IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 28/11/2002 Coram The Honourable Mr.Justice N.DHINAKAR and The Honourable Mr.Justice F.M.IBRAHIM KALIFULLA Criminal Appeal No.677 of 1997 and Criminal Appeal No.680 of 1997 1. Mehboob Batcha 2. S.Parthasaraty 3. Jaffer Sadique 4. Karunanidhi ... Appellants in Crl.A.No.677/1997 5. A.Ibrahim Sheriff 6. B.Jayaraman : Appellants in Crl.A.No.680/1997 -Vs- State represented by Superintendent of Police, C.B.C.I.D., Madras. (In Crime Nos.160/1992 and 162/1992 of Annamalai Nagar Police Station) ... Respondent in both the appeals Prayer: Appeals against the judgment dated 4.9.1997 in Sessions Case No.99 of 1993 delivered by the Principal Sessions Judge, Cuddalore. !For Appellants in : Mr.S.Shanmugavelayutham both the appeals ^For Respondent : Mr.M.S.Kandasamy Special Public Prosecutor :J U D G M E N T (Judgment of the court was delivered by N.DHINAKAR, J.) Criminal Appeal No.677 of 1997 is by A3, A6, A8 and A10 and Criminal Appeal No.680 of 1997 is by A1 and A2, in Sessions Case No.99 of 1993 on the file of the Principal Sessions Judge, Cuddalore. Since both the appeals arise out of a single Sessions Case, they are disposed of by the following common judgment. 2. In this judgment, the appellants in Crl.A.No.680 of 1997 will be referred to as accused 1 and 2 (A1 and A2) and the appellants in Crl.A.No.677 of 1997 as accused 3, 6, 8 and 10 (A3, A6, A8 and A10) respectively in the order they were arrayed before the learned Sessions Judge, for the sake of convenience. The appellants were tried along with 5 others, who were acquitted and in this judgment, they will be referred to as A4, A5, A7, A9 and A11 in the same order as they were arrayed before the learned Sessions Judge. 3. The allegation against the appellants in the above two appeals and the acquitted accused is that they being members of a special team of police officers, formed to nab the culprits involved in various offences of theft in and around Chidambaram, wrongfully confined Nandagopal from the early hours of 30.5.1992 till 2.6.1992 and during the course of such wrongful confinement, they caused injuries on Nandagopal by beating him with sticks and also gang-raped Padmini, P.W.1, who is the wife of Nandagopal, during the said period and later, prepared documents to make it appear that Nandagopal was actually arrested at 5.30 p.m. on 2.6.1992, and thereby committed various offences. 4. The learned Sessions Judge framed a charge against A3 to A5, A7 to A9 and A11 under Section 343 IPC under Charge No.1 and under Charge No.2, A1 and A2 were charged for the said offence with the aid of Section 109 IPC. A1 to A5, A7 to A9 and A11 were charged under Charge No.3 framed under Section 348 IPC and under Charge No.4, A1, A3, A4, A6 to A9 and A11 were charged under Section 324 IPC for causing injury to Nandagopal. Under Charge No.5, A1, A3, A4, A6 to A9 and A11 were charged under Section 330 IPC. Charge Nos.6 to 25, which were framed against various accused, ended in acquittal and therefore, we are not giving the details of the said charges. Under Charge No.26, A1, A3, A6, A8 and A10 were charged under Section 354 IPC for outraging the modesty of Padmini, P.W.1, by asking P.W.3, Kolanji @ Rajendran, who was a co-under-trial prisoner, to remove the saree of P.W.1. Charge Nos.27 and 28 ended in acquittal and we are, therefore, not giving the details of the charges. Charge No.29 was framed against A1 to A3, A6, A8 and A10 under Section 376(2)(a)(i)(ii)(iii)(b)(g) IPC for gang-raping on Padmini. Under Charge No.30, A1, A3, A4, A6, A7 and A9 were charged under Section 218 IPC for preparing incorrect records and under Charge No.31, A2, A5 and A10 were charged under Section 218 IPC for preparing incorrect records by registering a case in Crime No.159/1992 in Annamalainagar Police Station under Sections 41 and 102 Cr.P.C. against Nandagopal. Charge No.32 was framed against A1, A3, A4, A6 to A9 and A11 under Section 220 IPC for wrongfully confining Nandagopal, P.W.1, P.W.3, P.W.4 and P.W.5 and Charge No.33 was framed under Section 220 r/w 109 IPC against A2, A5 and A10 for abetting the other accused. 5. The learned Sessions Judge, while convicting A3 and A8 under Charge No.1 as well as A1 and A2 under Charge No.2 for the offences under Sections 343 IPC and 343 r/w 109 IPC respectively, did not impose any separate sentence upon them. Under Charge No.3 framed under Section 348 IPC, A1 to A3 and A8 were convicted and each of them was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.5000/- with a default sentence of one year rigorous imprisonment. Under Charge No.4, A1, A3 and A6 were convicted under Section 3 23 IPC for causing injury to Nandagopal and each one of them was sentenced to undergo rigorous imprisonment for one year. For the offence under Section 330 IPC framed under Charge No.5, A1, A3, A6 and A8 were convicted and each one of them was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.5000/- with a default sentence of one year rigorous imprisonment. A3, A6, A8 and A10 were convicted under Charge No.26 framed under Section 354 IPC, and each one of them was sentenced to undergo rigorous imprisonment for two years. The learned Sessions Judge also found A3, A6, A8 and A10 guilty under Section 376(2)(a)(i)(ii)(iii)(b)(g) IPC framed under Charge No.29 and sentenced each one of them to undergo ten years rigorous imprisonment and to pay a fine of Rs.5000/- with a default sentence of one year rigorous imprisonment, while A1 and A2 were acquitted of the said charge. Under Charge No.30, A1 alone was convicted for the offence punishable under Section 218 IPC, while A3, A4, A6, A7 and A9 were acquitted, and A2 was found guilty under Charge No.31 framed under Section 218 IPC while A5 and A10 were acquitted. A1 and A2 were sentenced, each to suffer rigorous imprisonment for three years under Charge Nos.30 and 31 respectively. For the offence under Section 2 20 IPC framed under Charge No.32, A1, A3, A6 and A8 were found guilty and sentenced each to suffer rigorous imprisonment for three years and under Charge No.33 framed under Section 220 r/w 109 IPC, A2 alone was found guilty and on being convicted, he was sentenced to undergo three years rigorous imprisonment. Hence, the present appeal by the convicted accused. 6. The case of the prosecution shorn of unnecessary details can be briefly summarised as follows:- During the relevant period, there were thefts in and around Mariappan Nagar and Annamamalainagar in Chidambaram Town and therefore, the law enforcing agency decided to form a special party to apprehend the culprits, who are engaged in committing thefts. Accordingly, a special team was formed under P.W.29, who was working as Cirle Inspector of Police, Chidambaram Town Police Station. A1, the Sub-Inspector of Police of Chidambaram Town Police Station, A3, the Head Constable of Chidambaram Town Police Station, A4, a police constable of Kumaratchi Police Station, A6, a police constable of Killai Police Station, A7, a police constable of Puthur Police Station, A9, a police constable of Kolathur Police Station, and A11, a police constable of Sethiathope Police Station, were the other members of the team. A8 and A10, during the relevant time, were working as police constables at Annamalainagar Police Station. A2 was the Sub-Inspector in the said police station. The said team was formed by the Assistant Superintendent of Police, Mahali. 7. P.W.1, Padmini, during the relevant period, was working as a sweeper at Government Hospital, Pennadam, and she was residing at Kaliammamkoil Street in Annamalainagar. She was married to one Palanivel; but, she was separated from Palanivel and later, she developed intimacy with Nandagopal, who was also working as a sweeper in a college at Annamalainagar. P.W.1 and Nandagopal married at a temple and later, left for Madras only to return four months thereafter to Chidambaram. After returning from Madras, P.W.1 cam e to know that Nandagopal is already a married man and she also started residing with Nandagopal along with his first wife Palaniammal. While they were residing so, quarrels arose between P.W.1 and Palaniammal and a complaint was given at Annamalainagar Police Station by the said Palaniammal. The police called the parties and advised them to live separately and therefore, P.W.1 went away from her husband's house and took residence at Kaliammankoil Street in Annamalainagar. Nandagopal used to visit her regularly and one such visit was on 29.5.1992. 8. On 29.5.1992, Nandagopal and P.W.1 were sleeping in the house and at about 3.00 a.m. on 30.5.1992, A3, A6 and A8 went there. A8 caught hold of the tuft of Nandagopal and P.W.1 questioned A8 for his behaviour. A8 informed P.W.1 that two persons are already in custody and her husband will be released after enquiry. They took away Nandagopal from the house. P.W.1 pleaded with A3, A6 and A8 not to beat her husband. After the day-break, P.W.1 went to Annamalainagar Police Station, which was nearer to the house of her mother-in-law. She took coffee to the police station, which was prepared in her mother-inlaw's house, with a view to give it to Nandagopal. She met P.W.8, who was working as a sweeper in the police station. She questioned P.W.8 as to why her husband is not let out and he informed her that the enquiry is yet to commence. P.W.1, therefore, went to meet her advocate, who was residing at Chidambaram. The house of the advocate was found locked and therefore, she met his clerk, P.W.9. She narrated to him as to what transpired on the early hours and sought his help; but, P.W.9 sent her away saying that it being a Saturday and the following day being a Sunday, he will not be able to do anything for the release of Nandagopal. P.W.1 was, therefore, returning and on the way, met A6 and A8. On seeing A6 and A8, she became panicky and once again, went to the house of the advocate and met another clerk of the advocate, P.W.10, to whom, she narrated the facts. She has expressed her apprehension and the clerk asked her to stay in the house. After some time, she left the house of the advocate clerk, P.W.10, and reached her house. She returned to P.W.10's house in the evening and met the advocate, P.W.11, who was working as junior under one Venkatraman. This was at 8.30 p.m. She narrated the incident to him and he advised her not to go to her house and asked her to sleep in somebody' s house. P.W.1 went to her neighbour's house and took her bed. 9. On 31.5.1992, which was a Sunday, Balaraman, the younger brother of Nandagopal, came to the house and asked P.W.1 to take coffee to her husband Nandagopal. P.W.1 was reluctant to go to the police station, as she was afraid of the police officers; but, Balaraman insisted her to go to the police station to take care of her husband. P.W.1, therefore, went to her mother-in-law's house and her mother-in-law advised her to go to the police station with coffee. P.W.1 went to the police station with coffee and requested one of the police constables, who was seen by her, to give the coffee to her husband. The police constable told her that her husband will be let off and also informed her that her husband was beaten in the night. P.W.1, while returning from the police station, met one Vijaya, who tried to beat her, saying that her husband had also been taken by the police officers at P.W.1's instance. At that time, P.W.1 saw A8 coming by that side and seeing A8, she started running. A8 commented that she is running because she is afraid of him. At about 1.00 p.m. on the same day, A3 and A6 went to the house of P.W.1 and beat her on her buttocks. She was dragged to an auto, which was parked outside, and was pushed into it. When she was taken into the auto, she found P.W.5 and Nandagopal sitting inside with handcuffs. P.W.1 also sat by their side. The auto went to Annamalainagar Police Station. P.W.1 was asked to enter the police station and she was beaten by A6. Thereafter, 4 or 5 police officers surrounded and beat her and as a result of the beating, her blouse was torn. Someone also pulled her blouse and she was told that she will not tolerate any more beating and was asked to sit. She sat down. Two women police constables came shortly thereafter and thinking that she will be let off, she informed them that she had taken oleander seeds. The two women police constables gave her water mixed with soap and tamarind and compelled her to drink. She took her bed at the police station along with the two women police constables. 10. On 1.6.1992, after the day-break, two women police constables went away from the police station and P.W.1 was given coffee by her sister-in-law's daughter. she also took idlies; but, she was not in a position to talk. Nandagopal, seeing P.W.1, questioned her as to why she had come to the police station, when he is already being beaten by the police officers. P.W.1 pacified Nandagopal and told him that he will be let off. A6, seeing P.W.1 and Nandagopal talking with each other, pushed Nandagopal after beating him, into the lock-up. She also saw A2, A3 and A5. P.W.1 was given palatable food; but the food, which was given to Nandagopal, was found to be poor in quality. Therefore, P.W.1 gave her food to Nandagopal and on seeing this, A1 beat P.W.1 with a lathi. On the evening of 1.6.1992, she heard the police officers talking among themselves that Rs.50/ is to be given to a party and one of the police officers asked them as to why there should be a party. A police constable was seen whispering in the ears of the other police officers. Thereafter, the police officer, who questioned others as to why there should be a party, left the place, after telling them that they are also people born with sisters. At about 8.00 p.m., Nandagopal was brought out and A6 suggested that someone must strip the saree of P.W.1. They brought out P.W.3 from the lockup and directed him to strip P.W.1's saree. P.W.3 refused to do so and he was beaten by A1 and sent away to verandah. A3 stripped the saree of P.W.1 and she was made to stand with inner skirt and blouse. A1, A3, A6, A8 and A10 stripped her saree as well as the blouse and made her naked. They also beat her saying that she must run. She fell down on receiving the blows. All the 5 police officers dragged her and kissed her. A10 beat her on her private part with a lathi, after using filthy language. P.W.1 requested the police officers not to beat her. Someone was seen entering the police station to give a complaint and therefore, P.W.1 was advised not to raise her voice. The police officers went to the front side of the police station and P.W.1 covered herself with the saree. Two women police constables came there and to them, she narrated her harrowing experience. They told P.W.1 that she will not be beaten thereafter. P.W.1 went and took her bed in a room, along with the two women constables. 11. On the morning of 2.6.1992, Senthil, P.W.1's sister-in-law's son, brought coffee and on the evening, Nandagopal was taken out and brought back to the police station along with P.W.14, the sister of Nandagopal, and P.W.13, the husband of P.W.14. P.W.13 was questioned as to the availability of a tape-recorder and he showed a bill. The police officers threatened him that he is telling a lie and also informed him that they have already stripped P.W.1's saree and if tells a lie, the saree of his wife will also be stripped. They asked Nandagopal and P.W.13 to remove their shirts and after the removal of the shirt of Nandagopal, P.W.1 noticed injuries on Nandagopal's body. A1 , A3, A6, A8 and A10 beat Nandagopal and later, P.Ws.13 and 14 were sent away. After the sunset, two women police constables came to the police station and one of the police officers at the police station asked them, whether they had seen the film, 'Semparuthi' and thereby, suggested that they can go to the cinema. P.W.1 pleaded with the two women police constables to take her along with them. The two women police constables left the police station after telling P.W.1 that no harm will be caused to her. After the two women police constables left the police station, at about 10.30 p.m., Nandagopal was brought from the lock-up room to the verandah and P.W.1 was also taken there. Nandagopal was asked to lean on the wall and he was beaten. A6 pulled the saree of P.W.1 and A10 pulled her blouse and skirt and she was made naked. She was also beaten and was pushed off. A2, thereafter, raped P.W.1 followed by A3, A6, A8 and A10 and all of them, at the time of committing rape, were wearing condoms. This gang-rape was in the presence of Nandagopal, who was all the time pleading with the police officers not to cause any harm to his wife. A6 beat the private part of the Nandagopal with a lathi and he fell down. He was asking for water. P.W.1 covering herself with the saree, attempted to give water to Nandagopal; but, the police officers surrounded and told her that unless she gives kiss to everybody, she will not be permitted to give water to Nandagopal. P.W.1 was, thereafter, forced to give a kiss each to all the police officers; but, she was not allowed to give water to her husband as the tumbler, which she was carrying, was pushed away. The officers once again wanted to commit rape and P.W.1 pleaded with them to leave her alone. P.W.1 fell at the feet of A6 and bit his leg. A6 kicked her. On account of gang-rape, P.W.1 suffered injuries on her private part and on her breast. She fell unconscious and on regaining consciousness, she found that she was scantily dressed. She wanted to find her husband; but, the police officers told her that her husband was already taken to court. P.W.1 was taken out of the police station and made to board a van. She was then sent to Chidambaram Town Police Station, where she was given breakfast and coffee. While she was at Chidambaram Town Police Station, the police officers left, leaving one woman police constable, who informed P.W.1 that as there is a rioting, the police officers have gone out. She also informed P.W.1 that someone was beaten to death at Annamalainagar Police Station. P.W.1 cried and she was allowed to go out. P.W.1, on coming out of Chidambaram Town Police Station, boarded an auto near Mariamman temple and the auto-driver asked her whether she is the wife of Nandagopal. When she repl ied in the affirmative, the auto-driver informed her that Nandagopal was beaten to death by the police officers and advised P.W.1 not to go there. P.W.1 went to court to find out whether her husband was taken to court, where she heard people discussing about the death of Nandagopal. The auto-driver took P.W.1 to the office of the Tahsildar, P.W.26. She informed the persons, who were there. They told her that all the officers have gone out in connection with the death of Nandagopal and asked her to take her seat. She went to Annamalainagar Police Station, where she found a huge crowd. She started shouting that they have not only committed rape on her, but also murdered her husband. A10 was present there and he was beaten with slippers by P.W.1. P.W.21, the Revenue Divisional Officer of Chidambaram, who was present there, asked her as to what transpired. P.W.1 started explaining her harrowing experience and when she commenced her narration, she became unconscious. P.W.21 , therefore, sent her to the doctor along with two women and she appeared before P.W.6, Civil Assistant Surgeon, Government Hospital, Chidambaram. P.W.6 examined her and she complained of pain all over her body. She alleged that the police officers have misbehaved with her and that she was also beaten with a lathi on the external genetalia. She was treated as an out-patient, as she was not willing to be treated as an in-patient. P.W.1 returned to Annamalainagar Police Station and continued her narration. P.W.21 recorded the said narration by typing it, in which she affixed her signature and the said statement stands marked as Ex.P-1 in the case. P.W.1 later went to her father-in-law's house, where she found the dead body of Nandagopal. Some persons belonging to a political party also reached the house of her father-in-law to whom, she narrated the whole episode. They advised her to give a petition and accordingly, she gave a petition, Ex.P-2, to P.W.21, requesting him to send her to the h ospital. She was, therefore, sent to the doctor and P.W.6 once again examined her at about 11.30 p.m. on the basis of the requisition, Ex.P-9, issued by P.W.21. She was admitted in Gynecological Ward. Ex.P-9 is a copy of the accident register issued by the doctor. The doctor was informed that she was made to run without saree and that she was also asked obscene questions. 12. At about 7.00 p.m. or 7.30 p.m. on 4.6.1992, P.W.18, the Professor of Obstetrics and Gynecology, Raja Muthiah Medical College Hospital, Annamalainagar, Chidambaram, examined her and to the doctor, P.W.1 informed that she was raped by five policemen on the night of 2.6.1 992 at Annamalainagar Police Station. On examination, the doctor found multiple nail scratches around the breast and on examining the abdomen, it was found to be soft. P.W.1 complained of severe pain in her private part and therefore, P.W.18 conducted speculam examination and noted multiple abrasions on vagina and servix which is the end of uterus. She found discharge of foul-smelling fluid coming from vagina and took vaginal smear which was sent for examination. The report was received and it indicated that the vaginal smear contained plenty of pus cells and epithelial cells. The doctor issued Ex.P-19, her certificate, with her opinion that the multiple nail scratches on the chest and the abrasions on the vagina may be due to gang-rape. 13. After the return from the hospital on 5.6.1992, P.W.1 gave a petition, Ex.P-3, to the District Superintendent of Police. The District Superintendent of Police sent a police constable to the house of P.W.1 and questioned her; but, no action was taken on that. Later, the police officer came to her house and she narrated the whole incident, which was reduced into writing. She affixed her signature in the complaint, which is Ex.P-4. The said complaint was given to the Assistant Superintendent of Police, Mahali, and on 7.6.1992, the said Assistant Superintendent of Police endorsed the said complaint to P.W.31 , the Sub-Inspector of Police of Chidambaram Town Police Station. On the basis of Ex.P-4, a case in Crime No.162 of 1992 under Section 34 1 and 376(b) IPC was registered and as the accused were police officers, the report was sent to the Collector. Ex.P-74 is a copy of the printed first information. Investigation was taken up by P.W.34, the Inspector of Police of Bhuvanagiri, who was in-charge of Chidambaram Town Police Station. Immediately on taking up investigation, he altered Crime No.160 of 1992, which was registered under Section 174 Cr.P.C., to one under Sections 302, 149, 343, and 341 r/w 34 and 109 IPC and the express report in the altered crime is Ex.P-79. He also altered the Sections