Police Station to enquire about the memorandum submitted by P.W.7. Thereafter, there was a public agitation expressing their protest for the inaction of the police. Then, an enquiry was conducted and the public were invited to give statements.
(i) On 1.8.1988, P.W.19 after such inquiry, sent a report to the District Collector. Then, on 3.8.1988, he was directed by the Collector to initiate inquiry under Clause 145 of the Police Standing Orders to find out the involvement of the police officials in the incident. On 4.8.1988, P.W.19 went to the Bangalore hospital and examined P.W.1 and obtained her statement Ex.P54. Though she stated in Ex.P54 that she was forcibly abducted by A5 to the police station, she did not give further details, as she was not able to remember them. So, again on 6.8.1988, he obtained another statement Ex.P56 from the victim in which she gave all the details about the gang rape and beating etc. by the police. Then, he continued the inquiry and finished the same and then sent the report to the Collector.
(j) Accepting the report, the Collector then passed an order directing P.W.19 R.D.O. to file a complaint against the police officials concerned. Consequently, the permission was granted to file a complaint to prosecute the officials as well as the Sweeper woman. Then, on the orders of the Judicial Magistrate, the bloodstains taken from the scene of occurrence were sent for the Chemical Analysis and on the requisition of P.W.19 R.D.O., an identification parade was conducted in the presence of P.W.9 Judicial Magistrate. In the parade, A1 to A4 were correctly identified by P.W.1.
(k) After observing all the formalities, the Judicial Magistrate concerned committed the case to Sessions Court. Thereafter, the charges were framed against the accused by the Sessions Court and trial went on.
(l) During the course of trial, P.Ws.1 to 19 were examined, Exs.P1 to P70 were filed and M.Os.1 to 33 were marked on the side of prosecution. The accused while answering the questions under Section 313 Cr. P.C., simply denied their complicity in the crime. They did not adduce any evidence on their side.
(m) On appreciation of the evidence available on record, the trial Court found all the accused guilty under Sections 366, 366 read with 10 9,,342 read with 109, 376, 326, 307, 307 read with 109, 376 read with 109, 201 and 326 read with 34 I.P.C. The Court sentenced A1 to A4 to undergo R.I. for 3 years and to pay a fine of Rs.500/- for the offence under Section 366 read with 109 I.P.C.; R.I. for one year for the offence under Section 342 read with 109 I.P.C.; R.I. for eight years and fine of Rs.500/- for the offence under Section 376 I.P.C.; R.I. for seven years and fine of Rs.500/- for the offence under Section 32 6 I.P.C.; sentenced A4 to undergo R.I. for seven years and fine of Rs.500/- for the offence under Section 307 I.P.C.; sentenced A1 to A3 to undergo R.I. for seven years and fine of Rs.500/- for the offence under Section 307 read with 109 I.P.C.; sentenced A2 to A4 to undergo R.I. for two years and fine of Rs.500/- for the offence under Section 201 I.P.C.; and sentenced A5 to undergo R.I. for three years for the offence under Section 366 I.P.C.; R.I. for one year for the offence under Section 342 I.P.C. and R.I. for five years for the offence under Section 376 read with 109 I.P.C.
7. Mr.R. Shanmugasundaram, the learned senior counsel appearing for A1, the Inspector of Police, the appellant in Crl.A.No.765 of 1993 would submit the following contentions, while challenging the conviction imposed on A1:
"(1) P.W.1, the prosecutrix was not doing monetarily well. In order to get a job and to get compensation, she falsely implicated the accused, the police personnel by instigating the people to make a public agitation at the instance of the Communist Party. Even before the recording of the statement from the victim, the Collector and Revenue Divisional Officer fixed the police personnel as accused and filed a false complaint in order to satisfy the public.
(2) The statements obtained during the enquiry conducted by the R.D. O. from the witnesses and A5 are not admissible in view of Section 4 of the Revenue Enquiry Act.
(3) The testimony of P.W.1, the prosecutrix, is full of contradictions and her version is highly improbable, especially when she did not come forward with the said version at the earliest point of time. The scene of occurrence, namely police station is situated in a busy area surrounded with shops, Bank, School, play ground and police residential quarters. Buses will be parked near the road side. In the said situation, it is improbable to contend that she was forcibly abducted and locked in the police station and she cried and banged the door and at that point of time, a gang rape was committed. (4) The material witnesses, viz., father of P.W.1 to whom P.W.1 talked earliest, one Munusamy Achari who had seen that P.W.1 was forcibly dragged away by A5, one Sampathkumar to whom she talked after regained consciousness and D.S.P. and Sub Inspector of Police who had initially investigated the matter, had not been examined. Non-examination of these important witnesses would draw adverse inference against the prosecution. (5) Though the occurrence took place on 20.7.1988 and the victim was conscious even on 21.7.1988 as admitted by the Doctor P.W.18, she belatedly came forward with the statement of accusation against the accused only on 6.8.1988. (6) P.W.18 Doctor who examined the victim on 21.7.1988 gave opinion that there is no clinical evidence of rape."
8. The submissions made by Mr. V.Gopinath, the learned senior counsel appearing for A2 to A4, the appellants in Crl.A.No.764 of 1993 are these:
"(1) Even according to P.W.1, she did not know A1 to A4 previously. During the course of enquiry by P.W.19 R.D.O, she did not whisper anything about the identification of A2 to A4. The identification parade was conducted only after 1« months after the discharge from the hospital. Even before P.W.9, the Magistrate in whose presence the parade was conducted, the objection was raised by all the accused that the accused persons were shown to P.W.1 even before the parade and their photos were published in the newspaper. Even according to P.W.1 in her statement before P.W.19, the R.D.O. she was pushed into a storeroom, which was dark. When such was the case, she would not have identified the persons who committed rape. So, the statement of P.W.1 in the Court that there was a light in the store-room is improvement. (2) The police station was surrounded by the places where the Transport Corporation buses were parked in the night. The conductor and driver of the buses were not examined.
(3) Ex.P62, the confession statement obtained from A5 is not a voluntary one.
In Ex.P62, the date is not mentioned. Even though A5 deposed in Tamil, the same was written in English.
(4) Even though the bloodstained sample taken from the storeroom was found to be tallied with the blood group of the victim, the samples were not taken in accordance with rules, since the bloodstains were not collected with the help of Scientific Expert. P.W.19, the R.D.O. had not followed the correct procedure in filing the complaint, as he did not adopt the required procedure, while recording the statement from the witnesses. Although P.W.19 stated that he perused the General Diary entry in the police station, the same had not been produced before the Court.
(5) The evidence of P.W.18, the Doctor is completely contradictory to the prosecution case.
(6) The investigation was conducted by P.W.19 R.D.O. in a hasty manner in order to fix the accused hurriedly in order to overcome the public outcry and law and order problems and as such, the same is faulty."
9. Arguing contra, Mr.S.Jayakumar, the learned Additional Public Prosecutor would submit, in support of the reasonings given by the trial Court in convicting the accused, that the testimony of the prosecutrix P.W.1 is trustworthy and the same is corroborated by the medical evidence and other evidence and that even though the corroboration is not required in a rape case where the evidence of the victim is credible, in this case, the reliability of the victim through her evidence has been established by the other materials through the oral and documentary evidence adduced by the witnesses including the Doctors and as such, the conviction is liable to be confirmed.
10. Ms.Geetha Ramaseshan, the learned counsel appearing for the victim in the revision would submit that the offence of gang rape, that too by the police officials at the police station is of heinous nature and the trial Court ought not to have imposed 8 years R.I., especially when there is a minimum imprisonment of 10 years prescribed and the maximum punishment is life sentence and would request this Court to consider the enhancement of punishment in the light of the nature of the offence and the plight of the victim by taking into consideration the factual aspects for imposing appropriate punishment in the light of the sentencing policy.
11. The counsel for the parties would cite several authorities of this Court and other High Courts as well as the Supreme Court, which would deal with the appreciation of the evidence in the cases relating to the offence of rape to substantiate their respective pleas.
12. I have given my anxious consideration to the oral as well as written submissions made by the counsel for the parties and also gone through the entire records.
13. Before dealing with the merits of the contentions urged by the counsel for the parties, it would be appropriate to refer to the decisions rendered by the Supreme Court cited by the counsel for both the parties in the matter of appreciation of the evidence of the prosecutrix in a rape case, which are these:
1) RAFIQ v. STATE OF U.P.(1980 CRI.L.J.1344= 1981 L.W. (Crl.)41);
2) BHOGINBHAI HIRJIBHAI v. STATE OF GUJARAT (1983 CRI.L.J.1096);
3) STATE OF MAHARASHTRA v. CHANDRAPRAKASH KEWALCHAND JAIN (1990(1) S.C.C.550);
4) STATE OF RAJASTHAN v. SHRI NARAYAN (1992(3) S.C.C.615);
5) STATE OF ORISSA v. DAMBURU NAIKO (1992(2) S.C.C.522);
6) STATE OF H.P. v. RAGHUBIR SINGH (1993(2) S.C.C.622);
7) NARAYANAMMA v. STATE OF KARNATAKA (1994(5) S.C.C.728);
8) KARNEL SINGH v. STATE OF M.P. (1995(5) S.C.C.518);
9) STATE OF PUNJAB v. GURMIT SINGH (1996
CRI.L.J.1728=19 96(2) S.C.C.384);
10) STATE OF H.P. v. LEKH RAJ (2000 S.C.C.(Cri) 147);
11) STATE OF SIKKIM v. PADAM LALL PRADHAN (2000 S.C.C.(Cri) 12 17);
12) STATE OF RAJASTHAN v. N.K.(2000 S.C.C.(Cri) 898);
13) STATE OF KARNATAKA v. KRISHNAPPA (2000 S.C.C. (Cri) 7 55);
14) STATE OF H.P. v. GIAN CHAND (2001 CRI.L.J.2548).
14. On going through the decisions referred to above, it is clear that the appreciation of the materials in rape cases is quite different from the appreciation in normal criminal cases.
15. The guidelines laid down in the above cases decided by the Supreme Court from time to time can be summarised as :
(1) The corroboration of the testimony of the prosecutrix in a rape case is not required as a rule of law.
(2) The corroboration of the prosecutrix evidence may be dispensed with, where the circumstance of the case makes it do so. However, the reasons for dispensing with necessity of such corroboration shall be forthcoming in the judgment.
(3) If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars.
If for some reason, the Court finds it difficult to place implicit reliance on her testimony, then it may look for evidence which may lend assurance to her testimony. The testimony of the prosecutrix must be appreciated in the background of the entire case. The trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
(4) The victim of rape stating on oath that she had forcible sexual intercourse has to be believed unless the materials available to draw inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable.
(5) In India women are slow and hesitant to complain of sexual assaults. If the prosecutrix happens to be a married person, she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such woman, it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, the delay in lodging complaints in such cases does not necessarily indicate that the version of the prosecutrix is false. (6) 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.
(7) The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.
(8) Discrepancy has to be distinguished from contradiction. Although contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident, there may occur minor discrepancies and such discrepancies in law may render credential to the deposition."
16. Keeping in mind the above basic principles of law and guidance in regard to the appreciation of the evidence in rape case, this Court has to consider the credibility and reliability of the testimony tendered by the prosecutrix.
17. The first and foremost thing, which may have to be noticed and which has not been disputed by the defence, is that the prosecutrix P. W.1, a Teacher who comes from an orthodox respectable family does not have any motive to make a false accusation against the police officials, that too with the charge of rape at the risk of her honour. In the absence of the challenge with regard to the strong motive against the police officials, there cannot be any hurdle for this Court to accept the evidence of the victim of gang rape, if it inspires confidence.
18. In this context, this Court reminds of the observation of the Supreme Court, when the evidence of prosecutrix who does not lack understanding and there is no strong motive for the victim to falsely involve the persons charged in a case of rape, the Court should have no hesitation in accepting her evidence, as laid down in STATE OF MAHARASHTRA v. CHANDRAPRAKASH KEWALCHAND JAIN (1990(1) S.C.C. 550). The relevant observation is as follows:
"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. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted."
19. Bearing in mind the above observation, we would now analyse the case of prosecution as projected by P.W.1:
"(a) P.W.1 on 20.7.1988 at about 5.30 p.m. went to the bore pump situated in a school compound next to police station carrying a plastic vessel (kudam) to fetch water. P.W.2 Jayammal after taking water came back through police station. She saw P.W.1 coming towards bore pump near the police station. Few minutes later, A5 Lakshmi, a woman Sweeper working in the police station put a cloth on her head and pulled her. P.W.1 felt that somebody beat her on the back of the head. In the process of her being pulled, P.W.1 dropped the kudam at the spot itself. She became semi-conscious. However, she was able to feel that she was taken to police station and pushed into a room.
(b) After some minutes, she regained full consciousness and found that she was in a store-room containing old articles. Then, she cried and banged the door which was locked from outside. At that time, A3 Selvaraj, Writer, A4 Govindasamy, Constable and A5 Lakshmi, Sweeper opened the door and came inside. The electric light inside was burning then. They asked her to keep quiet and told her that she would not be allowed to go back to her home. When she cried and tried to escape through the door, the door was closed forcibly by the accused, with the result her right fingers got crushed. Thereafter, she was pushed towards the wall, thereby her head got hit on the wall resulting in the bleeding injuries. Further, they beat her. Unable to bear the same, she again became unconscious.
(c) After some time, she gained consciousness and tried to get up from the floor. At that time, A3 Writer and A4 Constable came and asked to call Circle Inspector (A1) and Govindarajan, Head Constable (A2) to the room. Within a few minutes, all the accused (A1 to A4) came inside the room. All the police officers were in uniform. A1 gave the signal to others to go out and so, A2, A3 and A4 went out of the room.
(d) Then, A1 forcibly grabbed the body of the victim P.W.1 and began to bite her cheek, forehead and breasts. Then, she was made to lie down and A1 pulled the saree up, laid down on her body and raped her. Thereafter, A1 got up and called the other accused and asked them to have sexual intercourse with her and finish her. So saying, he left the place.
(e) Then, A3 Writer came and raped her. After he went out, A4 Constable came inside and committed rape. Lastly, A2 Head Constable came and raped her. She could not resist then, since she sustained serious bleeding injuries on the head and hand. Again A2 to A4 came inside and all of them hit on her head.
This time, she completely lost her consciousness. She did not know what happened to her subsequently. She regained her consciousness only at the Bangalore Hospital."
20. The above details given in the deposition of P.W.1 would show that she was able to remember only this portion of the occurrence.
21. It is the further case of the prosecution that after a gang rape by A1 to A4, A2 to A4 lifted her body and dropped her into a ditch with a considerable depth and threw the stones on her head. Since P.W.1 lost her consciousness, she was not able to say the other details regarding the lifting of her body from police station and throwing into the pit at the place near to the police station i.e. later portion of the occurrence.
22. Let us now scrutinise, whether the evidence with reference to the first portion of the occurrence relating to rape adduced by P.W.1 is reliable and whether there is any corroboration.
23. P.W.1 would state that when she was forcibly pulled by A5 in order to take her to police station, she dropped the kudam there itself. When P.W.3, the husband of P.W.1 finding that the victim did not turn up home after fetching water, went in search of P.W.1 at 10.30 p.m. to the bore pump. At that point of time, he found that all the doors of the police station were closed and one light was burning inside the police station. He found the plastic green kudam which was carried by P.W.1 while she left home lying near the bore pump. According to P.W.3, on noticing the kudam lying in the ground, he got fainted.
24. P.W.4 Sekar, a resident of Thalli village accompanied P.W.3 to bore pump in search of P.W.1. He also saw that the green plastic kudam was found near the bore pump. P.W.5 Nagaraj who is the resident of the same village, who accompanied them to bore pump, also saw the plastic kudam near the bore pump and on seeing that P.W.3 fainted. Strangely, when they came to bore pump next day, they found kudam missing.
25. The evidence of P.W.2 would indicate that P.W.1 was crossing the police station while proceeding towards bore pump at 5.30 p.m. with kudam, and the evidence of P.Ws.3, 4 and 5 would disclose that the said kudam was found lying near the bore pump, when they visited at 10.3 0 p.m. on the same night. Thus, the evidence of P.W.1 regarding the initial part of the occurrence, has been corroborated by these witnesses.
26. Regarding the rape committed by A1 to A4 inside the storeroom, we have got the evidence of P.W.1 alone. However, the injuries sustained by her at the hands of the accused were noticed by P.W.3 to P.W.6 when the body of P.W.1 was lifted from the pit.
27. As noted above, after searching for P.W.1 in various places, P.W.3 husband of the victim came back to village. Next day at about 11.3 0 a.m., P.W.3 was informed that P.W.1's body in a semi-naked position was lying down in a pit situated within 75 metre distance from the police station. P.W.3 immediately rushed to the scene along with P.W.4 Sekar, P.W.5 Nagaraj and P.W.6 Ramakrishnan, local residents of Thalli village. All of them would state that she was found lying down in a pit with injuries on the head, hand, legs and other parts of the body. At that time, she was grumbling. P.W.6 Ramakrishnan went immediately to the police station and gave intimation to A3 Writer, who was available then and requested to come to the spot to record statement from her. But, A3 did not care to come and merely asked him to take her to hospital. Then, all of them took her to the hospital at Hosur. P.W.18 Dr.Padmavathi attached to the Government Hospital, Hosur admitted her at 12.45 p.m. on 21.7.1988. Though she was conscious and able to speak, she did not give out the details about the manner in which she sustained injuries. She found totally 21 injuries. Out of those injuries, injury Nos.2, 3, 4 and 8 are head injuries and injury Nos.14, 15, 16 and 17 are the injuries which were found on hand and fingers. She also found fractures in so many parts of the body. Since her condition was so serious as there are bleeding injuries, she was referred to the Bangalore Hospital on the same day.
28. P.W.16 Dr.Norman who admitted in the Bangalore Hospital at 5.30 p.m. on 21.7.1988 examined the victim. According to P.W.16, he found 21 injuries all over the body. He also gave opinion that some of the injuries are compound fractures. He would state that though the patient was conscious, she was unable to narrate the cause of the injuries. According to him, the injuries on both the hands are grievous in nature.
29. Both these Doctors, viz., P.W.16 and P.W.18 would state that these injuries would have been caused due to bite or caused by a forcible jamming of the doors and the beatings by sticks and the fractures can also be caused by dropping the stones. Thus, it is clear from the evidence of the Doctors P.W.16 and P.W.18 that the evidence of P.W.1 that she was beaten by the police officials while she showed resistance before committing rape is well corroborated.
30. It is relevant to note that the evidence that P.W.1 was found with injuries on her body and was removed from the pit, as spoken to by P.Ws.3 to 6 has not been challenged by the defence. It is also not disputed that the pit from where she was rescued was situated at the backyard of the police station just 75 metres away. P.W.18 Doctor in her deposition would state that all the 21 injuries were found smeared with sand.
31. According to P.W.1, she was gang raped by the police officials after beating her causing bleeding injuries on 20.7.1988. P.W.6, a Teacher working in a Panchayat Union School at Thalli village would state that he went to the police station along with a former M.L.A. and visited the storeroom. He found bloodstained patches in the said room.
32. P.W.19, the R.D.O., while conducting enquiry under Clause 145 of the Police Standing Orders, went and inspected the Thalli Police Station on 22.8.1988 along with the Photographer P.W.12. On noticing bloodstained patches inside the storeroom and Veranda attached to the said room, he recovered the same under Ex.P3. He prepared observation mahazar Ex.P2. Both in Exs.P2 and P3, he mentioned about the same. As per Ex.P3, he removed cement slab along with the bloodstains found in the storeroom and Veranda. As per the Serologist's report Ex.P13 , the bloodstain was found to be human blood.
33. It is true that the victim P.W.1 would give statement only on 6.8 .1988 alleging gang rape against the accused, even though the occurrence had take place on 20.7.1988and as such, there was a delay for about 15 days.
34. As referred to in the decisions of the Supreme Court, mere delay would not be a ground to reject the prosecution case, particularly in rape cases, since Indian women would be reluctant to report the matter to the police as they would invariably fear for the consequences. However, we would now consider whether delay of 15 days has been explained.
35. According to prosecution, there are two reasons for the delay. The first reason is that P.W.1 lost her consciousness fully at the police station itself on receiving head injury and gained consciousness only in Bangalore Hospital. The second reason is that when she gave a statement on 4.8.1988 to R.D.O., she did not give the details of rape by the police officials, since she felt afraid of the consequences and as she belongs to Brahmin community, if the fact of her having been raped is known to her husband, she being a mother of the child would be deserted by her husband.
36. There is no reason to reject this explanation. Though P.W.4 and P.W.5 would state that when she was removed from the pit on 21.7.1988, she grumbled as if some donkeys were responsible for the act, the fact that she was not conscious to speak when she was taken to hospital is mentioned in earlier document, namely Ex.P1, the complaint given by P.W.3 husband to Sub Inspector of Police (Sethu Madhavan) of Thalli Police Station on 21.7.1988 at about 3.30 p.m. In the said complaint, it is specifically stated by P.W.3 that he gave the complaint, since his wife was unable to speak. Even though P.W.18 Doctor would state that she was conscious and answering questions, the Doctor categorically stated in the deposition that P.W.1 did not give the details about the cause for the injuries.
37. At this juncture, it would be worthwhile to refer to the evidence of P.W.17 Dr.Prakash Appaiya, the Head of the Psychiatric Department. He was asked to examine P.W.1.on 22.7.1988 and 23.7.1988 to ascertain as to why she could not explain as to how the injuries were caused. According to him, P.W.1 was suffering from Amnesia and she would not be fit for about 10 days to recollect what happened earlier as there was an apparent loss of memory due to hysterical dissociative reaction. Even in the cross-examination, he would state that the Doctors diagnosed that P.W.1 was suffering from Amnesia and there is no conscious suppression. This evidence would make it clear that even assuming that she stated something while she was removed from the pit or when she was examined by P.W.18 Dr. Padmavathi in Hosur Hospital, that statement could not have been made in a conscious state, since she suffered from Amnesia causing apparent loss of memory for about 10 days. Therefore, the evidence of P.W.4 and P.W.5 regarding the alleged statement of victim with reference to the two donkeys or two legged donkeys, would be of no relevance.
38. With regard to the second reason, namely, fear over the likelihood of desertion by her husband, P.W.3 himself would state that on 4.8.1988 at about 11.30 a.m., she gave a statement to R.D.O.P.W.19 merely mentioning about A5 and not in respect of the main occurrence. After R.D.O. and others left, in the evening, P.W.3, the husband of the victim insisted the victim to tell complete details and only then, the real culprits would be brought into book. He also gave assurance to the victim that she should not be afraid for anything as he would not desert her at any cost and he would take care of her for the entire life. Only after this assurance, P.W.1 gave out the complete details and told P.W.3 and her mother.
39. Then next day, i.e. on 5.8.1988, P.W.3 went to R.D.O. P.W.19 and gave a statement which was recorded by him about what she stated to him. Next day, i.e. on 6.8.1988, P.W.19 R.D.O. came to the Bangalore Hospital and recorded the statement Ex.P56 from the victim P.W.1 who gave full details of the gang rape committed by all the accused (A1 to A4). Hence, both these explanations given by P.W.1 for the delay are acceptable in view of the evidence of P.W.17 Doctor and P.W.3, her husband.
40. Furthermore, the Supreme Court in BHARWADA BHOGNIBHAI HIRJIBHAI (1983 CRI.L.J.1096) observed that a girl or woman in India will not normally make false allegations of sexual assault. Because (1) A woman in the tradition bound non-permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.
(2) She would be conscious of the danger of being ostracised by the Society or being looked upon by the Society including her husband and other family members.
(3) She would have to brave the whole world.
(4) She would face the risk of losing the love and affection of her own husband and near relatives.
(5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match.
(6) It would almost inevitably and almost invariably result in mental torture. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame.
(9) The natural inclination would be to avoid giving publicity to the incident otherwise the family name and family honour will be brought into controversy. (10) The parents of the woman as also the husband and the members of the husband's family would also want to avoid publicity on account of the fear of social stigma on the family name and family honour.
(11) The fear of the victim herself being considered to be responsible for the incident regardless of her innocence.
(12) The reluctance to face interrogation by the police, to face the Court, to face the cross-examination by the counsel and the risk of being disbelieved, acts as a deterrent.
Therefore, the explanations given by P.W.1, the victim in this case, for the delay are acceptable as the same are in the lines of the above circumstances.
41. It is true that though there were 21 injuries all over the body, there were no injuries on private parts of P.W.1. It is also admitted case that there was no sperm deposited either in the vagina or in the clothes of the victim. This would not be a reason to conclude that there was no rape. It is the clear evidence of P.W.18 Doctor that though she initially stated in the accident register issued by her that she did not find any clinical evidence of rape, she would explain the same in her evidence as well as the statement Ex.P52 made before P.W.19 R.D.O. to the effect that a married woman who had given birth to a child if subjected to sexual assault, th ere would not be any injury on the vaginal and that after sexual intercourse, the seminal stains could be easily be washed with water or could be washed by natural vaginal cleaning process. In Ex.P52 she would further state that it is quite possible if the woman is overpowered or in a state of semi-conscious with no resistance the injury on the private part may not be present. It is also stated in her statement that it is wrong to presume that there was no rape merely because there is no positive clinical evidence and she gave opinion that there was no clinical sense of rape only on the basis of absence of the injuries on the private parts of the body. Therefore, her initial opinion in the accident register cannot be taken to mean that the medical evidence is contrary to the evidence of victim. On the other hand, it corroborates the version of P.W.1 that she was overpowered by beating her and causing hurt on head and thereafter rape was committed. As a matter of fact, she would specifically state that she did not resist while the rape was committed by one after another as she was suffering from pain due to the bleeding injuries on the head and hand.
42. Yet another piece of evidence is that P.W.1, the victim identified A1 to A4 correctly in the parade held at Hosur Central Jail in the presence of P.W.9, the Judicial Magistrate. This would also support the version of P.W.1 that the gang rape was committed by these accused persons. P.W.9, the Judicial Magistrate in his report Ex.P10 and in his deposition before the Court would clearly state that P.W.1 identified A1 to A4 correctly on all the three occasions when the accused were made to stand among the other persons with the similar age and structure.
43. It is true that the parade was conducted only on 22.11.1988 even though she was discharged from the Bangalore Hospital on 12.10.1988 and as such, the parade was conducted after a delay of 40 days. But, the said delay, in my view, has been properly explained through the evidence of P.W.19 R.D.O. under Exs.P8, P9 and P67. There is no dispute in the fact that the victim was admitted in the Bangalore Hospital on 21.7.1988 and discharged only on 12.10.1988 after nearly 2 1/2 months during which she was in the hospital.
44. P.W.19 after getting permission from the Government to prosecute the police officials on 13.8.1988, filed the complaint on 22.8.1988. Immediately thereafter, he filed the requisition before the Court to make arrangements for conducting identification parade. The perusal of Ex.P67 would reveal that the Court earlier issued two summons to P.W.1 on 12.9.1988 and 10,10,1988 asking her to appear on 14.10.1988 to participate in the parade.
45. The victim was discharged from the Bangalore Hospital only on 12.10.1988. The identification parade was originally fixed at Salem. As per the Doctor's advice, she should not move to other places and she should take rest at home for a period of two weeks from the date of discharge. To this effect, on 11.10.1988 the Doctor at Bangalore sent a letter to the R.D.O. P.W.19. On that basis, P.W.19 filed an application Ex.P67 on 7.11.1988 to the Judicial Magistrate requesting to arrange for the identification parade at Hosur instead of Salem on or before 16.11.1988. The Judicial Magistrate, Hosur, in turn, requested permission through Ex.P8 requisition dated 7.11.1988 from the Chief Judicial Magistrate at Krishnagiri for conducting parade at Hosur. Accordingly, such a permission was granted.
46. Then, J.S.C.M., Palacode (P.W.9) sent a letter Ex.P9 to Superintendent of Jail, Hosur to make necessary arrangements to conduct identification parade on 22.11.1988 within the prison compound. After such arrangements were made, the parade was conducted in the presence of P.W.9, the Judicial Magistrate, Palacode and in the said parade, P.W.1 identified the accused (A1 to A4) correctly on three times.
47. After the parade was over, the accused were questioned by the Judicial Magistrate in regard to the objection, if any. They said that P.W.1 knew them earlier as they were working in the police station; she would have seen their photographs published in the newspaper and that she also saw them when they came and appeared before the Court for the case. They further stated that P.W.1 dressed as a Gosha Muslim girl and came to the Court and saw the accused even before the parade was conducted.
48. All these objections were recorded by the Judicial Magistrate. Ultimately, P.W.9 Magistrate prepared a report Ex.P10 stating that A1 to A4 were correctly identified by P.W.1 on three times in the parade and the accused did not raise any objection with reference to the formalities observed in conducting the parade. While P.W.1 was crossexamined on this aspect, a suggestion was put to her that she came and saw them in the court in the Gosha dress and saw their photos in the newspaper. This was emphatically denied by P.W.1.
49. On going through the report Ex.P10, it is noticed that all the accused would state that P.W.1 knew them earlier as they were working in the local police station of the village. This is not admitted by P.W.1. P.W.1 would specifically state that except A5, she did not know the other accused. If really P.W.1 knew them, she could have very well mentioned the same in her statement given to the R.D.O. P.W.19 at the earliest point of time and in that event, there is no necessity for conducting identification parade. But, the consistent stand taken by P.W.1 is that she did not know them. On the other hand, she was able to see one identifiable feature about A1 that he was wearing a square ring with stones. She would also state that she came to know the names of the other accused as the first accused, the Inspector of Police after committing rape, called them by name to come inside and thereafter, all the three persons came one after another and raped her.
50. These materials would show that the procedure for conducting identification parade was correctly followed without any undue delay and P.W.1 was able to establish her version regarding the identity of the persons who committed gang rape on her, by identifying them correctly in the parade conducted by the Judicial Magistrate.
51. The involvement of the police officials in the gang rape has also been established by two other factors. Firstly, there was an initial reluctance in registering the case with reference to the crime even though the victim was found with injuries all over the body in a pit situated at the backyard of the police station. Secondly, despite registration of the case after a considerable delay, no further action was taken by the police to find out the real culprits, which resulted in the public agitation.
52. The occurrence had taken place in the night of 20.7.1988. The body was found lying in a ditch at about 11.00 a.m. next day. P.W.3, the husband, P.W.4, P.W.5, P.W.6, other villagers went to the spot and noticed the victim lying in the pit with a semi nude condition with injuries all over the body. P.W.6 Ramakrishnan, a Teacher working in the Panchayat Union School at Thalli rushed to the police station along with another and complained the matter to the Writer of the police station who was available then. The Writer is none other than A3. P.W.6 requested him to come to the spot and record the statement of victim, as she is alive and conscious. A3 on hearing this news, exclaimed by asking "Is she alive?" He further stated, "If she is alive, you try to save her by taking to hospital". However, he did not come to the spot. In the statement Ex.P59, P.W.6 would state that one Police Constable Kaveri was sent. But, he simply came to the spot and shouted at the people who gathered there in a vulgar language and did not take any action.
53. This aspect of the evidence adduced by P.W.6 has not been challenged. As a matter of fact, A3 in his statement to the question No.78 admitted that P.W.6 came and informed him about the victim lying in a pit and he asked him to save her life. It is clear from this, neither A3 nor Kaveri, Police Constable did take any steps in making an attempt to record statement from the victim or victim's husband. It is also clear from Ex.P39 F.I.R. and Ex.P41 mahazar for recovery of stones from the scene that the body was lying down in a pit which is just one furlong from the police station. The victim was admitted in the hospital on 21.7.1988 at 12.45 p.m. There was no anxiety shown by the police officials in the Thalli Police Station to register a case, even though a victim girl was found with injuries near the police station.
54. In the meantime, the public gathered in front of the police station and resorted to agitation. Only thereafter, Sethu Madhavan, the Sub Inspector of Police obtained complaint from P.W.3 husband of the victim and registered the case in Crime No.81/88 under Sections 354, 3 25 and 323 I.P.C. at about 3.30 p.m. P.W.7 Subba Rao, an elder of the village, who is the Bus Operator, on noticing that there was no further action, prepared a memorandum signed by the public and presented the same to the Collector on 27.7.1988. It was also informed to the Collector that there would be a Hartal and general strike on 30.7.198 8 if no further action is taken. On receipt of the information, P.W.19 R.D.O. went to Thalli village and conducted enquiry. During the course of enquiry also, the agitation by the public continued protesting against inaction of the police.
55. After enquiry, P.W.19 sent an enquiry report on 1.8.1988 suspecting the involvement of the police officials of Thalli Police Station in the incident and thereafter, on 3.5.1988 under Ex.P53, the Collector directed P.W.19 to initiate enquiry under Clause 145 of the Police Standing Orders. Accordingly, further enquiry was conducted by the R.D.O. and ultimately, after examination of the witnesses including the victim, he sent a report on 6.8.1988 to the Collector fixing the responsibility against four police officials i.e. A1 to A4 through Ex. P63. In the said report, he specifically stated that in spite of the request of the public, the police officers did not care to register a case even though the victim was found with injuries near the police station and the complaint was registered belatedly by the Sub Inspector of Police and even then there was no further action on that for the main reason that police officials themselves are involved. This circumstance also would add strength to the evidence of P.W.1 victim relating to the incident of gang rape in the police station at the relevant time.
56. We will now come to the second portion of the occurrence.
57. According to the prosecution, after the gang rape, she was beaten again and made completely unconscious. Thereafter, she was bodily lifted from the storeroom and taken through the school veranda and dropped her body into the ditch which was at the backyard of school near the police station. Thereafter, the accused Constables threw two stones on her head and left the place.
58. For this part of the incident, there is no direct evidence adduced by the prosecution. However, it is noticed that P.W.1 in Ex.P56, which was recorded on 6.8.1988 by P.W.19 R.D.O., she stated that the Circle Inspector (A1) after committing rape, asked other three police personnel accused to have intercourse with her and thereafter to finish her. Though she could tell in the statement that she remembered that some mud was thrown on her, she did not give the details as to how and by whom she was taken and thrown into a ditch.
59. But, the consistent stand taken by P.W.1 both in her statement made to R.D.O. and in her deposition before the Court that after all the persons committed rape on her, she was beaten by A2 to A4 with heavy object and subsequently, she lost her consciousness and she regained consciousness only in the Bangalore Hospital. Therefore, she would not be able to say regarding the fact that she was thrown into a pit and stones were thrown on her head to kill her. However, the statement Ex.P62 given by A5, the woman Sweeper to P.W.19 R.D.O., while the enquiry was conducted, would give clear picture as to what happened subsequent to the gang rape. This statement was recorded on 20.7.1988 at 5.45 p.m. even before obtaining the statement Ex.P56 from the victim P.W.1.
60. According to the statement Ex.P62, after A1, the Inspector of Police left the station, A2 to A4 went inside the storeroom one after another and came back. When A5 asked A3 as to why there was some sound inside the storeroom, A3 told her that the woman had fainted. Thereafter, the accused Constables lifted her and carried her through the school veranda and pushed into a ditch and thereafter, they threw two granite stones on the girl's head. Then, they left the place. After coming back to police station, the mat on which the girl was raped also was torn by A3, the Writer.
61. This statement is an additional corroboration to the statement ( Ex.P56) of P.W.1 in which P.W.1 stated that the Inspector of Police asked other Police Constables to have sexual intercourse and then to finish her. This statement cannot be rejected merely because A5 has retracted the same during the course of trial.
62. It is contended that it is not admissible under Section 4 of the Revenue Enquiries Act. This contention deserves outright rejection in view of the fact that the statements were obtained only in the Fact Finding Enquiry contemplated under Clause 145 of the Police Standing Orders. The enquiry was not conducted under the Revenue Enquiries Act. Therefore, Section 4 of the said Act would not apply.
63. Furthermore, this document would certainly be admissible under Section 24 of the Evidence Act, as the said statement has been given to the Executive Magistrate and the same has been taken as an extrajudicial confession. A5 never stated that she was compelled to give such a statement. She did not dispute her thumb impression in the said statement. As a matter of fact, P.W.19 who speaks about the statement Ex.P62 made before him by A5 had not been cross-examined by A5 at all, though the other witnesses were cross-examined by her counsel.
64. In the said fact situation, there is no difficulty in holding that the statement Ex.P62 is an extra-judicial confession made by A5 and it can be relied upon to conclude that the body of the victim was removed from the storeroom and dropped into a ditch and stones were thrown on her head in order to finish her once for all as directed by A1 .
65. Furthermore, the contents of the said extra-judicial confession is in a way corroborated by the evidence of the witnesses P.W.3, P.W.4 , P.W.5 and P.W.6 who stated that the body was found lying in the pit and from there, the victim was taken to hospital. In addition to this, P.W.18, the Doctor attached to Hosur Hospital and P.W.16, the Doctor attached to Bangalore Hospital would mention in their certificates Exs.P.50 and 51 respectively that there are several injuries on frontal, parietal and temporal region of the head. They also would state that these injuries on the head would have been caused by throwing the stones on the head. In fact, both the Doctors would state that most of the injuries were grievous in nature which could be caused by stones.
66. Thus, it is clear from the extra-judicial confession and other materials referred to above that after finishing rape, there was an attempt to commit murder on her. Both the Doctors would state that there was loss of large quantity of blood and if timely treatment had not been given, she would have died. These things would make it clear that there are enough materials to show that the accused Police Constables (A2 to A4) had caused grievous injuries and made attempt to commit murder, thereby to cause disappearance of the evidence.
67. The main thrust of the attack by the senior counsel appearing for the first accused, the Inspector of Police is that the family of P. W.1 was so poor and in her family, P.W.1 alone was doing a temporary job as a Teacher and in order to get permanent job and to get compensation, she falsely implicated A1 and other accused with the help of the Communist Party who were agitating over the lack of interest over the investigation by the police and in order to satisfy the public outcry, the R.D.O. hurriedly fixed the responsibility on the accused police officials.
68. This defence, in my view, is not only artificial but also obnoxious. Though the occurrence had taken place on 20.7.1988, P.W.1 who is the unfortunate victim never said anything initially either with reference to the commission of offences or with regard to the identity of the culprits. Even on 4.8.1988 when she gave first statement to R.D.O., she did not want to tell anything as she was afraid of the consequences, but she merely said that A5 knew everything.
69. In the meantime, the public agitation gained momentum and in the said agitation, the vehicles belonged to the Government were damaged and the Driver of P.W.19 was severely attacked and P.W.19 was also a victim in the said attack.
70. As noted above, P.W.19 was able to know the nature of the offence and identity of the persons involved, when he examined A5 and obtained her statement Ex.P62 on 20.7.1988 even before recording statement from P.W.1 on 6.8.1988. P.W.1 never asked for compensation nor for permanent job either before the Government or before the Supreme Court. As seen in the order of the Supreme Court (Ex.P68),the victim is not a party in the said petition whereas it was only a public interest litigation where it was observed by the Supreme Court that the victim is entitled to interim compensation as she has undergone treatment for a long period away from house and at a place out of the State and also for the reason that she had undergone a lot of suffering - physical and mental. This observation made by the Supreme Court was on 28.10.1988 long after the date of report. Admittedly, as noted above, this petition in the Supreme Court was not filed by her.
71. It is equally incorrect to contend that the R.D.O. P.W.19 hurriedly fixed the responsibility on the police personnel in order to satisfy the public who indulged in agitation. As indicated above, only on the basis of the statements of 17 witnesses from the public obtained by the R.D.O. in the enquiry, he prepared an elaborate report Ex.P63 and sent it to the Collector, who in turn passed an order directing prosecution. After the launching of the complaint, the articles recovered from the spot were sent for chemical analysis through the Court and identification parade was conducted in pursuance of the order of the Court. Only after collecting all the materials, the matter was committed to Sessions. Therefore, the contention that there was a hurried investigation is untenable.
72. It is further contended that the testimony of the prosecutrix is full of contradictions and as such, her evidence is not to be relied upon. On going through the entire evidence, this Court is unable to say that there are vital contradictions which w ould go to the root of the matter. There may be some discrepancies which cannot be considered to be contradiction which would affect the fabric of prosecution.
73. It is brought to the notice of this Court that there are variations between the statements made by P.W.1 before P.W.19 and the deposition given to the Court. The first statement was given by her on 4.8.1988. In the said statement, she did not give the details, since at that time, she was afraid that if details were given, her whole life would be spoiled. However, in the said statement, she mentioned that A5 knew about the occurrence.
74. When P.W.3, the husband found that she was reluctant to tell the truth, she was asked to give entire truth, since he would take care of her and protect her throughout her life. Only on the basis of the words of encouragement by P.W.3, P.W.1 gave out full details in Ex.P5 6 recorded on 6.8.1988. As noted above, even prior to the recording of this statement, A5 gave the statement Ex.P62 to R.D.O.(P.W.19) which would corroborate the version of P.W.1 that she was locked in a storeroom and in the said room, she was gang raped and the comparison of Ex.P56 with the deposition of P.W.1 would clearly show that there are no contradictions.
75. It is contended that when P.W.1 was pushed into the storeroom, it was a dark room as admitted by her and so, it would not be possible for her to identify the persons who committed rape on her.
76. This submission also would not impress this Court for the reason that when she was locked in the room, it was only 5.30 p.m. According to the prosecution, the gang rape was committed by one after another between 7.00 p.m. and 10.00 p.m. P.W.8 mahazar witness would state that in the storeroom, there was a light available. P.W.19 also would state that there were electrical lights available in every room of the police station.
77. It is contended that availability of the electrical lights is not mentioned in the mahazar Ex.P2 prepared by P.W.19. P.W.1 has categorically stated in her deposition that there was an electric light burning while the rape was committed.
78. It is true that in Ex.P56, she said that she regained her senses and she felt as if she was in a dark room. She further stated that all the persons one after another came and raped her and she could identify them if she sees them again. She would also state that the Inspector of Police while raping her was wearing a square ring with stone studded on it in his finger. When she stated like that in the earlier statement recorded on 6.8.1988 giving these particulars and stated that she could identify them, it cannot be stated that there was no electric light.
79. Much was said about the non-examination of the so-called material witnesses. Though the F.I.R. was registered by Sethu Madhavan, Sub Inspector of Police, he cannot be said to be a material witness, since he had not conducted any investigation on the said complaint. In the same way, Sampath Kumar and Munusamy Achari, who speak about what the victim stated to them while her body was removed from the pit, also cannot be said to be materials witnesses, since P.W.1 was unconscious at that time and therefore, the statement of those witnesses as to what was stated by P.W.1 would assume no importance.
80. It is stated that there is no corroboration through the medical evidence. As explained above, the evidence of P.Ws.16 and 18 would clearly indicate that there were injuries all over the body including thigh which would show that it could be possible while she was resisting the rape.
81. It is unnecessary that in every rape case, there must be injury on the breasts and private parts. In this case, it is the version of P.W.1 that she was beaten and was completely overpowered and she became semi-conscious on receipt of injuries on the head. P.W.1 in her evidence has clearly stated that she could not resist the gang rape committed by the accused one after another, since she felt pain due to the injuries sustained on the hand and head.
82. It is the clear evidence of P.W.18 that if a woman is rendered thorough helpless, she would not be in a position to resist the sexual assault on her. It is her further opinion that a married woman who had given birth to a child if subjected to sexual assault, there would not be any injury on the vaginal and after sexual intercourse the seminal stains could be easily be washed with water or could be washed by natural vaginal cleaning process. When such is the opinion, the absence of the injury on the private part cannot be taken as a ground to reject P.W.1's evidence.
83. In a case of rape, it is not necessary to examine all the persons who are residing in the nearby area. In fact, P.W.1 would state that when she was forcibly abducted by A5, nobody was available in the scene. According to the evidence available on record, the school was not functioning on that day since there was a strike.
84. It is not disputed that P.W.1 after finishing Teacher Training is working as a Teacher in a Nursery School. Her father is a retired Postmaster. Her father-in-law is the Village Karnam in Thalli village. Her uncle one Venkatesan is a retired Inspector of Police. They come from an Orthodox family. They belong to Brahmin community and they are residing in the Brahmin street. When such is the social background of P.W.1, there is no reason to reject her evidence implicating the police officials, that too in a serious offence,namely gang rape at the cost of her family honour.
85. For the reasons stated above, none of the grounds urged by the counsel for the appellants, in my view, would deserve acceptance. In my considered opinion, the testimony of P.W.1 is cogent and credible not only due to her social background but also due to the fact that her version has been clearly corroborated by the other materials.
86. As noticed above, even though no corroboration is required in a rape case, in this case, we get the materials for corroboration in plenty to support the case of the prosecutrix. It is noticed that during the course of trial, both P.W.1, the victim and P.W.19, the R.D.O. had been cross-examined at length. During the cross-examination, nothing was elicited from them that they were speaking falsehood or they were having any grudge against the police officials.
87. The reading of the report Ex.P63 sent by P.W.19 R.D.O. and his deposition made before the Court would clearly indicate that P.W.19 Mr.C. Chandra Mouli, the R.D.O. is a honest and impartial officer who took pains in conducting the enquiry and collecting the statements of the public, even though he was a victim in the attack during the public agitation. His efforts during the course of investigation and in giving full details during the course of deposition would deserve all appreciation from this Court. But for the timely intervention through the Collector's order or through the effective enquiry by P.W.19, a case of gang rape by the police officials at the police station would have been buried.
88. Similarly, the agitation by the public of Thalli village against the police atrocities was also a timely one. Only due to this, P.W.7 Mr.Subba Rao, an elder of the village took up the cause and presented a memorandum to the Collector to take immediate action. The efforts taken by P.W.7 as well as the public of Thalli village are highly commendable.
89. In view of what is stated above, the conviction imposed upon all the appellants for the offences charged on the basis of the materials available on record by the trial Court is perfectly justified and there is no reason to interfere in the finding of conviction by the trial Court in regard to the offences mentioned above.
90. Let us now take the revision filed by the victim requesting for enhancement of sentence.
91. The appellants are the police officials on duty while they committed rape on the victim at the police station. Under Section 376(2) I.P.C., whenever the police officers commit gang rape on the woman in their custody at the police station, they shall be punished with imprisonment for life and shall also be liable to fine. For the offence under Section 307, if a person charged is proved to have caused hurt while making attempt to commit murder, he shall be liable to be punished with imprisonment for life. Under Section 326 I.P.C., a person who has caused grievous hurt by dangerous weapon, shall be punished with imprisonment for life and shall also be liable to fine.
92. In all these three important serious offences for which the appellants were convicted, the maximum punishment is life imprisonment and there is no minimum sentence prescribed under Sections 307 and 326 I.P.C. But, a minimum sentence of 10 years has been prescribed under Section 376(2) I.P.C., namely gang rape.
93. Under proviso to Section 376(2) I.P.C., the Court may for adequate and special reasons mentioned in the judgment impose sentence of imprisonment less than 10 years. Therefore, unless there are special and adequate reasons, they cannot be imprisoned for the term less than 10 years.
94. In this case, A1 to A4 were convicted for the gang rape and sentenced to undergo R.I. for 8 years and to pay a fine of Rs.500/- each for the offence under Section 376 I.P.C. Admittedly, minimum sentence of 10 years has not been imposed. There are no special and adequate reasons given for reducing the minimum sentence of 10 years. The only stray reference made in the last paragraph of the judgment of the trial Court is that they have been imposed imprisonment for 8 years instead of 10 years, the minimum imprisonment, in view of the fact that all the four accused are the elders of the respective families and sentence imposed upon them will affect the members of the family also and the trial went on for five years during the period of which they would have suffered from mental worries.
95. In fact, when they were asked about the question of sentence after finding them guilty, they did not state anything except that they were innocent. Under those circumstances, it is strange for the trial Court to give these reasonings for imposing the sentence which is less than the minimum sentence, even though those reasonings were not pleaded by the accused.
96. Furthermore, these reasons are not special and adequate reasons. The real and unbearable mental torture would have been for P.W.1 only who have suffered a gang rape and suffered a lengthy crossexamination and not to the accused. Under those circumstances, pendency of trial for five years and the likelihood of affecting the family members due to the imposition of minimum sentence on the accused cannot at all be taken to be reasons for reducing the sentence. At any cost, it cannot be stated that they are special and adequate reasons.
97. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. When such a grave crime is committed by persons in authority, e.g. police officers, the Court should not take it lightly, since in our criminal laws, wide powers are conferred on police officers investigating cognizable offences.
98. The significant aspect of new penal underlying the sexual offences is a deterrent sentencing policy, which lays special emphasis on increase in the quantum of punishment. Both the changing attitude towards sexual offences and the sentencing response have been judicially determined in a Supreme Court decision in MADAN GOPAL KAKKAD v. NAVAL DUBEY (1992 AIR SCW 1480=1992(3) S.C.C.204).
99. It would be a mockery of justice to permit the accused police personnel who committed the gang rape at the police station to escape the extreme penalty of law when faced with such evidence. To give lesser punishment to them would be to render the justicing system of the country suspect. The common man will lose faith in the Court.
100. Inadequate sentences can do harm to the sustem. While passing sentence personality of the accused or knowledge of accused should also be taken into consideration. The Court should not pass sentence only on the basis of the act, but look towards the actor of crime also.
101. It is held in STATE OF A.P. v. BODEM SUNDARA RAO (A.I.R.1996 S.C.530) as follows:
"In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to the victim of the crime in particular and society as a whole in general, but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals."
102. In STATE OF KARNATAKA v. KRISHNAPPA (A.I.R.2000 S.C.1470), it is observed thus:
"The measure of punishment in a case of gang rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The Courts must hear the loud cry for justice by the society in cases of heinous crime of gang rape on innocent women. To show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced."
103. While dealing with the sentence to be imposed on the police officer, who committed rape on the victim, the Supreme Court would hold in STATE OF MAHARASHTRA v. CHANDRAPRAKASH KEWELCHAND JAIN(1990(1) S.C.C.550) that the punishment in these cases shall be maximum and exemplary. The following is the observation:
"On the question of sentence we can only say that when a person in uniform commits such a serious crime of rape on a young girl in her late teens, there is no room for sympathy or pity. The punishment must in such cases be exemplary."
104. The Supreme Court again while dealing in the imposition of appropriate sentence in a case of rape, in 1992(3) S.C.C.204 (supra), would hold as follows:
"We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand."
105. In STATE OF KARNATAKA v. KRISHNAPPA (2000 S.C.C.(Cri.)755),the Apex Court would observe as under:
"In a case of rape, the courts are expected to properly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commission of like offences by others. The courts are expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos."
106. In view of the principles enunciated by the Supreme Court mentioned above and in the light of the facts of this case, this Court is of the considered opinion that even the minimum imprisonment of 10 years is not sufficient, but the appropriate punishment, which is required to be imposed on the appellants who are the police officials, who are expected to protect the law and order, committed gang rape on the woman after abducting her while she was proceeding to the bore-well pump to fetch water and after commission of rape, made a sincere attempt to kill her, would be the maximum punishment, namely life imprisonment, as the same would commensurate with the gravity of the offences committed by the police personnel.
107. As desired by the Supreme Court, this Court feels that the punishment to these police officials, who committed gang rape on a woman, in uniform must be exemplary, namely maximum punishment of life imprisonment and there cannot be any room for sympathy or pity to these persons who committed the barbaric acts and the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end. Accordingly, sentence of life imprisonment is imposed in respect of the appellants (A1 to A4).
108. This imposition of life imprisonment on the appellants is not only on the reason that this would be appropriate sentence for the heinous acts committed by them but also should be a lesson which can be considered as a preventive measure to others, who are in the police department by way of warning them not to commit such offences in the future.
109. Though the revision for enhancement has been filed in respect of A5 also, I do not want to interfere in respect of the sentence imposed upon her, since she has not taken major role as played by the other accused who are the police officials.
110. The enhancement of sentence is only in respect of the offence under Section 376 I.P.C. and not in respect of the other offences. The sentences in all the offences are to run concurrently.
111. The Supreme Court before commencement of trial, on the application filed through public interest litigation granted compensation of Rs.20,000/- directing the Government to pay the same to the victim. It is also further directed at the end of the trial the victim would approach the Courts for the appropriate compensation. Under those circumstances, this Court is of the view that the suffering of the victim is to be suitably compensated by ordering reasonable compensation amount.
112. When the acts committed by the public servant while they were in duty, constitute offences due to which the victims had suffered, this Court has got powers to direct the Government under which the culprits have worked, to pay compensation to the victims.
113. This Court in RUDUL SHAH v. STATE OF BIHAR (A.I.R.1983 S.C.108 6), SABASTIN v. UNION OF INDIA (1984 S.C.1026) and PADMINI v. STATE OF TAMIL NADU (1993 L.W. (Crl.) 487) would recognise the powers of this Court to grant compensation to the victim who suffered at the hands of the police, while in police custody. It is settled law that the State is responsible for the tortuous acts committed by its employees and that for police atrocities the State should pay compensation to the victim.
114. In this case, this Court is of the view that this is one of the appropriate cases where a suitable direction to be issued to the State Government to pay the compensation. Accordingly, the Home Secretary to the Government of Tamil Nadu is directed to pay compensation of Rs.5,00,000/- to the victim within three months from today.
115. Since the sentence imposed upon the appellants (A1 to A4) has been enhanced to life imprisonment, the appellants are directed to surrender before the trial Court or the trial Court is directed to take steps to secure the custody of the appellants/accused to undergo the remaining period of sentence.
116. With these observations, the appeals as well as the revision are disposed of.
21-06-2002 Index:Yes Internet:Yes mam Sd/-
Assistant Registrar.
/True Copy/ Sub Asst.Registrar(Stat.) To
1) The Assistant Sessions Judge, Krishnagiri through the Principal Sessions Judge, Krishnagiri.
2) The Home Secretary, Govt. of Tamil Nadu.
3) The Public Prosecutor, High Court, Madras.
M. KARPAGAVINAYAGAM, J.
Judgment in C.A.Nos.764 AND 765/1993and Crl.R.C.172/1994