IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06/03/2003 CORAM THE HONOURABLE MR.JUSTICE V.KANAGARAJ CRIMINAL APPEAL NO.949 OF 2001 1. Babu 2. Maruthachalam 3. Thangavel 4. Sakthivel 5. Shanmugam 6. Viswanaathan ... Appellants -Vs- State rep. by the Inspector of Police, Annur Police Station, Tiruppur (Crime No.437 of 1994) ... Respondent Appeal against the judgment of conviction and sentence dated 10.09.2001 made in S.C.No.144 of 1995, on the file of the Court of Assistant Sessions Judge, Tiruppur. !For Appellants : Mr.Prabakaran for A1,A4,and A5. Mr.V.K.Muthusamy Senior Counsel for Mr.M.M.Sundaresh for A2 ,A3 and A.6 ^For Respondent : Mr.A.N.Thambidurai (Govt.Advocate) :JUDGMENT This appeal is directed against the Judgment dated 10.09.2001 rendered in S.C.No.144 of 1995 by the Court of Assistant Sessions Judge, Tiruppur, thereby convicting the appellants, who are accused Nos.1 to 6 before the trial Court, for the commission of offence under Section 376 IPC and sentencing each of them to undergo RI for 10 years further acquitting them for the offences punishable under Sections 323 and 323 r/w 149 and 34 IPC. 2. The charge against the appellants, who were accused before the Court of Assistant Sessions Judge, Tiruppur, is that the accused Nos.1 to 6 joining hands with each other on 20.11.1994 at about 10.00 p.m, while accused Nos.2,3,4 and 6 committed rape on the victim Selvi against her will when the other accused No.1 and 5 accompanied and helped them with a common intention of committing rape on the victim Selvi; that the first accused also assaulted one Palanisamy, the brother of the victim, by slapping on his cheek and at that time, the other accused were also present and hence the charge against all of them under Sections 376, 323, 323 r/w 149 and 34 IPC. 3. The case of the prosecution is that on 20.11.1994, at about 10.0 0 p.m at Kempanaikenpalayam, when the victim Selvi along with her brother Palanisamy were returning home in a bicycle after watching a movie, when the said Selvi was the pillion rider, the accused 1 to 6 joining hands with each other and with intent to voluntarily and against her Will to have sexual intercourse with her, chased the bicycle in which the victim Selvi was travelling as a pillion rider and dashed against the same making her and the rider of the cycle Palanisamy fell to the ground; that when the said Palanisamy questioned such of the acts of the accused, the first accused slapped him on his cheek causing injuries and all the six accused taking the said Selvi away from the said Palanisamy and reaching at a damaged Wall, the accused Nos.2 to 4 and 6 raped the victim Selvi against her Will one by one and the other accused Nos.1 and 5 also were in the company of those who committed the offence sharing the common intention to rape. Therefore, all the accused Nos.1 to 6 were charged for the offence punishable under Section 376 IPC and since at the same time, place and in the course of the transaction, the first accused, in the presence of the other accused Nos.2 to 6, assaulted the witness Palanisamy by slapping on his cheek and caused injury, the accused have become further punishable for the offences punishable under Sections 323, 323 r/w 149 and 34 IPC. 4. The prosecution, which is burdened with the proof of the above charge with such standard of proof beyond all reasonable doubts, during trial by the trial Court, has examined 10 witnesses as P.Ws. 1 to 1 0 for oral evidence, besides marking 14 documents as Exs.P.1 to P.14 for documentary evidence and three material objects as M.Os.1 to 3. The evidence placed on record on the part of the accused, in all, is nil. 5. The trial Court, having recorded the said evidence and framing the proper point for consideration and having its own discussions on the facts and circumstances of the case and appreciating the evidence placed on record by the prosecution and dissected by the defence has ultimately arrived at the conclusion to hold all the accused Nos.1 to 6 guilty of the offence of rape and punishable under Section 376 IPC and not guilty under the other Sections 323 and 323 r/w 149 and 34 IPC and sentenced each of the accused to undergo RI for 10 years for the offence alleged. It is this conviction and sentence passed in its Judgment dated 10.09.2001 by the Court of Assistant Sessions Judge, Tiruppur, which has been challenged by the accused in the above Criminal Appeal on certain grounds as pleaded in the grounds of appeal. 6. Looking at the case of the prosecution in evidence what comes to be known is that P.W.1 who at the relevant point of time was working as a Medical Officer at Mettuppalayam Government Hospital, in his evidence, has deposed that on 22.11.1994, one Palanisamy of Annur was brought by the Annur Police, when he told the Police that some unknown persons assaulted him and there was a contusion to the extent of 1 x 2 cms on the right and left cheeks and that the witness effected the entries into Ex.P.1, accident register. 7. P.W.2 is yet another Doctor at the General Hospital, Tiruppur and he would depose that on 22.11.1994 at about 7.20 p.m at the instance of the Magistrate, Avinashi, the victim was brought to the Hospital and she complained that she was raped by some persons at 10.00 p.m on 20.11.1994; that there were no external injuries on her body; that she would have been aged 20 to 23 as per the opinion of the radiologist and since there were no external or internal injuries on her body and on her private part, he collected the vaginal smear and pubic hair and preserved them for chemical examination; that the accident register entered and given by him would be marked as Ex.P.2. He would also depose that he later examined four accused namely Shanmugam(A5), Viswanathan(A6), Babu(A1) and Thangavel(A3) on 02.12.1994 from 4.30 to 5.30 p.m and would offer opinion to the effect that they were capable of having sexual intercourse; that he had admitted the third accused as an inpatient and would offer his opinion as to what he observed in his genital organ opining that he was capable of having sexual intercourse and had wounds and was not able to peel his skin backward. 8. P.W.3 is the Radiologist who, examining the victim Selvi on 23.11.1994 radiologically, would determine her age as in between 20 and 23 and he would depose that he has also taken the X-ray bearing No.69 6, and this witness has issued Ex.P.7 age certificate. P.W.4 would examine the second accused regarding his capability to have sexual intercourse and would issue Ex.P.8 certificate marking all his finding ultimately opining that he is capable of indulging in sexual intercourse. P.W.5 is yet another Medical Officer attached to the Government Hospital, Tiruppur who examined the fourth accused regarding his capability to indulge in sexual intercourse and would issue Ex.P.9 to the effect that there was nothing to suggest that the above person would not have performed the sexual intercourse. 9. P.W.6, the victim, would depose that before 1 + years when herself and her younger brother were returning from the Cinema Theatre, three persons followed them by cycle and they dashed against the cycle in which she was travelling resulting in herself and her brother falling down; that when her brother questioned their act, they slapped him on his cheek and her brother ran off from the scene out of fear; that those three persons followed by three others, all the six persons joining hands with each other, took her near a damaged wall and raped her; that the third accused first raped her followed by the first and the second accused and she became fainted; that her brother brought the villagers and the accused ran off; that she gave Ex.P.10 complaint which got reduced into writing by the Head Constable and that she affixed her left thumb impression. This witness would further depose that she was referred to the hospital for Medical Examination and the Police recovered M.Os. 1 to 3; that the police examined the witness and recorded their statements; that about 9.10 a.m next day, the accused were brought to the Police Station; that three persons slapped her younger brother on his right cheek and he was referred to the Mettupalayam Hospital and she was referred to the Tiruppur Hospital. Even in the cross-examination, she would maintain what she deposed in her Chief examination. 10. P.W.7 is the younger brother of P.W.6 and he would depose in the same manner as P.W.6 deposed regarding the returning from the Cinema Theatre by cycle and three persons who came following them in their bicycles, dashed against his bicycle and pushed them on the ground; that when he questioned such an act, he was slapped thrice and three more persons came running and fearing danger, he left the scene; that he went to the village and brought men and they saw his sister lying naked and fainted and that she was taken back home; that on Monday at about 7.00 a.m, they went to the Annur Police Station and lodged the complaint; that the Police examined them and sent him to the Mettupalayam Government Hospital and his sister was sent to the Tiruppur Government Hospital. Even this witness in his cross-examination would confirm what he deposed in the Chief Examination. 11. P.W.8 would depose that 1+ years back, on a Sunday, the occurrence took place; that P.W.7 informed him of as to what had happened and he went along with him at about 12.00 mid night to the scene of occurrence where only the lady was lying fainted; that they sprinkled water on her face and took her to the house; that the next day when he was going for his job, he saw the photographs being taken at the spot; that he attested the observation mahazar which would be marked as Ex.P.2. 12. P.W.9 was the Sub Inspector of Police of Annur Police Station and he would depose that on 21.11.1994, at 7.00 p.m, P.W.6 came to the Police Station and gave the complaint; that he recorded the same and reading out the contents to the complainant, got her thumb impression and registered the case in the Station Crime No.437 of 1994 under Sections 323 and 376 IPC; that in the presence of P.Ws.6 and 7, he prepared Form-95 and recovered the Material Objects - sari, inskirt and jacket of the victim - and at 6.00p.m on 22.11.1994, he inspected the spot in the presence of witnesses and prepared the Observation Mahazar and Ex.P.13 rough sketch and thereafter he examined some more witnesses and recorded their statements; that he sent the victim for Medical Examination and gave requisition to the Court for sending the M.Os to the forensic laboratory; that on 25.11.1994 at about 6.00 p.m., in the presence of the witnesses, he caused the arrest of the first accused and recorded his confession statement attested by the witnesses and on the information furnished by him, he caused the arrest of rest of the accused and recorded their confession statements and thereafter he sent the accused for judicial custody along with requisition for they being medically examined. He would further depose that the Inspector of Police has taken up the matter for further investigation and Ex.P.14, First Information report would be marked by this witness. Even this witness would withstand the cross examination of the defence. 13. P.W.10 was the Inspector of Police, Annur police station at the time of occurrence and this witness would depose that on 10.08.1995, he took the case for investigation and examined the Government Doctors Jayapal, Baskaran, Kennedy, Gurusamy and Gopikrishna and recorded their statements on 29.05.1995 and on completion of the investigation, he filed the chargesheet against all the accused for the offences punishable under Sections 376, 323 read with 149 and 34 IPC. No effective cross examination would be held with this witness. 14. During arguments, the learned senior counsel appearing on behalf of the appellants/accused Nos.2, 3 and 6 besides filing the written arguments, would also advance his oral arguments tracing the facts and events as it has been narrated by the prosecution that on the date of occurrence, that was on 20.11.1994, when P.W.6 the victim accompanied by her younger brother P.W.7, was returning from the Cinema theatre in a bicycle, three of the accused came from behind in their bicycle and dashed against them and made them fall from the bicycle and three more accused followed them and A.1 asked her to come along with him to have a jolly time and when she refused, all the six accused took her to the old house nearby and raped her one by one and as directed by A.1, A.3 went first followed by A.2, A.4 and A.6. At this juncture, the learned senior counsel would point out that it is the evidence of P.W.6, the victim herself that she had conscious till three persons raped her and then she fell unconscious and she did not know what happened thereafter; that the next day on 21.11.1994, at 7.20 p.m, it is alleged that P.W.6 in the company o f P.W.7 and other villagers gave Ex.P.10 oral complaint recorded by P.W.9, Sub Inspector of Police; that M.Os.1 to 3 are also said to have been recovered and only on 22.11.1994, she was referred to the Doctor with the Policemen and P.W.2 would examine her at 7.00 p.m that day and the lady Doctor who examined her did not find any injury external or internal around her private part; that no opinion has been given either by P.W.2 or by anyone pointing that the rape was committed. 15. The learned senior counsel continuing to argue would further find that A.1, A.5 and A.6 are alleged to have been arrested on 25.11.1994, A.2 on 02.02.1995, A.3 on 29.11.1994 and A.4 surrendered before the Magistrate and they have been medically examined by P.W.2 to ascertain the age and potency and the Doctor would find uniformly that all the accused are capable of having sexual intercourse and there was nothing to suggest that they could not have performed sexual intercourse. However, the learned senior counsel would point out that A.1 was not capable of having the sexual intercourse and the medical evidence adduced in this regard by the prosecution is not correct since on a thorough check-up, it comes to be noted that it was only a typographical error and the Doctor has uniformly certified for all the accused 1 to 6 offering opinion that there was nothing to suggest that they could not have sexual intercourse. The learned senior counsel would, at this juncture, cite a judgment of the Madhya Pradesh High Court delivered in Betu alias Kamaal Khan v. State of Madhya Pradesh reported in 1994 (Crl.L.J) NOC 200, wherein it has been held that within the meaning of Section 114-A of the Evidence Act, it must be clearly proved that the accused did have the sexual intercourse. 16. The learned senior counsel would also cite a judgment of the Honourable Apex Court delivered in State of Karnataka, vs.Suresh babu Puk Raj Porral reported in AIR 1994 SC 966, wherein the statement of victim before Police as well as during cross-examination was that accused did something to her which he ought not to have done but she could not exactly elicit as to what exactly the accused did and in the absence of any other evidence to corroborate her testimony, the Honourable Apex Court held that it cannot be inferred that accused had intercourse with her. 17. Pointing out that no identification parade was held to identify the accused, the learned counsel for the appellants would cite yet another judgment of the Honourable Apex Court delivered in State of Himachal Pradesh vs. Lekh Raj and Another reported in (2000)1 SCC 247, wherein it has been held: "Where the accused was neither a person already known to the prosecutrix nor was specifically named in the FIR nor was subjected to test identification, putting him on trial for offence under Sections 376(2)(g) and 323 is improper and identification of the accused for the first time at the trial is a weak evidence. Test identification is not a substantive evidence, but holding of the test identification is a safe rule of prudence and can be used for corroboration purposes. In absence of any ulterior motive for falsely implicating the accused, the testimony of the victim of rape corroborated by the medical evidence is reliable." 18. The learned counsel for the appellants then pointing out regarding the presence of A.1 and A.5 at the place of occurrence that there was no evidence that these two accused committed rape of the victim, would cite the following judgments: (i)AIR 1980 SC 1252 (Krishnan v. State of Haryana) (ii)1993 Crl L.J 120 (Shatrughan and another v. State of Madhya Pradesh) (iii)1994 Crl.L.J 2490 (Sundaram alias Balasundaram v. State) (iv)1994 SCC (Cri) 503 (Ram Nivas v. State of Karnataka (v)1996(1) L.W (Crl) 165 (Amirthalingam v. State) 19. In the first judgment cited above, it has been held by the Honourable Apex Court: "The injury on the person of the victim, especially her private parts, has corroborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. To forsake these vital consideration and go by obsolescent demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called 'Judicial' probability." 20. In the second judgment cited above, it has been held by a learned single Judge of the Madhya Pradesh High Court that the factum of intercourse since being doubtful, presumption under Section 114-A of the Evidence Act is not attracted and the accused is acquitted. 21. In the third judgment cited above, a learned single Judge of this Court has held thus: "Medical evidence not supporting the case of rape and the relative of prosecutrix who entered house at relevant time and saw accused going out and prosecutrix weeping inside, is not supporting the case of rape; that the complaint written by prosecutrix herself immediately after the incident with details and particulars is suggesting that complaint was prepared leisurely after full deliberation and since there is possibility of false implication, the accused is entitled to acquittal." 22. In the fourth judgment cited on behalf of the appellants since no injuries were found either on prosecutrix or on accused suggesting forcible intercourse and the Prosecutrix being a grownup married woman the Doctor was also unable to give any opinion whether rape had been committed or not and in such circumstances, the Honourable Apex Court having found the evidence of prosecutrix highly untrustworthy has held that the accused is entitled to benefit of doubt. 23. In the last judgment cited on the part of the appellants, a learned single Judge of this Court has held: "Offence was only in the stage of preparation and hence did not attract Section 376 but would fall under Section 354. Conviction and sentence modified." 24. Citing the extracts from the above judgments, the learned senior counsel would further continue to argue that the charge framed is defective and the conviction under Section 376 IPC for a gang rape is erroneous particularly in view of the fact that the identity of each and every accused has not been established beyond doubts. 25. The learned senior counsel would further state that it is the case of the prosecution that accused Nos.2,3,4 and 6 indulged in the offence of rape directly and the remaining accused Nos.1 and 5 indirectly became responsible for the offence. The learned senior counsel would point out that the victim has used the term that `she was spoiled by the accused Nos.2,3 and 4 and thereafter she did not know what happened since she became fainted' and repeatedly she has used only the term that she has been spoiled and that is not sufficient for perpetration of rape and intercourse should have been spoken to prove Section 114-A of the Evidence Act which insists on the necessity to prove the intercourse; that the Tamil word "vd;id bfLj;jhh;fs;" is a general term capable of giving several meanings and does not lead to the act of intercourse only and the prosecution has failed to give the true meaning of the term thereby proving the ingredients of Section 375 IPC, the actual intercourse from the evidence of P.W.6; that P.W.6 victim did not even tell her brother P.W.7 or even P.W.8 or any other villager that she was raped by any person immediately after the occurrence; that even in her complaint, Ex.P.10, given to P.W.9, Sub Inspector of Police, she did not say that she was raped as defined under Section 375 IPC. 26. Hence, there is total lack of evidence and material ingredients regarding the act of intercourse amounting to rape. From the evidence of P.W.2, the lady Doctor's report, they did not give any opinion that any rape was committed by anybody on her; that the vagina swab was taken out and sent for chemical examination, but no findings were received as Exhibit in this regard; that the non-examination of the lady Doctor is fatal to the case of the prosecution; that the Medical Officers P.W.2 to 5 speak about the non-availability of any injury on the private part of the victim and therefore the offence of rape was individually or collectively established otherwise than the direct evidence of P.W.8 which is deficient. On such argument, the learned senior counsel would ultimately end up stating that neither a valid case is put up nor has it been proved beyond all reasonable doubts against each and everyone of the accused Nos.1 to 6 and vital evidence is lacking for convicting the accused for such a heinous crime and prayed to set aside the conviction and sentence ordered by the trial Court allowing the above appeal in full. 27. The learned counsel appearing on behalf of the accused Nos.1, 4 and 5 would adopt the arguments of the learned senior counsel regarding those arguments advanced covering up these appellants also and would pray for the same relief as it had been prayed for on behalf of the other appellants. 28. On the other hand, the learned Government Advocate appearing on behalf of the respondent State, having given a picture of the accused, the Sections with which they have been chargesheeted and the finding of the learned trial Judge, would say that P.W.6, the victim was working along with A.1 Babu in the masonry work and with that acquaintance and taking advantage of the fact that the victim was not living with her husband, all the accused had followed her on 20.11.1994 who, since there was no work, went along with her brother P.W.7 to watch a movie and around 10.30 p.m, while she was returning in the bicycle as a pillion rider when P.W.7 was riding the cycle, the first appellant and two others have come by another cycle and dashed against the cycle of the victim resulting in P.W.6 and P.W.7 falling on the ground with the cycle and beating P.W.7 and chasing him away, all the six accused took the victim to the nearby old house and perpetrated the offence of gang rape on the victim and P.Ws.1 to 5 are Doctors attached to the Government Hospital, Tiruppur among whom, P.W.1 would examine P.W.7 regarding the injury sustained by him, P.W.2 who attended on the victim initially would put entries in the accident register and the same P.W.2 would also examine A.3, A.5 and A.6 and would issue Exs.P3 to P.6 accident registers; P.W.3 Doctor would ascertain the age of the victim taking the X-ray of P.W.6 which is Ex.P.7; that P.Ws.4 and 5 respectively would examine A.2 and A.4