B A I L S L I P 1.Kalimuthu @ Appan, 2) Thangaraj @ Chinnavan that the above said appellants (Accused who directed to be released on bail as per order of this Court dated 26.6.2002 and made in Crl.MP.No.5385/02 in Crl.A.1111/02 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.02.2010 Coram: THE HONOURABLE Ms. JUSTICE R.MALA Criminal Appeal No. 1111 of 2002 1.Easwaran 2.Kalimuthu @ Appan 3.Thangaraj @ Chinnavan .. Appellants/Accused vs. State by The Inspector of Police Kumaralingam Police Station Coimbatore District. .. Respondent/Complainant Prayer: Criminal Appeal is filed under Section 374 (2) Cr.P.C. against the judgment in S.C.No. 177 of 2002 dated 12.07.2002 on the file of the learned Additional District Sessions Judge, Fast Track Court No.III, Coimbatore. ------- For Appellants : Mr.K.Kalyanasundaram for A1 Mr.K.Selvakumaraswami for A2&A3 For Respondent : Mr. I. Paul Noble Devakumar Government Advocate (Crl.side) ------- J U D G M E N T This Criminal Appeal has arisen out of the judgment passed by the Additional District Sessions Judge, Fast Track Court No.III, Coimbatore, on 12.07.2002 in S.C. No.177 of 2002, convicting the accused 1 to 3 under Section 341 IPC and imposing a fine of Rs.500/- each, in default to undergo simple imprisoment for a period of one week and first accused was convicted under Section 376 r/w. 511 IPC and he was sentenced to undergo seven years rigorous imprisonment and imposing fine of Rs.10,000/-, in default to undergo one year rigorous imprisonment and accused 2 and 3 were https://hcservices.ecourts.gov.in/hcservices/ convicted under Section 376 r/w. 511 r/w. 109 IPC and sentencing them to undergo rigorous imprisonment for seven years and imposing fine of Rs.10,000/-, in default to undergo rigorous imprisonment for one year. The third accused is acquitted for the offence under Section 323 IPC. 2. The case of the prosecution in a nut-shell is as follows:- (i) PW1/Complainant is Mariyayee. Her husband is PW2- Kalimuthan. PW1 is working as a Middle School Teacher at Papankulam. On 10.05.2001, at about 9.00 p.m. after finishing her election work in Devanur at Coimbatore District, PW1/Complainant boarded the bus in order to return back to her native place at Papankulam and she alighted at Udumalpet. Then, she reached Papankulam Division at 10.20 pm. Her house is situated 2 km away from the Papankulam Division and therefore, by walk, she is going towards her house and at that time, first accused/Eswaran came there by riding his bi-cycle; second accused-Kalimuthu @ Appan is a billion rider; and third accused-Thangaraj @ Chinnavan came there by riding another cycle. Accused 1 to 3 are alleged to have wrongfully restrained her and taken her to a field and they attempted to rape her. At that time, PW4 came there droving his tractor and on seeing the light of tractor, accused 1 to 3 are alleged to have left the place. Then, PW4-Chinnathambi @ Arun Prabhu, had accompanied her to her house, which was witnessed by PW3-Kandiya Gounder. Then, PW1 intimated about the incident to her husband PW2-Kalimuthan. (ii) The very next day morning at about 11.00 am., PW1 had gone to the police station and gave a complaint-P1 before PW7- Kuppusamy, Sub-Inspector of Police. PW7 received complaint-Ex.P1 and registered a case in Cr.No. 45/2001 under Sections 341, 376 r/w. 511 IPC and prepared a printed F.I.R.-Ex.P5 and he sent PW1 for medical treatment. Then, he handed over the file to PW8- Rangaraj, Inspector of Police. PW8 had taken up the matter on 11.05.2001 at 13.00 hours and had gone to the place of occurrence at 2.00 p.m. in the presence of Subramaniam and Mahalingam. PW8 prepared an observation mahazar-Ex.P2 and drawn a rough sketch- Ex.P6 and examined the other witnesses and he went to the hospital and examined PW1, who was admitted in the hospital and recorded the statement. He also seized the material objects MOs 1 to 4 from the witnesses which was despatched to the concerned Court under Form-95. On 13.05.2001, at 12.00 noon, he arrested the accused 1 to 3 and he had taken steps to remand them to judicial custody. On 31.08.2001, he examined PW6-Dr.Santha Sakubai and concluded the investigation and filed the chargesheet against the accused 1 to 3 under Sections 341, 376 r/w. 511 IPC. (iii) The learned Sessions Judge after following the procedure framed necessary charges and they pleaded not guilty. To prove the charges levelled against accused 1 to 3, the prosecution https://hcservices.ecourts.gov.in/hcservices/ examined the witnesses PWs 1 to 8 and marked Exs. P1 to P6 and MOs 1 to 4. After the completion of the evidence on the side of prosecution, the accused 1 to 3 were questioned under Section 313 Cr.P.C. as to the incriminatory circumstances found in the evidence of the prosecution witnesses and the accused 1 to 3 flatly denied them as false. The Sessions Judge after hearing the arguments advanced on both sides convicted the accused 1 to 3 under Section 341 IPC and first accused was convicted under Section 376 r/w. 511 IPC and accused 2 and 3 were convicted under Section 376 r/w. 511 r/w. 109 IPC and sentenced them to undergo imprisonment as indicated above. 3. Challenging the conviction and sentence, the learned counsel appearing for the first appellant/first accused would put forth the following four points for consideration :- 1.For the delay in preferring the complaint-Ex.P1, no convincing explanation has been offered. 2.The conduct of PWs 1 and 2 would not prove the offence alleged to be committed by accused 1 to 3. 3.The names of PWs 3 and 4 were not mentioned in Ex.P1- complaint, so, there is an improvisation and development in 161 statement and complaint, which fact has not been considered by the Sessions Court. 4.Even if the Court comes to the conclusion that the accused 1 to 3 are guilty, they are guilty only under Section 354 IPC and not under Section 376 r/w. 511 IPC or Section 376 r/w. 511 IPC r/w. 109 IPC. To substantiate his contention, the learned counsel relied upon the decision reported in (2009) 1 Supreme Court Cases (Cri) 20, Premiya @ Prem Prakash vs. State of Rajasthan. 4. The learned counsel appearing for the appellants 2 and 3/ accused 2 and 3 would contend that accused 2 and 3 have been falsely implicated in the case as their names have not been mentioned in Ex.P1-Complaint and hence, they are innocent and they are entitled to acquittal. 5. Per contra, the learned Government Advocate (Criminal Side) would submit that the nick-names of accused 2 and 3 and the names of their father have been mentioned in the complaint-Ex.P1 and the delay has been properly explained by PW1, in her evidence, she has stated as under:- "///ehd; tPl;ow;F Rkhu; 11/00 kzpastpy; brd;W bru;e;njd;/ tPl;oy; vd;Dila fztu; fhspKj;Jt[k; Fhe;ijfSk; ,Ue;jhu;fs;/ ehd; fztuplk; ele;j tptuj;ij Twpndd;/ vdf;F clk;g[ KgtJk; typahf ,Ue;jJ/ ehd; mjdhy; ,ut[ m';F tPl;oy; gLj;Jtpl;L fhiyapy; fhty; epiyak; brd;W g[fhu; bfhLj;njd;///" https://hcservices.ecourts.gov.in/hcservices/ The learned Government Advocate (Criminal Side) further stated that the complaint is not an encyclopedia and PW1 has given all the particulars which is sufficient to set the law in motion. So, there is no improvisation or development after giving 161 statement. So the Sessions Court has considered all the aspects in a proper perspective and came to the correct conclusion that the accused 1 to 3 are guilty under Section 341 IPC and first accused is guilty under Section 376 r/w. 511 IPC and accused 2 and 3 are guilty under Section 376 r/w. 511 r/w. 109 IPC and sentenced them to undergo imprisonment as indicated in paragraph 1 of this judgment and therefore, it does not warrant any interference and hence, he prayed for the dismissal of the appeal. 6. Now, this Court has to decide, Whether there is any delay, if so, whether it has been properly explained. 7. Before considering the delay, it is necessary to consider the evidence of PWs 1 and 2 and whether their evidence is trustworthy and reliable. PW1 is working as a Middle School Teacher at Papankulam. PW2-Kalimuthan, who is the husband of PW1, is working as a Head Master at Reddipalayam. On 10.05.2001, at about 10.20 p.m. after finishing the election work, when PW1-Mariyayee alighted from the bus at Udumalpet and she was on the way to her house, she was subjected to sexual assault and she is a victim of the incident. While considering the chief and cross-examination of PW1, nothing has been culled out to discard the evidence of PW1. Here, a suggestion was posed to PW1 that to help PW4-Chinnathambi @ Arun Prabhu, a false case has been foisted against the accused 1 to 3 has been denied by her. PW4-Chinnathambi @ Arun Prabhu is none other than a student, aged about 22 years, who has given lift to PW1 on the date of occurrence to reach her house from the place of occurrence. In such circumstances, admittedly, there is no relation between PW1 and PW4. The suggestion posed to her has also been denied by her. There is also no previous enmity between PW1 and accused 1 to 3, in order to give a false complaint against accused 1 to 3. In such circumstances, I see that there is no reason for discarding the evidence of PWs 1 and 2. 8. Merely because the names of PWs 3 and 4 have not been mentioned in F.I.R., it is not a sole ground for discarding the evidence of PWs 3 and 4. While considering the evidence of PWs 3 and 4, it has clearly proved that they are chance witnesses and that after the incident only they witnessed PW1 and she intimated the fact that she was assaulted by accused and she has not stated that she was subjected to sexual assault. In such circumstances, I do not find any flaw in the evidence of PWs 3 and 4 and therefore, I find that there is no reason for discarding the evidence of PWs 3 and 4. So, the evidence of PWs 1 to 4 is trustworthy and reliable. https://hcservices.ecourts.gov.in/hcservices/ 9. After the incident, PW1 reached the house at 11.00 p.m. and she intimated the same to her husband, then the very next day morning at 7.00 a.m. she wake up and then she had gone to the police station and gave a complaint-Ex.P1, then, she was referred to medical examination along with a medical memo. In such circumstances, I am of the opinion that the delay in giving complaint is only negligible and that has also been properly explained. So, the delay in preferring the complaint does not affect the case of the prosecution. 10. The learned counsel for the appellants 2 and 3 would contend that the names of accused 2 and 3 have not been mentioned in Ex.P1-Complaint. At this juncture, it is appropriate to consider Ex.P1-Complaint. In Ex.P1-Complaint, it was stated as follows:- "...mg;nghJ v';fs; Ciur; nru;e;j ehr;rpKj;Jf; ft[z;lu; kfd; <!;tud; (1) nyl; MWKff; ft[z;lu; kfd; rpd;dtd; (2) Rg;ghj;jhs; kfd; mg;gd; (3) Mfpa K:tUk; vd;id tHpkwpj;J nuhL Xuj;jpYs;s fhl;Lf;Fs; ,Gj;Jr; brd;W vd;dplk; jfhj Kiwapy; elj;j Kaw;rp bra;jhu;fs;////" During investigation, accused 1 to 3 were arrested and on that basis only, the second accused name has been mentioned as Kalimuthu @ Appan and third accused name has been mentioned as Thangaraj @ Chinnavan. Further more, all are residing in the same Village, so, she is well aware of accused 1 to 3. In such circumstances, I am of the view that she has given the nick-names. So, the argument advanced by the learned counsel for the appellants 2 and 3 that names of accused 2 and 3 have not been mentioned in complaint- Ex.P1, does not merit acceptance. 11. The learned counsel for the first appellant would contend that Ex.P1-complaint does not contain each and every matter as deposed before the Court by PW1, so, it is only an after thought and improvement, so the evidence of PW1 cannot be considered. As already discussed, for setting the law in motion, the date, time, place, name of accused and narration of fact alone are sufficient, not each and every minute particulars are necessary to set the law in motion. It is also well settled that the F.I.R. is not an encyclopedia, it need not contain each and every particulars. As already stated that the evidence of PWs 1 and 2 is reliable. So, the argument advanced by the learned counsel for the appellants that their evidence is only an after thought and PW1 has given an improved version after she was examined by the investigating agency, does not merit acceptance. 12. The non-mentioning of the names of PWs 3 and 4 is also not helpful to the case of prosecution, because, they are not the eye witnesses. After the incident only they came to know that PW1 was https://hcservices.ecourts.gov.in/hcservices/ assaulted by accused. They are only a hear-say / chance witnesses. So, the non-mentioning of the names of PWs 3 and 4 does not vitally affect the case of the prosecution. 13. The learned counsel for the first appellant placed reliance upon the evidence of PW6-Dr.Santha Sakubai and Ex.P4- wound certificate, wherein the Doctor has stated that the injuries have been caused due to the assault and attempted rape at 10.30 pm at Pappankulam Division on 10.05.2001 by three known persons with hand and stone. PW1 was admitted in the hospital on 11.05.2001 and discharged on 15.5.2001 and the following injuries were mentioned in Ex.P4-Wound Certificate:- "Injuries:- 1. Abrasion about 1 cm x ½ in the lower lip. 2. Canburn about 1 cm x 1 cm in right side of the neck. 3. Abrasion about 1 cm x 1 cm in the left side of the face." The doctor has given an opinion that the above injuries are simple in nature and stated that there is no evidence of attempted rape at present. So, the learned counsel for the appellants would contend that the Sessions Court has committed an error in convicting the first accused under Section 376 r/w. 511 IPC and accused 2 and 3 under Section 376 r/w. 511 r/w. 109 IPC, since, admittedly PW1 has not sustained any injury on the lower part of her body. So, if at all, accused 1 to 3 are guilty, the offence under Section 354 IPC alone has been made out. 14. To substantiate his contention that accused 1 to 3 are guilty only for the offence under Section 354 IPC, the learned counsel for the first appellant relied upon the decision reported in (2009) 1 Supreme Court Cases (Cri) 20, Premiya @ Prem Prakash vs. State of Rajasthan, wherein the Supreme Court has held as under:- "9. “10. The offence of rape occurs in Chapter XVI IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for ‘sexual offences’, which encompasses Sections 375, 376, 376-A, 376-B, 376-C and 376-D. ‘Rape’ is defined in Section 375. Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act i.e. Sections 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with an iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is ‘the ravishment of a woman, without her consent, by force, fear or fraud’, or as ‘the carnal knowledge of a woman by force against her will’. ‘Rape’ or ‘raptus’ is when a man hath carnal knowledge of a woman by force and against her will (Co. Litt. 123-B); or as expressed more fully, ‘rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman https://hcservices.ecourts.gov.in/hcservices/ child, under that age, with or against her will’ (Hale PC 628). The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; [1 Hon. 6, 1a, 9 Edw. 4, 26 a (Hale PC 628)]. In the crime of rape, ‘carnal knowledge’ means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephen’s Criminal Law, 9th Edn., p. 262). In Encyclopaedia of Crime and Justice (Vol. 4, p. 1356) it is stated ‘... even slight penetration is sufficient and emission is unnecessary’. In Halsbury’s Statutes of England and Wales (4th Edn.), Vol. 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman—an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order." (Bhupinder Sharma v. State of H.P., (2003) 8 SCC 551). 10. “9. In order to constitute the offence under Section 354 [IPC] mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. (See State of Punjab v. Major Singh, AIR 1967 SC 63.) A careful approach has to be adopted by the court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC are as under: (i) that the person assaulted must be a woman; (ii) that the accused must have used criminal force on her; and (iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty. 10. Intention is not the sole criterion of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight." (Vidyadharan v. State of Kerala, (2004) 1 SCC 215). In the instant case, after careful consideration of the evidence, the trial court and the High Court have found the accused guilty. But the offence is under Section 354 IPC." https://hcservices.ecourts.gov.in/hcservices/ 15. Applying the above decision to the case in hand, since PW1 has not sustained any injury on the lower part of her body, I am of the view that the offence under Section 376 r/w. 511 IPC or Section 376 r/w. 511 r/w. 109 IPC, is not made out. But, however, the appellants/ accused 1 to 3 are guilty under Section 354 IPC. At this juncture, it is appropriate to incorporate the essential ingredients of the offence under Section 354 IPC, which reads as under: (i) that the person assaulted must be a woman; (ii) that the accused must have used criminal force on her; and (iii)that the criminal force must have been used on the woman intending thereby to outrage her modesty. While considering the ingredients of Section 354 IPC along with the case in hand, it is seen that PW1-Mariyayee is working as a Middle School Teacher and she was assaulted by appellants/accused 1 to 3 with criminal force, with the intention to outrage her modesty, which has been proved by examining PW6-Dr.Santha Sakubai and also from the fact that her clothes have torn, which shows that the appellants/accused 1 to 3 are guilty under Section 354 IPC. 16. As already discussed, the appellants/accused 1 to 3 were found guilty under Section 341 IPC by the Sessions Court and they were imposed with a fine of Rs.500/- each. The evidence of PW1 has clearly proved that she was wrongfully restrained by accused 1 to 3 and taken to a field and they attempted to rape her. In such circumstances, the offence under Section 341 IPC has been proved by the prosecution beyond reasonable doubt, which was accepted by the Sessions Court is fair and proper and it does not warrant any interference. 17. Considering the over all facts and circumstances of the case, I am of the view that accused 1 to 3 are guilty under Sections 341 and 354 IPC. In respect of Section 341 IPC, accused 1 to 3 were convicted and imposed with a fine of Rs.500/- each and that amount has been paid by accused 1 to 3 and therefore, the conviction and sentence passed under Section 341 IPC, is hereby confirmed. Since, this Court has decided that the offence under Section 376 r/w. 511 IPC or Section 376 r/w. 511 r/w. 109 IPC, is not made out against accused 1 to 3 and therefore, they are acquitted of the said charge, but, they are convicted for the offence under Section 354 IPC. Considering the facts and circumstances of the case, I am of the view that the fine amount of Rs.10,000/- each, imposed on each of the appellants for the offence under Section 376 r/w. 511 IPC (against A1) and under Section 376 r/w. 511 IPC r/w. 109 IPC (against A2 and A3) shall be treated as fine amount for the offence under Section 354 IPC and the same is https://hcservices.ecourts.gov.in/hcservices/ liable to be confirmed. The period of sentence already undergone by the first appellant/first accused for the offence under Section 376 r/w. 511 IPC and appellants 2 and 3/accused 2 and 3 under Section 376 r/w. 511 r/w. 109 IPC, would be suffice for the offence under Section 354 IPC. 18. In fine, • this Criminal Appeal is partly allowed. • The conviction and fine of Rs.500/- (each) passed by the Sessions Court for the offence under Section 341 IPC, is hereby confirmed. • The judgment of conviction and sentence passed by the Sessions Court against first accused under Section 376 r/w. 511 IPC and accused 2 and 3 under Section 376 r/w. 511 r/w. 109 IPC, are hereby set aside. • Instead, they are convicted for the offence under Section 354 IPC. • The fine amount of Rs.10,000/- each, imposed on each of the appellants for the offence under Section 376 r/w. 511 IPC (against A1) and under Section 376 r/w. 511 IPC r/w. 109 IPC (against A2 and A3) is treated as fine amount for the offence under Section 354 IPC and the same is confirmed. • The period of imprisonment already undergone by the first appellant/first accused for the offence under Section 376 r/w. 511 IPC and appellants 2 and 3/accused 2 and 3 under Section 376 r/w. 511 r/w. 109 IPC, is sufficient for the offence under Section 354 IPC. paa Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Additional District Sessions Judge, Fast Track Court No.III, Coimbatore. 2.The Inspector of Police Kumaralingam Police Station Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ 3.The Judicial Magistrate I, Udumalpet. 4.The Chief Judicial Magistrate, Coimbatore. 5.The Principal Sessions Judge, Coimbatore. 6.The Public Prosecutor, Chennai. + 1 cc to Mr.K.Kalyanasundaram, Advocate SR No.11324 KS(CO) SR/26.2.2010 Crl. A. No. 1111 of 2002 https://hcservices.ecourts.gov.in/hcservices/