IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 04 .04.2007 Coram The Honourable Mr.Justice R. Balasubramanian And The Honourable Mr. Justice A.C.Arumugaperumal Adityan CRIMINAL APPEAL No.152 of 2001 & Crl.R.C.No. 239 of 2001 C.A.NO. 152 OF 2001 State by Inspector of Police C.B.C.I.D. All women Police Station B9, Saravanampatty Police Station Coimbatore City. .. Appellant/Complainant -Vs.- 1. Rathinam @ Rathinan 2. Dhanusu @ Danushkodi 3. Damodharan 4. Sundaram @ Sundarasamy 5. Krishnan ...Respondents/Accused 1 to 5 Crl.R.C.No.239 of 2001 Bakkiam ..Petitioner -vs.- 1. Rathinam @ Rathinan 2. Dhanusu @ Danushokodi https://hcservices.ecourts.gov.in/hcservices/ 3. Damodharan 4. Sundaram @ Sundarasamy 5. Krishnan 6. The Inspector of Police B3 Kattur Police Station Kovai. ..Respondents Appeal against the judgment dated 8.11.2000 in S.C.No.96 of 2000 on the file of I Additional Sessions Judge-cum-Chief Judicial Magistrate, Coimbatore. Criminal Revision Petition against the judgment of acquittal dated 8.11.2000 in S.C.No.96 of 2000 on the file of I Additional Sessions Judge-cum-Chief Judicial Magistrate, Coimbatore. For Appellant in C.A.No. 152/2001 R.6 in Crl.R.C.No.239/2001 : Mr.N.R.Elango For RR.1,2,3 & 5 in C.A.No. 152/2001 & R.1,2,3 & 5 in Crl.R.C.No.239/2001 : Mr.V.Gopinath, SC for Mr.D.Shivakumaran For Petitioner in Crl.R.C.No. 239/2001 : Mr.M.Venkataraman For R.4 in C.A.No.152/2001 :Mr.V.Gopinath, SC for & Crl.R.C.No.239/2001 : Mr.L.Mahendran J U D G M E N T (Judgment of the Court was delivered by R.Balasubramanian, J) The State is challenging the acquittal of the respondents by the judgment impugned in this appeal. Heard Mr.N.R.Elango, learned Additional Public Prosecutor for the State and Mr.V.Gopinath, learned Senior Counsel appearing for the respondents. 2. In S.C.No.96 of 2000 on the file of First Additional Sessions Judge-cum-Chief Judicial Magistrate, Coimbatore, the respondents were tried under Sections 376, 302, 120-B and 201 https://hcservices.ecourts.gov.in/hcservices/ I.P.C. It may be noticed that in the above referred to Sessions Case, final report was filed not only against the respondents herein arrayed as A.1 to A.5 but also against another person arrayed as A.6. The charge against A.6 in the above referred to Sessions Case was under Section 201 I.P.C. It is on record that on an application taken out by A.6 in S.C.No.96 of 2000, the prosecution case against him was split up and taken separately as S.C.No.214 of 2000 by the very same Court of Sessions. We state that the learned Sessions Judge disbelieved the prosecution case against that accused also, separately tried in S.C.No.214 of 2000 and acquitted him. That judgment is also in challenge before this court by the State in Criminal Appeal No.151 of 2001. At the end of the trial, the learned Judge acquitted A.1 to A.5 of all the charges framed against them. As stated earlier, the State is before this court challenging the said judgment of acquittal. For convenience sake in this judgment Anbalagan, Inspector of Police, since tried separately, will be referred whenever need arises as A.6. 3. According to the prosecution at about 7.00 p.m. on 22.12.1995, the first accused raped the victim aged about 16 years, an employee in the mill belonging to his father; murdered her and to screen the evidence of the offence, all the accused hatched a conspiracy and pursuant to that conspiracy, the dead body of the victim was thrown into a well. The other accused (Inspector of Police) – against whom the case has been split up is alleged to have screened the offence by giving a false report. To prove their case, the prosecution examined P.Ws.1 to 66 besides marking Exs.P.1 to P.113 and M.Os.1 to 23. The defence did not let in any oral evidence but however they marked Exs.D.1 to D.5. 4. P.W.1 is the mother of the deceased in this case, who happens to be her eldest daughter. The deceased was working in a mill called Sundaram Mills. P.W.3 also was working there. The deceased was working in the mill for the past five years. As usual, the deceased, after taking her bath, dressed herself neatly and left the house for her work in the mill between 5.30 p.m. and 5.45 p.m. on 22.12.1995. P.W.1 accompanied her daughter and left her near the mill and returned to her house. Then she went to attend the calls of nature and at that time there was a power failure. Then she reached home; had her dinner and slept. Normally her daughter would come back home at 8.30 a.m. in the following morning. However her daughter did not return home even by 8.30 a.m. Telling her neighbour that if her daughter comes home, she can have her food and then sleep, P.W.1 left for her work. Till 11.00 a.m. her daughter did not return home. P.W.1 was told that her daughter might be https://hcservices.ecourts.gov.in/hcservices/ doing continuous shift in the mill and therefore she could go and give food to her daughter. Being sure that her daughter would not do continuous shift duty, P.W.1 left for the mill to see her daughter. There she found A.1, P.W.16 (a fitter by profession) and the owner (a lady) of the mill. Pausing here for a minute we go to the evidence of P.W.3. She would depose that the deceased is her cousin. Five years prior to she giving evidence in Court (she was examined on 3.8.2000), the deceased, this witness and others went for work to the company, which is close to their house. P.W.1, who is the aunt of this witness accompanied her daughter upto the mill and then left. Next day morning, finding that the victim had not returned home they went in search of the victim. Now we come back to the evidence of P.W.1. On reaching the mill P.W.1 told the owner that her daughter had not come home, for which the owner (the lady) replied that her daughter did not report for duty at all and therefore advised P.W.1 to search for her daughter elsewhere. When P.W.1 insisted that her daughter will not stop from attending work without telling her, owner said that she did not know anything. She came home weeping and neighbours decided that a search may be conducted here and there and accordingly P.W.1 in the company of her neighbours searched for her daughter. In the course of such search P.W.1 noticed a watch; some coins; ear studs and hair pins enroute. P.W.1 identified the ear studs as that of her daughter near a well and when she peeped into the well, she found her daughter lying upside down. P.W.3 would state that the search was made in the nearby agricultural land and at that time she heard P.W.1 shouting that her daughter is inside the well, which made P.W.3 and others go there. P.W.1 taking the watch went to the mill to enquire. P.W.3 and others returned home. P.W.3 was present at the time when the dead body was retrieved from the well. P.W.3 noticed tiny pieces of cotton Fibres on the head of the victim. M.O.2, M.O.1 and M.O.3 are the personal wearing apparels, which the victim was wearing on that evening. M.O.13 is the wrist watch available just by the side of the well on the ground. In the land close to the well cholam crops were found damaged. M.O.14 is the ten paise coin; M.Os.15 and 16 are the bangles and M.O.17 is the chain. P.W.3 was examined two or three months prior to she gave evidence in court. 5. P.W.1 along with the watch went to the mill and asked the owner (the lady) stating that as the watch is always worn by the owner (obviously referring to A.1), why they have done like that. The owner (the lady) replied that the said watch will be worn by young boys and therefore she did not know anything about that. P.W.1 holding the legs of the owner (the lady) cried and the lady forced her way out. P.W.1 came home and showing the watch to her husband cried stating that the https://hcservices.ecourts.gov.in/hcservices/ owners have done like that. P.W.1’s husband wanted to use the telephone available in the company and they refused to give the phone. P.W.1’s husband went to the mill once again and cried to the owner (the lady). The lady replied that she did not know who did that and told P.W.1’s husband to go towards the well. When P.W.1’s husband wanted to use the phone available in the mill, they said that there is no phone at all. P.W.1 moved away weeping. At that time P.W.4 came in the opposite direction. When P.W.1 asked P.W.4 as to what happened, P.W.4 said that one day he will tell the matter. P.W.4 is also working in the same mill. On her way she met P.W.14 and when he asked her as to why she is weeping, she told about the incident. P.W.16 in his evidence would state that on 23.12.1995 he was in the mill. Sundaram, Ravi and Rangaraj were also there to assemble a machine. At 11.00 a.m. P.W.1 came to the mill and wept that her daughter, who had reported for duty is not to be seen and she was advised to leave stating that her daughter had not reported for duty at all. At or about 1.30 p.m. on that day P.W.1 once again came to the mill weeping that she located her daughter in a well and asked permission to use the phone available in the mill. Her request was refused and P.W.1 left the mill weeping once again. P.W.1 once again appeared in the mill with a watch in her hand and asked P.W.16 showing the watch. P.W.1 then left the mill premises. The mill owner did not allow P.W.16 and others to go near the well. At 3.30 p.m. when P.W.16 told his mill owner about the body lying in the well, he was told that somebody may be lying dead in the well and therefore P.W.16 need not go and see. 6. P.W.14 is a resident of Udayampalayam working as a coolie in Ramakrishna Mill. On 23.12.1995 he was sitting in a temple and at that time he saw P.W.1 coming with tears in her eyes. When P.W.14 asked her as to what it is about, she replied that her daughter, who had gone for work to the mill, the earlier day, did not return. She also told P.W.14 that when she went to the Mill in search of her daughter, she was told that her daughter did not report for duty and therefore she can search for her in some other place. P.W.1 told him that when she was searching for her daughter, she found her inside the well. Then P.W.14 went with P.W.1 to the house of P.W.17. P.W.17 telephoned. Then P.W.1 left towards east. P.W.14 went towards the well where he found some women police and police personnel. It was around 6.00 p.m. There was enough light. Fire Service Personnel came. They arranged to take the dead body. A local person was sent for and by using a rope, the body was retrieved. P.W.14 noticed injuries on the victim's person with her inner wear below the knees. The body was taken in an Ambulance. Then P.W.14 went to his house. At https://hcservices.ecourts.gov.in/hcservices/ 8.00 a.m. on the next day morning, P.W.14 was informed by his co-brother that A.4 had been taken by B-3 Police Station. P.W.14 answered that he could not do anything at that time. A.4 is another co-brother of P.W.14. When P.W.14 went to the police station he was not allowed to get inside. P.W.14, his wife and Kalamani (A.4's wife) stood outside the station. The mill owners came in a car. Some women working in the Mill were also brought by them. But however, they were not allowed to get down from the car. On that evening, P.W.14 was taken by a police officer and he was allowed to talk to A.4. When P.W.14 asked A.4, he said that he did not commit the offence. P.W.14 was not allowed to talk further and he was taken out. On the following day also P.W.14 went to the police station and waited outside till the evening at about 7.00 p.m. on that day. A.3 came in a motor-cycle and talked to A.4's wife. A.3 told A.4's wife that his boss would take care of the case and if A.4 is not going to accept, who will give their daughter in marriage to A.1. A.3 also lured A.4's wife with double salary when she comes for duty and promised to take care of her son as well. P.W.14 told A.4's wife that there is something fishy and therefore took her out. On the following day at 8.00 a.m. P.W.14 took A.4's wife and others to P.W.31's garden land. P.W.1, her husband and others were already there. P.W.14 told P.W.31 as to what A.3 spoke the previous day. P.W.31 told P.W.14 that nothing could be decided at that time and they could later on talk to A.4. P.W.14 returned home and went to P.W.31's house the next day morning, and said that he only arranged the marriage of A.4 with Kalamani for which the mill owner had given Thali; that A.4's family is only working there and yet they have done like that. P.W.14 saw A.4 remanded in court. P.W.14, P.W.31 and others went to prison and by filing an application visited him. A few days later, a petition was sent from his party to the Chief Minister, Commissioner and District Collector. P.W.17 is the son of Sri.Vellingiri, Ex.M.L.A. He would state that at about 3.30 p.m. on 23.12.1995 P.W.1, her husband and P.W.14 came to his house weeping. When questioned P.W.1 wept and said that her daughter is lying in a well. When further questioned, P.W.1 told him that her daughter, who left for her job at 6.00 p.m. on the earlier evening did not come back at all and when searched she found her daughter in the well. P.W.17 would state that he was informed by P.W.1 that the mill owners pleaded total ignorance and that they refused P.W.1 to make a telephone call from their phone to the police. Immediately P.W.17 telephoned to B-3 police station and informed them about the incident. Within two minutes, police again called him over telephone and got his message confirmed and then the police reached his house as his house is close to the well. P.W.17 went to the well and observed the dead body and the near by cholam crops were found https://hcservices.ecourts.gov.in/hcservices/ damaged. The Inspector of Police Anbazhagan (A.6 in this case and sole accused in S.C.No.214 of 2000) came there. Vellingiri, Ex.M.L.A., his son Ramamoorthi, present President Sathasivam and local residents were also there. Fire service personnel came and they could not retrieve the dead body from the well. However with the help of a local person, the dead body was taken out of the well. P.W.17 went to his house. He was examined one year before (his evidence was on 7.8.2000) and before that he was not examined at all. 7. After P.W.17 made the call to the police, P.W.1 went near the well and sat there. The police arrived at the spot and the spot was photographed. P.W.1 disclosed to them as to what happened. The dead body of P.W.1’s daughter was taken out of the well and she found pieces of cotton Fibres stuck to her scalp hair. P.W.1 also noticed injuries on her daughter. Her daughter’s eyes were protruding and her inner wear was found below her knees. Observing everything, the police made notes. Women police were also there and they asked her to sign in those records. P.W.1 was asked to come to the police station and accordingly she went there. There also she was examined and her statement was recorded. Thereafter P.W.1 was not sent for at all. At 9.00 a.m. on the following day (it must be on 24.12.1995) P.W.1 was asked to come to the hospital and on reaching the hospital, she collected her daughter's dead body. P.W.1 was asked to give her daughter’s Photographs, which she gave. Later the photographs of A.4 and her daughter were published in a daily. P.W.1 doubted whether A.4 alone would have been involved and therefore went to the house of the former M.L.A., examined in this case as P.W.31. P.W.14 (co- brother of A.4) told Kalamani (A.4’s wife) that A.1 alone had committed the crime and soon her husband (A.4) would be released and on such release A.4’s wages would be doubled. P.W.14 would state that he also went towards the well, where he found women police and police personnel. It was around 6.00 p.m. Fire service personnel came and tried to retrieve the dead body from the well but could not succeed and with the help of a local person and using a rope the dead body was taken out of the well. P.W.14 noticed the injury on the dead body and her inner wear below the knees. The dead body was taken in an Ambulance. P.W.14 came to know from his co-brother that A.4 had been arrested by B3 Police Station and P.W.14 informed his co-brother that nothing could be done at that time. When P.W.14 went to the police station, he was not allowed to see his co-brother A.4. 8. P.W.31 is a political leader belonging to Communist Party. At 5 or 5.30 p.m. on 23.12.1995 people belonging to Boyar Community from his Village came to him and informed him https://hcservices.ecourts.gov.in/hcservices/ that P.W.1’s daughter, who left for work on the earlier evening did not come back home and that the said girl is lying dead inside a well. P.W.31 was requested to accompany them to the well since police have already come there. The well is in a garden land, which is very close to P.W.31's garden land. P.W.31 went there where he found one woman police and two constables. P.W.1 was there weeping. P.W.31 advised P.W.1 to tell the police the truth. P.W.31 then returned home. At 8.00 p.m. he was sent for by the police and accordingly he went to the crime spot where he found the Assistant Commissioner of Police; seven or eight police constables and one or two Inspectors of Police. P.W.31 went around the well and he found the dead body taken out of the well and kept on the floor. The clothes of the dead body was found torn and he noticed cotton Fibres on the dead body. P.W.31 also noticed injuries. The Assistant Commissioner of Police by name Selvaraj called P.W.31 to him and at that time a lady police was recording the statement from P.W.1. The Assistant Commissioner of Police Selvaraj asked P.W.31 to tell the truth. P.W.31 requested the Assistant Commissioner of Police to find out the real culprits. Then the dead body was taken in a vehicle and P.W.31 returned home. P.W.31 attended the funeral on the next day. P.W.31 would state that two days thereafter P.W.1 and a few others came to his garden land. Ten or twenty days later P.W.31 and others went to Crime Branch CID. After P.W.1 visited P.W.31, A.4’s wife and P.W.14 visited P.W.31 and told him that A.4 had not been released from the prison. On the other hand he had been sent for judicial remand. P.W.31 told them that whatever may be their grievance they must visit the party office (probably he is referring to the communist party office) and tell them only. Ten or twenty days later the aggrieved party went to Crime Branch CID. 9. P.W.1 would state that she went to the Communist Party Office and told them her version, which was reduced into writing in which she had signed. Ex.P.1 (dated 24.1.1996) is the said petition given by her. P.W.1 would state that a copy of Ex.P.1 was also sent to the Honourable Chief Minister (We find on a perusal of Ex.P.1 that it was addressed to the Commissioner of Police, Coimbatore with copies marked to the Chief Minister, Director General of Police, District Collector and others). One year later P.W.1 went to the house of P.W.4. P.W.1 was sent for by CBCID Police and accordingly she went there. P.W.31 would state that ten or twenty days later, P.W.1 was sent for by CBCID Police. P.W.31 accompanied P.W.1 to CBCID Police where P.W.1 was enquired in confidence by CBCID Police personnel and P.W.31 was standing away from that place and therefore P.W.31 did not know the nature of P.W.1’s examination by CBCID Police. However at the end of enquiry https://hcservices.ecourts.gov.in/hcservices/ P.W.31 was asked to sign in the statement as a witness and accordingly he signed. P.W.1 would state that CBCID Police examined her and she gave a statement, which was reduced into writing. She was examined by the Inspector of Police thrice. P.W.1 would state that on the occurrence day she neither gave any complaint in the police station nor signed in any record. However she admitted her signature in the record shown to her and that signature is marked as Ex.P.2. She also admitted her signature in another record shown to her and that signature is marked as Ex.P.3. She identified M.Os.1 to 3 as the wearing apparels of her daughter; M.O.4 as the nose screw and M.O.5 as the ear stud of her daughter She also identified M.Os.6 and 7 as the silver anklets and ring belonging to her daughter; M.O.8 is the basket used to carry Tiffin box; M.O.9 is her slippers and M.O.10 her two hair pins. M.Os.11 and 12 are small vessel and Tiffin box which her daughter was having. She identified M.O.13 as the watch found near the well; M.O.14 is the ten paise coin; M.Os.15 and 16 as green colour bangle and flowers and M.O.17 as the black chain found around her daughter’s neck. 10. P.W.2 is a resident of Udayampalayam where P.W.1 was also residing. At 5.30 p.m. in the Tamil month of Margazhi (corresponding to December) she was sitting in her house pial. At that time she saw P.W.1 and her daughter/the victim coming that side and they sat in the pial waiting for the arrival of P.W.3. P.W.3 also came there and then all left for their work. P.W.2 told P.W.1 to come back soon as there is a music programme in the television channel. On that day she saw the victim wearing a white blouse, a red half saree and a red skirt. It was around 5.30 p.m. on that day. Within a short time thereafter electricity failed and P.W.1 did not come back to her house to see the television programme. Power supply was resumed at 7 or 7.35 p.m. Next day morning at about 11 or 11.30 a.m. P.W.2 heard somebody weeping in the house of P.W.1 and accordingly she went there, where on enquiry P.W.1 told her that her daughter did not return home at all and that she was advised by the mill owner to go and search for her. Hearing the wail of P.W.1, other neighbouring ladies also gathered and all of them went to the mill in two different groups. Enroute P.W.2 heard P.W.1 weeping and nearing her she found P.W.1 standing near a well and weeping. Peeping into the well they found P.W.1's daughter lying dead. In the agricultural land neck chain; broken bangle pieces; flowers; a coin and a wrist watch were noticed. P.W.1 taking the watch said that it belongs to the owner (obviously referring to A.1) and taking the watch P.W.1 went to the mill. P.W.2 returned home. She identified the material objects namely, M.Os.17, 18, 14, 15, 16, 13, 3, 1 and 2. https://hcservices.ecourts.gov.in/hcservices/ 11. P.W.10 during the relevant time was working as an Officer in the Fire Service Station at Ganapathi and he retired on 31.5.1996. On 23.12.1995 his office received a telephonic information that a girl has fallen into the well. It was around 7.00 p.m. Accordingly he along with his other colleagues reached the well at about 7.10 p.m. where in the well he noticed a girl lying. It was a deep well and