BAIL SLIP Crl.A.No.870/2006 The Appellants/Accused namely 1.Vadivelu, S/o.Mannuthambiran 2.Sakthi S/o.Chakkarapani were directed to be released on bail as per order of this Court dated 4.11.06 made in M.P.No.1/06 in Crl.A.No.870/06. Crl.A.917/2006 The Appellants/Accused namely 1.Vadivel, S/o.Thulasi Mudaliar 2.Sivakumar, S/o.Thulasi Mudaliar were directed to be released on bail as per order of this Court dated 21.11.2006 made in M.P.No.1/2006 in Crl.A.917/2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.04.2011 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Appeal Nos.870 and 917 of 2006 1.Vadivelu 2.Sakthi .. Appellants in Crl.A.870/06 1.Vadivel 2.Sivakumar .. Appellants in Crl.A.917/04 Vs State by Inspector of Police, Kandachipuram Police Station, Villupuram District. .. Respondent in both Crl.As Common Prayer:- Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment in S.C.NO.105 of 2005 dated 19.09.2006 on the file of the learned Chief Judicial-cum-Assistant Sessions Judge, Villupuram District, Villupuram. For Appellant in Crl.A.No.870/06 : Mr.A.Raghunathan-SC for Mr.S.Suresh For Appellant : Mr.V.Ayyadurai in CMA 917/2006 For Respondent in both Crl.As : Mr.V.Rajagopal for Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGEMENT The appellants in Crl.A.No.870 of 2006 are the accused 2 and 3 and the appellants in Crl.A.No.917 of 2006 are the accused 1 and 4 in S.C.No.105 of 2005 on the file of the learned Chief Judicial- cum-Assistant Sessions Judge, Villupuram District, Villupuram. The learned Judge has convicted the first accused for offence under Section 366 I.P.C., and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months and for the offence under Section 506(ii) I.P.C., to undergo rigorous imprisonment for two years and for the offence under Section 376 I.P.C., to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.4,000/- in default to undergo rigorous imprisonment six months 2.The learned Judge has convicted the accused 2 to 4 for offence under Section 366 I.P.C., and sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months and to undergo rigorous imprisonment for two years for offence under Section 506(ii) I.P.C. Challenging the said conviction and sentences, the appellants are before this Court with these appeals. 3.The case of the prosecution in brief is as follows:- P.W.2 is the victim. Her date of birth is 30.04.1983. P.W.1 is her father. She had studied Diploma in Pharmacy Course. After completing the said course in the year 2003, she had undergone training at the Government Hospital, Villupuram for 15 days. During that time, from her village Tandavasamuthiram to Kanakankuppam she used to go on walk and from Kanakankuppam to Villupuram she used to go by Bus. She was in the habit of returning by bus at 5.15 p.m., in the evening after the training. From Kanakankuppam bus stop, her village is situated at a distance of two kilo meters. From Tandavasamuthiram to Kanakankuppam bus stop while she was going and returning for training, the first accused used to quarrel with her. But P.W.2 did not inform the same to her parents. On 04.06.2003, at about 6.00 am when she was waiting for Bus at Kanakankuppam, the first accused came there and wanted her to follow him to a secluded place. He also told her that if she did not come, he would kill her parents. The other accused namely accused 2 to 4 also threatened her. So, without raising any resistance, she simply followed them. They took her in a Bus to Dindivanam and from there, they took her to an Organisation which was propagating inter-caste marriages. From there, she was taken to Dindivanan Vittalapuram Murugan Temple where, on 08.06.2003, they celebrated marriage between P.W.2 and A.1 in the said temple. According to P.W.2, since she was kept under constant threat, she was not able to resist. Number of photographs were taken during marriage as though there was a valid marriage performed. Thereafter, they took her to a house at Dindivanam where A.1 and P.W.2 stayed together for four days. During such stay, A.1 had sexual intercourse with P.W.2, much https://hcservices.ecourts.gov.in/hcservices/ against her resistance. While she was so confined in the said house, she managed to come out of the house to give a phone call to her parents. On receiving the phone call, her relatives came and rescued P.W.2. 4.P.W.1 is the father of P.W.2. He has stated that P.W.2 was missing from 04.06.2003 onwards. He along with the other relatives went in search of her and she could not be located anywhere. Finally, he came to know from enquiries that these accused were found taken P.W.2 to elsewhere. Thereafter, he proceeded to the police station on 11.06.2003 and preferred a complaint. A Head Constable by name, Venkatesan who was in charge of the Kandachipuram Police Station, received the complaint and registered a case in Crime No.237 of 2003 for offence under Section 363 I.P.C., at 8.00 p.m., on the same day. Exhibit P.1 is the complaint and Exhibit P.3 is the F.I.R. He forwarded the F.I.R and the complaint to Court and handed over the case for investigation to P.W.11 (Mr.Venkatesan-Head Constable has not been examined). On 12.05.2003, P.W.11 took up the case for investigation and proceeded to the place of occurrence and prepared an Observation Mahazar (Exhibit P.4) in the presence of two witnesses. He also prepared a rough sketch (Exhibit P.5) showing the place of occurrence. Then he examined P.Ws.1,3,4,5,6 and 7 and recorded their statements. On 16.06.2003, P.W.2 appeared in the police station. P.W.11 recorded her statement also and sent her for medical examination. 5.Now coming back to the occurrence, P.W.3 is the husband of the elder sister of P.W.2. He has deposed to the effect that on 04.06.2003, P.W.1 informed him that P.W.2 had not returned home after training in the hospital. He has further stated that he went to Villupuram and made enquiries in the hospital, where he was informed that she did not turn up for training on that day. Then he enquired and came to know that the accused had taken her. One week after the occurrence, according to him, P.W.2 spoke to his shop over phone. The said phone call was attended by the brother of P.W.2 namely P.W.9. Then P.W.3 received the receiver and spoke to P.W.2. During the conversation over phone, P.W.2 told him that she was confined in a house at Dindivanam. She had given the address of such confinement at Housing Board, Marakanam Road. P.W.3 in turn informed P.Ws.7 and 8. All of them went to the said place at Dindivanam. P.W.3 however did not chose to go with them. P.W.4 is the mother of P.W.2. She has also spoken to about the missing of P.W.2 from 04.06.2003 onwards. P.Ws.5 and 6 have turned hostile and they have not said anything about the accused and their evidences are all no use to the prosecution. P.W.7 is the brother of P.W.3. According to him, on 12.06.2003, he was told by P.W.3 and others that P.W.2 was confined in a house at Marakanam, Dindivanam. Therefore, he along with the others went to Dindivanam Housing Board. When they were enquiring about the address, they found P.W.2 was out of a house. She was then sobbing. When they tried to take her with them, the inmates of the house told them to give it in writing and then to take P.W.2. Then they gave a letter to the inmates of the house that they were taking P.W.2 with them because P.W.2’s mother was not well. P.W.8 is the co-brother of P.W.1. He https://hcservices.ecourts.gov.in/hcservices/ has also spoken to about the fact that he accompanied P.W.7 to rescue P.W.2. P.W.9 is the brother of P.W.2 and he has spoken to about the phone call as well as the rescue of P.W.2. 6.Now turning back to the investigation, after rescuing the victim, they produced her before the police on 16.06.2003. P.W.11 forwarded her to the Government Hospital, Villupuram for medical examination. P.W.10 the Doctor examined her and found that she was a grown up girl. She had further found that the hymen was absent in her vaginal cavity indicating that she had been subjected to sexual intercourse. There were no other external injuries found on her. According to P.W.10, the age of the victim may be between 22 and 23 years. She issued a certificate in this regard under Exhibit P.7. P.W.11 the Investigating Officer continued the investigation and examined P.Ws.2,7,8 and 9 and recorded their statements. Thereafter, he handed over the investigation to P.W.13. A.1 was arrested on 18.08.2003 and he was sent for medical examination. P.W.12-the Doctor examined him and found that he might be aged 23 years. He further opined that A.1 was a grown up male and capable of performing sexual intercourse with a woman. He issued Exhibit P.6 Certificate to the said effect. P.W.13, on completing investigation laid charge sheet against the accused for offence under Section 366, 376 and 506(i) I.P.C. 7.The trial Court had framed charges for offence under Sections 366, 376 and 506(ii) I.P.C. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. A.1 submitted an explanation stating that P.W.2 came on her own accord for marrying him. As a matter of fact, according to him, there was a love affair going on between A.1 and P.W.2 for a long time out of which, at last, P.W.2 decided to marry him. This is because of the same, she came on her own accord and married him in a temple. In respect of the marriage, on the side of the defence, as many as 12 witnesses who participated in the marriage were examined. D.W.2 has spoken to the effect that he was one who used to carry the love letters exchanged between P.W.2 and A.1. D.W.3 has spoken to that P.W.2 and the first accused are lovers. He has witnessed that on 04.06.2003, P.W.2 along with A.1 travelled in a Bus towards Pondicherry. D.W.4 was the one who was running an Organisation which encouraged inter-caste marriages. He has further deposed that P.W.2 and A.1 appeared before him and told that they were in love for each other and they had decided to marry. They further told him that because the parents of P.W.2 arranged for her marriage with another person, she wanted the help of D.W.4 to arrange for marriage with A.1. It was accordingly, the marriage was celebrated in accordance with law. 8.Having considered all the above materials, the trial Court rejected the case of the defence and held that all the accused have committed the offences as stated in the charges and accordingly, convicted them as stated in the first paragraph of this judgment. That is how, the appellants are before this Court with this appeal. https://hcservices.ecourts.gov.in/hcservices/ 9.I have heard the learned counsel for the appellants and the learned Government Advocate (crl.side) appearing for the State and also perused the records carefully. 10.Admittedly, in this case, P.W.2 was aged more than 21 years at the time of occurrence. She was an educated girl having a diploma in Pharmacy. During the relevant time, she was undergoing training in the Government hospital. It is also in evidence that she was going by Bus from her village to the Government hospital where she was undergoing training. All these facts would go to show that P.W.2, during the relevant time, was capable of taking independent decisions on her own. Now the crucial question is as to whether she was taken by force by these accused and whether she was subjected to marriage by force and whether A.1 had sexual intercourse with her thereby constituting an offence of rape punishable under Section 376 I.P.C. For this, the prosecution relies only on the evidence of P.W.2, whereas the defence relies on the evidences of D.Ws.1 to 12 and Exhibit D.1 besides M.Os.1 to 4 series of photographs with negatives. 11.The learned counsel would take me through the evidence of P.W.2 to substantiate his contention that P.W.2 had come out of her own accord with a view to marry A.1. For this purpose, the learned counsel has more specifically pointed out that during cross examination, P.W.2 has admitted that in the bus stop when the accused came and wanted her to follow them to a secured place, she went on her own without any resistance. As rightly pointed out by the learned Senior Counsel, had it been true that she was not a willing party to go along with the accused, surely she would have resisted. It is not as though she was the only person in the bus stop. In her evidence, she has also admitted that several other persons were standing in the bus stop. At the time when the accused already threatened her, if she raised any alarm, the others would have been alerted and she would not have been taken by the accused. The very fact that she had not raised any alarm and she simply followed the accused shows the initial consent to go along with the accused. Though now she has stated that out of fear, she went along with the accused, it is too difficult to believe the same. The learned Senior Counsel has pointed out that during cross examination, she has further admitted that in the bus towards Dindivanam, there were several persons travelling. Atleast at that time, she would have raised alarm, in which case she would have been rescued by others from the alleged abduction by these accused. The fact that she has not done so would again strengthen the case of the defence that if really she was not a willing party, the occurrence took place on 04.06.2003 and thereafter, she was kept for four days. The marriage was celebrated only on 08.06.2003. At the time of marriage, it is pointed out that during cross examination, she has admitted that there was several persons in the temple. Had it been true that she was not a willing party to the marriage, surely she would have raised alarm atleast at that time. The explanation offered by her that she was under constant fear for these accused cannot be believed at all. https://hcservices.ecourts.gov.in/hcservices/ 12.At this juncture, I may refer to the photographs which were taken at the time marriage. The said photographs reveal that P.W.2 was with all smiles spreading over her face expressing her happiness. More particularly, in one photograph, where she is found garlanding A.1., she expresses much smiles over her face showing her jubilance. The above would clearly show that she was a willing party to the marriage and with all happiness she garlanded A.1. 13.If it is true that she was not a willing party, surely the same would have resembled in her face. As per the proverb “face is the index of the mind”, the smiling face of P.W.2 as seen in the photographs shows the mind of P.W.2. After the photographs were taken and after the marriage, she was taken to a house where, P.W.2 and A.1 stayed for four days. During such period, A.1 had sexual intercourse with her. This fact was proved by the medical evidence. The Doctor who examined P.W.2 has stated that the hymen in the vaginal cavity of P.W.2 had ruptured indicating that she had been subjected to sexual intercourse. But the question is whether she was subjected to sexual intercourse by A.1 against her resistance. It is highly unbelievable that against the wish of P.W.2, she was taken, kept for four days in a different house, A.1 married her in the temple and had sexual intercourse with her. D.W.2 who deposed to the effect that P.W.2 used to exchange love letters with A.1 through him. D.W.2 is a neighbour and friend of P.W.2. From the records, it could be seen that this fact as spoken to by D.W.2 has not been disputed by the prosecution at all. As a matter of fact, the trial Court has recorded that there was no cross examination by the prosecution. This evidence further fortifies the case of the defence that A.1 and P.W.2 had fallen in love. 14.Now coming to the evidence of D.W.3, he hails from Tandavasamuthiram Village. On 04.06.2003, he was traveling in a Bus to go Villupuram and in the same Bus he found A.1 and P.W.2 also traveling. When he enquired P.W.2 she told that she was going to Pondicherry along with A.1. This witness has been cross examined but nothing has been brought on record to disbelieve his evidence. D.W.4 was the one who was running an Organisation which encourages inter-caste marriages. He has further deposed that P.W.2 and A.1 appeared before him and told that they were in love for each other and they had decided to marry. They further told him that because the parents of P.W.2 arranged for her marriage with another person, she wanted the help of D.W.4 to arrange for marriage with A.1. It was accordingly, the marriage was celebrated. He has further stated that on 11.06.2003, P.W.8 and others came and they wanted to take back P.W.2. They told him that they were going to again arrange for marriage in public. The other witnesses who participated in the marriage have also spoken to about the marriage. From these evidences also, coupled with the photographs and the answers elicited during cross examination of P.W.2, I am of the view that the prosecution has failed to prove that P.W.2 was not a willing party to go along with A.1, for marriage and for sexual intercourse and so all these accused are entitled for acquittal. https://hcservices.ecourts.gov.in/hcservices/ 15.Because the accused are acquitted in these appeals, it should not be construed that this Court has declared that the alleged marriage between P.W.2 and A.1 is a valid marriage. All the observations which I have made above are all only pertaining to the charges leveled against the accused in this case. It is needless to point out that in a criminal trial, the prosecution is required to prove the charges beyond reasonable doubt whereas, in civil cases, the factum of marriage can be proved even by preponderance of probabilities. Therefore, whatever I have said about the alleged marriage which was allegedly celebrated between P.W.2 and A.1 is only for the purpose of disposal of these appeals and the same should not be taken as a declaration by this Court that there was valid marriage between P.W.2 and A.1. 16.In the result, the criminal appeals are allowed, the conviction and sentence imposed on the appellants are set aside and they are all acquitted of all the charges. Fine, if any paid by the appellants who are now acquitted shall be refunded to them. Bail bonds if any shall stand discharged. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar jbm To 1.The State by Inspector of Police, Kandachipuram Police Station, Villupuram District. 2.The Chief Judicial-cum- Assistant Sessions Judge, Villupuram District, Villupuram. 3.The Public Prosecutor, High Court, Madras. 4.The Judicial Magistrate, Thirukoilur, Villupuram. 5.The Chief Judicial Magistrate, Villupuram 6.The Superintendent, Central Prison, Cuddalore. 1 cc to Mr.T.Tironavoukarassu, Advocate, Sr.No.24789 Crl.A.Nos.870 and 917 of 2006 KGK {CO} TP/12.5.2011. https://hcservices.ecourts.gov.in/hcservices/