Madras High Court
Muthu @ Muthukumar vs The State Rep. By on 2 August, 2024
Author: M.S.Ramesh
Bench: M.S. Ramesh
Crl.A.No.367 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 23.07.2024
Pronounced on 02.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.A.No.367 of 2019
Muthu @ Muthukumar ... Appellant/A1
Vs.
The State rep. by,
The Inspector of Police,
Thirubuvanai Police Station,
(Crime No.1/2013)
subsequently taken over by
The Inspector of Police,
CBCID Police Station,
Puducherry. ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to call for the records relating to the Special Sessions
Case No.2 of 2014 from the file of learned Special Judge (under the
POCSO Act) – cum – The Principal Sessions Judge, Puducherry and set
aside the judgment of conviction and sentences dated 04.02.2016
imposed on the appellant/accused A1 herein by allowing the appeal.
For Appellant : Mr.R.Sankara Subbu
Page 1 of 40
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Crl.A.No.367 of 2019
For Respondent : Mr.K.S.Mohan Das
Public Prosecutor (Puducherry)
JUDGMENT
M.S.RAMESH,J.
The appellant herein, who was arrayed as the first accused, was
convicted and sentenced to undergo imprisonment, through a judgment of
the learned Special Judge (under the POCSO Act), Puducherry, passed in
Spl.S.C.No.2 of 2014 dated 04.02.2016, in the following manner:-
Conviction Sentence
under Section 363 7 years rigorous imprisonment along
IPC with a fine of Rs.5,000/- in default to
undergo 1 year simple
imprisonment;
under Section 5(g) of Life imprisonment along with a fine
POCSO Act of Rs.5,000/-.
punishable under
Section 6 of POCSO
Act r/w. 34 of IPC
Total fine: 10,000/-
2. The aforesaid judgment of the learned Special Judge is put under
challenge in the present appeal.
3. In the final report filed by the jurisdictional Police before the
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learned Judicial Magistrate – I, Puducherry, it is recorded that between
12.00 hours on 01.01.2013 and 06.00 hours on 02.01.2013, the first
accused/appellant along with Venkatachalapthy/second accused
kidnapped P.W.1, the minor victim girl, without the consent of her
guardian and thus, both the accused had committed the offence
punishable under Section 363 IPC r/w. 34 of IPC. Further, the charge
against them was that, after kidnapping the minor victim girl, they had
taken her to a thatched house belonging to the second accused and in
furtherance of their common intention, committed aggravated gang
penetrative sexual assault, as defined under Section 5(g) of the Protection
of Children from Sexual Offences Act, 2012 (hereinafter referred to as
'POCSO Act') on the minor victim girl and thus, had committed the
offence punishable under Section 6 of POCSO Act r/w. Section 34 of
IPC.
4. The final report was taken on file by the learned Judicial
Magistrate – I, Puducherry and after compliance of the requirement under
Section 207 Cr.P.C., the case was committed to the learned Principal
Sessions Judge, Puducherry and it was thereafter made over to the learned
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III Additional Sessions Judge, Puducherry and subsequently, the same
was transferred to the Special Court for trial of offences under the
POCSO Act.
5. As against the first accused, the Trial Court had framed charges
under Section 363 of IPC and against the second accused, under Section
363 of IPC r/w. 34 of IPC. For the offences under Section 5(g) of
POCSO Act, punishable under Section 6 of POCSO r/w. Section 34 of
IPC, charges were framed against both the accused. When the charges
were read over and explained to both the accused, they denied the
charges.
6. To substantiate the charges against both the accused, the
prosecution had examined 35 witnesses as P.W.1 to P.W.35 and marked
71 documentary evidences as Ex.P1 to Ex.P71, along with 29 material
objects as M.O.1 to M.O.29. On the side of the accused, 5 witnesses
namely D.W.1 to D.W.5 were examined and 10 documents as Ex.D1 to
Ex.D10 were marked.
7. On conclusion of the trial, the accused were questioned under
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Section 313 Cr.P.C., with respect to the incriminating circumstances
against them, to which they claimed that a false case has been foisted
against them.
8. On completion of the trial and after appreciation of the oral and
documentary evidences on record, the Trial Court found both the accused
guilty and sentenced them to the imprisonment as aforesaid, through its
judgment dated 04.02.2016 passed in Spl.S.C.No.2 of 2014 by the learned
Special Judge, Puducherry,
9. Incidentally, the second accused had challenged the judgment of
the Trial Court made in Spl.S.C.No.2 of 2014, insofar as the conviction
and sentence imposed against him, before a Co-ordinate Bench of this
Court in Crl.A.No.109 of 2017. The Hon'ble Co-ordinate Bench had
threadbare analyzed the evidences that were available before the Trial
Court and concurred with the findings of the Trial Court in convicting the
second accused for the offences under Section 363 IPC r/w. 34 of IPC, as
well as the findings under Section 5(g) punishable under Section 6 of
POCSO Act. However, the Hon'ble Co-ordinate Bench had taken into
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consideration certain aggravating and mitigating circumstances in the
case and reduced the punishment under Section 6 of POCSO Act from
life imprisonment to 10 years along with a fine of Rs.50,000/- in default
to undergo 3 months rigorous imprisonment. Likewise, the sentence
imposed by the Trial Court for the offence under Section 363 r/w. 34 IPC
for 7 years rigorous imprisonment alone with fine of Rs.5,000/- in default
to undergo 1 year simple imprisonment was reduced to 5 years of
rigorous imprisonment and to pay a fine of Rs.5,000/- in default to
undergo rigorous imprisonment for one week.
10. The learned counsel for the appellant submitted that the
judgment of the Co-ordinate Bench have become final and therefore, the
findings rendered therein, with regard to the role played by the second
accused, would equally apply to the first accused/appellant herein, as
well. In view of the same, he submitted that since the role of both the
first and second accused are similar, insofar as it relates to the
commission of the charged offences, the reduction of the maximum
sentence may also be extended to the appellant herein.
11. The learned Public Prosecutor (Puducherry), however would
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submit that the second accused in this case, was an Engineering student
and was aged about 22 years and therefore, he would stand in a different
footing than that of the first accused/appellant herein, who was aged
about 27 years, a school drop out and was employed as a bus conductor at
the time of commission of the offence.
12. In this case, we do not intend to deal with each and every oral
and documentary evidences available on record since such exercise has
already been made by the Hon'ble Co-ordinate Bench of this Court in its
judgment rendered on 24.04.2017. Thus, it would suffice if the narration
of the facts and the appreciation of the evidences done by the Co-ordinate
Bench is adopted as the same would apply to the case of the first
accused/appellant herein as well, whose overt act touching upon the
commission of the offences, is similar to the case of the second accused.
The relevant portion of the judgment of the Co-ordinate Bench,
confirming the Trial Court's verdict in the case of the second accused,
reads as follows:-
“.... 2.The case of the prosecution in brief is as
follows:
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(a) P.W.1, a young girl, hailing from Puducherry
State, was doing 12th Standard in a local school. P.W.9
is the father of P.W.1 and P.W.8 is the brother of P.W.9.
P.W.1 was admittedly a child in terms of the POCSO
Act. Her date of birth is 17.08.1995. P.W.1 used to go to
her school everyday from her house in a bus. On one
occasion, the first accused told her that he had fallen in
love for her. But P.W.1 did not positively reciprocate, as
she did not like to love him. In order to avoid him, she,
thereafter, stopped going in the said bus to the school,
instead, she used to travel in a different bus.
(b) P.W.2 is her classmate and a friend. P.W.2
herself is another child. Two-three days before 1st
January 2013, P.W.1 wanted to go to a Church with
P.W.2. She informed her family members and then went
to the house of P.W.2 and from there, both of them went
to the Church. When they were returning from the
Church, P.W.1 found the first accused standing
somewhere near the said place. P.W.1, with a view to
avoid him, silently walked fast from the said place.
P.W.2 went alone in a bus to her village. On reaching
the bus-stop, P.W.1 was waiting for a bus to go to her
village. At that time, the first accused came to the bus
stop and informed her that her mother had seriously
fallen ill and she was taken to the hospital. P.W.1
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believed the said words. She was shocked to hear the
said news. The first accused assured that he would take
her to the hospital. The second accused also joined the
first accused. Both of them took P.W.1 in a bus and
after travelling for some time, they changed the bus
also. P.W.1 was very anxious to see her mother. The
first accused told her that nothing untoward has
happened to her mother. Thus, the accused 1 and 2 took
P.W.1 to the bus-stand at Pondicherry. In the bus itself,
P.W.1 felt sleeping and after some time, she had fallen
asleep in the bus itself. Then, she did not know what
had happened to her.
(c) It later on came to light that the accused 1
and 2 had taken her to a thatched shed belonging to the
second accused in Pondicherry. P.W.1 awakened. She
wanted to go home. But the first accused told that since
it was too late, she should stay at the said house, so
that she could go on the next day. In the said house
nobody was there. When she enquired, the first accused
told her that his parents were all in the neighbouring
house and they were sleeping. Thereafter, the first
accused, by force, against her resistance, had sexual
intercourse with her, following him, the second
accused, by force tried to have sexual intercourse.
P.W.1, by way of resistance, even went to the extent of
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biting him twice. Despite the same, the second accused
succeeded in having forcible intercourse with her. Thus,
according to the case, these two accused had
committed gang rape on P.W.1.
(d) After the above occurrence was over, it is
alleged that the accused took P.W.1 to Villupuram bus-
stand and abandoned her. P.W.1 thereafter, informed
her mother over phone that she was in Villupuram bus-
stand. Immediately P.Ws.8 and 9 rushed to Villupuram
bus-stand and found P.W.1 sitting in the bus-stand. Her
dress were all torn. Then P.W.1 was taken to the
Government Hospital, from there to Rajive Gandhi
Women and Child Care Hospital. P.W.33, the then Sub-
Inspector of Police, received intimation from the Rajiv
Gandhi Women and Child Care Hospital, at 3.45 p.m.
on 2.1.2013. Then, he reached the said hospital and
recorded the statement of P.W.1 and on returning to the
Police station, at 8.00 p.m., registered the case in
Crime No.1 of 2013, under Sections 363, 376(2)(g)
IPC. Ex.P.60 is the statement of P.W.1 and Ex.P.61 is
the FIR. Then the case was taken up for investigation
by the Inspector of Police.
(e) P.W.34, the then Inspector of Police, took up
the case for investigation. In order to apprehend the
accused, he instructed the Sub Inspector of Police one
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Mr.Loganathan to go in search of the culprits. Around
8.30 p.m., he came with an information that the
accused was in Gandhikuppam Village. He instructed
the Sub-Inspector of Police to arrest the accused and
bring him to the Police Station. P.W.34 went to the
place of occurrence and prepared an observation
mahazar and a rough sketch. He examined P.Ws.1 and
2 and other witnesses. The Sub-Inspector of Police
Mr.Loganathan arrested the first accused and further
informed P.W.34 that the other culprit was also
identified. Accordingly A1 was arrested at 12.15 a.m,.
on 3.1.2013. The Sub-Inspector of Police produced the
accused before P.W.34. While in custody, the first
accused made a statement. At 8.00 a.m., he arrested the
second accused, who was also brought to the Police
Station by the Sub-Inspector of Police. During
interrogation, P.W.34 found that in the jetty worn by the
second accused, there were stains of semen. P.W.34
recovered the same. Then, he forwarded both the
accused to the hospital for medical examination. The
examination revealed that the accused 1 and 2 were
sexually potential to perform sexual intercourse with a
woman. He obtained medical certificate for P.W.1,
which revealed that P.W.1 had been subjected to sexual
intercourse. Then, the investigation was transferred to
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the CBCID and therefore, he handed over the case
diary to P.W.35.
(f) P.W.35 commenced the investigation on
4.1.2013. He examined P.Ws.1, 2 and other witnesses.
Then, examined the doctors and collected the medical
records. He forwarded the material objects for
chemical examination and received the report. At his
request, Test Identification Parade was conducted to
identify the second accused. Accordingly, in the Test
Identification Parade held, the second accused was
identified by P.W.1. On completing the investigation, he
laid charge-sheet against both the accused.
3. Based on the above materials, the trial Court
framed charges as detailed in the first paragraph of
this judgement. The accused denied the same. In order
to prove the case, on the side of the prosecution, as
many as 35 witnesses have been examined and 71
documents and 29 material objects were marked. Out
of the said witnesses, P.W.1, the victim girl has spoken
about the entire occurrence in a vivid fashion. P.W.2, a
friend of P.W.1, has stated that when P.W.1 and P.W.2
were returning from a Church at Villianur, the first
accused was found standing near a Mariamman
Temple. She has further stated that from the bus-stop
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she went to her village in a bus. P.W.1 alone was there
in the bus-stop, waiting for the bus to her village. Later,
the mother of P.W.1 enquired around 10.30 p.m., about
the whereabouts of P.W.1. P.W.3 is the President of a
Women Association in Puducherry. She has stated that
on 2.1.2013, she came to know about the occurrence.
She went to the hospital and enquired P.W.1.
4. P.W.4 is a resident of Thiruvennainallur
Village, Villupuram District. According to him, on
2.1.2013, around 4.30 a.m., he went for answering
nature's call. At that time, he found a girl standing
alone. Since her movement was suspicious, P.W.4
followed her and enquired her. She told that she
belonged to Puducherry. She also told her name. She
further said that she had come to the house of the first
accused. Thereafter, he entrusted the girl to one
Sundari, whose house was located somewhere near the
said place. Thereafter, the first accused came, took the
girl to the bus-stop. But, P.W.4 has not identified P.W.1
as the girl who was taken by the first accused.
5. P.W.5 is also a resident of Thiruvennainallur
Village. He has stated that on 2.1.2013, around 5.30
a.m., when he was near Gandhikuppam bus-stand, the
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first accused was standing with another girl. At that
time, the first accused told that the girl was his friend.
Then, the first accused and the girl got into the bus
proceeding to Villupuram and went away. He has not
identified P.W.1. P.W.6 has stated that on 2.1.2013,
around 4.30 a.m., P.W.4 brought one girl and entrusted
to her. Then, the first accused came and took the girl
into his custody. She has also not stated anything about
the identity of the girl. P.W.7 was a conductor in a bus.
The said bus stopped at the Villanur Ezai Mariammal
bus stop at 2.30 p.m., on 1.1.2013. At that time, the first
accused got into the bus along with a girl. Then, at
Pathukannu bus-stop, both of them got down from the
bus. He has also not identified P.W.1.
6. P.W.8 is the uncle of P.W.1. He has stated that
the father of P.W.1 informed him that P.W.1 was
missing. He has further stated that later P.W.1's mother
received a phone call that P.W.1 was in Villupuram bus-
stand. Therefore, he, along with the father of P.W.1,
went to the Villupuram bus-stand and found P.W.1
sitting with the dress torn. They brought her to the
hospital. P.W.9 is the father of P.W.1. He has also stated
about the missing of P.W.1 and the phone call received
by his wife from P.W.1. He has further stated that he
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went along with P.W.8 to Villupuram bus-stand and
brought P.W.1 to the hospital.
7. P.W.10 has turned hostile and he has not
supported the case of the prosecution. P.W.11 is yet
another Conductor. His bus was plying between
Pondicherry to Chettipattu via., Mettupalayam Village.
On 1.1.2013, at around 1.35 p.m., according to him, at
Pathukannu bus-stop, two boys and a girl got into the
bus. They wanted to go to Thirukannur Village.
Accordingly, they got down at Thirukannur bus-stop.
He has not identified either the accused or P.W.1.
P.W.12 is yet another Conductor of the bus plying the
route Pondicherry to Chettipattu. He has also stated
that two boys and a girl got into the bus on 1.1.2013 at
4.30 p.m., at Usuteri bus-stop and got down at
Pondicherry. P.W.13 has turned hostile. P.W.14 has
spoken about the arrest of the accused, the confessions
made and the consequential recoveries made from
them. P.W.15 has also spoken about the arrest of the
accused, the confessions made by them and the
consequential recoveries of material objects. P.W.16
has spoken about the recovery of the clothes of P.W.1.
P.W.17 has spoken about the recoveries of the material
objects, on the confessions made by them. P.W.18 has
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also spoken about the same facts as spoken by P.W.17.
P.W.19 has stated that he was running a petty shop at
Arasamaram Pillaiyar Koil Street at Pondicherry.
According to him, on 1.1.2013, two un-known boys
came to his shop and purchased condoms.
8. P.W.20-Dr.Ramesh is an important witness for
the prosecution. He examined the bite marks on the
second accused and took impressions of the same,
which was compared with the teeth of P.W.1 and
submitted his report under Ex.P22. According to him,
the bite marks found on the second accused were made
with the teeth of P.W.1.
9. P.W.22, yet another Doctor, has also stated
about the treatment given to the second accused.
P.W.23 was a Doctor at the Rajive Gandhi Women and
Child Care Hospital at Pondicherry. He has stated that
at 12.30 p.m. on 2.1.2013, P.W.1 was admitted in the
said hospital. He has stated that the dress materials
worn by P.W.1 were recovered in his presence. He has
further stated about the collections of vaginal smear
from P.W.1. P.W.24-Dr.Meenakshi has stated about the
treatment given to P.W.1, at the Rajive Gandhi Women
and Child Care Hospital. P.W.25, yet another Doctor,
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has also spoken about the treatment given to P.W.1.
According to this Doctor, there was no external injuries
found on the body, breast, nipple and thigh of P.W.1. He
has further stated that her vagina admitted two fingers
freely. He further opined that P.W.1 had been subjected
to sexual intercourse.
10. P.W.26-Dr.Balaraman has stated that he has
examined A2 and found that he was sexually potential
to perform sexual intercourse with a woman. He has
further stated that he has collected blood samples of
the accused for the purpose of further examination.
P.W.27 was the then Scientist at the Central Forensic
Science Laboratory at Hyderabad. According to him,
as requested by the Judicial Magistrate, he examined
1.A Panty, 2.A Polyster Chudiar Pant, 3.A Polyster
Chudiar Top, 4.A polyster Thupata, 5.A Bra, 6.A Full
Pant, 7.A Full Sleaved shirt, 8.An underwear, 9.A full
pant, 10.A full sleaved shirt, 11.An underwear, 12.An
used condem, 13.Polythese Carrybage, 14.Blood stain
of Vishnu Priya on blotting papers, 15.Pubic hair of
Vishnupriya, 16.Two Vaginal swabs of Vishnupriya,
17.Two Vaginal smear slides of Vishnupriya, 18.Blood
stain of Muthu @ Muthukumaran, 19.Blood stain of
Vengadachalapathy. On chemical and microscopic
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examination, he found that human blood was detected
in the Panty, Polyester Churidhar Pant and underwear
and unused condom. In the other material objects there
was no blood stains noticed. Human semen was
detected in the underwear(this underwear belonged to
A2) and in the unused condom. Semen was not detected
in the other material objects. The source of Semen stain
found in the unused condom was that of the first
accused and the source of blood stain on the Panty and
Polyester Churidhar Pant and the vaginal smear of
P.W.1 belonged to P.W.1. The observations of this
witness are as follows:
"Observation: (a) A Human female
Genetic profile was generated from the DNA
recovered from the Exs.1,2 (blood stains) and
16(Vaginal Swab) which were found hidentical
with the profile generated from Ex.23(Source
Vishnupriya). (b) A Human male Genetic
profile generated from the Semen positive swab
of Ex.12 was found matching with the profile
generated from Ex.24(Source Blood stain
gauze of Muthukumaran) but not with that of
Vengatachalapathy. (c) The blood stain on
Exs.8, 12 and semen stain on Ex.11 were found
refractory to PCR amplification.
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Conclusion: Based on the above
observation it can be concluded that
1.The source of Semen stain on Ex.12 is
Muthukumaran
2.The Source of blood stain on Ex.1 and
2 and the Source of Vaginal swab Ex.16 is
Vishnupriya."
11. P.W.28 has spoken about the photographs
taken in connection with this case. P.W.30, a Constable,
has stated that he assisted the Inspector of Police in the
matter of investigation. P.W.31, the Sub-Inspector of
Police, has spoken about the arrest of the accused.
P.W.32, the then Judicial Magistrate has spoken about
the statements of witnesses recorded under Section 161
Cr.P.C. P.W.33, the Sub-Inspector of Police, has spoken
about the registration of the case. P.Ws.34 and 35 have
spoken about the investigation done and the final
report filed.
12. When the above incriminating materials were
put to the accused, they denied the same as false. On
their side, they have examined five witnesses and
marked 10 documents. D.W.1- Mrs.Selvi is a resident of
Gandhikuppam Village. The house of the second
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accused is situated somewhere near the said house.
There is also a rice mill by the side of the said house.
She has identified as many as 12 photographs taken at
the said place as Ex.D6 series. A compact disc, vide
Ex.D7, has been shown to her. She has identified her
house, the house of the second accused and the rice
mill in these photographs. She has stated that no such
occurrence, as it is alleged by P.W.1, has occurred in
the house of the second accused. She has further stated
that during the relevant time, she was very much
available in her house and to her knowledge, there was
no such occurrence. She has further stated that the
police came and took the accused 1 and 2. She has
further stated that by the side of the house of the second
accused, there is a play ground and as such, there is no
occasion for any such occurrence. D.W.2 is a resident
of Gandhi Nagar. He has identified six photographs as
Ex.D6 series. According to him, on 1.1.2013 between
10.00 a.m. to 1.00 p.m., Volleyball match was
conducted. In that match, the accused 1 and 2
participated. The game went on up to 6.00 p.m. Even
after that there was a crowd of boys at the said place.
Thus, according to this witness, there was no such
occurrence as it is projected by P.W.1 happened at the
house of A2. D.W.3 is the Editor of Malai Malar Tamil
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Daily. He has produced the Malai Malar daily editions
dated 03.01.2013 and 04.01.2013. In those newspaper
reports, it is stated that three people raped P.W.1 and
they were taken into custody. According to him, in the
newspaper, dated 03.01.2013 at page No.3, the
photograph of the second accused has appeared as one
of the assailants. D.W.4 is the mother of the first
accused. She has stated that on 1.1.2013, the first
accused went out of the house at 8.00 O'clock and
played Volleyball till 1.00 O'clock. Again at 3.00 p.m.,
he went to the playground and played till 6.00 p.m. Her
evidence also is that there was no occasion for any
such occurrence as it is alleged by P.W.1. D.W.5 is the
mother of A2. She has also stated that on 1.1.2013, the
second accused is very much at his house. In the
morning, he went to the playground and played
Volleyball and in the afternoon he returned home and
slept. On 2nd also, he went for playing game. At that
time, the police came and enquired about the second
accused.
13. Having considered all the above, the trial
Court convicted the accused as detailed in the first
paragraph of this judgement and that is how, the
second accused alone has come up with this appeal.
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14. We have heard the learned counsel
appearing for the appellant and the learned Additional
Public Prosecutor appearing for the Sate and we have
also perused the records carefully.
15. At the outset, we should state that the
evidence of the prosecutrix, if inspires the confidence of
the Court, in the absence of any corroboration, the
same by itself could be the foundation for conviction.
Therefore, in the instant case, primarily we will
examine as to whether the evidence of P.W.1 could be
believed and whether the same could inspire the
confidence of this Court as against the second accused.
P.W.1 has stated that both the accused took her in buses
and at last taken her to the house of A2, where the first
accused raped her first, following him the second
accused raped her. She has identified the second
accused during the Test Identification Parade also. The
second accused was not previously known to P.W.1.
Thus, she had no grudges against the second accused.
But the learned counsel for the appellant would submit
that the photograph of the second accused appeared in
the newspaper and therefore, no weightage could be
given to the Test Identification Parade, in which, P.W.1
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identified the second accused. But we find no force in
the same, because, there is no evidence that the said
photograph of the second accused, which appeared in
one of the newspapers, was seen by P.W.1 at any stage
before going for Test Identification Parade. Simply
because the photograph of the second accused, after
his arrest, appeared in the newspaper, would not go to
rise an inference that the identification made by P.W.1,
in the Test Identification Parade, was because of the
same. Therefore, this argument is rejected.
16. P.W.1 is a young girl, who was admittedly a
child at the time of occurrence in terms of the POCSO
Act. Her evidence is duly corroborated by the medical
evidence also. The undergarments recovered from the
second accused contain semen. From these evidences,
the prosecution, in our considered view, has clearly
established that the second accused joined the first
accused and confined P.W.1 in his house and raped her.
17. The evidence of P.W.2 would duly
corroborate the evidence of P.W.1. She is a friend of
P.W.1. She had stated that when P.Ws.1 and 2 were
returning from a Church and when they were in the
bus-stop near a temple, she found the first accused
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standing there. Thereafter, P.W.2 went to her village in
a bus; whereas, P.W.1 was waiting in the bus stand for
the bus to her village. According to P.W.2, later on, the
mother of P.W.1 enquired her about the whereabouts of
P.W.1. Thus, the evidence of P.W.2 also would
corroborate the evidence of P.W.1.
18. The evidence of P.W.4 would also support the
case of the prosecution as corroborating piece. P.W.4
has stated that one girl, who was not previously known
to him, was in the village. He took her and entrusted to
P.W.6. Thereafter, according to P.Ws.4 and 6, the first
accused came and took the said girl. But unfortunately
neither P.W.4 nor P.W.6 was called upon by the
prosecution to identify P.W.1. Thus, except to the extent
that the first accused took a girl from the house of
P.W.6, the evidence of these two witnesses would not be
of any help to the prosecution.
19. P.W.5 has stated that he found the first
accused on the day of occurrence in a bus proceeding
to Villupuram. A girl accompanied him. Unfortunately,
this witness also was not called upon to identify P.W.1.
Thus, the evidence of this witness would be of no help
to the prosecution. It serves a limited purpose to prove
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that the first accused was in the bus proceeding to
Villupuram on the day of occurrence with a girl.
20. P.W.7 is a Conductor of a bus, in which,
according to the case of the prosecution, the first
accused and P.W.1 travelled from Ezai Mariamman
bus-stop to Villianur. But unfortunately, this witness
also was not called upon by the prosecution to identify
P.W.1. This evidence of P.W.7 would also go to serve
limited purpose to prove that the first accused was with
a girl in the bus.
21. P.W.8, is the uncle of P.W.1. According to
him, the mother of P.W.1 received a phone call from
P.W.1 that she was lying in Villupuram bus-stand.
Accordingly, he along with the father of P.W.1, went to
the Villupuram bus-stand and brought P.W.1 and
admitted her at the hospital. The father of P.W.1,
namely, P.W.9 has also spoken the same facts. From the
evidences of PWs.8 and 9, the prosecution has further
established that P.W.1 was abandoned and was lying in
the Villupuram busstand. They further found that her
clothes were torn. At that time itself, P.W.1 narrated
about the entire occurrence to them. Then, they brought
P.W.1 to the hospital and admitted her. She told the
Doctor that on 1.1.2013, after the Prayer was over in
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the Church, when she was alone waiting for the bus, at
Villianur bus-stop, after her friend had left, one
Conductor working in Kalpana bus, came near her and
told her that her mother had met with an accident. He
took her in a bus. She was not aware of the bus. She
further told the Doctor that inside the bus, after sitting
beside her, he touched her and started to misbehave.
She has further stated to the Doctor that she tried to
shout, but that person closed her mouth in the running
bus. After that, according to her, she did not know what
happened. When she became conscious, she found
herself in a dark house with the Conductor and another
un-known person. Both of them touched her all over the
body and also touched her external genitalia. She has
not experienced what had happened to her actually.
She was crying to the Doctor. She told that they
touched her external genitalia without removing her
undergarments. She was not aware of the time of the
incident. On the next day morning, the other un-known
person brought her to Villupuram bus-stand and left
her there. She borrowed one rupee coin from somebody
and rang up to her mother. This statement of P.W.1 to
the Doctor had been duly recorded by the Resident
Medical Officer, Rajive Gandhi Women and Child Care
Hospital, Puducherry and the same has been marked as
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Ex.P23. This statement of P.W.1, which was recorded
by an independent authority, namely, the Doctor in the
hospital, being a formal statement, could go to
corroborate the evidence of P.W.1. At the time when the
said statement was made, even one of the assailants
was not known. The conduct of P.W.1 in sobbing, crying
and wailing while making the statement to the Doctor,
would stand testimony to the fact that there was truth in
the allegations made by her. Thus, this formal
statement of P.W.1 made to the Doctor, which forms
part of the hospital records and the evidences of P.Ws.8
and 9 would clearly go to corroborate the evidence of
P.W.1 to the extent that she was found in the dark room
and P.Ws.8 and 9 went to the bus-stand at Villupuram,
on receiving telephonic information from P.W.1.
22. P.W.11 is a Conductor of a bus between
Puducherry and Chettipattu. According to him, on
1.1.2013, at 1.35 p.m. at Pathukannu bus-stop two boys
and a girl got into the bus. They went up to Thirukanur
in the said bus. But unfortunately, he has not identified
either the accused or P.W.1. Thus, the evidence of this
witness is totally irrelevant and the same deserves no
consideration.
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23. P.W.12 yet another Conductor has stated that
two boys and a girl travelled in the bus, bearing
Registration No.TN.PY 01 AB 9229 between
Pondicherry and Chettipattu. He also was not called
upon to identify either the accused or P.W.1. This
evidence of P.W.12 is also of no use, as the same has
got no relevance.
24. P.W.20's evidence is very important for the
prosecution. He was the then Dean of M.G.P.G.I. He
examined the second accused, after his arrest, as
requested by the investigating officer. He found two bite
marks on the body of the second accused. He took
photographs of the same and preserved. Then, the teeth
of P.W.1 were photographed. He being an expert,
compared both the the photographs and submitted a
report under Ex.P22. According to him, the bite marks
which were found on the second accused would have
been caused by biting, by P.W.1. We find no reason to
reject this expert's opinion. The second accused has got
no explanation to offer as to how the bite marks on his
body came into being. Thus, the evidence of this expert
clearly corroborates the evidence of P.W.1, wherein,
she has stated that at the time when the second accused
tried to sexually assault her, she bite him. This, in our
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considered view, is a very strong piece of evidence,
which duly corroborates the evidence of P.W.1.
25. The medical evidence that the hymen in the
vaginal cavity of P.W.1 was found ruptured, would also
go to further corroborate the evidence of P.W.1. P.W.26,
Dr.Balaraman, had examined the second accused and
has stated that he was sexually potential to perform
sexual intercourse with a woman. These medical
evidences also would duly corroborate the evidence of
the victim-P.W.1.
26. Now turning to the evidence of the defence
witnesses, they are either family members or the
neighbours of the accused. They have stated that the
accused were very much in their respective houses and
on the crucial date, they played Volleyball game and
there was no occasion for any such occurrence in the
house of A2, as it is projected by P.W.1. We find it
difficult to believe these witnesses not because they are
defence witnesses, but because of the overwhelming
evidences available against these accused.
27. Now let us look into the legal presumption,
which could be raised in this case, under Section 29 of
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the POCSO Act. According to this provision, the Court
shall presume that the accused had committed the
offence, if there is prosecution. In the instant case,
simply because, the second accused had been
prosecuted for the offence under Section 6 of the
POCSO Act, we do not propose to rise the presumption
that he had committed the said crime. As we have
already discussed elaborately there are overwhelming
evidences to prove that the second accused had joined
the first accused and committed gang rape of P.W.1.
From these facts, a presumption under Section 29 of the
POCSO Act that the second accused had committed the
crime could also be raised. The said presumption is,
ofcourse, rebuttable. But neither there is any direct
evidence nor circumstantial evidence to rebut the said
presumption. Thus, by means of this unrebutted
presumption also, the prosecution has proved the guilt
of the accused.
28. From the foregoing discussions, we hold that
the trial Court was right in convicting the second
accused for the offence under Section 363 read with
Section 34 IPC and Section 6 of the POCSO Act.....”
13. Though the charge against the second accused was for the
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offence under Section 363 IPC r/w. 34 IPC, the first accused was charged
for the offence under Section 363 IPC alone. The second charge against
both the accused was that they had committed the offence under Section
5(g) punishable under Section 6 of POCSO Act r/w. 34 IPC and both the
accused were convicted and sentenced to life imprisonment, along with
fine of Rs.5,000/- each. For the offence under Section 363 of IPC, they
were convicted and sentenced to undergo 7 years rigorous imprisonment,
along with a fine of Rs.5,000/- each, in default to undergo 1 year simple
imprisonment.
14. The charges against both the accused are almost one and the
same. Thus, on an overall appreciation of the documentary evidences, the
case of the second accused by the Hon'ble Co-ordinate Bench of this
Court in Crl.A.No.109 of 2017, will also apply to the case of the first
accused/appellant herein.
15. Accordingly, the judgment of the Trial Court, convicting the
first accused for the offence under Section 363 IPC and Section 6 of
POCSO Act, is upheld.
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16. Insofar as the sentences imposed by the Trial Court on the
second accused is concerned, the Hon'ble Co-ordinate Bench had
discussed about the aggravating and mitigating circumstances involved in
his case and reduced the punishment in the following manner:-
“....29. Now turning to the quantum of punishment, the
second accused was hardly aged about 22 years at the
time of occurrence. He was doing Engineering course in a
local college. He had no bad antecedents. Driven by lust
and activated by the inducement made by the first
accused, at his young age, he had involved in the said
crime. There are lot of chances for his reformation. At the
same time, it cannot be likely viewed, as the accused has
committed a gang rape. Considering these aggravating
and mitigating circumstances, we are of the view that
sentencing the second accused to undergo rigorous
imprisonment for ten years and to pay a fine of
Rs.50,000/-, in default, to undergo rigorous imprisonment
for three months for the offence under Section 6 of the
POCSO Act would meet the ends of justice.
30. So far as the punishment for the offence under
Section 363 read with Section 34 IPC is concerned, in our
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considered view, sentencing him to undergo rigorous
imprisonment for five years and to pay a fine of Rs.5000/-,
in default, to undergo rigorous imprisonment for one
week, would meet the ends of justice.
31. In the result, the appeal is partly allowed. The
conviction of the appellant/second accused for the offence
under Section 363 read with Section 34 IPC and Section 6
of POCSO Act are confirmed. However, the sentences
imposed for these offences are reduced and he is
sentenced to undergo rigorous imprisonment for five
years and to pay a fine of Rs.5,000/- (Rupees Five
Thousand only), in default, to undergo rigorous
imprisonment for one week for the offence under Section
363 read with Section 34 IPC and to undergo rigorous
imprisonment for 10 years and to pay a fine of
Rs.50,000/- (Rupees Fifty Thousand only), in default, to
undergo rigorous imprisonment for three months. The
above sentences shall run concurrently. The period of
sentence already undergone by the appellant/second
accused shall be given set off as required under Section
428 Cr.P.C. On realization of the fine amount of
Rs.55,000/- (Rupees fifty five thousand only), by the lower
Court, the same shall be paid to P.W.1 as compensation.
Connected miscellaneous petition is closed.”
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17. During the oral submission, the learned Public Prosecutor
claimed that the first accused was aged about 27 years and therefore, he
cannot be equated to the facts of the case of the second accused, who was
22 years at the time of commission of the offence. This submission
seems to be a factual mistake.
18. The following documents marked before the Trial Court makes
a reference to the age of the first accused in the following manner:-
a) The medical examination report of the first accused (Ex.P34)
indicates his age as 22 years;
b) wound certificate (Ex.P23) issued by P.W.22 for the first accused
refers to his age as 22 years;
c) order of the Judicial Magistrate for conducting medical
examination of the first accused, which forms part of Ex.P28
series, refers to his age as 23 years;
d) the requisition letter given by the Investigating Officer to CFSL
(Ex.P44), refers to his age as 23 years;
e) the Memo of Arrest (Ex.P50) shows his age as 22 years;
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f) Arrest/Court Surrender Form (Ex.P51) shows his age as 22 years;
g) Test Identification Parade Report (Ex.P58) shows his age as 23
years;
h) proceedings of the Judicial Magistrate to conduct medical
examination of the first accused at the Jail (Ex.P69) shows his age
as 23 years and
i) alteration report (Ex.P71) issued by P.W.35 shows his age as 22
years.
19. In paragraph 4 of the counter-affidavit filed by the respondent,
the age of the first accused is referred to as 23 years. As claimed by the
learned Public Prosecutor, the Trial Court in the cause title of its
judgment, had mentioned the age of the first accused as 27 years, which
entry is not supported in any other portion of its judgment. Thus, by
taking into account the aforesaid documents, it could be said that the first
accused was also aged about either 22 or 23 years at the time of
commission of the offence.
20. Furthermore, the first accused also does not have any bad
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antecedents. The only difference on the facts between the first and
second accused is, while the second accused was doing first year
engineering course, the first accused had discontinued his 10th standard.
Apart from this difference in their educational status, all the other
circumstances touching upon the lives of both the accused, are similar
and one and the same. Thus, in consideration of these mitigating and
aggravating circumstances, we see no reason as to why a similar
modification of sentences should not be extended to the first accused.
21. Accordingly, by taking into consideration that the first accused
was only aged about 22 or 23 years at the time of occurrence and that he
did not have any bad antecedents, he might have involved in the said
crime, possibly driven by lust and that there are lot of chances for his
reformation. However, since this is a case of gang rape, we cannot let
him go scot free. In consideration of the aggravating and mitigating
circumstances, we are of the view that modification of the sentences done
in the case of the second accused in the judgment passed in Crl.A.No.109
of 2017 dated 24.04.2017, could be extended to the appellant/first
accused also.
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22. In the result, the Criminal Appeal stands partly allowed. The
conviction of the appellant/first accused for the offence under Section 363
IPC and Section 6 of POCSO Act are confirmed. However, the sentences
imposed for these offences are reduced and he is sentenced to undergo
rigorous imprisonment for five years and a fine of Rs.5,000/- (Rupees
Five Thousand only), in default to undergo rigorous imprisonment for one
week for the offence under Section 363 IPC and to undergo rigorous
imprisonment for 10 years and a fine of Rs.50,000/- (Rupees Fifty
Thousand only), in default to undergo rigorous imprisonment for three
months for the offence under Section 6 of POCSO Act. The above
sentences shall run concurrently. The period of sentence already
undergone by the appellant/first accused shall be set off under Section
428 Cr.P.C. On realization of the fine amount of Rs.55,000/- (Rupees
Fifty Five Thousand Only), by the lower Court, the same shall be paid to
P.W.1 as compensation.
[M.S.R.,J.] [S.M.,J.]
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02.08.2024
Index:Yes
Speaking order
Internet:Yes
Neutral Citation:Yes
Sni
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To
1.The Special Judge (under the POCSO Act)
- cum - The Principal Sessions Judge,
Puducherry.
2.The Superintendent of Prison,
Central Prison,
Puducherry.
3.The Inspector of Police,
CBCID Police Station,
Puducherry.
4.The Public Prosecutor (Puducherry),
High Court of Madras.
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M.S.RAMESH, J.
and
SUNDER MOHAN, J.
Sni
judgment made in
02.08.2024
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