IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.12.2009 CORAM: THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN Crl.A.No.204 of 2002 State rep. by Station House Officer, Mettupalayam Police Station Through Public Prosecutor for Pondicherry at High Court, Madras. (Crime No.49 of 1997) .. Appellant Vs. 1.John Bosco @ John 2.Arasappan @ Sankar 3.Ramalingam @ Murugan 4.Raman @ Ramu .. Respondents PRAYER: Criminal Appeal is filed under section 378 (1) of Cr.P.C. against the order of acquittal passed in S.C.No.90 of 1997 dated 30.04.1998, on the file of the learned Principal Assistant Sessions Judge, Pondicherry and convict the respondents/accused for the charges framed against them for the offence under Sections 450 r/w 34 , 376 (2) (g) r/w 34 and 506 (ii) r/w 34 IPC. For Appellant : Mr.M.R.Thangavel Public Prosecutor for Pondicherry For Respondents : Mr.V.Parthiban Legal Aid Counsel J U D G M E N T This Criminal Appeal has been preferred by the appellant/State through Public Prosecutor against the judgment made in S.C.No.90 of 1997 dated 30.04.1998, on the file of the learned Principal Assistant Sessions Judge, Pondicherry wherein, the trial Court after analysing the evidence acquitted the respondents/accused herein of all the charges as against https://hcservices.ecourts.gov.in/hcservices/ them for the offence under Sections 450 r/w 34 , 376 (2) (g) r/w 34 and 506 (ii) r/w 34 IPC against which the state has come forward with this present appeal. 2. The case of the prosecution in brief is as follows:- P.W.4, P.W.2 and P.W.3 is the husband, mother and brother of P.W.1 respectively. P.W.1's husband was working in the canteen in Raman Cinema Theatre. He use to go to work at 10 A.M. and return home at 2.00 A.M. On 03.08.1997 at about 10.30 P.M., when P.W.1 was lying in her bed along with her children, she heard knocking of the door and she switched on the light and asked as to who was knocking at the door. As no reply was forthcoming, she peeped through kitchen window and found A1/the first appellant, resident of that locality who was known to her earlier. He was standing with a tiffen box and unwashed hand and on seeing P.W.1, asked for water for drinking and P.W.1 also gave him a plastic bottle containing water. At that time, she found A2/the second appellant sitting in a drunken mood on the pial of her house. On seeing his condition, P.W.1 partly closed the door and asked A1 to return the bottle quickly. But the first appellant/A1 pushed open the door of the house with a knife in his hand and bottle in the other hand came inside the house and threatened P.W.1 to obey his order or else he would stab her. Following him, the second appellant/A2 entered P.W.1's house and caught hold of P.W.1's hip and breast. They dragged her to the door step stating that they were longing to have sexual intercourse with her and they will not go without satisfying their lust. 3. P.W.1 struggled to escape from the clutches of A1 & A2, found A3 & A4/third and fourth appellants who were also the residents of her locality standing in the lane running by the side of her house and called them for help but all the four appellants joined together and dragged her to the backyard of her house and laid her on the cement floor used for washing vessels and to prevent her from escaping, A4 sat on her two legs while A3 caught hold of her hands and A1 with knife in one hand, closed the mouth of P.W.1 with the other hand. The second appellant lifted her saree and petticoat and had sexual intercourse with her. Following him, the other appellants one by one had sexual intercourse with her. Thereafter, the first appellant brought P.W.1 to the front side of her house and again compelled her to have sexual intercourse with him for the second time. P.W.1 pleaded and refused to have intercourse with him for the second time. A1/first appellant tied her legs and pushed her down on to the floor and had intercourse forcibly with her and threatened her that if she divulged the incident to anyone, he would kill her husband and children. P.W.1 fearing threat at the hands of A1 did not reveal the incident to anyone. https://hcservices.ecourts.gov.in/hcservices/ 4. On return from his work, P.W.4 asked her as to why she had injuries on her face and she replied that as she fainted and fell down, sustained injuries. The next day after her husband left for work she went to her mother's house and narrated the incident to her mother/P.W.2. Her mother adviced her to give complaint to the police and P.W.1 left her mother's house and returned home. But she did not give complaint to the police and thereafter, she did not go to her mother's house for two days. On 06.08.1997, her brother/P.W.3 came to the house of P.W.2 who asked him to go to his sisters house and find out whether she was not well. Hence, P.W.3 went to the house of P.W.1 and on seeing the bruises on her face question her as to what happened, even then she did not revealed the incident took place to her but only told him that the appellants assaulted her. Thereafter, P.W.3 brought her husband from the theatre and when her husband enquired her, P.W.1 narrated the entire incident to him. Thereafter, P.W1, 3 & 4 went to Mettupalayam Police Station and lodged a complaint Ex.A1, on the basis of which P.W.15 registered a case in Cr.No.49 of 1997 and recorded the statement of witnesses, arrested the accused persons and sent samples for chemical examination. After completion of investigation, laid charge sheet against the appellants/accused. 5. When the appellants/accused were examined under Section 313 Cr.P.C., on the incriminating material and circumstances found against them, they denied them as false. 6. The case of the prosecution is that all the accused persons entered into the house of P.W.1 at about 10.30 P.M. on 03.08.1997 and forcibly committed rape on her. According to the prosecution the evidence of P.W.2 to 4 are only hearsay as they had come to know about the incident only through P.W.1. The material evidence that was relied upon by the prosecution is the testimony of the prosecutrix and the evidence of P.W.2 to 4 to some extent. 7. Mr.M.R.Thangavel learned counsel representing the Special Public Prosecutor for Pondicherry strenuously contend that there is no reason for P.W.1 to falsely implicate the appellants in this case that too, who have committed gang rape on her if no such incident had occurred at all. The learned counsel would contend that the evidence of the prosecutrix though not corroborated by the medical evidence but is found to be trust-worthy and reliable, so her evidence cannot be disbelieved merely on the ground that it is not corroborated by the medical evidence. He would submit that the victim being a married lady, there cannot be any evidence of rape or sexual assault on her private parts and the case of this nature cannot be treated alike with that of rape of the minor girl or https://hcservices.ecourts.gov.in/hcservices/ unmarried woman. The learned counsel would submit that satisfactory explanation has been given by P.W.1 for not giving the complaint immediately after the occurrence and her explanation has to be considered as plausible one as she was put under threat and fear by the appellants which prevented her from disclosing the incident even to her family members. The learned counsel drew the attention of this Court to the relevant portion in the evidence of P.W.1 where she has stated that the appellants, more specifically A1 threatened her with knife with dire consequences if she disclose the incident to anyone. 8. Ordinarily, the evidence of rape witness shall carry the same weight as is attached to an injured witness who is a victim of violence unless there are special circumstances which call for greater caution and it would not be safe to act on her testimony if there is no independent evidence leading assurance to her accusation. When the evidence of the prosecutrix suffers from any infirmity and is not consistent with other evidence it is not safe to rely upon such evidence without corroboration to relevant particulars. 9. In this case, while appreciating the evidence of the prosecutrix her behavior at the time of the incident and after the incident has to be gone into. According to P.W.1, even before she was taken to the backyard of the house, the accused 1 & 2 have caught hold of her and dragged her to the door steps stating that they were longing to have sexual intercourse with her and they would not go without it. Therefore, her evidence clearly indicated that she had known about the intention of the accused to satisfy their lust by subjecting her to sexual inter course even before she was dragged to the backyard and in such a situation she could have drawn the attention of the neighbours by raising an alarm as it was not very late in the night. It is seen from the evidence that there are houses adjacent to the house of the prosecutrix and the rough sketch under Ex.P20 also shows that the houses are on the eastern side of the house of the prosecutrix more particularly, adjoining the lane through which she was dragged to the backyard. Her evidence indicated that all the accused joined together and dragged her to the backyard of the house through the said lane. It is seen that the said lane is only 2 ½ width and it is highly unbelievable that she was dragged by four persons in such a narrow lane without causing any injury to her. That apart, had she been dragged to a distance of about 18 feet through the lane if she raised alarm, definitely the neighbours would come to know and would try to save her from the clutches of the accused. According to P.W.1, her children aged about 11 & 9 years respectively were sleeping in the bedroom and if she had raised alarm even when the accused entered into the house with an evil intention, certainly, the https://hcservices.ecourts.gov.in/hcservices/ children would have woke up since the entire incident is alleged to have taken place for atleast an hour or two. It is highly unbelievable that her children were not awakened during the said incident. The conduct and behavior of the prosecutrix raises a grave doubt as to whether the incident has occurred as alleged by her. 10. Admittedly, the complaint under Ex.P1 was launched only on 06.08.1997 that is after a delay of three days. It is the duty of the prosecution to explain the delay and it should be seen regard to see whether there is plausible explanation for the delay. Even according to P.W.1, she had narrated the incident to her mother/P.W.2 on the next day morning. Assuming that P.W.1 was under fear, there was no such impediment for P.W.2 and she could have lodged the complaint that too when she had come to know that her daughter has been raped by four persons. Her evidence indicates that she merely advised her daughter to tell her husband about the incident. She had neither taken the victim to the hospital despite the fact that she had injuries nor given any complaint to the police after she came to know about the incident P.W.1 has not gone to the hospital though her husband had advised her to take treatment for the injuries. 11. It is not the case of P.W.1 that she concealed the incident as she was ashamed. It transpires from the evidence that P.W.1 had intention to lodge the complaint as she had kept the dress worn by her without washing in order to hand them over to the police. If that be so, why she has not given the complaint inspite of the fact that she was raped by four persons remain unexplained. The normal conduct of the victim who has been raped by four persons would be only to lodge the complaint with the police and take action against the perpetrators of the crime. But, P.W.1 has not given any satisfactory explanation for not lodging the complaint immediately after the occurrence or atleast after reporting the matter to her mother. 12. P.W.1 stated that out of fear that her husband and children would be killed if she disclose the incident, she did not take action. She has disclosed the incident to her mother and she would have found herself protected, further there was no impediment for her to seek police protection for her life as well as for the safety of her husband and children. In the absence of any such attempt made by P.W.1 or P.W.2/mother, the delay in lodging the complaint would only be considered to be fatal to the prosecution. 13. The prosecution has relied upon the confessional statement of A1 which led to the recovery of the knife alleged to have been used for threatening P.W.1 during the commission https://hcservices.ecourts.gov.in/hcservices/ of the offence. But P.W.1 categorically stated that the knife shown to her was not the one used by the accused to threaten her. Though the knife was marked through P.W.15/the Investigating Officer as M.O.4, in the absence of proper identification by P.W.1 it cannot be assertively said that M.O.4 knife was the weapon used by the accused to threaten the victim. 14. The material contradiction and infirmity in this case which belies the prosecution case is the absence of injury either on the private part or on the other parts of the body of the prosecutrix/P.W.1. It is the case of P.W.1 that she was attacked by the accused and sustained injury on her face and on the right hand. The relevant passage in the cross-examination is given as below:- vd; Kfj;jpy; uj;jf;fhak; epiwa nUe;jJ. vd; tyJ ifapy; fj;jp fhak; Vw;gl ;lJ. P.W.2/mother of P.W.1 also stated that when she saw her daughter on the next day, she found her face swollen and she was also had injury on the right hand. P.W.3/ brother of P.W.1 who had seen her on 06.08.1997 has stated that he has seen and noticed the injury on the face of his sister and when he asked to go to the doctor and take treatment she refused to do so. 15. Therefore, it is seen that even on 06.08.1997, all the witnesses P.W.2 to P.W.4 stated that there were injuries on P.W.1. However, P.W.12/Dr.Mary Hepsi Bai who has seen the prosecutrix on 07.08.1997 at about 4 A.M. has not found any injury on the body of the victim. She has categorically stated that there was no evidence of any injury over private parts i.e. external genitalia and inner portion of the thigh including the breast and other parts of the body. She further stated that there was no clinical evidence suggesting any rape. If she was made to lie on the cement floor a rough surface during the commission of sexual assault by the accused persons and when she was forcibly raped then definitely injuries will be there on her back but no such injury was found on the body of the victim by the Doctor. 16. The learned Special Public Prosecutor contended that absence of injury on the victim is not fatal in every case, when the evidence of the prosecutrix is found to be trust- worthy. In the present case, the victim is a married matured woman of two children. In order to find whether she is telling the truth and there is no false implication of the accused her evidence requires to be corroborated by other evidence, more particularly by medical evidence. But in this case, her evidence is not corroborated by other evidence and absence of injuries on her body would only discredit her testimony. Her evidence indicates that the accused had sex with her one after https://hcservices.ecourts.gov.in/hcservices/ another, but however she did not sustain any injury is unbelievable. Her evidence not only is full of material contradiction but also artificical. 17. Another significant factor in this case is that the sample of semen was taken from all the accused persons and sent for chemical analysis, but no semen was found in the slides for chemical analysis. There is no explanation from the Investigating Officer as to how and why no semen was found in the slides. The doctor who has taken the semen from the accused persons for sample has not been examined and in the absence of evidence to prove that semen was actually collected from the accused persons and therefore, even on the said aspect the prosecution failed in its attempt. 18. The Trial Court has evaluated the evidence in its judgment and there is no compelling reasons for interfering with the findings of the Trial Court. 19. In the case of Ramesh Babulal Doshi Vs. State of Gujarat [1996-9-SCC-225], the Hon'ble Supreme Court court said thus:- "While sitting in a judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the Trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely if the appellate court holds for reasons to be recorded that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions." 20. In the case of Bhagawan Singh Vs. State of MP [2002-4- SCC-85], the Trial Court acquitted the accused, but the High Court convicted them. Negativing the contention of the appellants that the High Court could not have disturbed the findings of fact of the Trial Court even if that view was not correct, the Hon'ble Supreme Court observed thus:- "7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High https://hcservices.ecourts.gov.in/hcservices/ Court in an appeal against an order of acquittal is that the court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but Judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. 21. Again in the case of Kallu Vs. State of MP [2006-10- SCC-313], the Hon'ble Supreme Court has stated thus:- "8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court." 22. Bearing in mind the above principles enunciated by the Hon'ble Supreme Court, the irresistible conclusion arrived at is that the findings given by the Trial Court are neither https://hcservices.ecourts.gov.in/hcservices/ perverse nor based on no evidence. Having considered the materials on record, I find no merits in this Criminal Appeal and this Criminal Appeal is liable to be dismissed. In the result, the Criminal Appeal is dismissed confirming the judgment passed by the learned Principal Assistant Sessions Judge, Pondicherry in S.C.No.90 of 1997 dated 30.04.1998. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar DP To 1.The Principal Assistant Sessions Judge, Pondicherry. 2.-do- thro'Chief Justice, Pondicherry. 3.The Station House Officer, Mettupalayam Police Station Through Public Prosecutor for Pondicherry at High Court, Madras. +1cc to Public Prosecutor, Pondicherry Sr 67185 +1cc to MR.V.Parthiban, Advocate Sr 66775 RSY(CO) km/5.1.2010 Crl.A.No.204 of 2002 https://hcservices.ecourts.gov.in/hcservices/