Rape Victims get just Rs.1,00,000 from the government for the fatal error committed by the Police, Public Prosecutor, and Judge. No justice for the victims. Rape = just worth of 1,00,000?
No punishemet or action against those real culprits who did not do their duty to bring the justice to the innocent victims. This is the fate of innocent indians facing their trail in lower courts.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26..02..2010
CORAM
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
Criminal Appeal
Nos.665 of 2005 and 265 of 2006
1.Chandrappa
2.Chinnaraj @ Muniraj
... Appellant in Crl.A.No.665 of 2005/
A1 and A2
1.Muniraj
2.Ravi
... Appellant in Crl.A.No.265 of 2006/
A3 and A4
Vs.
State by
The Inspector of Police,
Crime Branch C.I.D., Dharmapuri.
(Crime No.892 of 1995 of Hosur P.S.)
... Respondent in both criminal appeals
Memorandum of Grounds of Criminal Appeals under Section 374(2) of
the Criminal Procedure Code against the judgement dated 20.07.2004
passed by the learned Assistant Sessions Judge, Hosur in S.C.No.29 of
2000.
For Appellant (s) : Mr.E.J.Ayyappan for appellants in
Crl.A.No.665 of 2005 and
Mr.P.M.Duraiswamy for appellants in
Crl.A.No.265 of 2006
For Respondent : Mr.N.R.Elango
COMMON JUDGEMENT
It all happened on 22.11.1995 at 2.30 a.m. in the outskirts of a
very busy village, at the house of the victims, a lone house in that
area. The inmates of the house were fast asleep as anybody else in the
village. Repeated ringing of calling bell, awakened them. Sensing
something untoward, they did not open the door. But, a gang of 8
assailants, covering their faces with masks, broke open the door of the
house, attacked the sole adult male member of the family with deadly
weapons, tied him to a fan hook in the roof, undressed him, took his
wife to the kitchen, gang raped her, took his 17 years old daughter to
the bed room, gang raped her, put his other two children in a room under
fear of death, looted the properties from the house as well as from the
person of the victims, remained in the house performing these ghastly
acts for about 1 = hours; and then fled away with looted articles
unnoticed by anybody else. The victims were disabled from even
screaming for help. For the victims, it took some time to overcome the
shock. This horror was executed in the land of "Mahatma" who respected
the women with reverence.
2. If the culprits have been properly identified and offences have
been proved beyond reasonable doubt in accordance with the principles
of criminal jurisprudence, one can be sure, the culprits cannot escape
without visiting very deterrent punishment. But, this Court finds that
the poor victims have not been rendered justice as the Police,
Additional Public Prosecutor and the trial Court were insensitive to
rule of law.
3. Before further adverting to the facts of the case, let us once
again read, with concern, the following painful observations made by the
Hon'ble Supreme Court in what is commonly known as "Best Bakery Case"
[Zahira Habibulla H.Sheikh and another v. State of Gujarat and others,
(2004) 4 SCC 158]:-
"If one even cursorily glances through the records of the case, one
gets a feeling that the justice-delivery system was being taken for a
ride and literally allowed to be abused, misused and mutilated by
subterfuge."
"The investigation appears to be perfunctory and anything but
impartial without any definite object of finding out the truth and
bringing to book those who were responsible for the crime."
"The Public Prosecutor appears to have acted more as a defence
counsel than one whose duty was to present the truth before the Court."
"The Court in turn appeared to be a silent spectator, mute to the
manipulations and preferred to be indifferent to sacrilege being
committed to justice."
"Those who are responsible for protecting life and property and
ensuring that investigation is fair and proper seem to have shown no
real anxiety."
4. These observations squarely apply on all fours to the facts of
the instant case. This is yet another "Best Bakery Case" which depicts
as to how the agencies involved in the task of criminal-justice delivery
have shown utter indifference to the cry for justice resulting in
failure of justice. This case illustrates as to how the rule of law can
be taken for a ride and ridicule by police and the prosecutor. The way
in which the trial has been conducted demonstrates as to how the trial
Judge remained as a mute spectator when justice was sacrificed at
the altar of the temple of justice leaving the poor victims of gang rape
and dacoity in perils. This court is forced to make these painful
remarks and the justification for such remarks can be seen as this
judgement progresses.
5. At last, the trial Court convicted and sentenced the accused as
follows:-
(i) A1 to A6 have been convicted for the offence under Section 458
of IPC and sentenced to undergo rigorous imprisonment for three years
and to pay a fine of Rs.1,000/- in default to undergo rigorous
imprisonment for further 6 months each;
(ii) A1 to A6 have been further convicted for the offence under
Section 395 of IPC and sentenced to undergo rigorous imprisonment for 10
years and to pay a fine of Rs.1,000/- in default to undergo rigorous
imprisonment for further two years each;
(iii) A1 and A2 have been further convicted for the offence under
Section 395 r/w 397 of IPC and sentenced to undergo rigorous
imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to
undergo rigorous imprisonment for further two years each;
(iv) A2 to A6 have been further convicted for the offence under
Section 376(2)(g) of IPC and sentenced to undergo rigorous imprisonment
for 10 years and to pay a fine of Rs.2,000/- in default to undergo
rigorous imprisonment for further two years each;
(v) A1, A3 to A6 have been further convicted for the offence under
Section 376(2)(g) of IPC and sentenced to undergo rigorous imprisonment
for 10 years and to pay a fine of Rs.2,000/- in default to undergo
rigorous imprisonment for further two years each.
6.1. Let us now have the facts in nutshell:- P.W.1 is the head of
the family; P.W.2 is his wife and was aged 42 years; P.W.3 is his
elder daughter, aged 17 years, then doing XII standard; P.W.4 is his
younger daughter; P.W.5 is his son; and P.W.6 is a tenant. P.W.1 and
his family members were peacefully living in their house at the village
(name not required to be mentioned) in Krishnagiri District. P.W.6
was a tenant residing in a different portion of the said house. He was
a student doing I.T.I. Trade Course. That was a lone house in that
area.
6.2. At about 2.30 a.m. P.W.6 sensed the movement of some persons
outside the house. They knocked at the doors of the portion where P.W.6
was residing. When P.W.6 responded, they wanted him to open the doors.
When he declined, they broke open the doors and pulled him out and
attacked him. Then, they took P.W.6 to the main door of the portion
where P.W.1 and his family members were residing. They directed P.W.6
to call P.W.1 and to open the doors. Out of fear, P.W.6 did so. But,
P.W.1 did not open the doors and therefore, the culprits forced P.W.6
into his room and bolted the same from outside. They repeatedly rang
the calling bell of the house of P.W.1. P.W.1 switched on the light in
the varanda. He found around 10 persons standing, all covering their
faces with masks. They wanted P.W.1 to open the doors, pretending as
though they were police men who had come to enquire the son of P.W.1
about a theft. P.Ws.1 and 2 declined to open the doors. Then, the
culprits broke open the windows. Even then P.Ws.1 and 2 did not open
the doors. Thereafter, with a big stone, they broke open the main
door and barged into the house. Seven culprits forced their way into the
house. They were all armed with deadly weapons like crowbar, koduval,
soorikathi, etc. Some of the assailants caused injuries on P.W.1. They
pushed him into the last room of the house, tied both his hands together
with a saree and tied the other end of the saree to the fan hook in the
roof by keeping the hands of P.W.1 in rising position. They tied the
legs also and beaten him up as against his male genitalia with a stick.
Then, they took P.W.2, the 42 years old woman, a mother of three
children to the kitchen and wanted her to remove her jacket. When she
refused, they threatened that, otherwise, they would kill her children.
Then they pushed her down and raped her one after the other. They
removed her jewels. They took P.W.3, the 17 years old girl to the bed
room and raped her one after the other. P.W.4, the son of P.Ws.1 & 2
and P.W.5, the younger daughter of P.Ws.1 and 2 could not rescue P.Ws.1
to 3 as they were also kept under threat. P.W.1 could hear P.W.2 and
P.W.3 screaming in pain unable to bear the animal behaviour of the
culprits. The culprits removed some more jewels and other articles
and fled away after about 1 = hours. After recovering from the shock,
P.W.2 moved towards her husband (P.W.1) and untied him, and then
consoled her daughter (P.W.3). P.W.1 in turn went out, opened the
doors and rescued P.W.6. The entire family was in sorrow and shock and
so they could not go to the police station immediately. Thereafter,
P.W.1 went to the police station at 9.00 a.m. and gave a oral statement.
P.W.22, the then Sub Inspector of Police attached to Hosur Police
Station reduced the same into writing, which is Ex.P.1. Based on Ex.P.1,
P.W.22 registered a case in Cr.No.892 of 1995 for the offences under
Sections 395, 397 and 376 of IPC. He forwarded the Statement (Ex.P.1)
and FIR (Ex.P.41) to the jurisdictional Court.
6.3. P.W.19, the then Inspector of Police attached to Hudco Police
Station took up the case for investigation. He proceeded to the place
of occurrence, prepared an observation mahazar (Ex.P.2) in the
presence of P.W.7 and another witness and also prepared rough sketch
(Ex.P.40). He recovered the broken remains of the doors, broken glass
pieces, etc. under a mahazar - Ex.P.3 in the presence of witnesses.
Even before proceeding to the spot he had summoned the Finger Print
Expert to the spot.
6.4. P.W.8, the Finger Print Expert arrived at the spot (time not
mentioned) and thoroughly examined the place of occurrence. He found 5
chance finger prints on the bureau in the house of P.W.1. He marked the
same as "A1, A2, A3, A4, A5" and photographed the same with the help of
P.W.18. On comparing the finger prints of the inmates of the victims of
the house of P.W1, he found that the chance prints marked as "A3, A4
and A5" belonged to the inmates and the chance prints marked as "A1 and
A2" were that of strangers.
6.5. P.W.19, the Inspector of Police forwarded P.Ws.1, 2 , 3 and 6
to the hospital for examination. He also examined P.Ws.1, 2, 3 and 6
and recorded their statements. On 23.11.1995, he handed over the
investigation to P.W.20.
6.6. P.W.16 Dr.Anusuyamalathi attached to Hosur Government
Hospital examined P.Ws.1, 2 and 3 and found external injuries. She was
of the opinion that P.W.3 would have been subjected to s*xual assault
but, she could not offer any opinion regarding the s*xual assault made
on P.W.2.
6.7. P.W.20, the then Inspector of Police attached to Hosur Police
Station proceeded with the investigation from 23.11.1995 onwards. He
claims that he had shown the photograph of the old offenders to P.Ws.2
and 3. He further claims that P.Ws.2 and 3 identified the photograph of
one "D.C.Perumal" as one of the culprits. Therefore, he arrested
D.C.Perumal on 17.11.2006 at 3.00 p.m. and forwarded him to judicial
remand on 18.01.1996.
6.8. On 29.01.1996 on the requisition made by the Inspector of
Police, Hosur Police Station and as directed by the Chief Judicial
Magistrate, Hosur, P.W.15, the then Judicial Magistrate, Hosur
conducted Test Identification Parade in respect of Perumal. [He was
subsequently dropped from the case]. During the said test
identification parade, P.W.2 identified the said Perumal as one of the
culprits, but P.W.3 did not identify. [Ex.P.23 is the record of the Test
Identification Parade proceeding]. D.C.Perumal's remand was periodically
extended.
6.9. P.W.20 made arrangements to forward the cloth of the victims
for chemical examination. P.W.20 could not make any further break
through in the investigation. Therefore, the investigation was
transferred to C.B.C.I.D., which is supposed to be one of the best wings
of the police in the matter of crime detection.
6.10. P.W.21, the then Inspector of Police, C.B.C.I.D., Dharmapuri
District took up the case for investigation on 27.01.1996. He examined
P.Ws.3, 5 and 6 and few more witnesses and recorded their statements.
He also could not make any break through in the investigation.
6.11. Finally, P.W.23 the Inspector of Police, C.B.C.I.D.,
Dharmapuri District took up the investigation on 07.03.1996. He examined
few witnesses and recorded their statements.
6.12. On 21.05.1996, P.W.23 received a report from P.W.8 that one of
the chance finger prints lifted at the scene of occurrence tallied with
the finger print of one Muniraj (A3 - ?). [It is not in evidence as to
who took the sample finger print and who forwarded the same to P.W.8,
for comparison]. Based on the said report, P.W.23 arrested A3-Muniraj
on 22.05.1996 at 04.15 p.m. In the presence of P.W.10 and another
witness, A3 Muniraj gave a voluntary confession. In his confession, he
told that he would identify the person to whom he had pledged the
anklet. On the basis of the information furnished by A3-Muniraj, at
about 6.15 p.m., A4-Ravi was arrested in the presence of the very same
witnesses. He also gave a voluntary confession. He informed that he
would identify the shop where he had pledged the jewels. Then, P.W.23
arrested A-5 Madhu @ Tingu at 7.15 p.m. He also gave a voluntary
confession, out of which a small nose screw was recovered from the aunt
of A-5. At 10.00 p.m. he returned to the police station with the
accused and the recovered articles. Then, he proceeded to Thenkanikottai
and recovered the silver anklet from one Subramani. On 23.05.1996 at
9.30 a.m. on the basis of the confession of A-4 Ravi, he recovered one
pair of ear studs from Sara Jewellery belonging to P.W.13. Thereafter,
the accused Nos.A3, A4 & A5 were forwarded to the Court for judicial
remand.
6.13. On the same day at about 5.30 p.m. he arrested A2-Chinnaraj in
the presence of two witnesses by name Chinnappa (P.W.11) and
Thirupathi (not examined). On such arrest, A-2 gave a voluntary
confession. On the basis of the same, P.W.23 recovered two gold coins
from the wife of A2 (not examined). At 8.30 p.m. he arrested A6
Duraisamy. He also gave a voluntary confession. On that basis, P.W.23
recovered two Thali (mangal sutra) from the wife of A6 (not examined).
On 24.05.1996 at about 5.30 a.m. he arrested A1-Chandrappa. He gave a
voluntary confession. On his confession , one Koduval kathi was seized
in the presence of Chinnappa (P.W.11) and another witness. Again on
the basis of confession of A1, P.W.23 recovered a gold thali, gold ear
studs (one pair) from one Kaveri (P.W.14). Thereafter, the accused were
brought to the police station and then forwarded to the jurisdictional
court for judicial remand. Then, P.W.23 examined several witnesses
(details not necessary). He searched for the two other culprits by name
Ramesh and Murugan because their involvement came to light from out of
his investigation, but he could not succeed.
6.14. P.W.23 gave a requisition to the Chief Judicial magistrate for
holding Test Identification Parade in respect of A1 to A6. Accordingly
on 31.05.1996, P.W.15, the learned Judicial Magistrate Hosur conducted
Test Identification Parade. P.Ws.1 to 5 participated in the same. P.W.1
identified A1 to A5 alone and not A6. P.W.2 identified A2 and A3 alone.
P.W.3 could not identify anybody. P.W.4 identified A1 to A6. P.W.5
identified A2 alone. P.w.6 identified A5 alone. Ex.P.23 is the record
of the proceedings of the Test Identification Parade.
6.15. P.W.23, on completing the investigation laid the charge sheet
on 03.01.1997 against 8 accused by name Ramesh (dead), Chandrappa(A1),
Murugan (Dead), Chinnaraj @ Muniraj (A2), Muniraj (A3), Ravi (A4), Madhu
@ Tingu (A5) & Duraisamy (A6).
7. On committal, the case was made over to the Assistant Sessions
Judge, Hosur for trial. Strangely, the trial Court framed charges
against all the 8 persons arrayed as accused in the final report
including the accused Ramesh and Murugan, who were already dead. As per
the memorandum of charges framed by the trial Court, the deceased Ramesh
was shown as the 1st Accused and the deceased Murugan was shown as the
3rd Accused. The rest of the accused, who were alive including the
appellants herein denied the charges. They were rearranged as A1 to A6.
During trial as many as 24 witnesses were examined and 53 documents were
exhibited and M.Os.1 to 17 were marked on the side of the prosecution.
8. When the accused were questioned under Section 313 of Cr.P.C. in
respect of the incriminating evidence, they denied the same. However,
they did not examine any witness on their side. Having considered the
above materials, the trial Court convicted the appellants.
Challenging the above conviction and sentence, A1 to A4 are before this
Court. A5 Madhu @ Tingu and A6 Duraisamy have not preferred any appeal.
But, since their case is inextricably linked with the others, though
they have not preferred any appeal , their case is also considered
together with this appeal.
9. From the facts narrated above, it could be gathered that the
prosecution relies on the following evidences and circumstances to
establish the guilt of the accused:-
(i) Eye-witness account of P.Ws.1 to 6;
(ii) Test Identification Parade wherein the accused were identified
by P.Ws.1 to 6;
(iii) Chance finger prints lifted at the scene of occurrence tallied
with the finger prints of A3 and A5;
(iv) The arrest of the accused and recoveries of stolen articles on
the information furnished by them;
(v) medical evidence.
10. Now, let me analyse as to whether the prosecution has succeeded
in establishing the alleged guilt of the accused.
11. At the outset, I have to point out that the learned Assistant
Sessions Judge has committed a serious illegality in framing charges
against the dead persons also. At page No.1 of Volume I of the typed set
of papers, the charges framed by the trial Court are found which show
that the 1st charge is under Section 458 of IPC against all the 8
accused persons including the two deceased accused Ramesh and Murugan;
the 2nd charge is under Section 395 of IPC and the same is also
against 8 persons including the two deceased accused; the 3rd charge is
under Section 395 r/w 397 of IPC as against deceased accused Ramesh,
Chandrappa, deceased accused Murugan and Chinnaraj @ Muniraj; 4th charge
is under Section 376(2)(g) of IPC against deceased accused Ramesh,
deceased accused Murugan, Chinnaraj @ Muniraj, Muniraj, Ravi , Madhu @
Tingu and Duraisamy; the 5th charge is under Section 376(2) (g) of IPC
against deceased accused Ramesh,deceased accused Murugan, Muniraj,
Ravi, Madhu @ Tingu and Duraisamy. Thus, the charges are highly
defective. However, with the above defective charges the Court
proceeded with the trial.
12. Next came the examination of witnesses. When an eye witness is
examined, any one who has knowledge of elementary principles of
criminal trial, would expect the public prosecutor to ask the witness
to identify the assailants in Court. It is unfortunate that P.Ws.1 to
6 were not asked to do so. Thus, there was no occasion for these
witnesses to identify the real assailants in Court. The learned
Assistant Sessions Judge was only a mute spectator. Why the power under
Section 165 of the Evidence Act to get this valuable evidence from these
eye witnesses was not exercised by the trial Court? It could be
perceived that it is not as though the witnesses P.Ws.1 to 6 were either
reluctant or were unable to identify the accused. But, it was only due
to sheer indifference on the part of the Additional Public Prosecutor
and the Court. Thus, the very valuable evidence of identification of
the accused in Court has been omitted to be brought on record by the
prosecution. The evidences of these eye witnesses are only to the
effect that some 8 persons came; broke open the doors of the house;
gained entry into the house, gang raped P.W.2 and P.W.3 and committed
dacoity. Absolutely, there is no evidence from these witnesses to the
effect that these accused are those culprits who indulged in the
horrific crime. Thus, the evidences of P.Ws.1 to 6 do not
incriminate these accused in any manner in the commission of the crime.
13. Next comes the introduction of one Mr.Perumal as accused.
Mr.Perumal was initially arrested as as accused in this case by P.W.20,
the then Inspector of Police, Hosur Police Station. According to P.W.20,
he arrested the said Perumal on the basis of the identification made
by P.Ws.2 and 3 from out of the photograph of the said Perumal shown to
them. Had it been true, certainly, one would expect the Additional
Public Prosecutor to elicit this fact from P.W.s 2 and 3 and if they say
that they did identify D.C.Perumal as one of the assailants, then to
allow them to explain as to whether he was the real assailant or by
mistake they identified him as one of the assailants. I find that no
such opportunity was afforded to these witness.
14. The said accused Perumal was remanded to judicial custody by the
Court and during Test Identification Parade held by P.W.15, the then
Judicial Magistrate, he was identified by P.W.2. But, P.W.3 did not
identify him. Curiously, no question was put to P.W.2 about the
identification of the said Perumal made by her during Test
Identification Parade. Had any opportunity been given to her to
explain about the same, she would have certainly said either Mr.Perumal
was one of the assailants or that for any other reason she had
mistakenly identified him as one of the assailants. If D.C.Perumal was
one of the real assailants as identified by P.W.2, why was he dropped
from the case?
15. P.W.23, in his evidence, has stated that on his investigation he
found that on the crucial date of occurrence Perumal was at his house
and therefore, he would not have participated in the crime and so he
dropped him from the case. When P.W.2 claims that Perumal was one of
the assailants and during test identification parade also she had
identified him, would it not be the duty of the prosecution to examine
those persons who spoke to the fact that Perumal was at his house on the
crucial date and time. P.W.23 has not even explained as to why did he
prefer to believe Perumal and others who claimed that he was at his
house and to disbelieve P.Ws.2 and 3. This shows that P.W.23 did not
evince any sincerity while giving evidence before the Court. Thus,
introduction of D.C.Perumal as one of the accused by one Investigation
Officer and deletion of him by another Investigation Officer remains to
be a mystery and the same has not been explained away properly.
16. The next material piece of evidence is the chance finger prints
lifted by P.W.8, the Finger Print Expert and photographed by P.W.18.
There were five chance finger prints lifted from the scene of
occurrence. Out of 5 chance finger prints, 3 tallied with the inmates
of the house and therefore, they were not incriminating. The other two
were that of strangers. According to P.W.8, the finger print of one
Muniraj (A3 - ?) tallied with the chance finger print which was marked
as A2. He has stated that the finger print (Ex.P.6) of Muniraj was
received by him from Hosur Police Station. But, absolutely, there is no
evidence from any of the Investigating Officers as to, from whom, by
whom and on what date and time, such finger print was obtained for the
purpose of comparison. From Ex.P.6, it could be seen that it was
obtained by one Police Constable (PC 223) of Krishnagiri Town P.S. on
26.09.1994. The said police constable who obtained the finger print
would be the competent witness to speak about the fact that Ex.P.6
belongs to A3-Muniraj. Unfortunately, he has not been examined. Thus,
absolutely, there is no evidence that Ex.P.6 was obtained from A3. IN
the absence of such evidence, the report of P.W.8 that one of the chance
prints tallied with the finger impression found in Ex.P.6 shall not go
to prove that the said chance print was that of A3.
17. Here again, it is not understandable as to why P.W.23 did not
chose to examine the Police Constable (PC 223) and as to why the learned
Additional Public Prosecutor did not make any endeavour to bring on
record the evidence relating to the fact that the finger prints sent for
comparison to P.W.8 were obtained only from A3 Muniraj. It is quite
unfortunate that the trial Judge has failed to discharge his judicial
function to exercise his power conferred under Section 311 of Cr.P.C. to
summon the said police constable to prove that Ex.P.6 was obtained only
from A3.
18. The next material piece of evidence is yet another chance print
lifted from the scene of occurrence marked by P.W.8 as A1. According
to P.W.8 the said chance print tallied with the finger print (Ex.P.7) of
Madhu @ Tingu (A5 - ?). A5 was arrested by P.W.23 on 22.05.1996 at
7.15 p.m. Then, he was sent for judicial remand at 11.00 a.m. on
23.05.1996. No where P.W.23, in his evidence, has stated that he
obtained the finger print of A5 (Ex.P.7) while he was in his custody for
the purpose of comparison. Curiously, P.W.8 would say that he received
the finger prints of A5 Madhu @ Tingu (Ex.P.7) on 27.05.1996 from Hosur
P.S. When investigation was done by P.W.23 the then Inspector of
Police, C.B.C.I.D., Dharmapuri District, it is not explained as to how
P.W.8 could have received the sample finger print of A5 from Hosur P.S.
for comparison. Further, a perusal of Ex.P.7 would go to show that the
sample finger prints of A5 Madhu @ Tingu were obtained on 24.05.1996 by
one Grade I Police Constable (PC 536). It is not explained as to how
this finger print could have been obtained from A5 while he was already
in jail. Further, no endeavour has been made to examine the Grade I
Police Constable (PC 536). Here again , not only the Additional Public
Prosecutor has failed in his duty but the learned Assistant Sessions
Judge also has failed to invoke his power under Section 311 of Cr.P.C.
to summon the Grade I Police Constable (PC 536) in this regard. It is
the law that for the purpose of comparison, the finger prints of the
arrested accused, to have authenticity, should be obtained only by
following the provisions of Identification of Prisoners Act. It is
deplorable that the finger prints of A3 and A5 were not obtained by
following the said procedure.
19. The chance finger prints lifted from the place of occurrence
were compared to by P.W.8, the Finger Print Expert only on 21.05.1996.
Why it took about 6 months for the police to send the finger print of
A3-Muniraj which was already in their hands for comparison. From
Ex.P.6, it could be seen that the finger prints of A-3 were taken on
26.09.1994 itself in connection with crime No.1191 of 1994 of
Krishnagiri Town P.S. for an offence under Section 379 of IPC. Had this
material piece of evidence been used for comparison within a few days
of occurrence, certainly, it would have given a clue at the earliest
point of time to make a break through. This delay has also not been
explained away by any one of the police officers, who were involved in
the investigation.
20. The next material evidence is the arrest of the accused, their
voluntary confession statements made to the police, consequential
recoveries of stolen articles and weapon allegedly used in the
commission of crime. M.Os.3 to 9 viz., jewels were identified as stolen
articles by P.W.1. The other witnesses namely, P.Ws.2 to 5 have not
identified these jewels because, they were not asked to identify them.
According to the charge, the properties stolen away from the witnesses
are thanga thali (gold mangal sutra), one pair of ear studs belonging to
P.W.2, one pair of covering ear studs, one pair of gold ear studs and
one pair of nose screw belonging to P.W.3, 3 Nos. of wrist watches,
one pair of silver chain, calculator, one charge battery, polyester
dothi, cash of Rs.6500/- from the house of P.W.1 and one Tape Recorder,
Electronic watch from witness (P.W.6) Balamani's house and one Delhi
set Tape Recorder from the house of one Chidambaram. M.Os.2 to 9 did not
tally with the properties mentioned in the charge. It is not explained
to the Court as to why the properties stolen away from P.W.2 were not
even shown to P.W.2 thereby allowing her to identify and similarly, it
is not explained as to why the properties stolen away from P.W.3 were
not shown to her to enable her to identify. Further, it is also not
explained as to what had happened to the properties stolen away from the
house of P.W.6. P.W.23, the Investigating Officer has not at all stated
anything about the above discrepancies. This would again go to show
that P.W.23 either did not conduct proper investigation or failed to
depose properly before the Court. Curiously, the properties were also
not identified by P.W.23 in his evidence. It is also not explained as
to why one Chidambaram from whose house a Delhi set Tape Recorder was
stolen away has not been examined. In respect of the properties stolen
away from the house of P.W.6 also nothing was elicited from him.
21. Coming to the witnesses for the recoveries of these material
objects, let me take, at first, the evidence of P.W.12 to whom A3
Muniraj had allegedly given silver anklet stolen away from the house of
P.W.1 His evidence runs to hardly 8 lines in a very vague manner. The
evidence of P.W.12 reads thus "7 to 8 years before one Muniraj came and
told me that he wanted to make a different jewel by melting a silver
anklet. Thereafter, he did not turn up." He has not stated that the
silver anklet was either given by Muniraj to him or the same was handed
over by him to the police. But, P.W.12 has not been treated as hostile
and cross examined by the prosecuting agency. He has neither
identified A3 as the one who approached him with the jewel nor
identified the jewel. He has simply stated that the said Muniraj is in
Court. But, there are two persons in the same name of Muniraj viz., A2
and A3. At least, at this juncture, the learned Assistant Sessions
Judge should have been vigilant to use his power under Section 165 of
the Evidence Act to ascertain as to whether he referred to A2 or A3.
The learned Assistant Sessions Judge has failed to do that exercise.
Thus, the evidence of P.W.12 has also not been properly elicited to
establish the crime.
22. The next evidence is that of P.W.13. His evidence is also very
vague. His evidence in chief examination is only to the following
effect "one of the accused in Court came to his shop and wanted to
pledge the ear studs. For that he gave Rs.350/-. Four months thereafter,
C.B.C.I.D., police came to the shop and recovered the same". It is not
explained as to whether any receipt was prepared for such pledging and
if so what had happened to the receipt. The Additional Public
Prosecutor has not even shown the material object to P.W.13 and asked
him anything to prove through him that the said jewel was the one which
was pledged with him by one of the accused. It is unfortunate that even
the learned Assistant Sessions Judge did not ask him to identify the
person who gave the jewel and also to identify the same. Thus, P.W.13
has neither identified any accused nor the jewel. It is surprising as to
how the Additional Public Prosecutor and the Court were satisfied with
his evidence when he said "one of the accused pledged the jewel".
23. Coming to the evidence of P.W.14, her chief examination runs to
only 4 lines. It is to the effect that Chandrappa gave a pair of ear
studs and wanted Rs.600/- It has not been further elicited from her
whether A1 gave any jewel to her; whether A1 received Rs.600/- and on
what date the jewel was recovered by the police and the other details.
She has neither identified A1 nor the jewel. She has not been treated as
hostile. Here again, the Additional Public Prosecutor as well as the
Court have failed in their respective duties.
24. It is not the case where materials in respect of the arrest of
the accused, information furnished by each accused and the consequential
recoveries of material objects were not available. As a matter of fact,
there were sufficient materials collected during investigation, but
they were not properly placed by way of evidence during trial, for which
the Police, Additional Public Prosecutor and the learned Assistant
Sessions Judge alone are responsible.
25. Now, coming to the Test Identification Parade, it is yet another
irony. Let me now, at first, take up the evidence of P.W.15, the
learned Judicial Magistrate. According to the case of the prosecution,
one person by name D.C.Perumal was put up for identification on
29.01.1996, in which, P.Ws.2 and 3 participated. The accused in the
instant case were arrested only either on 22.05.1996 or 23.05.1996.
Therefore, these accused were put up for identification parade only on
31.05.1996. But, P.W.15 the learned Judicial Magistrate has deposed
that these accused were also put up for identification even on
21.03.1996 itself and he has further stated that P.Ws.2 and 3 identified
all these accused, except A6, on 21.03.1996. He has further deposed
that Ex.P.23 is the report prepared by him for the same. Shockingly,
Ex.P.23 relates to the identification parade only in respect of Perumal.
When A1 to A6 were arrested only either on 22.03.1996 or 23.03.1996, it
is obviously wrong on the part of the learned Magistrate to say that
these accused, except A6, were identified by P.Ws.2 and 3 on 21.03.1996
itself. Here, it is explicit that the learned Magistrate while giving
evidence in the Court, was not diligent to look into Ex.P.23 and then
to give evidence properly. If his evidence given in chief examination
that these accused, except A6, were identified by P.Ws.2 and 3 even on
21.03.1996 is to be believed, then, the entire case of the prosecution
regarding the arrest of these accused and consequent recoveries of
stolen articles and weapon should be held to be false. But, as I have
already stated, these accused were not put up for identification parade,
which was held on 21.03.1996 and Ex.P.23 relates only to the test
identification in respect of Perumal. Therefore, the evidence of
P.W.15 in this regard shows a gross negligence on his part. It also
shows that the learned Assistant Sessions Judge did not at all
concentrate into the recording of the evidence and he never
participated actively in the trial.
26. When these accused (A1 to A6) were put up for test
identification parade, as I have already narrated, A1 to A5 were
identified by some witnesses. Some have identified only some of the
accused and not all. During examination of these witnesses, not even
any witness was asked to identify the persons, who were identified by
them during test identification parade. Thus, absolutely, no attempt
has been made to ask the witness to identify the real assailants in
Court and also to identify the persons, who were identified during test
identification parade.
27. Turning to the medical evidence, the smears taken from P.Ws.2
and 3 were sent for chemical examination. But, it was found that there
were no spermatozoa found on the same. It might probably be due to bath
or due to wash made by these witnesses namely, P.Ws.2 and 3. A perusal
of the Accident Register would go to show that they told the Doctor that
they had wash. But, the said statement found in the accident register
cannot be treated as substantive evidence. It should have been elicited
from P.Ws.2 and 3 as to whether they had washed before going to the
hospital. This is a very material fact. When it is said that several
persons gang raped P.W.2 and P.W.3, certainly, there would have been
spermatozoa found on the private parts of the ladies. The absence of
the same will certainly create certain amount of doubt in the case of
the prosecution, unless it is explained properly. It is very obvious
that no opportunity was afforded to these witnesses to explain.
28. Coming to the questioning of accused under Section 313 of Code
of Criminal Procedure, the role of the trial Court leaves much to be
desired. Though the Hon'ble Supreme Court has been repeatedly
impressing upon the trial Courts that questioning of accused under
Section 313 of Cr.P.C. should not be treated as an empty formality as it
is an important facet of criminal trial in this case, it has been
followed only in breach. If a particular incriminating material is
not put to the accused calling upon him either to admit or to deny or to
explain the same, it can never be used against the accused. In this
case, the said legal duty has not been properly discharged by the trial
Court. The entire chief examination of P.W.1 has been put compositely by
a single question. Similarly, the other witnesses too. To illustrate,
P.W.1 has spoken to about various facts. But, the trial Court has not
put separate questions in respect of each incriminating evidence spoken
to by P.W.1 as well as the other witnesses. Similarly, an omnibus,
single question in respect of the entire evidence of P.W.23 has been put
comprehensively. P.W.8 is the Finger Print Expert. He has also spoken
to about the fact that the Finger Prints of A3 & A5 alone tallied with
the chance prints found at the place of occurrence. But, the question
put to the accused is, as though the finger prints of all these accused
tallied with the chance finger prints. Regarding the material objects
seized on the basis of the confessions of these accused also not even a
single question was put to the accused. The jewels M.Os.2 to 9 were
identified by P.W.1. But, in respect of the said incriminating evidence,
there was no question put to any of the accused. Thus, now it is very
difficult to use the evidence relating to the fact of recovery of the
material objects from out of the information furnished by these accused
in any manner against the accused since they were not put to the accused
under Section 313 of Cr.P.C. Even while questioning the accused in
respect of the evidence of P.W.23, the Investigating Officer, nothing
has been put to any of the accused about the material objects with
specific reference their numbers.
29. Lastly, I have to state something about the proof of confession
said to have been made by these accused on their arrest. Undoubtedly,
even a student of law would be knowing the law laid down in Pulukuri
Kottaya and others v. Emperor, A.I.R. (34) 1947 Privy Council 67,
wherein the Privy Council has elaborately dealt with the word
"distinctly" as found in Section 27 of the Evidence Act to say that the
information which distinctly leads to the discovery of a fact alone is
relevant. But, in this case, the trial Court has admitted in evidence
the confessions of the accused unmindful of the term "distinctly" as
interpreted in the case cited supra. This is evident from Exs.P.8,
P.9, P.10, P.14, P.16 and P.18. Not stopping with that, the
confessions, which are barred from being admitted in evidence under
Section 25 of the Evidence Act, have been used as a relevant evidence
by the trial Court even when the accused were questioned under Section
313 of Cr.P.C. and conviction has been recorded based on that also.
Thus, it shows the poor understanding of the provisions of Sections 25,
26 and 27 of the Evidence Act.
30. With all these flaws, infirmities and inconsistencies in the
case of the prosecution in store, now the question is, would it be safe
to sustain the conviction of these accused? The answer is an emphatic
no. It is not as though there were paucity of materials collected
during investigation for the purpose of proving the guilt of the
accused. As I have elaborated supra, the records would only go to
show that the materials collected during investigation were not
properly brought on record by way of evidence. For the said flaw, the
trial Court, the learned Additional Public Prosecutor and the police
have equally contributed. Demonstrably, the trial has been reduced to a
mock trial. The agencies, who are the stake holders in the criminal
justice delivery system have miserably failed to discharge their
functions. Thus, based on the evidence brought on record, it is
difficult to convict any of the Accused. As held in Best Bakery Case,
though it is a fit case for ordering retrial, I am of the view that it
may not be conducive at this length of time to do so. The occurrence was
in the year 1995 and the accused have been continuously in jail for
about 10 years. Some of the accused have undergone the entire period of
sentence and they have been let off. This Court is informed that P.W.3
is now married and leads a peaceful life. In view of the said factual
position, such retrial may not be in the interest of the victims also.
Having regard to all these aspects and circumstances, I find it
difficult to order for retrial.
31. In the result, the criminal appeals are allowed; the conviction
and sentence imposed by the learned Assistant Sessions Judge, Hosur in
S.C.No.29 of 2000 by judgement dated 20.07.2004 against all the accused
[including A5-Madhu @ Tingu and A6-Duraisamy, who have not preferred any
appeal] is set aside and they [A1 to A6] are acquitted. Fine amount
paid, if any, shall be refunded to them.
32. Before parting with this judgement, having regard to the agony
suffered by P.W.2 & P.W.3, I deem it appropriate to recommend to the
Government of Tamil Nadu to consider to pay a sum of Rs.1,00,000/- each
to P.W.2 and P.W.3 as solatium.
33. In the interest of the victims, the Press and Electronic Media
are directed not to publish the names and other identities of the
victims in this case.
Index : yes 26...02..2010
Internet : yes
kmk
To
1.The Secretary, Home Department, Government of Tamil Nadu,
Fort St. Gorge, Secretariat, Chennai 600 009.
2.The Inspector of Police, Crime Branch C.I.D., Dharmapuri.
3.The Assistant Sessions Judge, Hosur
S.NAGAMUTHU. J.,
kmk
Common Judgement
in
Criminal Appeal
Nos.665 of 2005 & 265 of 2006
6..02..2010
