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Suryanelli case HC Judgement (2005)

IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 590 of 2000(B)

1. JOSEPH @ BABY
… Petitioner
Vs
1. S.I. OF POLICE
… Respondent
For Petitioner :SRI.T.G.RAJENDRAN
^ For Respondent :PUBLIC PROSECUTOR
Coram
The Hon’ble MR. Justice K.A.ABDUL GAFOOR
The Hon’ble MR. Justice R.BASANT
Dated : 20/01/2005

Dated this the 20th day of January, 2005
JUDGMENT
Abdul Gafoor, J.
Thirty five accused persons were convicted in
S.C.No.187 of 1999. They have filed the above appeals
except Crl.A.No.877 of 2002. Crl.A.No.877 of 2002 is by
the sole convicted accused in S.C.No.241 of 2001. At the
outset we may mention that the facts relating to both the
cases emanate out of the same occurrence of alleged
kidnapping, wrongful confining, procuration of a minor girl
and rape and gang rape of the victim, PW3, in this case.
PW3 was reported missing from 16.1.1996. Initially the
case was registered under the caption `man missing’ based
on information furnished by PW1, the father of the victim
on 16.1.96 itself. For about 40 days, in spite of the
investigation conducted by PW82, the local Asst. Sub
Inspector, the whereabouts of the girl could not be found
out. The girl later appeared in the office of her father
PW1 on 26.2.1996. Next day she gave a statement to PW82
revealing information about the commission of cognizable
offences including kidnapping, wrongful confinement,
procuration of minor girl, rape and gang rape on her.
Investigation thereafter proceeded in that line and the
investigators came to the conclusion that altogether 45
persons were involved. Two of them could not be traced
out. Out of the remaining 43 persons, one was deleted from
the array of accused. Two were absconding. Charges were
laid against the remaining 40 persons and the case against
them was taken on file by the Sessions Court, Kottayam as
S.C.No.187 of 1999. During the trial, the 40th accused
died. Accused Nos. 23, 26, 32 and 36 were acquitted. The
remaining 35 accused, convicted on different counts of
offences have filed the appeals as mentioned, except
Crl.A.No.877 of 2002. During the pendency of these appeals
Accused No.4, the appellant in Crl.A.No.607 of 2000,
committed suicide.
2. After the trial of S.C.No.187 of 1999 was
terminated, one among the absconding accused, viz.,
Dharmarajan, surrendered. Thereafter his case was also
committed. It was tried as S.C.No.241 of 2001 on the same
set of charges. He was also convicted. Crl.A.No.877 of
2002 is at his instance.
3. In the first case the convicted accused were
found guilty of all or any one or more of the offences
punishable under Sections 120-B, 363, 365, 366A, 368,
376(1) and 376(2)(g) I.P.C. They have been sentenced to
undergo rigorous imprisonment for terms ranging from 4
years to 13 years depending on the offences found proved
against them. Sentence of fine and consequent default
sentences have also been imposed. Fine, if realised, was
directed to be paid to the victim. The appellant in
Crl.A.877 of 2002 was found guilty of the offences
punishable under Sections 120-B, 365, 363, 366A, 368,
376(2)(g), 372 and 392 I.P.C. He was sentenced to undergo
life imprisonment for the offence punishable under Section
376(2)(g) alone. So, no separate sentence was imposed on
any other count.
4. The accused will be described as arrayed in
S.C.No.187 of 1999 and the sole accused in S.C.No.877 of
2002 will be mentioned by his name Dharmarajan hereafter in
this judgment for the sake of convenience. The exhibits,
witnesses and MOs, unless otherwise specified, are referred
to as in S.C.No.187 of 1999.
5. The prosecution case is that PW3, as a result
of a conspiracy hatched by accused Nos. 1, 2 and
Dharmarajan, was persuaded, induced and kidnapped by
accused No.1 from the lawful guardianship of her parents to
go away from the school hostel in Munnar to join him at
Adimali and thereafter to go along with him to
Kothamangalam at about 4.30 P.M.. on 16.1.1996. Before
reaching there, he disappeared. In such perplexed
situation, late in the evening at about 7.30 P.M. PW3
decided to go from Kothamangalam to her mother’s sister’s
house at Kottayam. She boarded a private bus to
Muvattupuzha. She noticed accused No.2, Usha, in that bus.
Thereafter she alighted at Muvattupuzha and went in an
autorickshaw to K.S.R.T.C. bus station there, to catch a
bus to Kottayam. She boarded a Trivandrum Fast Passenger
bus wherein also she noticed the presence of accused No.2.
She got down at Kottayam bus stand. She was frightened to
go through the bylanes to reach her aunt there. Therefore
she decided to catch a bus to Mundakkayam so as to go to
her uncle’s house. But there was no bus to Mundakkayam
during that night. It was at that time, accused No.2
approached her calling her name. Later she introduced PW3
to one person by name Sreekumar, whom she later realised as
Dharmarajan. He promised to take her to Mundakayam.
Thereafter Dharmarajan took her to Metro lodge near the bus
stand where, he told her, his mother was staying. With the
hope that she would be taken to her uncle’s house at
Mundakayam, she followed Dharmarajan. But Dharmarajan
raped her during that night in the lodge room. On the next
day morning she was taken to Ernakulam in a transport bus
and thereafter to different places like Kumali, Kambam,
Palakkad and Vanimel at Kozhikode, again to Kumali,
Muvattupuzha, Aluva, Theni, Kanyakumari, Trivandrum,
Kuravilangad, Kottayam, again to Kumali, Muvattupuzha and
again to Kottayam, still again to Theni, Kumali, Kambam,
again to Kumali, Kottayam and to Muvattupuzha and finally
enfreed her on the morning of 26.2.1996. In the meantime
she was presented to several persons including the
appellants/convicted accused, except accused Nos. 2, 17,
38 and 39, who committed rape or gang rape on her. The
said four persons, according to the prosecution, aided
others to commit the said offences. They also wrongfully
confined her. PW3 had, as admitted by both sides, crossed
the age of 16, but had not attained 18 years, at the
relevant time.
6. The evidence in the first case consists of the
oral testimony of PWs.1 to 97 and Exts.P1 to P182 and MOs.1
to 21 on the side of the prosecution. The defence evidence
consists of the oral evidence of DWs 1 to 10 and Exts.D1 to
D30. PWs 1 to 57 were examined and Exts.P1 to 102 were
marked on the side of the prosecution in the latter case.
MOs 1 to 21 were also identified. The defence evidence in
that case consists of the oral testimony of DWs 1 to 6 and
Exts.D1 to D43, apart from the witnesses’ exhibits 1 to 40
and court exhibit C1. The court below considered the
evidence on record and convicted the accused as mentioned
above.
7. When we scanned through the evidence we could
understand that several new materials could be brought out
by the accused to strengthen their defence, in the second
case. On going through the said evidence we are also
convinced that few of such pieces of evidence could be used
by the accused in the first case as well, for the purpose
of their effective defence. Accordingly, as these cases
arise out of the same occurrence, we are of the view that
the evidence in both the cases can be considered together
for the purpose of finding the truth in this case.
Whatever available in these cases in favour of the accused
shall be made use of in their favour, irrespective of where
it was let in, but not vice versa.
8. It is contended by the appellants that they
have been falsely implicated in the case due to political
enmity. Few of them are political workers or interested in
politics. There are others also who are not involved in
politics. Sufficient materials have not been placed by the
accused to show that they have been thus falsely implicated
with political motive. There is nothing to show that any
of the accused was holding any such position of eminence
politically or to justify an inference that they were
implicated falsely on political considerations.
9. It is submitted by the appellants that no
conspiracy is proved in this case. There is no cogent
evidence in that regard. On the other hand the letter said
to be written by PW3 to DW3 in the second case which has
been suppressed by the prosecution will cut at the root of
the allegation of conspiracy, it is contended.
10. The other contention raised is that there is
no reliable evidence in this case to act upon and enter
conviction for serious offences as mentioned above. The
only material and vital evidence available is that of PW3,
who cannot be reckoned as a trustworthy witness. Her
evidence deserves careful scrutiny, because of her past
conduct of squandering the amount given by her parents for
remitting hostel fees and even daring, admittedly, to
pledge her ornaments on 1.1.1996. Certain other aspects
were also brought to our notice to elucidate this
contention.
11. It is further contended that even if PW3 is
found to be believable otherwise, a conjoint reading of her
evidence in toto will show that she was not an unwilling
partner for intercourse. So far as the accused are
concerned, there was no resistance from her part, so that
those who approached her could discern that she was not
willing for intercourse or there was absence of consent
from the part of PW3. Absence of consent on the part of
PW3 has not been satisfactorily proved in this case to
bring home the guilt of the accused under Section 376(1) or
376(2)(g). It is further contended that the unwillingness
now spoken to by PW3 before the court below is really an
excuse found out by her to save her face in the family and
among the relatives for her long absence of 40 days from
her house. It is further submitted that the normal
approach adopted for appreciating the evidence of a rape
victim cannot be applied in this case, taking into account
the incidents occurred in those 40 days. Therefore, the
court should always seek corroboration for the evidence of
PW3 before finding the accused guilty of the offences under
Sections 376(1) or 376(2)(g). In this regard the counsel
for the appellants have relied on the decisions reported in
Kali Ram v. State of Himachal Pradesh (1973 SCC (Cri.)
1048), Deelip Singh @ Dilip Kumar v. State of Bihar (JT
2004 (9) SC 469), State of Maharashtra v. Chandraprakash
Kewalchand Jain (AIR 1990 SC 658), Sudhansu Sekhar Sahoo v.
State of Orissa (2003 Crl.LJ 4920), Gopi Shanker and ors.
v. State of Rajasthan (AIR 1967 Rajasthan 159), Kuldeep K.
Mahato v. State of Bihar (1998) 6 SCC 420), Jagannivasan
v. State of Kerala (1995 Supp (3) SCC 204), Jinish Lal Sah
v. State of Bihar (2003) 1 SCC 605), Vimal Suresh Kamble
v. Chaluverapinake Apal S.P. & anr. (2003) 3 SCC 175)
and S.A. Nanjundeswara v. M.S.Varlak Agrotech Pvt. Ltd.
(AIR 2002 SC 477). The consent is thus discernible from
the conduct of PW3; submit the appellants’ counsel. No
rape punishable under Section 376(1) is proved.
12. It is contended that even going by the
evidence of PW3, the offence punishable under Section
376(2)(g) has not been made out. No jointness in action by
several persons alleged to have raped her on any single
occasion had been spoken to by her. In this regard the
decisions reported in Ashok Kumar v. State of Haryana (AIR
2003 SC 777), Devendra Das and ors. v. The State of Bihar
(1999 Crl.LJ 4805), Jai Bhagwan & ors. v. State of
Haryana (1999) 3 SCC 102), State of Orissa v. Arjun Das
Agrawal & anr. (1999) 8 SCC 154) and Ashok Kumar v. State
of Haryana (2003) 2 SCC 143) are relied on. It is further
contended that apart from the evidence of PW3 the only
other evidence introduced by the prosecution to
substantiate the offence under Section 376(2)(g) is that
coming from the mouth of PW8. She was really accused No.42
in the first case and was arrested and remanded. She was
later transformed as a prosecution witness, in reward of
her giving evidence against the accused. Such a witness
cannot be treated as trustworthy, the appellants submit,
relying on the decision reported in Vemireddy Satyanarayan
Reddy & ors. v. State of Hyderabad (A.I.R.1956 SC 379).
Thus there is no evidence to fasten guilt under Section
376(2)(g), they submit.
13. It is further contended that the entire
investigation in this case was totally unfair, suppressing
material particulars gathered in the investigation.
Certain material witnesses cited by the prosecution had
also been withheld and withdrawn without examining them.
Even one among the investigating officers had not been
examined in the second case. He had to be cited as a
defence witness. PW3 did allegedly have some connection
with the accused in a case relating to the death of a nun
in a convent and she had been questioned in that regard.
The amount given by her father for remitting the hostel fee
was allegedly made use of to pay to an accused in that
case. This ought to have been spoken to by DW6, who was
questioned by police. But she was given up by the
prosecution. It is also submitted based on the evidence of
DW3, Kochumon, in the second case who spoke about a letter
written by PW3 on the day when she disappeared, that the
entire case of conspiracy projected by the prosecution
falls down. Suppression of those relevant materials speaks
a lot about the unfairness shown by the investigating
agency and such unfairness has resulted in prejudice so far
as the accused are concerned. The decisions reported in
Rampal Pithwa Rahidass & ors. v. State of Maharashtra
(1994 Crl.LJ 2320) and Vemireddey Satyanarayan Reddy & ors.
v. State of Hyderabad (AIR 1956 SC 379) are relied on in
this regard.
14. It is further contended that apart from the
unfairness shown in the investigation and the consequent
unfairness in the trial, the prosecution also had
suppressed the relevant materials which the accused are
entitled in terms of the Code, thereby disabling them to
mould their defence properly from the initial stage of the
trial. It is submitted and is borne out from the evidence
that at least 10 statements, including one disputed by the
prosecution, had been obtained from PW3 by various
investigating officers in this case. According to PW82,
who started the investigation in the case when Ext.P1 F.I.
statement was furnished and Ext.P1(a) F.I.R. was
registered, PW3 on her reappearance had given a statement
to him on 27.2.1996, which he had written down in his own
hand. At the same time, it is submitted relying on the
evidence of DW10 that there was yet another statement taken
from PW3 on the same date by PW82 himself. This was not
disclosed to the court. When PW95 had been in charge of
the investigation he had also recorded another statement
dt.28.2.1996 from PW3. Apart from these two statements,
three statements had been recorded on 8.3.96, 10.3.96 and
15.3.96 by PW93, who conducted the investigation between
27.2.96 and 8.3.96. Two statements were thereafter
recorded by PW91, who continued the investigation and two
more statements were recorded by PW97, who finally
investigated the case. It is submitted that the statement
of PW3 initially recorded by PW82, that recorded by PW95 on
28.2.96 and the three statements recorded by PW93, Circle
Inspector, Devicolam, were not produced before court in
time or furnished to the accused, as enjoined under Section
173(5) and 207(iii) Cr.P.C. respectively. Thus,
suppression of details spoken to by the victim in this case
really prejudiced the accused in shaping their defence.
Those statements stated to be recorded by PW93 on 8.3.96,
10.3.96 and 15.3.96 and the statements stated to be
recorded by PW95 on 28.2.1996 were produced at a later
stage in the first case. That was far later than PW3 had
spoken to about the incident and been cross examined.
Though the prosecution offered PW3 again to be cross
examined on the basis of the materials so belatedly
produced, it was not a real and effective opportunity to
defend the allegations, as PW3 had made up her mind when
she had been already cross examined extensively. It was
too late for the accused to mould or remould their defence.
Such belated production of documents in court and offering
PW3 for further examination are not sufficient to render
any real opportunity to the accused to mould their defence
at the initial stage. It is further submitted that the
mere production of these documents is not sufficient to
satisfy the requirement of Section 207(iii) Cr.P.C. The
accused have to be furnished with the copies thereof. It
has not been done. They could not and did not, therefore
avail of the opportunity to cross examine PW3 further. So
suppression of these materials indicates absence of fair
trial, which prejudiced the accused from moulding their
defence at the initial stage. Such prejudice percolated
throughout the trial. Thus the accused had been denied a
fair opportunity to defend themselves, it is submitted.
15. It is their further case that no first
information report as could be called so in law under
Section 154 Cr.P.C. is available in this case. Ext.P1
F.I. statement did not reveal commission of any cognizable
offence. A reading of Ext.P1 will disclose that even the
complaint of PW1, the father of the victim, was that she
had gone away from the hostel. `I do not know why my
daughter had run away’ is the specific averment in Ext.P1.
He had no case that she had been kidnapped by any one or
that he had suspected so. Exts.P1 and P1(a) cannot satisfy
the requirements of an F.I. statement in terms of Section
154 Cr.P.C., for commencement of investigation in a case
relating to cognizable offence. Cognizable offence, if at
all, was revealed for the first time when PW3 had been
questioned by PW82, the Assistant S.I. of Munnar police
station on 27.2.1996. Her statement ought to have been
registered as F.I.R. In the absence of that, the
investigation conducted cannot be said to be fair
investigation in this case. Absence of an F.I.R., which
can be legally acted upon, vitiates the trial in this case.
In that regard the decisions in The State of Assam v.
Upendra Nath Rajkhowa (1975 Crl.LJ 354), Aru Kumar Banerjee
& anr. v. The State (AIR 1962 Calcutta 504) and Mani
Mohan Ghose v. Emperor (AIR 1931 Calcutta 745) are relied
on.
16. It is also submitted that had the police
followed the right, fair, proper and legal method mentioned
in Section 154 Cr.P.C., the controversy as to which of the
two statements dt. 27.2.1996 had been really recorded
would not have arisen at all. The statement so recorded
revealing commission of cognizable offences ought to have
been, in law, forwarded to the concerned Magistrate
forthwith and there would not have been any dispute on
that.
17. It is submitted by the learned Special Public
Prosecutor in answer to the above contentions of the
appellants that the conspiracy had been proved in this case
by the evidence of PW3, PW66, MO1, PW59, though hostile,
PW60 and Exts.P115 trip sheet of the buses in which the
victim girl travelled from Munnar to Adimali and from
Adimali to Kothamangalam produced by PW78 R.T.O. PW3 moved
from the school campus to Adimali and thereafter to
Kothamangalam only at the persuasion of accused No.1.
Intimacy with him was revealed by the handing over of MO1
photo album. That the first accused had a conversation
with the second accused with respect to the arrival of a
girl was categorically spoken to by PW60, an autorickshaw
driver. In such circumstances the conspiracy in this case
stands proved. The first accused induced PW3 to come out
of the school campus and kidnapped her, so that she could
be placed, through accused No.2, in the hands of
Dharmarajan, who was waiting, as is revealed by Ext.P57, in
Metro Lodge right from 2.1.1996.
18. The Special Public Prosecutor also draws our
attention to the version spoken to by PW3 regarding the
attempt to mortgage her ornaments and spending of the
amount given by her parents to remit the hostel fees.
According to him, PW3 wanted to raise money only to pay the
first accused to avoid him. MO1 album was taken by accused
No.1 from PW66 to give it to PW3. This reveals his
intimacy with PW3. Thus involvement of the first accused
and his intimacy with PW3, to kidnap her are manifest from
this evidence. Non-examination of Kochumon, DW3, in the
second case, by the prosecution will not be fatal to prove
the conspiracy. It is also submitted that even though the
police did not find out the letter said to be written by
PW3 as spoken to by DW3, it will not affect the prosecution
case. Therefore the conspiracy hatched by accused Nos. 1,
2 and Dharmarajan stands proved. The further acts of the
remaining accused were in continuation of this conspiracy.
So they have also continued the conspiracy to commit the
offences alleged. Thus there was real conspiracy in this
case to commit various offences charged against the
accused.
19. It is further contended by the Special Public
Prosecutor that there is no reason to disbelieve PW3 at
all. PW3 is the victim of a sex offence. Appreciation of
evidence in rape cases shall be different from the
appreciation of evidence of the victim in any other case.
In this regard he has relied on the decisions reported in
State of Maharashtra v. Chandraprakash Kewalchand Jain
(1990 SCC (Cri) 210), State of Maharashtra v. Kalu Sivram
Jagtap & ors. (1980 SCC (Cri) 946) and State of Punjab v.
Ramdev Singh (AIR 2004 SC 1290). It is further submitted
that when the evidence of PW3 is viewed in that angle, it
can be seen that she can be believed. It is evident that
there was total absence of consent and PW3 was not willing
for intercourse with any of the accused in this case.
Absence of consent was, therefore, successfully proved by
the prosecution.
20. It is further contended that consent is to be
proved by the accused. In this respect the decision in
State of Himachal Pradesh v. Shree Kant Shekari (AIR 2004
SC 4404) is relied on. Even if there was consent, it shall
be further proved that the consent so expressed by the
victim is one made voluntarily and consciously and based on
reasons after understanding the good and evil of the act to
be done by the person who so consents. Reliance is placed
on the decision reported in Rao Harnarain Singh Sheoji
Singh & ors. v. The state (AIR 1958 Punjab 123) and Uday
v. State of Karnataka (AIR 2003 SC 1639).
21. It is further contended that any absence of
sign of resistance by the victim shall not be a reason for
presuming consent. This contention is urged placing
reliance on the decision in State of Himachal Pradesh v.
Mange Ram (2000 Crl.LJ 4027). It is further submitted by
the learned Public Prosecutor placing reliance on the
decision in State of Maharashtra v. Prakash & anr. (1992
Crl.LJ 1924) that even in the case of prostitutes consent
is an essential requirement. Otherwise, it will amount to
rape. There is no reason to disbelieve PW3, when she
submits that the accused had intercourse with her without
her consent, he contends. He therefore submits that the
fact of rape by several accused as alleged in this case has
been proved by the evidence of PW3 who speaks about her
express unwillingness and absence of consent.
22. It is contended that the theory of consent by
such a young girl aged less than 17 years is inherently
improbable. Whey should she consent? A girl could have
consented to sexual relationship only out of love, lust or
lure for money. PW3 had none of these. Her detractors
even admittedly had no love for her. There is nothing to
show that she was prompted by any such uncontrollable lust
to agree to such intercourses. Her parents were both
employed. She had no reason to crave for money. In these
circumstances she could not have consented for any of the
three possible reasons. Her statement that she did not
consent must, in these circumstances, be accepted, contends
the learned Special Public Prosecutor.
23. It is his further contention that there is
evidence from PW3 revealing the situations of rape by more
than one person on a single day at a particular time and
such persons had come together to approach PW3. Therefore
gang rape punishable under Section 376(2)(g) is also proved
in this case. There need not be completed acts of rape by
each and every rapist involved in gang rape. Some
involvement is sufficient. The Public Prosecutor relies on
the decisions in Pramod Mahto & ors. v. State of Bihar
(1990 SCC (Cri) 206), Justus v. State of Kerala (1987 (2)
KLT 330), Moijullah alias Puttan v. State of Rajasthan
(AIR 2004 SC 3186) and Bhupinder Sharma v. State of
Himachal Pradesh (AIR 2003 SC 468). It is further
contended that when PW3 deposed that more persons had raped
her together, the provisions contained in Section 114 A of
the Evidence Act comes to play and therefore absence of
consent has to be presumed. Thus this is a case where gang
rape is conclusively proved. The decision in Bodhisattwa
Gautam v. Subhra Chakraborthy (Ms) (1996 SCC (Cri) 133) is
also relied on. Presumption under Section 114A is hence
available, it is contended.
24. Replying to the contentions urged by the
appellants with regard to the unfair manner of
trial/investigation resulting in prejudice, it is submitted
by the Special Public Prosecutor that in the first case all
the statements taken from PW3 by different investigating
officers, except the one disputed by the prosecution, were
produced though later. The initial prejudice, if any,
caused is thus wiped off and the accused had sufficient
opportunity to cross examine PW3 with reference to those
statements. So there was no prejudice in the first case.
In the second case also the entire statements, except the
disputed one, said to be recorded on 27.2.1996, have been
supplied to the accused. So in that case also there was no
prejudice. Every accused had opportunity for his full say
when copies were so produced.
25. It is further contended that the disputed
statement said to be written by DW10 in the first case is
one manipulated to screen off several accused with the
involvement of his superior officer, PW95. So the admitted
statement of PW3 recorded by PW82 now forming part of the
C.D. records is the real and true statement.
Non-production or non-furnishing of the disputed statement
dt. 27.2.96 allegedly recorded from PW3 is not one of
relevance as the said statement is not recorded in terms of
Section 161 and is not liable to be produced in court in
terms of Section 173(5) or to be furnished to the accused
under Section 207(iii) Cr.P.C. So there was no occasion
for any prejudice in this case.
26. It is submitted by the Public Prosecutor that
PW82 had, when PW1, father of the girl furnished the
information regarding the missing of his daughter,
registered an F.I.R. Ext.P1(a) and forwarded it promptly
to the Magistrate court concerned. That was necessary in
the light of the instructions contained in the Police
Manual. That is the long established practice adopted by
the police whenever a man missing case is reported.
Depending upon the facts revealed in the investigation, the
case will be moulded based on the very same F.I.R.
Appropriate further reports will be filed before Court by
the Investigators. No fresh F.I.R. is filed. That is the
practice followed. In this case, when PW3 reappeared after
40 days on 26.2.1996, her statement was recorded on the
next day, which revealed commission of certain cognizable
offences. It was recorded, in the light of the
registration of Ext.P1(a) F.I.R. earlier on the basis of
the information furnished by PW1, only as a statement under
Section 161 Cr.P.C. That cannot in any way vitiate the
investigation or the trial. No prejudice has resulted
therefrom. The police was only following the practice
hither to followed based on the Police Manual and the
instructions contained therein.
27. In the light of these rival contentions by
either party we have to examine the evidence in this case
and the situations spoken to by PW3 revealing any offence.
28. As already mentioned above, the entire
prosecution case is based on a conspiracy allegedly hatched
by accused Nos. 1, 2 and Dharmarajan some time prior to
16.1.1996 to kidnap PW3, to move her from place to place,
to confine her and to procure her for prostitution by
others, to sell or buy her and to commit rape or gang rape
on her. So the conspiracy is the beginning of the
occurrence. Necessarily the conspiracy has to be examined
first.
29. As already mentioned above, PW3 speaks about
the intimacy developed by her towards accused No.1, who was
a Cleaner/Checker in a bus in which she used to travel
while attending tuition classes. According to her, MO1
album which she had brought to show her friend, PW66
Fathima, came to be in the hands of accused No.1, when PW66
brought it back to return to PW3, who was not available in
the bus on that day. The first accused took it from PW66
promising to hand it over to PW3 later. The photographs in
MO1 were threatened to be made use of to blackmail PW3.
She was threatened that unless she accompanied him, those
photographs would be made use of to tarnish her as well as
her parents. PW60, an autorickshaw driver available in
Adimali bus stand, speaks about the conversation between
accused Nos. 1 and 2 on 16.1.96, about the anticipated
arrival of a girl. He had seen PW3 arriving, shortly
thereafter, in the bus named “Anjali” at Adimali and
accused No.1 accompanying PW3 to the bus stand and accused
No.2 following them. So, the evidence of PW60 reveals the
case of conspiracy. The timing of the bus in which PW3
travelled, had been spoken to by PW78 on the basis of
Ext.P115 trip sheet produced by him. It is a supporting
evidence on conspiracy to corroborate PW3. This is the
prosecution case and evidence on conspiracy.
30. The main trump-card of the defence to torpedo
this conspiracy is the evidence of DW3 and Ext.X13 letter
dt. 14.3.1996 produced from the custody of a police
officer upon summons from the court, in the second case.
DW3 is one Kochumon. According to him, he was the driver
of a bus plying between Alwaye Sooryanelli. On 16.1.96
while his bus was on its trip, another one coming from the
opposite direction stopped as they were passing each other
and the driver in the said bus one Joy handed over a letter
to him. He put it in his pocket and later read it when his
day’s work was over at Sooryanelli. He could realise that
it was a letter written by PW3 who had regularly travelled
earlier in his bus. There was such a friendly relationship
between PW3 and DW3, an employee in a bus. She felt it
necessary to write such a letter to DW3. The contents of
the letter are also almost spoken to by him in his
evidence. The contents do not make reference to accused
No.1, as can be ascertained from the evidence of DW3.
31. Ext.X13 is an official document written by the
Dy.S.P., Munnar to S.P. of Idukki with regard to certain
reports in Crime No.6 of 1996 giving rise to the present
case. It reveals that the evidence given by DW3 regarding
the letter written by PW3 is true.
32. When there is a letter contemporaneously
written by PW3 on the day when she disappeared from the
campus, it must in all probability reveal why she had so
disappeared. It must also reveal whether there was
involvement of any one including the first accused. It
should show whether she was going with the first accused as
induced by him or whether she had been leaving her parents
of her own. It was the suggestion of the accused during
cross examination that PW3, as of her own, had left her
house, because of certain domestic reasons. There was
subsisting quarrel between her parents. It is suggested
that the home environment was unsatisfactory. Father was
an alcoholic and mother was deviant, it was suggested.
33. In order to cross check the version of DW3, as
he was seen to have been questioned by PW82 as revealed by
Ext.X13, we chose to exercise our powers under Section
172(2) Cr.P.C. We perused the case diary from the hands of
the Public Prosecutor as to whether the said Kochumon, DW3,
had spoken to the police about the letter said to be
written by PW3. It is also revealed from Ext.X13 that the
police has questioned the driver Joy who handed over the
letter to DW3, also. Ext.X13 also speaks about the
contents of the letter. We are satisfied that existence of
the letter written by PW3 was revealed by DW3 to the
police.
34. When there is such a contemporaneous letter
written by PW3, necessarily it will reveal the reason for
her disappearance. Existence of that letter was known to
the police as revealed by DW3 and Ext.X13. But none of the
investigating officers has spoken about the existence of
the letter or their effort or incapability to trace it out
when they gave evidence in the court below. The public
prosecutor was also cross examining DW3, as if there was no
such letter. Thus the prosecution was really suppressing
that letter, though known to them as revealed by DW3 and in
Ext.X13. It has to be borne in mind that the investigating
officers did not move their little finger to find out this
letter and to ascertain the reason revealed therefrom for
the disappearance of PW3. Or else they were withholding it
from court and the accused. According to DW3 he entrusted
the letter to the police. Necessarily the evidence of DW3,
the contents of the letter spoken to by him and Ext.X13,
which refers to that letter do create a doubt as to the
reason for the disappearance of PW3. That PW3 had left the
campus as of her own cannot be, therefore, ruled out. In
such circumstances it cannot be said, conclusively, that
PW3 was kidnapped consequent to a conspiracy hatched by
accused Nos. 1, 2 and Dharmarajan.
35. True, as contended by the Public Prosecutor,
there is evidence of PWs.59 and 60. PW59 turned hostile
completely and nothing beneficial to the prosecution has
come out from him. PW60 is an autorickshaw driver who has
spoken about the conversation between accused Nos. 1 and 2
about the arrival of PW3 on 16.1.1996, the date of
commencement of the series of occurrences in this case.
That witness was found out and questioned far belatedly on
23.7.1996 by PW97. By that time this case had become
sensational. PW60 also did not volunteer to give
information to the police promptly. He offers no cogent
explanation for this. There had been five Investigating
Officers earlier than PW97. None of them had any knowledge
about the existence of such a witness and no one had reason
to doubt so obviously because of their knowledge about the
letter written by PW3, mentioned in Ext.X13. So the
belated questioning of PW60 and bringing that evidence to
support conspiracy do arouse suspicion and cannot be
sufficient to fasten guilt for conspiracy. On the other
hand, the evidence of DW3 in the second case speaks about
the contents of the letter said to be written by PW3 that
she had gone out of her house as of her own. In this
context it will not be inapposite to note that the earliest
versions indicate that PW3 was requested to “go for a trip”
by her lover and not to elope and get married. PW1 or PW3
has not been asked anything about the said letter by the
prosecution. That course of conduct must certainly cause
suspicion. The clear indication is that the investigators
were attempting to black out all indications about the said
letter.
36. The evidence of a person over hearing a
conversation is too weak an evidence to prove conspiracy as
held by the Supreme Court in Darshan Singh & ors. v.
State of Punjab (AIR 1983 SC 554). The Apex Court
observed:
“On the question of conspiracy, the prosecution led
the usual kind of puerile evidence, as for example,
of someone over-hearing something while on way to
answering a call of nature. Here the strain was
changed by alleging that Suran Singh (PW27) heard a
most damaging conversation between the accused
while he was negotiating the purchase of a tractor.
Evidence was also produced to show that a wallet
was found at the scene of offence, containing a
letter (Ext.P53) sent by one of the accused to
another of them, discussing the threads of
conspiracy.”
It is not safe to rely on PW60, as the alleged conspirators
would not have spoken about their plan so loudly in a busy
bus stand, so that it could be heard by others, so clearly
as spoken to by PW60. So the alleged conversation between
accused Nos. 1 and 2 as perceived by PW60, and kept it to
himself till PW97 came into the picture belatedly could not
be relied on to prove conspiracy. That evidence revolts
against commonsense and prudence.
37. More over, PW60 is a witness found out by
PW97, far belatedly. On that reason also no reliance can
be safely placed on him. The Apex Court in Vijayabhai
Bhanabhai Patel v. Navnitbhai Nathubhai Patel & ors.
(2004) SCC (Cri) 2032) observed as follows:

“The delay in questioning these witnesses by the
investigation officer is a serious mistake on the
part of the prosecution. We do not think that the
High Court erred in disbelieving these witnesses.”
38. It has come out in the second case that as
PW59, who was also introduced to prove conspiracy, turned
hostile to the prosecution, he had to face harassment from
police and had to move a police protection writ petition
before this court. (See Ext.D24 in the second case).
These facts relating to the threat to PW59 from police as
he did not support the prosecution case were not available
in the first case when the court below considered the
evidence on conspiracy. This fact cannot also be
neglected.
39. Added to this is the alleged round about turn
by PW60 discussed in para 25 of the impugned judgment in
the first case. After PW60 had given evidence on
conspiracy in the first case, he wrote a letter to the
accused about the circumstances that led him to speak so in
court. Later he himself filed a petition alleging that he
was made to write such a letter. On the face of the new
facts brought in as regards PW59 in the second case, this
somersault by PW60 shakes the credence of his evidence; in
the light of the decision in Darshan Singh referred supra.
Thus his evidence on conspiracy is not believable.
40. There is a further fact that PW3, who had left
the campus allegedly upon the persuasions from accused
No.1, had never enquired about him after she realised that
accused No.1 had vanished before she reached Kothamangalam.
This long silence of PW3 with respect to her alleged
partner, accused No.1, is also relevant in this regard.
The version of the victim, in both the cases reveals that
she had never enquired about accused No.1 with any one, at
all. This conduct of hers is inconsistent with her theory
that she left the school campus out of love towards or
under the threat of the first accused. The theory of
simultaneous threat as also love both acting as reasons
prompting PW3 to accompany the first accused is inherently
uninspiring also.
41. Apart from these there is no connecting link
proved between accused Nos.1 and 2 and Dharmarajan. The
presence of accused No.2 in the bus does not in any way
connect accused No.1 to the alleged conspiracy. The
prosecution has no case of any previous acquaintance
between accused No.2 and PW3. The evidence of PW66 does
not speak about any conspiracy. She speaks about giving
MO1 album to accused No.1 who undertook to give it to PW3.
This will reveal only acquaintance among the said three who
happened to see in the bus regularly and does not give any
support to the theory of conspiracy.
42. The trip sheet of the buses, Ext.P115,
produced by PW78, R.T.O. speaks about timing of the buses
in which PW3 had travelled from Munnar to Kothamangalam on
16.1.96 and nothing else. In the absence of production of
the letter written by PW3 as is discernible from the
evidence of DW3 and Ext.X13 in the second case, this travel
can be as of her own in the nature of the contents of the
letter spoken to by DW3.
43. There is also no case for the prosecution that
the alleged conspiracy among the three persons had been
continued by Dharmarajan with other accused by presenting
the girl for rape and gang rape to them and also in
confining PW3 in the house of Accused No.38 and 39. We
have gone through the evidence again and we could not find
any allegation of meeting of mind of any of these persons
except the alleged phone call made by Dharmarajan or by
accused No.4 to Accused No.10. Nobody has spoken about the
meeting of minds by these accused to have a further
conspiracy regarding the commission of rape or gang rape.
The second part of the conspiracy is alleged as the
integral part of the initial conspiracy itself. The
prosecution could not prove the initial conspiracy and thus
any continuing conspiracy as well.
44. It has to be borne in mind that even going by
the prosecution case accused No.1 did not have any role at
all after 16.1.96. The prosecution has no evidence, theory
or even semblance of a suggestion that the first accused
had any role to play after 16.1.96 or had enjoyed any
benefit from the alleged agreement to commit crimes. The
allegations against the first accused are thus found to be
inherently uninspiring. About the involvement of
Dharmarajan in the conspiracy prior to his alleged meeting
PW3 in the Bus stand at Kottayam, there is no evidence
worth the name except his presence there on 16.1.96. The
case of the prosecution that Dharmarajan was waiting at
Metro lodge from 2.1.96 anticipating that the other
conspirators would bring PW3 to Kottayam bus stand on some
day thereafter is, to say the least, improbable and
uninspiring. Thus these facts are sufficient to conclude
that the prosecution has failed to prove the conspiracy,
including its commencement from the alleged kidnapping of
PW3. The prosecution has not thus succeeded in proving the
case of conspiracy alleged against any of the accused
beyond reasonable doubt. Thus the conviction under Section
120-B has to be reversed.
45. Next we will consider the case of kidnapping.
It is the case of the prosecution that the first accused
had kidnapped PW3 so that he could hand her over to
Dharmarajan and other accused. While considering the
conspiracy alleged by the prosecution we referred to a
letter written by PW3 as spoken to by DW3 and as referred
to in Ext.X13 in the second case. We have also come to the
finding that that letter would reveal the reason for her
disappearance. The contents is spoken to by DW3 that, she
was going on her own from the family. Though the letter is
known to the police, they did not reveal it. If it
contained the version that she had gone on her own,
allegation of kidnapping of PW3 from lawful custody of her
parents cannot be sustained. The letter thus also takes us
a long way to disprove the case of kidnapping. That letter
cannot any more be disputed by the prosecution in the light
of Ext.X13 in the second case. Non production of this
letter, the existence and contents of which are proved by
DW3 and Ext.X13, creates a doubt against the theory of
kidnapping alleged by the prosecution. From S.Varadarajan
v. State of Madras (AIR 1965 SC 942) it is clear that if a
minor girl leaves her parents on her own, the persons who
subsequently come across the minor cannot be held to be
guilty of “taking or enticing” the minor out of the lawful
keeping of its guardian. Non production of the letter and
suppression of the same must in these circumstances
certainly entitle the accused to the benefit of doubt on
this crucial aspect. So the conviction under Section 363
IPC shall also have to be reversed, giving the benefit of
doubt to the accused.
46. We will now consider the other offences
related to kidnapping viz., those punishable under Sections
365 and 368 I.P.C. No kidnapping is proved satisfactorily
and beyond doubt as found above. So there arises no case
of confining a kidnapped minor nor concealing such a person
revealing offences punishable under Sections 365 and 368
I.P.C. Consequently the conviction under Section 365 and
368 shall also have to be vacated. Under Section 368,
accused No.38 and 39 alone had been convicted and their
conviction is on those counts alone.
47. Next we will have to deal with the alleged
rape. The evidence regarding rape is spoken to by PW3. A
reading of the evidence of PW3 will categorically reveal
that there had been several occasions of sexual
intercourses with her by several of the accused during the
40 days period from 16.1.1996 to 25.2.1996, except by
accused Nos. 1, 2, 17, 38 and 39. The Public Prosecutor
is justified in submitting that appreciation of evidence of
a victim in a rape case shall be on a different footing
from the evidence of any other injured witness in other
criminal cases. The evidence of the rape victim shall have
to be given due weight as held by the Supreme Court in the
decision in State of Maharashtra v. Chandraprakash
Kewalchand Jain (1990 SCC (Cri) 210) and Rafiq v. State of
U.P (1980 SCC (Cri) 947). In the former it was held that:

“The prosecutrix of a sex offence cannot be
put on par with an accomplice. She is in fact a
victim of the crime. The Evidence Act nowhere says
that her evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under Section 118
and her evidence must receive the same weight as is
attached to an injured in cases of physical
violence. The same degree of care and caution must
attach in the evaluation of her evidence as in the
case of an injured complainant or witness and no
more. What is necessary is that the court must be
alive to and conscious of the fact that it is
dealing with the evidence of a person who is
interested in the outcome of the charge levelled by
her. If the court keeps this in mind and feels
satisfied that it can act on the evidence of the
prosecutrix, there is no rule of law or practice
incorporated in the Evidence Act similar to
illustration (b) to Section 114 which requires it
to look for corroboration. If for some reason the
court is hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for
evidence which may lend assurance to her testimony
short of corroboration required in the case of an
accomplice. The nature of evidence required to
lend assurance to the testimony of the prosecutrix
must necessarily depend on the facts and
circumstances of each case. But if a prosecutrix
is an adult and of full understanding the court is
entitled to base a conviction on her evidence
unless the same is shown to be infirm and not
trustworthy. If the totality of the circumstances
appearing on the record of the case disclose that
the prosecutrix does not have a strong motive to
falsely involve the person charged, the court
should ordinarily have no hesitation in accepting
her evidence. We have, therefore, no doubt in our
minds that ordinarily the evidence of a prosecutrix
who does not lack understanding must be accepted.
The degree of proof required must not be higher
than is expected of an injured witness. For the
above reasons we think that exception has rightly
been taken to the approach of the High Court as is
reflected in the following passage:
“It is only in the rarest of rare cases if
the court finds that the testimony of the
prosecutrix is so trustworthy, truthful and
reliable that other corroboration may not
be necessary.
With respect, the law is not correctly stated. If
we may say so, it is just the reverse. Ordinarily
the evidence of a prosecutrix must carry the same
weight as is attached to an injured person who is a
victim of violence, unless there are special
circumstances which call for greater caution, in
which case it would be safe to act on her testimony
if there is independent evidence lending assurance
to her accusation.”

In the latter one, it was observed by the Apex Court that:

“Hardly a sensitized judge who sees the
conspectus of circumstances in its totality and
rejects the testimony of a rape victim unless there
are very strong circumstances militating against
its veracity.”
48. The Public Prosecutor has also relied on the
recent decision of the Supreme Court reported in State of
Himachal Pradesh v. Shree Kant Shekari (AIR 2004 SC 4404),
wherein it was held that:

“It is well settled that a prosecutrix
complaining of having been a victim of the offence
of rape is not an accomplice after the crime.
There is no rule of law that her testimony cannot
be acted without corroboration in material
particulars. She stands at a higher pedestal than
an injured witness. In the latter case, there is
injury on the physical form, while in the former it
is physical as well as psychological and emotional.
But even in that decision, the Apex Court has made it
explicitly clear that:

However, if the Court on facts finds it difficult
to accept the version of the prosecutrix on its
face value, it may search for evidence, direct or
circumstantial, which would lend assurance to her
testimony. Assurance, short of corroboration as
understood in the context of an accomplice would
suffice.”
49. In State of Maharashtra v. Chandrapakash
Kewalchand Jain (AIR 1990 SC 658) also the Apex Court ruled
in the same lines that:

“We think it proper, having regard to the
increase in the number of sex-violation cases in
the recent past, particularly cases of molestation
and rape in custody, to remove the notion, if it
persists, that the testimony of a woman who is a
victim of sexual violence must ordinarily be
corroborated in material particulars except in the
`rarest of rare cases’. To insist on corroboration
except in the rarest of rare cases is to equate a
woman who is a victim of the lust of another with
an accomplice to a crime and thereby insult
womanhood”
indicating that, there can be rarest of rare cases where
corroboration shall be insisted. We do agree – not
corroboration, not even assurance, but certainly
satisfaction of the judicial conscience must be insisted.
50. Reversing conviction by Sessions Court and its
confirmation in appeal by the High Court, the Apex Court in
Surjan & anr. v. State of M.P. (AIR 2002 SC 476) held
that:

“In a case where six indicated persons should be
visited with a minimum sentence of 10 years’ RI,
the Court cannot afford to act on the
uncorroborated testimony of the prosecutrix unless
the said evidence is wholly reliable. When looked
at the testimony of PW1 from all the different
angles highlighted above, we are unable to hold
that her testimony is wholly reliable. In such a
situation, materials for corroborating the
testimony of PW1 could not be obviated. But
unfortunately there is none.”
Therefore the legal position is as held in Vimal Suresh
Kamble v. Chaluverapinakeapal S.P. & anr. {(2003) 3 SCC
175} that:

“It is no doubt true that in law the conviction of
an accused on the basis of the testimony of the
prosecutrix alone is permissible, but that is in a
case where the evidence of the prosecutrix inspires
confidence and appears to be natural and truthful.
Because as held by the Apex Court in Sudhansu Sekhar Sahoo
v. State of Orissa (2003 Crl.LJ 4920),

“It is also reasonable to assume that no woman
would falsely implicate a person in sexual offence
as the honour and prestige of that woman also would
be at stake. However, the evidence of the
prosecution shall be cogent and convincing and if
there is any supporting material likely to be
available, then the rule of prudence requires that
evidence of the victim may be supported by such
corroborative material.”
51. In yet another recent decision reported in
State of Punjab v. Ramdev Singh (AIR 2004 SC 1290), the
Supreme Court again reiterated that:

“It is well settled that a prosecutrix
complaining of having been a victim of the offence
of rape is not an accomplice after the crime.
There is no rule of law that her testimony cannot
be acted without corroboration in material
particulars. She stands at a higher pedestal than
an injured witness. In the latter case, there is
injury on the physical form, while in the former it
is both physical as well as psychological and
emotional. However, if the Court of facts finds it
difficult to accept the version of the prosecutrix
on its face value, it may search for evidence,
direct or circumstantial, which would lend
assurance to her testimony. Assurance, short of
corroboration as understood in the context of an
accomplice would do.”
52. At the same time the defence has a contention
that appreciation of evidence of PW3 in this case, who is
said to have withstood the alleged atrocities committed on
her for a long period of 40 days shall have to be viewed in
a different angle rather than in an ordinary rape case or a
rape for one or two days. As held in Rafiq’s case cited
supra:

” We do not agree. For one thing, Pratap
Misra case laid down no inflexible axiom of law on
either point. The facts and circumstances often
vary from case to case, the crime situation and the
myriad psychic factors, social conditions and
people’s life-style may fluctuate, and so, rules of
prudence relevant in one fact-situation may be
inept in another. We cannot accept the argument
that regardless of the specific circumstances of a
crime and criminal milieu, some strands of
probative reasoning which appealed to a Bench in
one reported decision must mechanically be extended
to other cases. Corroboration as a condition for
judicial reliance on the testimony of a prosecutrix
is not a matter of law, but a guidance of prudence
under given circumstances. Indeed, from place to
place, from age to age, from varying life-style and
behavioural complexes, inferences from a given set
of facts, oral and circumstantial, may have to be
drawn not with dead uniformity but realistic
diversity lest rigidity in the shape of rule of law
in this area be introduced through a new type of
precedential tyranny. The same observation holds
good regarding the presence or absence of injuries
on the person of the aggressor or the agressed.”
53. Even in C.K.Jain (supra) it was pointed out
that:

“We think it proper, having regard to the increase
in the number of sex violation cases in the recent
past, particularly cases of molestation and rape in
custody, to remove the notion, if it persists, that
the testimony of a woman who is a victim of sexual
violence must ordinarily be corroborated in
material particulars except in the rarest of rare
material particulars except in the rarest of rare
cases.”
Thus there can always be rarest of rare cases where
corroboration is required. Based on the facts in this
case, is it one of that sort? If the answer is in the
affirmative, the evidence of the victim in this case shall
be viewed in the same angle as an injured witness who is
always interested in the outcome of the case. In such
circumstances the court shall always have to seek materials
to offer satisfaction to the judicial conscience, if not
corroboration or even assurance. The materials must be
such as to induce satisfaction in the judicial mind. Or
else the evidence should have been one which shall inspire
implicit confidence in the mind of the court. In other
words, as held in Vimal Suresh Kamble’s case (supra) if,

“The evidence of the prosecutrix in this case is
not of such quality, and there is no other evidence
on record which may even lend some assurance, short
of corroboration that she is making a truthful
statement”,
it is of no use to fasten conviction.
54. We are unable to persuade ourselves to accept
the argument that in all cases the rigid rule of acceptance
of the evidence of prosecution is to apply. Precedents can
only guide and assist the courts in the matter of
appreciation of evidence – whether of a rape victim or
other victims or witnesses. It is the prudence and sound
judgment of the court, its assessment of circumstances, its
knowledge of men and matters, its assessment of
probabilities, its knowledge of the common course of events
and behaviour and conduct of individuals and its trained
intuitions which should help it to resolve subtle questions
of appreciation of evidence. An emotional approach or
insistence that the evidence of all rape victims have to be
accepted is not warranted or permitted by law and would
result in negation of justice.
55. The Investigating Officers have attempted to
secure evidence to corroborate the evidence of PW3 about
her movements and residence at various places between
16.1.96 and 26.2.96. Evidence of PW3 on those aspects have
been substantially corroborated. But the million dollar
question in this case is not whether PW3 had stayed at
these places and whether the indictees had intercourse with
her. The question is whether such intercourses were
without her consent to be called rapes. It is on that
subtle, finer and sublime aspect that the evidence deserves
to be scrutinised with care. Is PW3 after returning to the
fold of her parents on 26.2.96 attempting to wish away all
consensual sexual intercourses between 16.1.96 and 26.2.96
by calling them rapes without her consent? Is she trying
to paint herself white and attempting to place the blame
for her unfortunate predicament on the shoulders of all
with whom she had sexual intercourse by making convenient
omnibus assertions that they were all rapes? We cannot
assume that the consent is no consent because PW3 was a
young girl who had just crossed 16 years. Under law she
had reached that age of consent. Why did she consent and
was it prudent on her part to consent are not certainly the
questions before Court. Did she consent – whether for the
proper reasons or the improper ones? Is such consent
vitiated on any grounds recognised by law? These are the
questions to be considered. Her young age by itself cannot
be legally accepted as a sufficient reason to vitiate
consent, because she was admittedly above the age of 16
years at the relevant time. These questions have to be
considered cognisant of the law relating to burden of proof
and benefit of doubt wherever applicable. The yardstick of
the ordinarily prudent person in the polity has to be
adopted by the court.
56. When we read the evidence of PW3, we have to
be cognisant of her psyche – her mental make up. Her past
conduct and behaviour have to be borne in mind. She was
only a student of 9th standard. She had squandered
Rs.450/- entrusted to her by her father for remitting
hostel fees, whether it was given to Arun as stated by the
appellants or to the first accused as stated by the
Prosecutor. That piece of conduct is admitted by her.
Though there is no such statement earlier in the C.D. she
now explains it away saying that she had paid the amount to
the first accused. A school girl will always be obliged to
account when hostel fee is not remitted. She must have
known that she will have to account. Her conduct showed
that she was still unmindful of it. She was prepared to
take that risk. Added to this is, as suggested by the
counsel for the appellants, that she was even courageous
enough to approach a jeweller for pledging an ornament of
hers which her parents had given her to wear, meaning
thereby that she had that much capability or courage of
even withstanding a question by her parents as to the loss
of such ornament. She admitted during evidence that she
had done so. So this gives indications about the conduct
and mental make up of PW3. She is shown to be one who was
prepared to take such risks. She was mentally ready to
take that risk for raising money. She needed money. She
was prepared to raise it. She had needs which her parents
did not know. She was prepared mentally to advance a
different false version to justify herself. The jeweller
was a kind soul. He became suspicious. She gave a false
identity to him. He verified her books. He realised her
ploy. He informed PW1. She is thus shown to be a girl of
deviant character. She was not a normal innocent girl of
that age. She was a different person. The peculiarity in
her personality must realistically be borne in mind. The
evidence of a person of her age with such a conduct
certainly has to be viewed seriously and with caution. A
court cannot meekly swallow her version. It requires
serious critical assessment.
57. It is also brought to our notice that a
question was asked during cross examination as to whether
she was interrogated by the Investigating Officer in
“Abhaya case”. Abhaya case is a notorious one known to
every one in Kerala. Her answer was that she did not
remember whether she was questioned in that case. This is
an evading answer. No one could have forgotten that if she
were really questioned in such a case. This shows her
attitude. Her capability not to reveal to others what she
does not feel inclined to. The aspect by itself is
irrelevant. But the attitude is certainly relevant while
appreciating the evidence.
58. Referring to her evidence in court, the
non-identification of accused No.23, a Professor, by her is
also highlighted by the appellants. Even according to her,
accused No.8 and 23 raped her while in Samudra Hotel in
Kanyakumari on 2.2.1996. Next day she was taken to
Thiruvananthapuram in a car. This Professor, accused
No.23, was also in the car while on the journey from
Kanyakumari to Thiruvananthapuram. Thus he was with her on
2.2.96 and 3.2.96 for quite a long time. In spite of that
she did not identify him in court, though she says that she
had noticed him, specifically, as a man aged 50 to 55
years, among the persons who came to her while in
Kanyakumari. PW97, the final Investigating Officer has
admitted that, accused No.23 was the Professor while he
studied in College. It is thus suggested that she is
prepared to implicate any one or avoid another, even at the
instance of the of the Investigating Officer. Though this
contention as such has no bearing on this case, her
inability to identify the professor who was with her for
two days including in a journey and whom she had noticed as
the aged among the lot, is something to be kept in mind,
while appreciating her evidence. We repeat careful and
cautious assessment, not naive acceptance is the imperative
necessity.
59. It was suggested by the defence inviting our
attention to the evidence of PW3 that she was speaking
untrue version about her leaving Mount Carmel School,
Kottayam while in standard VIII to join the Little Flower
Girls High School at Nallathanni. According to the
appellants it was because of her expulsion from the former
school due to bad conduct that she could not carry on her
studies for an year there. That was why she had gone for
tuition under PW55. But her version is that she had been
in the habit of bed wetting and therefore had to
discontinue the studies in the Mount Carmel School as she
lost the help of her elder sister, who left the school on
completion of her study, for cleaning the urine soaked bed
linen. But her evidence further shows that she attained
puberty at the age of 10 1/2 years, obviously while
studying in 5th or 6th standard. It is pointed out that it
is too unbelievable that such a girl studying in Standard 8
then could not clean by herself, her urine soaked bed
wetted night linen. That means she is always seeking for
some or other excuse for her acts, one way or other. Even
though we do not attribute any importance by itself to the
change of school, the attitude of PW3 is revealed by this
also.
60. It is also revealed from the evidence of PW1,
the father of PW3, that even though PW3 was in a hostel
managed by nuns, he was keeping an unusually vigilant eye
on her. There is evidence in this case that the nuns had
contacted him over phone as to whether PW3 should be
granted permission to go out of the hostel on 16.1.96
itself in order to give her clothes to the launderer. This
is so unusual and it speaks about the deep apprehension of
her father about her conduct and movements. Such telephone
calls from the hostel became necessary only as insisted by
him, as he was suspicious and unsure of his daughter. PW1
apprehended that she may run away, it is compellingly
indicated. Even when she was found missing his first
statement in Ext.P1 is that he did not know why “she had
run away” (…………….. …….). It is also
discernible from the evidence of DW3 and from Ext.X13 and
the letter spoken to by DW3 in the second case, that she
had written a letter to DW3, Kochumon, the driver of a bus.
Kochumon had also deposed that PW3 had a conduct of easily
getting acquaintance with all. Her inclination to have
such friendly relationship with a stranger like Kochumon
must also be taken note of while appreciating her evidence.
61. When such a girl had gone out of the custody
of her parents for about 40 days and had been with several
other persons, it cannot be said that her evidence
regarding her unwillingness for sexual intercourse should
be believed as such without insisting on satisfactory
materials for assurance, as in the case of a rape victim of
a solitary instance or being ravished by one or a group of
persons for one or two days.
62. Added to these is the fact that during the
long period of 40 days she had been taken from place to
place in public conveyances and she had been kept in lodges
where others had also sought accommodation. She was also
taken to hospitals twice, as admitted by her during this
period. But there was no attempt on her part to escape
from the clutches of any of the accused, including
Dharmarajan. While appreciating the evidence on this
aspect one cannot lose sight of the state of mind of her
detractors – the indictees. If they had even a suspicion
that she was unwilling, would they have even from the very
next day i.e. 17.1.96 withstood the risk of taking her
along public roads to public places in public conveyances
and through places which she was familiar with? While
appreciating her evidence about her consent or otherwise
such conduct of her detractors, which is inconsistent with
the assertion of absence of consent by PW3 cannot be
ignored or lightly wished away.
63. After she had allegedly realised on the night
of 16.1.1996, on the first day, in the Metro lodge at
Kottayam that the mission of Dharmarajan was not to save
her or to entrust her to her uncle at Mundakayam, but to
ruin her, when she was taken on the morning of 17.1.96 from
the lodge and reached Kottayam bus stand; there should
normally have been an attempt for escape. There was none
else at that time. According to her even on the previous
night, she came to Kottayam bus stand, on her own decision
to go to her aunt residing in Kottayam. So she could have
easily attempted to escape as it was a place of
acquaintance for her. She knows the house of her aunt.
She had been studying, admittedly, in Kottayam earlier.
Instead, she was, in a public conveyance, as admitted in
her evidence, accompanying Dharmarajan to Ernakulam. Was
that transportation, through territory not alien to her, of
a captive minor who could at any moment have foiled the
designs of the only detractor at that time by reacting
against him or was it a willing journey of a misguided girl
above 16? The question requires and demands closer and
anxious search The response has to be rational and not
emotional.
64. Ext.P57(a) register discloses that room taken
by Dharmarajan in Metro lodge, Kottayam was vacated in the
morning of 17.1.96 itself and he took a room in Anand lodge
at Ernakulam only at 6.45 P.M. on 17.1.96 as is revealed
by Ext.P58 and 58(a). She was thus for long hours in day
light in the open space in Ernakulam, a busy city.
Necessarily there were occasions for her to escape from
Dharmarajan who had, according to her, really spoiled her
on the previous night, at least by attracting the attention
of the public. As admitted by PW3, there was none other
than him at that time with her. At least Dharmarajan must
have been wary of that possibility. An assessment on
probabilities has to take into account all the realities of
the situation – including the apprehension which must have
worked in the mind of Dharmarajan, the alleged tormentor,
who took the risk of taking PW3 the alleged captive minor
in that manner.
65. She also did not attempt to escape when she
had been kept in a room at Hotel Geeth in Trivandrum while
on their way from Kanyakumari to Kuravilangad, by the 4th
accused. Even going by the evidence of PW3, after an over
night stay in Hotel Geeth, in the next morning, accused
No.4 had left the room keeping her alone in the room and
locking it from outside. He came late in the evening.
Necessarily a person who was not consenting to the
allegedly atrocious acts of the 4th accused or any one
else, could not have remained alone there without thinking
of the option to escape after two or three hours or even
half a day, if she had been suffering atrocities from the
accused persons as deposed by her. These human
possibilities and probabilities cannot be ignored.
66. It is also revealed that PW12 Jacob Sait had
approached her in Hotel Geeth. But as admitted by PW3 he
did not commit any mischief on her. He was sympathetic
towards her. She was alone in the room at that time, and
on allegedly seeing her plight, PW12 withdrew from the
room. It was on 4.2.1996. According to her, she was
suffering a lot for about three weeks by that time. Even
to PW12, a person of such a nature found by her for the
first time after 16.1.1996, she did not admittedly reveal
her identity and alleged plight, which she had admittedly
spoken to other rapists; so that she could manage to escape
from the 4th or other accused.
67. It is also pointed out that from Kumali
Dharmarajan had taken PW3 to Palghat and stayed in Hylex
lodge at Palghat. After an overnight stay, they went over
to Vanimmel in Kozhikode, where accused No.16 was residing.
He was an employee in the Panchayat and a friend of
Dharmarajan. Even going by the evidence of PW3,
Dharmarajan had gone out leaving PW3 in the house and came
back only on the next day. She had been alone there for a
long time, when two teachers, who were the inmates of the
house and the 16th accused had gone for their job. A close
neighbour of the house of accused No.16 has been examined
as DW5. He was also a witness to the scene mahazar
prepared by the police after inspecting the house of 16th
accused. He had deposed that he had seen PW3 in the
courtyard and veranda of the house and the owner of the
house Nabeesa told him about the girl in the house of
accused No.16. Thus in spite of the fact that she had an
occasion to be alone in that house she did not make any
attempt to escape. She had been in that house for three
days from 22.1.96 to 25.1.96. If the version given by PW3
is correct, by that time, she had suffered almost every day
from 16.1.96 onwards continuous rapes by Dharmarajan,
Accused No.5, one Devassiachen, an absconding accused and
Accused Nos.4, 7 and 16 at different places. Any one in
such situation will think of an attempt to escape, if not
an escapade.
68. It is also pointed out that she had been taken
for journey for a long distance throughout the breadth and
length of the State and even beyond the State, during these
40 days. She had travelled between Kanyakumari in the
south and Vanimel in Calicut in the north, as spoken to by
her. It is also stated that she had travelled in the
breadth of the State right from Ernakulam to Kumali, a hill
station, and even crossed the border to Kambam and Theni in
Tamil Nadu. Mundakkayam and Kottayama, as admitted by PW3,
are familiar places for her. In Kottayam she had studied
for few years. More over, when she was placed in a
helpless situation at Kothamangalam due to vanishing of the
first accused on 16.1.1996, she had deliberately decided to
go to Kottayam even during night to reach her aunt there.
She had come to Kottayam on more than two occasions during
these 40 days in public conveyance and even to bus stand.
But she had not attempted to escape. It is also in
evidence that she had passed through Mundakkayam.
Mundakkayam is also a place where she decided to go on the
night of 16.1.1996 to reach her uncle. She had been a
commuter from Mundakkayam to Kottayam while studying in
Kottayam, as spoken to by her in the court below. She had
passed through Mundakkayam in a public conveyance during
the said 40 days. In spite of that she had not tried to
escape so that she can reach the house of her uncle, whom
she had telephoned earlier.
69. As admitted by PW3, while in the custody of
the accused, she had made a phone call to her uncle PW57.
She alone knew that telephone number. That telephone call
is of vital significance. Why did she make that call? Did
she make it on her own? Certainly her detractors could not
have asked her to make the call. That would not serve
their purpose at all. She was, it is evident, free to make
a telephone call to her relatives. If she were in
captivity her detractors would not have permitted her to
make a call. What did she tell PW57 when she made the
call? If she had told PW57 (or if the conversation
conveyed to PW57) that she was in captivity the reactions
of PW57 and PW1 (to whom PW57 admittedly conveyed
information of that conversation) must have been different.
In Ext.P1 the allegation of PW1 was that the girl had run
away. If the evidence of PW3 and PW57 were true, here was
information received by PW57 and PW1 that she was captive.
The first response must have been to run to the police and
inform them that the girl had not run away; but was taken
captive detained illegally. What followed the telephonic
conversation was not that. The marked portions of the C.D.
statement of PW1 indicates that PW57 told PW1 that PW57 had
asked PW3 “to return”. Not only PW57 but his daughter in
law had also spoken to her. Was PW3 calling PW57 on her
own free will? Did PW57 then feel the need to advise her
to return? Why did not PW57 or PW1 choose to inform the
police after that call that it was not a case of the girl
running away as perceived at the time of lodging Ext.P1,
but one of kidnapping of PW3 by some miscreants? We must
look for answers to these disturbing questions also.
70. It is also her version that she had been taken
to two doctors. First in Periyar Hospital in Kumali on
21.2.96 and then in Anpu Hospital at Elappara on 25.2.96.
By that time, she allegedly had pain in her private parts.
On account of painful compelled intercourses, puss was
allegedly coming from vagina and she was too weak,
according to her. She had been taken by the 2nd and 17th
accused to PW27, the doctor at Periyar hospital. Ext.P24
is the O.P. card in that hospital. The only ailment
spoken to by her is sore throat, as seen from Ext.P24.
Whatever that be, she had been in the safe hands of a
doctor and in a secure place like a hospital. She had,
according to her, as spoken to in court, very painful
ailments at that time including in her Vagina. But
according to PW27, the doctor, “she appeared normal in gait
and appearances”. She told him that she went for a visit
in Thekkady, a place of tourist attraction and was going
back to Ponkunnam. Ponkunnam is not her place, but the
place of one of the accused. Even if it had been said so
by any one else, nothing prevented her to disclose her
plight to the doctor while in that hospital. This cannot
be the words and attitude of a girl subjected to rape for
several days together. She did not even disclose her true
name to the Doctor. Ext.P24 O.P. card discloses a
different name. If she was in real difficult situation she
could at least try at that moment to escape from the
clutches of the accused and Dharmarajan and can safely
reach her parents or her uncle. A person suffering the
trauma described by her for a month will certainly try for
that; because nobody can snatch her away from the hospital
and from the hands of a doctor. Her conduct that she did
not do so even in that situation certainly speaks volumes.
71. It is also in her evidence that the third
accused Jamal took her to his relatives and kept her with
his relatives for an over night stay on 25.2.96. During
the night she developed stomach pain. She had not
admittedly revealed her identity or plight to the inmates
of that house, who were only ladies. They had taken her to
Anpu hospital for treatment by PW28, the doctor there. She
did not reveal her correct name to the doctor there also.
In Ext.P25 prescription card her name is written as
`Anjali’. According to her she had constipation and back
pain. She was very weak. It is in evidence of PW.28, the
doctor and PW29, the nurse there, that she had been
administered enema. For this the nurse had to undress her.
Necessarily if any discolouration or inflammation was
there, it would have been noticed by the nurse. The doctor
had deposed that she was not terrified. PWs.28 and 29 have
deposed that after administration of enema, she became
normal and was relieved of her debilities. She could at
that time reveal her identity to PW28, the doctor or to
PW29, the nurse. She did not do so. So unusual a conduct
of a person, if she really did not like the company of the
accused.
72. Visits to the doctors assume significance and
relevance. Even for a comparatively minor ailment of sore
throat for a day she was taken to a doctor. Does that
indicate cruel conduct of the captors or sympathetic
conduct of friendly individuals? If her version were true
she was going on telling the persons brought by her captors
for prostitution that she was unwilling. She fully knew
that such persons would tell her detractors of her conduct.
The evidence is that her detractors knew that she was
telling so to such persons. She was allegedly taken to
task for such behaviour. If she would tell so to such
persons, knowing the risk involved, why did she not tell
the independent doctors? If her detractors knew or had
reason to think that she may divulge inconvenient details
even to persons brought by them, would they have taken the
risk of taking her to respectable doctors for such a minor
ailment like sore throat? It doesn’t appear to be normal
conduct of ordinary individuals to do so. These disturbing
possibilities have also to be taken into account while
considering the acceptability of the evidence of PW3.
73. It is also to be noted at this juncture that
whenever a rapist came to her, she had revealed that she
had heavy pain and she was cheated, she was the daughter of
Munnar Postmaster and she had also revealed her correct
name. It is unbelievable that such a person did not reveal
her identity to PWs. 27, 28 and 29, in whose hands she was
safe, She could have revealed her identity or at least her
alleged ailments on those two occasions and attempted to
escape from the jaws of the rapists.
74. These are sufficient indications in the
conduct on the part of PW3 that her evidence as a rape
victim cannot be treated as in the case of any other rape
victim in the decided cases cited before us. As held in
Rafiq (1980 SCC (Crl) 947) extracted supra, the facts and
circumstances often vary from case to case, the crime
situation and the myriad psychic factors and so on. So
rules of prudence relevant in one fact situation may be
inept in another. To quote the words of Justice Krishna
Iyer once again,

“We cannot accept the argument that regardless of
the specific circumstances of a crime and criminal
milieu, some standard of probative reasoning which
appealed to a Bench in one reported decision must
mechanically be extended to other cases.”
75. So taking all the aforesaid circumstances
together a person like PW3, who deposed that more than 30
persons were having intercourse with her at different
places like Kumali, Theni, Kambam, Palaghat and Vanimmel,
it cannot be believed from her evidence alone that she was
not a consenting partner. As a guidance of prudence under
the given circumstances, at least convincing assurance if
not corroboration has to be searched for judicial reliance
on the testimony of the prosecutrix in this case. In this
case necessarily apart from assurance, corroboration may
really be required before a conviction is entered into in
respect of a serious offence under Section 376(1) or
376(2)(g) believing her testimony. The evidence of PW3
does not appear to be cogent and convincing to inspire
confidence for the aforesaid reasons, because as held in
Vimal Suresh (2003 (3) SCC 175):

“the evidence of the prosecutrix in this case is
not of such quality”
to be acted upon without corroboration or at least
assurance that she is making a truthful statement.
76. Whether PW3 was a consenting/willing partner
for the intercourse is the moot question. As already
mentioned, this is not an occasion of a sudden and solitary
instance of rape, nor a situation of a forcible abduction
and consequent rape for a day or two. According to her she
had been raped continuously for nearly 40 days except when
she was on her menstrual periods once, by several at
different places in the State and outside, in hotels and
rest houses including in places of tourist attraction like
Kanyakumari and Kumily. Absence of consent on all such
occasions, in spite of several instances when she could
have escaped as mentioned above, cannot be gathered only
from her evidence or from what she says in court.
Assurance/corroboration not ocular, but from circumstances
and broad probabilities, must be searched for. It has to
be examined in the light of the peculiar fact situation of
this case.
77. As held in Rao Harnarain Singh v. State (AIR
1958 Punjab 123); relied on by the Special Public
Prosecutor:

“A woman is said to consent, only when she
freely agrees to submit herself, while in free and
unconstrained possession of her physical and moral
power to act in a manner she wanted. Consent
implies the exercise of a free and untrammelled
right to forbid or withhold what is being consented
to; it always is a voluntary and conscious
acceptance of what is proposed to be done by
another and concurred in by the former.”
The decision in State of Maharashtra v. Prakash and anr.
(1992 Crl.LJ 1924) relied on by the Public Prosecutor, has
no relevance to the fact situation in this case. It was a
case of rape by a police constable at whose instance the
victim was called out from the house in the late hours at 2
a.m. It is in such peculiar fact frame that the Apex Court
held that:

“To these poor rustic helpless villagers, the
police constable represents absolute authority.
They had no option but to submit to his will. In
all the facts and circumstances of the case,
therefore, we are of the opinion that the learned
single Judge was in error in acquitting the
accused. Accordingly, we set aside the judgment of
the learned single Judge and restore that of the
learned Sessions Judge.”
The other decision relied on by the Public Prosecutor
reported in State of Himachal Pradesh v. Mange Ram (2000
Crl.LJ 4027) is a case where:

According to the prosecutrix she resisted the
accused by scratching him with nails”,

and where

she also stated that the accused gagged her mouth
when she attempted to cry aloud.”
In the 590 pages long deposition in the first case and
another 520 pages long deposition in the second case, PW3
has no case that she had made any resistance even on any of
the occasions of alleged rapes. The alleged physical
threat by the rapist was only once on the first occasion of
rape. So the said decision also has no application to the
facts situation here.
78. Even in Uday v. State of Karnataka (AIR 2003
SC 1639) relied on by the Public Prosecutor, the Supreme
Court has made it clear that:

In the ultimate analysis, the test laid down by the
Courts provide at best guidance to the judicial
mind while considering a question of consent, but
the Court must, in each case, consider the evidence
before it and the surrounding circumstances, before
reaching a conclusion, because each case has its
own peculiar facts which may have a bearing on the
question whether the consent was voluntary or was
given under a misconception of fact. It must also
weigh the evidence keeping in view the fact that
the burden is on the prosecution to prove each and
every ingredient of the offence, absence of consent
being one of them.
79. In this background it is advantageous to refer
to two decisions of the Apex Court. The first one is
Jinish Lal Shah v. State of Bihar (2003 (1) SCC 605). The
facts there are almost similar to the case on hand. In the
case on hand in the light of the letter written by PW3 it
cannot be ruled out that she had not left her parents on
her own. She was away from her house from 16.1.96 to
25.2.1996. She went away with clothes and money. Keeping
this in mind, the following dictum in Jinish Lal Sha
(supra) can be read.

If we see the sequence of events starting from
30.4.1989 to 10.5.1989 it is clear that she has
accompanied the appellant willingly.
xx xx xx
On the contrary, we notice she was with him from
30th April to 10th May, during which period she had
travelled by train, tempo and stayed with the
appellant without there being any evidence of her
having protested or having made any effort to seek
help from others or even trying to run away. Apart
from that from the record, it is seen that PW6 in
the FIR had stated that “I got information from my
wife in the house that Geeta went away by taking
clothes and a gold chain and she took Rs.500/- in
cash in total amounting to Rs.8500/-” This evidence
though subsequently resiled by PW6 indicates that
PW1 had planned her departure from the house in
advance and had willingly gone away with the
appellant which also indicates that there was no
threat or inducement either in regard to her
leaving the house or in regard to accompanying the
appellant. In such situation in the absence of any
other material to show to the contrary, it will be
difficult to accept the prosecution case that
either there was a forcible marriage or rape as
contended by the prosecution to find the appellant
guilty under Section 366 or 376 IPC. Since the
courts below proceeded on the basis that PW1 was a
girl below the age of 18 on the date when she left
the house they have not properly appreciated the
evidence in regard to her consent which is a
mandatory requirement before finding a person
guilty under Section 366 or 376 IPC.

The other decision is Kuldeep Mahato v. State of Bihar
((1998) 6 SCC 420). It was held:

“Then coming to the conviction of the
appellant under Section 376 IPC, although both the
courts below have held after accepting the evidence
of the prosecutrix as being truthful that the
appellant had forcibly committed the rape, we are
of the opinion that the said finding is
unsustainable. The prosecutrix had sufficient
opportunity not only to run away from the house at
Ramgarh but she could have also taken the help of
the neighbours from the said village. The medical
evidence of Dr.Maya Shankar Thakur, PW5 also
indicates that there were no injuries on the person
of the prosecutrix including her private parts.
Her entire conduct clearly shows that she was a
consenting party to the sexual intercourse and if
this be so, the conviction of the appellant under
Section 376 IPC cannot be sustained. There is one
more additional factor which we must mention that
it is not the case of the prosecutrix that she was
put in physical restraint in the house at Ramgarh,
with the result that her movements were restricted.
This circumstance also goes to negative the case of
forcible intercourse with the prosecutrix by the
appellant.”
In the light of the facts discussed above, these dicta as
aforesaid can safely be applied to this case to come to the
conclusion that there is no convincing evidence to show
that she was not an unwilling partner for the sexual
intercourse. The claim of the accused to at least the
benefit of doubt has to be considered anxiously.
80. It cannot be contended any more, as the
learned Public Prosecutor did, that the absence of consent
is a matter beyond the burden of proof by the prosecution.
The definition of rape under Section 375 I.P.C. reveals
that a person having intercourse with a woman against her
will and without her consent is guilty of that offence. A
man shall be said to commit rape if he had sexual
intercourse with a woman against her will, without her
consent or with the consent generated by putting her or any
person in whom she is interested in fear of death or of
hurt. Admittedly, according to the prosecution, PW3 had
crossed the age of consent, viz.,. 16 years. So want of
consent is an ingredient of the offence and that ingredient
has to be proved by the prosecution by some reliable
evidence. Then alone rebuttal by proving positive consent
arises. The Supreme Court in Uday (AIR 2003 SC 1639) has
made it explicit in unequivocal terms that court:

“must also weigh the evidence keeping in view the
fact that the burden is on the prosecutrix to prove
each and every ingredient of the offence, absence
of consent, being one of them”.
This was again reiterated in Deelip Singh v. State of
Bihar (JT 2004 (9) SC 469) that:
“the burden is on the prosecutrix to prove that
there was absence of consent.”
81. Consent is certainly “an act of reason,
accompanied with deliberation, the mind of weighing, as in
a balance, the good and evil on each side”. The Public
Prosecutor is justified in contending so. Consent supposes
three things – a physical power, a mental power and a free
and serious use of them. These ensure only the avoidance
of intimidation, force, undue influence etc. It does not
mean that use of these factors shall result in an
intelligent, wise and righteous decision. In other words,
it should not be a mere act of helpless resignation, non
resistance and passive giving in. Therefore as held in
State of Himachal Pradesh v. Mango Ram (JT 2000 (9) SC
408):

“Whether there was consent or not is to be
ascertained only on a careful study of all relevant
circumstances.”
82. Section 90 I.P.C. specifies what cannot be
regarded as consent under the Code. Consent given under
fear of injury and under misconception of fact is not
consent at all. That is what is enjoined by the first part
of Section 90. This is from the point of view of the
victim. The second part of Section 90 envisages that the
indictee must have knowledge or reason to believe that the
consent was given by the victim in consequence of fear of
injury or misconception of fact. Thus the second part lays
emphasis on the knowledge or reasonable belief of the
person who obtains the tainted consent. The requirements
from the points of view of both the parties have to be
cumulatively satisfied. It has been held in Deelip Singh
(JT 2004 (9) SC 469) that:

“In other words, the court has to see whether the
person giving the consent had given it under fear
of injury or misconception of fact and the court
should also be satisfied that the person doing the
act i.e. the alleged offender, is conscious of the
fact or should have reason to think that but for
the fear or misconception, the consent would not
have been given. This is the scheme of Section 90
which is couched in negative terminology.”

Again as cautioned in that decision itself:

The decided cases on the issue reveal different
approaches which may not necessarily be
dichotomous. Of course the ultimate conclusion
depends on the facts of each case.”
83. We have pointed out earlier, several
situations including in hospitals when the victim in this
case had the sure chances for escaping from the accused
who, according to her, put her in great trauma of sexual
exploitation. Reversing the conviction under Section
376(1) as confirmed by a High Court, the Supreme Court held
in Kuldeep K.Mahato v. State of Bihar (1998) 6 SCC 420)
that:

“Then coming to the conviction of the
appellant under Section 376 IPC, although both the
courts below have held after accepting the evidence
of the prosecutrix as being truthful that the
appellant had forcibly committed the rape, we are
of the opinion that the said finding is
unsustainable. The prosecutrix had sufficient
opportunity not only to run away from the house at
Ramgarh but she could have also taken the help of
the neighbours from the said village. The medical
evidence of Dr. Maya Shankar Thakur, PW5 also
indicates that there were no injuries on the person
of the prosecutrix including her private parts.
Her entire conduct clearly shows that she was a
consenting party to the sexual intercourse and if
this be so the conviction of the appellant under
Section 376 IPC cannot be sustained.”
84. More over, is it safe to sentence three dozens
of persons solely on the uncorroborated testimony of PW3
which arouses in the mind of the court the dissatisfactions
referred above? Even in a rape case involving half a dozen
persons, that too in an alleged rape only on a day, the
Supreme Court in Surjan & ors. v. State of M.P. (AIR
2002 SC 476) observed – we may quote on fear of repetition
– as follows:

“In a case where six indicted persons should be
visited with a minimum sentence of 10 years’ RI,
the Court cannot afford to act on the
uncorroborated testimony of the prosecutrix unless
the said evidence is wholly reliable.”
In the line of the reasoning adopted by the Supreme Court
in Sudhansu Sekhar Sahoo v. State of Orissa (AIR 2003 SC
2136):

“All these factors cast a serious doubt on the
prosecution case. Though there is no apparent
motive for Ms.X to falsely implicate the appellant,
it may be that Ms.X must have changed her mind when
she came to know that others must have come to know
of her conduct. So there are so many loose ends in
the prosecution case. On a consideration of the
broad probabilities of the case, we feel that
various factors cast a serious doubt about the
genuineness of the case of Ms. X that she had been
forcibly ravished by the appellant. The appellant
is certainly entitled to the benefit of doubt.”
85. In the aforesaid circumstances, we have to
seek corroboration or at least some assurance to the
evidence of PW3 on the precise aspect of want of consent.
It is not enough if there is evidence of presence and
intercourse between PW3 and the indictees. Assurance and
satisfaction is needed on the precise aspect of want of
consent. Keeping in mind the aspects dealt with earlier,
we are hesitant to place implicit and absolute reliance on
the testimony of the prosecutrix alone on this vital
aspect. The judicial conscience does not get the assurance
which it is strenuously searching for on this vital aspect.
The Supreme Court in Chandraprakash Kewalchand Jain’s case
(supra) observed that:

“If for some reason the Court is hesitant to place
implicit reliance on the testimony of the
prosecutrix it may look for evidence which may lend
assurance to her testimony short of corroboration
required in the case of an accomplice.”
We did not get any assurance on absence of consent.
Necessarily it is to be held that the prosecution failed to
prove that there was absence of consent in this case.
Therefore, giving the benefit of doubt the conviction under
Section 376(1) I.P.C. shall have to be reversed in this
case.
86. It is also to be noted that during the sojourn
of 40 days, there was no physical restraint of P.W.3. She
had been allowed to travel freely. She does not have a
case that she was confined in the house of Accused No.38.
As spoken to by D.W.4, she was seen in the courtyard and
verandah in the house of Accused No.16. She was alone in
Hotel Geeth at Trivandrum in a room for a whole day.
P.W.12 was compassionate towards her while in that hotel.
No body else was there at that time. When there is no
physical restraint, that will speak much about the consent
for sexual intercourse. This is one more additional factor
to be considered as held in Kuldeep K. Mahato v. State of
Bihar (1998 (6) SCC 420) as follows:
“There is one more additional factor which we must
mention that it is not the case of the prosecutrix
that she was put in physical restraint in the house
at Ramgarh, with the result that her movements were
restricted. This circumstance also goes to
negative the case of forcible intercourse with the
prosecutrix by the appellant.”
87. There were several occasions for P.W.3 to
reveal her identity to the non-rapists with whom she had
come across and sought help. That she did not do so is an
indicative factor that she may not have been unhappy with
those who had been keeping her. She did not raise any
objection with the treatment that she was receiving from
their hands. If she had any humiliating or unbearable
treatment, she could have, while in bus or bus stand on
several occasions or in hospitals on two occasions or with
P.W.12 who showed mercy towards her or while in the house
of A16, A38 or A39 or in the house of the relatives of
accused No.3, escaped or at least attempted to escape from
the clutches of the accused.
88. The medical opinion available in this case
also is of no help to the prosecution to prove that there
was intercourse using force. As admitted by the victim,
P.W.3, on 21/2/1996, the accused Nos.2 and 17 took her to
the Periyar Hospital at Kumily. P.W.27 is the Doctor there
and Ext.P24 is the O.P. card. The ailment as disclosed by
Ext.P24 was sore throat since a day and mild cough. Her
real name was not disclosed there. According to her, she
was taken by them to the Hospital from the rest house at
Kumily. She was brought there on 15/2/96. At that time,
she says in evidence that, there was puss in her vagina and
that accused No.3 and Dharmarajan took several persons to
her room. From 15/2/96 to 21/2/96 when she was taken to
the hospital, according to her, inspite of puss coming from
her vagina, accused Nos.12, 11, 15, 13, 20, 37, 24, 31, 26,
25, 19, 18, Dharmarajan and Devassiachan had raped her.
Few of them had raped her even more than once. According
to her, during those days her condition was precarious.
She had acute pain on the back of her hip.
89. To rape a girl with such ailments, pain and
infected vagina may be humanly impossible, as contended by
the appellants, except with roaring cry of the victim. She
has no case that she cried aloud on any occasion. It is in
this background, the ailment of sore throat complained of
to P.W.27 Doctor on 21/2/96 has to be viewed. Even if as
stated by P.W.3, the ailment has been told by any of the
accused who accompanied her or even if any one had
threatened her not to disclose her true name or cause of
ailments, nothing prevented her to disclose her full
details and predicament to P.W.27, a doctor while in his
hospital. She was in the protection of a doctor in a safe
place like hospital wherefrom no one could snatch her away.
A person like P.W.3 with the ailments as spoken to by her
during those days could not be believed to have not
disclosed such ailments if there had been such ailments.
P.W.27, the doctor also deposed that she was normal in gait
and appearance and that P.W.3 told him, that she was on
visit to Thekkady a hill resort and was on her return
journey to Ponkunnam. Thus, she had told these details to
the doctor. If somebody else told so, she could have
revealed the truth to the doctor, while in that hospital.
This is indicative of the fact that there was no forced
intercourse by nearly 15 persons as mentioned above during
that week. If she suffered any such pain or ailment as to
make intercourse painful and hence impossible, it is
unlikely that she would not have complained to the doctors.
90. Again, the relatives of Accused No.3 took her
to Anbu Hospital, Elappara on 25/2/96. It is to be noted
that from Periyar Hospital she was taken to Kambam where
according to her two persons including accused No.35 raped
her. Later she was taken to Kumily again. She was unable
to walk, she says. She stayed with accused Nos.2 and 17
for two days. Later she was taken to the house of the
relatives of accused No.3. It was from that house she was
taken to Anbu Hospital.
91. P.W.28 is the Doctor in Anbu Hospital. P.W.29
is the nurse there. Ext.P25 is the treatment card. This
discloses that her only complaint was constipation and back
pain. There also she did not disclose her true name and
identity. The doctor prescribed enema and an injection.
According to him, “she was not terrified”, “her heart beat
was normal”, though “she was very weak”, and “after the
treatment, patient was relieved of her symptoms”. He says
that “repeated intercourse may cause constipation”. P.W.29
nurse administered enema. According to her, she had been
with P.W.3 for about 30 minutes. P.W.3 did not during this
time reveal her plight to this nurse also. This evidence
of P.W.28, P.W.29 and Ext.P25 also do not reveal any rape.
P.W.3 could have, if she had been in the beastly clutches
of the accused, told the doctor her true situation, if she
had been in such predicament. The inescapable probability
is that even on such second occasion when she visited the
doctor she did not suffer from any such ailment as to make
intercourse painful and unbearable. Her physical condition
then cannot convincingly contra indicate consent.
92. As already mentioned above, her sojourn of 40
days ended on 26/2/96 when she reappeared in the office of
her father, P.W.1. According to him, she was very weak and
was not in a position to walk. Inspite of that she was not
taken to any doctor on that day. Her mother is a nurse in
a Hospital. She also did not take her to any hospital.
She was brought near the police station of P.W.82 who was
investigating the man missing case registered as per
Ext.P1(a) FIR. He did not take her statement. He did not
even see her. She was not produced before a Magistrate.
Inspite of all these she was allowed to go home with P.W.1.
According to P.W.1, she disclosed the entire story to her
mother. She, being a paramedical staff, did not think of
taking her to hospital. Next day also she was not taken to
hospital. She was brought to the police station by P.W.1
again. These reveal at least a doubt that she was not in
such an unhealthy position as P.W.3 or P.W.1 says in court.
The theory that she could not have consented to any sexual
intercourse on 25/2/96 or the immediately preceding days is
not supported by her physical condition as perceived by
P.W.1 or his wife, who did not take her to a doctor till
28/2/96.
93. She was taken to a doctor for medical
examination only on 28/2/96 by P.W.95. P.W.73 is the
Doctor who examined her at about 2.30 P.M. on that day.
Ext.P95 is the report of that medical examination. It did
not reveal any struggle by P.W.3, perhaps because of the
passage of time as submitted by the Public Prosecutor. But
it is crucial that even P.W.3 had no case of any such
violent physical resistence by her against the rapist at
any time.
94. Vaginal examination was painful, valva was
oedematous. There was infection. There was purulent foul
smelling discharge. P.W.73 says that intra uterine
contraceptive device can also cause infection. In
chief-examination he says that “she would have suffered
severe pain during the sexual act if it had continued as
stated by her during the period of infection’. In further
cross, he says that, he examined vaginal wall and that he
did not find it lacerated. He also agreed that during
violent intercourse “laceration in vaginal wall occurs
posteriorly”. In further cross-examination by the accused
he answered specific questions as follows:
“On the condition you had seen when P.W.3 was
examined by you, I put it you that it is not
possible to have sexual intercourse with P.W.3(Q).
It is possible provided force and intimidation is
used (A). If force is used she would cry loudly
(Q) Yes (A)”.
P.W.3 has no case that she had even wept while during the
alleged rapes continuously, much less any loud cry. Even
on the night of 24/2/96, there was, allegedly, rape on her.
In spite of that no resistance mark was found on her body.
According to P.W.73, the Doctor “there was no signs or
evidence of resistance”. According to him, sign of
resistance is the most common feature in a case of rape and
as she was subjected to violent sexual intercourse “there
can be signs of resistance”. Of course, as submitted by
the Special Public Prosecutor, signs of resistance is not a
conclusive factor to determine consent as such. But, in
the over all circumstances of this case and alleged rapes
continuously for days together by several persons,
necessarily, it must be reckoned as a relevant input.
Thus, the medical evidence in this case also does not offer
any specific and satisfactory probative corroboration to
the testimony of P.W.3.
95. We are unable to persuade ourselves to accept
the omnibus explanation that P.W.3, a girl of less than 17
years of age, was terrified and all the pieces of conduct
and circumstances which are incongruent to the theory of
absence of consent deserves to be ignored on that score.
The Investigating Officer – P.W.97 appears to have felt,
perhaps rightly, as it seems to us, that he need not unduly
worry about the acceptability of the evidence of P.W.3
about want of conseent. He appears to have swallowed the
later assertions of P.W.3 leaving it to the court to
consider whether P.W.3 should be believed or the benefit of
doubt should be conceded to the accused. One should not
approach the question of acceptability of the evidence in
an over simplified manner – that P.W.3 is a girl of tender
age i.e. sixteen plus; that she has no reason to consent
to sexual intercourse; that love, lust or money could not
have persuaded her to consent; and that consequently she
would not have consented.
96. Money she needed. She was willing to raise
the same even by objectionable manner admittedly – by
misappropriating Rs.450/to be paid as hostel fees, and by
clandestinely pledging her ornaments to the jeweller. She
was admittedly willing to “go on a tour” with Accused No.1
without any specific plan for marriage and family life with
him. She cladestinely took her mother’s sarees and cash
with her when she left her home planning all the time to
deceive her parents. The learned Sessions Judge was too
unsuspecting, non-cautious and willing to accept P.W.3’s
evidence on want of consent. Perhaps the error in approach
lay there. The question of consent was decided by the
learned Sessions Judge without cautious consideration,
without critical assessment, without assessment of
probabilities, without refering alertly to the law relating
to burden of proof and benefit of doubt. We are unable to
endorse that very approach. The appreciation of evidence
by court cannot be that of an indulgent unfortunate parent
of the victim girl. Even in the wake of the unfortunate
plight of P.W.3 and the trauma of the parents, the court
cannot lose its poise and be swayed. Objective and
critical analysis is the unavoidable duty of the court.
97. We do also note that the learned Sessions
Judge did not at all consider the question whether there
was manifestation of the alleged absence of consent on the
part of P.W.3 and whether the same was signified to those
who had sexual intercourse with her. Going by the case of
the prosecution, many of the accused went to her only
assuming that she is a prosotitute. Going to a prostitute
is improper and immoral. It offends the sense of
righteousness of the enlightened members of the polity.
But the criminal court is not pronouncing on morality but
culpability. When most of them entered her room or she
(P.W.3) entered their room, the male indictees were guilty
only of the immorality of going to a woman, who they
thought was a prostitute. It becomes rape only when she
conveyed her unwillingness within the closed room. Her
omnibus statement that to all who approached her inside the
closed room she had verbally conveyed and signified her
absence of consent cannot be readily swallowed considering
the anterior, immediate and subsequent conduct of hers. At
any rate, we are persuaded to favourably consider the plea
for benefit of doubt.
98. That most, if not all, the accused had not
specifically pleaded consent cannot persuade this Court not
to consider that plea which arises on probabilities and on
the basis of arguments raised. The conduct alleged is
certainly immoral, by accepted norms of respectable
behaviour. That the accused did not admit their
indiscretion/immorality cannot persuade us to ignore that
contention.
99. While assessing broad proabilities, we must
note that P.W.3 and her parents needed an explanation to be
offered for consumption by the other members of the family
and public. They could not have accepted the theory of
voluntary departure and immoral life of P.W.3, even if that
were true even. To save their honour, a version that
pictures P.W.3 as an unwilling victim was essential. The
theory that no victim would advance a false version of rape
as it would harm her as much or more than it would harm the
indictee has no application in the facts of the instant
case.
100. Here was a case where an explanation which
absolves P.W.3 of contumacious behaviour was needed to save
P.W.3 and her family. The hypothesis of the accused that
such theory was pressed into service on 27/2/96, after
P.W.3 returned on 26/2/96 after due contemplation and
reflection deserves cautious consideration. That
hypothesis cannot be discounted without careful evaluation.
101. In such circumstances, we find that there is
no satisfactory proof of absence of consent so far as P.W.3
is concerned or to show that the alleged rapist did have
the knowledge that she was not consenting willingly. The
benefit of doubt shall have to be given to the accused so
far as the accusation for the offence punishable under
Sec.376(1) IPC is concerned. Therefore, giving them the
benefit of doubt, the conviction under Sec.376(1) IPC shall
have to be reversed in this case.
102. But the offence punishable under
Sec.376(2)(g) IPC, as rightly pointed out by the Special
Public Prosecutor is on a different pedestal. The consent
aspect when spoken to by the victim gives rise to a
presumption that occurrence was in the manner that she had
spoken to, going by Sec.114A of the Evidence Act. P.W.3
had stated that there was no consent from her part when
more than one person raped her.
103. A detailed examination of the evidence given
by P.W.3 reveals that there had been only two occasions,
when there were more than one person simultaneously inside
the room when such alleged intercourse had been committed
on her. One is in Hotel Trisea in Kanyakumari and the
other in Hotel Geeth at Trivandrum. On the morning when
she reached Hotel Trisea along with Dharmarajan, Accused
Nos.2, 3 and P.W.8, Dharmarajan committed rape in the
presence of others and Accused No.3 had asked that she
shall keep quiet; otherwise she would have to face the
consequences. The second occasion is the one when Accused
Nos.4 and 28 were found lying naked on either side of
P.W.3, by P.W.10 room boy of Hotel Geeth who came there
raising objection against three persons occupying a double
room and to supply an extra bed for them. There was a
wordy quarrel between Accused No.4 and P.W10 at that time.
104. On the first occasion, P.W.3 had gone to
Trisea Lodge with Dharmarajan and Accused No.3 from Theni.
Necessarily, in the light of the facts discussed above, her
theory of absence of consent cannot be believed as such
without due assurance. Sec.114A enacts only a rebuttable
presumption of fact and not law. The amount of
circumstances ncessary to rebut the presumption would
certainly vary from case to case. The consent aspect has
already been discussed above and found that it cannot be
held beyond doubt that there was absence of consent. These
are the circumstances in rebuttal of the presumption also.
The only corroboration for her evidence on gang rape is
from P.W.8. She was an accused initially. She was later
transformed as a witness. It was held in Vemireddy
Satyanarayan Reddy v. State of Hyderabad (1956 SC 379) as
follows:
“There is no warrant for the extreme
pro-position that if a man sees the perpetration of
a crime and does not give information of it to
anyone else, he might well be regarded in law as an
accomplice and that he could be put in the dock
with the actual criminals. Indeed, there can be no
doubt that the evidence of such a man should be
scanned with much caution and the Court must be
fully satisfied that he is a witness of truth,
especially when no other person was present at the
time to see the murder.
Though he was not an accomplice, the Court
would still want corroboration on material
particulars as he is the only witness to the crime
and as it would be unsafe to hang the accused (four
in this case) on his sole testimony unless the
Court feels convinced that he is speaking the
truth. Such corroboration need not, however, be on
the question of the actual commission of the
offence; What the law requires is that there should
be such corroboration of the material part of the
story connecting the accused with the crime as will
satisfy reasonable minds that the man can be
regarded as a truthful witness.”
It is not therefore safe to implicitly believe P.W.8.
P.W.8 who continued on the array of accused was on fine
morning transposed from the array of accused to the array
of witnesses by PW.97. From the date of her arrest viz.,
9/4/96 till 24/8/99 when she was deleted from the array of
accused as per Ext.P181 report, she was an accused. The
remand report submitted after her arrest shows that her
statement under Sec.161 Cr.P.C. was recorded. But after
she was transposed as a witness it is asserted that there
was no earlier statement recorded from her. The contention
of the accused that the prosecution is suppressing that
statement and the present 161 and 164 statements were
obtained by her on the price of her transposition from the
array of accused to that of witnesses does appear to be one
with force. One weak piece of evidence cannot be
strengthened by another one of the same type. So the
alleged gang rape at Hotel Trisea is not conclusively
proved.
105. Coming to the second occasion, when P.W.10
found P.W.3 in between the two naked males, she had been
hiding her face in the bed lying face down. P.W.10 has
spoken so. Even in spite of quarrel between Accused No.4
and P.W.10, she did not seek any help from P.W.10 to get
out of the pains of the alleged gang rape committed by
Accused Nos.4 and 28. Therefore, absence of consent is not
at all discernible from that conduct. It is also to be
noted that Accused Nos.4 and 28 had been sleeping inside
the room on either side of P.W.3 without even locking the
door from inside. That is evident from what P.W.10 had
spoken to. According to him, when he knocked the door
there was no response Hence he just opened the door and
found three persons inside the room. It does not stand to
commonsense that two persons will commit gang rape without
even taking the precaution of locking the room. When the
room had not been locked, it would have been easy for her
to escape or to attract the attention of others, so that
she could be rescued. The confidence of the male indictees
is indicative of the situation inside the room. It is
certainly not suggestive or confirmative of the theory of
absence of consent. The presumption available in terms of
Sec.114A of the Evidence Act stands rebutted in so far as
the accused are concerned in respect of the said two
incidents.
106. The other incidents of gang rape alleged by
the prosecution is in the Panchayat Rest House in Kumaly
and elsewhere. It is true, as spoken to by P.W.3, more
than one person had sexual intercourse with her in the same
place on the same day. It has also come out in her
evidence that more than one person had simultaneously
approached her or was brought to show her. But her
evidence is that there was none other than the individual
rapist when the alleged rape had occurred. At the risk of
repetition, we must note that according to the prosecution,
more than one person came to her for the purpose of illicit
sexual intercourse. Till they entered the room and she
allegedly signified her unwillingness, they had no
intention or common intention of committing rape or gang
rape. Admittedly, at that place, at the time of alleged
rape none else than the alleged rapist was present. Their
individual separate acts of intercourse become rape only
when inside the room P.W.3 allegedly signified her
unwilligness. Ingredients of common intention to commit
rape or jointness in action are significantly absent. In
order to bring a rape within the definition of gang rape,
as per Explanation-I to Sec.376 IPC a woman must have been
raped by ” one or more in a group of persons acting in
furtherance of their common intention”. In such
circumstances, each such person shall be deemed to have
committed gang rape. The Special Public Prosecutor is well
justified in contending that there need not be a completed
act of rape by all the companion rapists. His contention
is supported by the decision reported in Bhupinder Sharma
v. State of Himachal Pradesh (AIR 2003 SC 4684) where it
was held that:
“In cases of gang rape the proof of
completed act of rape by each accused on the victim
is not required. The statutory intention in
introducing Explanation (1) in relation to Section
372(2)(g) appears to have been done with a view to
effectively deal with the growing menace of gang
rape. In such circumstances, it is not necessary
that the prosecution should adduce clinching proof
of a completed act of rape by each one of the
accused on the victim or on each one of the victims
where there are more than one in order to find the
accused guilty of gang rape and convict them under
Section 376, IPC. (See Promod Mahto and Others v.
The State of Bihar (AIR 1989 SC 1475)”.
But at the same time, all the persons must be acting in a
group in furtherance of their common intention, thereby the
rapists must form a group at the time of the commission of
the offence.
107. The Public Prosecutor submits that rape by
one after another also comes within the definition of `gang
rape’, even if one is not present when the other committed
rape. He cited the decision in Pramod Mahto and Others v.
State of Bihar (1990 SCC (Cri) 206) where it was held that:
“Once it is established that the appellants had
acted in concert and entered the house of the
victims and thereafter raped P.W.1 Jaiboon Nisa,
then all of them would be guilty under Section 376
IPC in terms of Explanation I to clause (g) of
sub-section (2) of Section 376 IPC irrespective of
whether she had been raped by one or more of them.
The Explanation in question reads as under:
“Where a woman is raped by one or
more in a group of persons acting in
furtherance of their common intention, each
of the persons shall be deemed to have
committed gang rape within the meaning of
this sub-section.”
This dictum does not in any way support his contention.
108. A measure of jointness in action and forming
of a single group is essential. It was held by the Supreme
Court in Ashok Kumar v. State of Haryana (AIR 2003 SC 777)
that:
“Charge against the appellant is under
S.376(2)(g), IPC. In order to establish an offence
under S.376(2)(g), IPC, read with Explanation I
thereto, the prosecution must adduce evidence to
indicate that more than one accused hadf acted in
concert and in such an event, if rape had been
committed by even one, all the accused will be
guilty irrespective of the fact that she had been
raped by one or more of them and it is not
necessary for the prosecution to adduce evidence of
a completed act of rape by each one of the accused.
In other words, this provision embodies a principle
of joint liability and the essence of that
liability is the existence of common intention;
that common intention presupposes prior concert
which may be determined from the conduct of
offenders revealed during the course of action and
it could arise and be formed suddenly, but, there
must be meeting of minds. It is not enough to have
the same intention independently of each of the
offender. In such cases, there must be criminal
sharing marking out a ccertain measure of jointness
in the commission of offence.”
The person acting in a group in furtherance of their common
intention is distinguishable from several persons coming
with the similar intention of having sexual intercourse
with a girl individually. Then there will not be, acting
in furtherance of common intention by group of persons as
enjoined by the Explanation I to Sec.376. Even going by
the evidence of P.W.3, persons came together with the
similar intention and approached her for intercourse. But
at the time of intercourse, as spoken to by her, there was
presence of only one. Even if she expressed unwillingness
to that person who had intercourse to make such intercourse
amount to rape, it cannot be said that the person waiting
outside for his turn of intercourse is a party joined in a
group in the commission of the offence of rape allegedly
committed by the person already inside. There was no act
in furtherance of common intention by the person who was
waiting out side who did not know that the girl had not
consented. If at all there was any intention, it was only
immoral similar intention of having intercourse and not a
culpable common intention to commit rape.
109. Thus there is no proof of any gang rape
committed by any of the accused in this case.
Consequently, the conviction in that regard shall also have
to be set aside.
110. There is also an allegation against
Dharmarajan that he had robbed PW.3 of her money and
ornaments. He was found guilty of the offence punishable
under Sec.392 IPC. Even going by the evidence of P.W.3,
she was alone in the room on several occasions including in
Metro Lodge at Kottayam, Anand Lodge at Ernakulam and in
the house of Accused No.16 at Vanimel in Calicut. If at
all he had an intention of taking away the jewellery or
cash from the hands of P.W.3, it was easy for him to grab
it when she was alone with him there. On the other hand,
the case of P.W.3 is that she had been taken to the
jewelers and on the way while in autorickshaw and in the
jewellery shop she was forced to part with the jewellery
like ear stud, ear drops, silver anklets etc. That story
cannot be believed. If at all Dharmarajan had an intention
to rob her, he had ample opportunity to do so in several
places at Kottayam, Ernakulam and at Vanimel while she was
alone in a room with him. The idea of taking the victim
also to the jewellers and threatening and compelling her
there to part with ornaments does not inspire us. The
allegation of robbery is thus inherently improbable and not
convincing. Therefore, the conviction under Sec.392 IPC in
so far as Dharmarajan is concerned also cannot be stated to
be justified. The evidence of P.Ws.34 and 35, the owner
and the salesman in the jewelleries concerned where the
ornaments of P.W.3 had been sold is also not helpful so far
as the prosecution is concerned. It will, at best, be
revealed from their evidence that P.W.3 was also a party to
give away the ornaments to Dharmarajan for being sold.
What are recovered are only M.Os.19 and 20 ingots and not
the ornaments allegedly taken away. Necessarily the
conviction under Sec.392 IPC is not justified and it is to
be reversed.
111. Now we will come to other offences under
Secs.366A and 372 IPC relating to sex trade. The offences
under Secs.372 and 373 IPC have been alleged against all
the accused in the 1st case. But all of them have been
acquitted of the offences under the said counts. No appeal
has been preferred by the State against the acquittal of
the 35 accused in S.C.No.187/99 of the offences punishable
under Secs.372 and 373 relating to sex trade. So we
cannot, in the absence of an appeal by the State, examine
whether the said 35 persons are guilty of the offence of
sex trade punishable under Sections 372 and 373 IPC.
112. Accused No.1 in the first case alone had been
convicted under Sec.366A IPC principaly. Accused Nos.1 to
8, 12, 14 and 17 had been convicted for the offence under
Sec.120B read with Sec.366A IPC. The conspiracy has
already been found against the prosecution. Placing
reliance on the indications regarding letter of P.W.3,
involvement of accused No.1 has been ruled out as he had no
role in the alleged conspiracy. Even according to the
prosecution, he had no role at all except on the initial
day to kidnap the girl. Kidnapping is also found against
the prosecution. So there arises no question of commission
of the offence under Sec.366A by accused No.1 in the light
of the prosecution case itself. Therefore, the conviction
of Accused No.1 under Sec.366A IPC and Accused Nos.1 to 8,
12, 14 and 17 for the offence of conspiracy to commit that
offence cannot be sustained.
113. Even going by the admitted case of
Dharmarajan in his Sec.313 statement, P.W.3 had come in his
hands at the park in Ernakulam. Thereafter, as further
admitted by him, he had taken her from the park to Anand
Lodge in Ernakulam, to Palakkad, to Vanimel, to Kumali and
to Theni. During the journey and stay at those places,
there had been sexual intercourses by several with P.W.3.
Admittedly, P.W.3 was below the age of 18 years and was
therefore a minor. P.W.3 has also deposed that she had
been moved from place to place and subjected to sexual
intercourse. Dharmarajan has no case that she is in any
way related to him. She did not and could not have moved
from place to place on her own. So, in order to take the
girl with him, there must have been inducement; in
whatsoever form. Thus, it is clear from the evidence of
P.W.3 and as admitted by Dharmarajan that he had taken
P.W.3 from place to place. At such places she had been
subjected to illicit intercourse. She was thus taken from
place to place knowing that she was likely to be used for
such purpose. The intercourse, the others had with P.W.3
was illicit intercourse. Thus, going by the evidence of
P.W.3 and in the light of the admitted stand of
Dharmarajan, it has been conclusively and beyond doubt
proved that the offence under Sec.366A IPC has been
committed by Dharmarajan.
114. It has also come out in the evidence of P.W.3
that several other persons did have inter course with her.
This had happened and could only happen if Dharmarajan had
disposed her for that purpose. Otherwise she will not come
in the hands of others for such intercourse. She was not
married to any one of them. So those are illicit
intercourses coming within Explanation 2 to Sec.372 IPC.
Thus, it is clear that Dharmarajan has committed the
offence punishable under Sec.372 IPC as well.
115. It is submitted by counsel for Dharmarajan
that there was no monetary transaction to reveal the
offence under Sec.372 IPC and there is no evidence to show
that PW.3 had been sold for money or let to hire for money.
Apart from the facts admitted by him, it is clear that
Dharmarajan had taken her to several places including to
Kanyakumari and thereafter from the house of Accused No.38
to Kuravilangadu. Exts.P59 and P59(a) and the evidence of
P.W.47 show that Dharmarajan has taken P.W.3 to Hylux Lodge
in Palghat. Q.8 identified by P.W.76 handwriting expert
corroborates this aspect. Exts.P62 and 62(a) prove his
presence with P.W.3 at Indira Lodge, Kambam. This is duly
fortified by Q.22 and 22(a). P.W.50 the Manager of Thottam
Lodge, Muvattupuzha, testifies his presence with P.W.3
there. Exts.P74 and 74(a) fortified by Q.29 and 29(a)
satisfactorily prove this fact. P.W.4 Receptionist in
Aroma Lodge identifies Dharmarajan as the son-in-law of one
among their permanent customers and that he had been there
with a girl. P.W.3 deposes that she had been taken there.
Thus, it is proved beyond doubt that he had taken P.W.3 to
several places. There is also evidence that during the
sojourn there had been intercourses with her by several and
such intercourses are illicit intercourses so far as a girl
like P.W.3 under the age of 18 years was concerned. There
is evidence from the mouth of P.W.3 herself. It is also
the admitted case of Dharmarajan that she had been taken
from place to place. This was done knowing that it was
likely that she would be seduced and offered for illicit
intercourse with others. Accused Dharmarajan can, in these
circumstances, safely be held to have committed the
offences punishable under Secs.366A and 372 IPC subject of
course to the decision on the question of unfairness in
investigation/ trial and consequent prejudice.
116. We have not in detail adverted to the
evidence of P.W.3 about the details of her movements after
she left the hostel on 16/1/96 and reached her father’s
office on 26/2/96. We are satsified broadly that her
evidence regarding her movements and the persons with whom
she had intercourses need not be doubted. The
Investigators have cross checked such movements. Inasmuch
as we have conceded the benefit of doubt to the indictees
on the question of consent we are not proceeding to
consider the evidence in detail. We do take note of the
contentions raised by some of the accused that there is no
sure substantive evidence of identification in court and
that the learned Sessions Judge has improperly chosen to
place reliance on evidence of identification in the Test
Identification parade in the absence of substantive
evidence of identification. Contentions have also been
raised by the accused regarding the propriety of the Test
Identification parade held. In view of our findings
rendered earlier, we are not embarking on a detailed
discussion on those aspects.
117. We shall now consider the contentions
regarding infraction of procedural safeguards in the
interests of fair trial and the consequent prejudice that
has resulted. In this regard it is contended by the
accused including Dharmarajan that the prosecution having
not furnished to the accused the entire statements given by
P.W.3 to the Investigating Officers, there was prejudice in
moulding their defence. Even according to the prosecution
the statements of P.W.3 recorded by P.W.93 on 8/3/96,
10/3/96 and 15/3/96 which in any view of the matter the
prosecution is bound to produce and furnish compies had not
been produced in court initially as enjoined under
Sec.173(5) Cr.P.C. and copies thereof were not furnished
to the accused as enjoined under Sec.207(iii) Cr.P.C.
According to the accused, two other statements from P.W.3
were also not furnished to them. This disabled them to
mould their defence from the initial stage, before P.W.3
faced cross-examination. It may be true that the said
statements had been produced belatedly in the first case.
That did not wipe off the prejudice already occasioned, it
is submitted. Though produced, copies were not furnished
to them, it is further contended. Certainly, these are
contentions which have to be considered at length.
118. The decision cited by the accused in this
regard reported in Kottaya v. Emperor (AIR (34) 1947
P.C.67) fortifies this contention. When the statements
relied on by the prosecution are not made available to the
accused, “an inference, which is almost irresistible, of
prejudice to the accused” arises. The counsel for the
accused has also relied on the decision of a Division Bench
of this Court reported in Murali v. State of Kerala (2003
(3) KLT 226) where this Court had held that non-supply of
Sec.161 statement obtained from the occurrence witnesses
will cause prejudice. At the same time, the learned Public
Prosecutor has relied on the decision reported in Sunita
Devi v. State of Bihar (AIR 2004 SCW 7116) to substantiate
that every non-supply shall not be reckoned as amounting to
prejudice. There must be proof of miscarriage of justice
as held in by a Full Bench of this Court in Rugmini v.
State of Kerala (1986 KLT 1356).
119. In the decision of the Privy Council it had
been held that the non-supply of certain statements relied
on by the prosecution will result in an irresistible
inference of prejudice to the accused. There cannot be two
opinions on this proposition of law. It has also been held
by a Division Bench of this Court in Murali’s case to which
one among us (Abdul Gafoor,J.) was party that non-supply of
the document would result in prejudice. But that decision
has to be read in the light of the facts therein. The
facts in Murali’s case were that P.W.2 deposed that he had
seen the injury being inflicted by the accused on his
step-father, the deceased. But some how or other the
accused got smell about an earlier statement made by that
witness to the police wherein he had not stated that he had
seen the occurrence. The copy of the statement available
with the officer superior to the Investigating Officer was
summoned to be produced. P.W.23, the Investigating
Officer, thereupon deposed that he had recorded an earlier
statement from P.W.2, wherein he had not stated that he had
seen the occurrence. It was also revealed that P.W.23 had
counselled P.W.2 and obtained a different statement as was
spoken to before the trial court. Thereafter, the original
of the the earlier statement given by P.W.2 was torn off.
It was in the above circumstances P.W.23 admitted that he
had obtained statement of P.W.2 wherein P.W.2 had stated
that he had not seen the occurrence. It had also come out
in that case that P.W.4 had come to the scene of occurrence
and had seen the accused waiting there. After he had gone,
he heard the cry and rushed back to the scene of occurrence
to see the deceased lying injured and the accused running
away with weapon. It had also come out in evidence that
Sec.161 statement recorded from P.W.4 on 13/7/96 had not
been produced before the court below. The court could not
guess what really he had told to the police on 13/7/96.
Equally so was the accused. Therefore, in that case the
version of both the occurrence witnesses was not in
conformity with the statements that had been given earlier
to the Investigating Officer, as admitted by P.W.23 in that
case. It is in that situation that the non-production or
non-furnishing of copies of Sec.161 statements recorded
from the only occurrence witnesses were found to be causing
prejudice in a case of murder. Necessarily that dictum
cannot ipso facto apply to this case in toto to hold that
there was total prejudice. In the recent decision of the
Supreme Court reported in Sunita Devi v. State of Bihar
(AIR 2004 SCW 7116) the Apex Court has made it clear that:
“The documents in terms of Sections 207 and 208 are
supplied to make the accused aware of the materials
which are sought to be utilized against him. The
object is to enable the accused to defend himself
properly. The idea behind the supply of copies is
to put him on notice of what he has to meet at the
trial. The effect of non-supply of copies has been
considered by this Court in Noor Khan v. State of
Rajasthan (AIR 1964 SC 286) and Shakila Abdul Gafar
Khan (Smt.) v. Vasant Raghunath Dhoble and Another
(2003 (7) SCC 749). It was held that non-supply is
not necessarily prejudicial to the accused. The
Court has to give a definite finding about the
prejudice or otherwise.”
It was thus held that non-supply of any document is not
necessarily prejudicial to the accused always. The court
has to give a definite finding about the prejudice or
otherwise occasioned. It is, in these circumstances, that
we have to consider the effect of non-supply or belated
supply of the copies of the statements from P.W.3.
120. Non-production/non-furnishing of the
statements taken from PW.3 under Section 161 Cr.P.C. is
the reason for prejudice, according to the appellants.
Altogether, ten statements were allegedly obtained from
PW.3 – one by PW.82, three by PW.93, two by PW.91 and two
more statements by PW.97. Apart from these admitted eight,
it is also admitted by the prosecution that a statement
stated to be taken from PW.3 on 28.2.1996 by PW.95 also
forms part of the case diary. But, according to the
prosecution, this is not a truly recorded one. So, they
disown it. This statement, for the purpose of
consideration of the contention regarding prejudice, will
hereafter be referred to as the “disowned statement”.
121. It is alleged by the counsel for the
appellant/accused that on 27.2.1996, a statement had been
taken by PW.82 from PW.3 as transcribed by DW.10, who is
also DW.6 in the second case. It is submitted that this is
the real statement obtained by PW.82 from PW.3 and not the
one now forming part of the case records. But the
prosecution does not admit such a statement. According to
them, the statement recorded by PW.82 is the one now
available in the case records. We will, for the sake of
convenience, to discuss the aspects on this point, describe
the statement admittedly taken by PW.82, now forming part
of the case records, as the `admitted statement’ and the
statement claimed by the appellants as taken originally
from PW.3, which is disputed by the prosecution, as
“Ext.C2”, marking it so. Ext.C2 is the “disputed
statement.”
122. It is the contention of the appellants that
in order to move a bail application on behalf of Regi, the
4th accused, one among his friends had approached some
political leaders to obtain certain case records, so as to
instruct his advocate. In that attempt, his friend came in
contact with DW.1 in the second case and he had obtained a
photo copy of Ext.C2 statement of PW.3 then available in
the case records with the help of a police constable. It
was produced in the court during trial, but the court did
not allow it to be admitted in evidence. Thereupon, it is
common case that, that issue had come up for consideration
before this court and this court in Dharmarajan v. State
of Kerala {2002(2) KLT 161} held as follows:
“The impugned order cannot be sustained and is set
aside. If the learned Sessions Judge is satisfied
on the basis of the materials available before him
in the course of trial that the statement of the
prosecutrix, alleged to have been recorded by the
investigating officer (ASI-P.K.Balakrishnan) on
27.2.1996, is in fact recorded by him personally or
at his dictation or direction by another police
officer, effective opportunity should be given to
the accused/revision petitioner after supplying
copy of that statement to test the veracity of the
evidence given by her by allowing him to contradict
her with that previous statement in the manner
provided under S.145 of the Evidence Act drawing
attention of her to that part of the statement.”
In the light of this pronouncement, it was the bounden duty
of the court below to examine as to whether such statement
had really been recorded by PW.82. When such a dispute had
arisen, necessarily, it goes deep into the root of the
case. Any court is bound to examine it at the threshold
itself, even without any direction. Accordingly, in the
second case, it was specifically dealt with and found by
the court below that no such Ext.C2 statement had really
been recorded at the instance of PW.82 from PW.3 and that
there was no occasion for DW.10 to transcribe that
statement. The decision in that regard also is very much
assailed in these appeals.
123. It has also come out that three statements
recorded by PW.93 Circle Inspector, Devicolam from PW.3 on
8.3.1996, 10.3.1996 and 15.3.1996 were also not produced in
the court or furnished to the accused in the first case.
Of course, later, on a petition and after hearing, based on
an order, those three statements were produced in court far
belatedly, after the examination of PW.3 was over in that
case. Those statements will be referred to as the
statements dated 8.3.1996, 10.3.1996 or 15.3.1996, as the
case may be, even though the second among them does not
bear any date. Even in the second case, those were not
initially produced by the prosecuting agency. The accused
Dharmarajan had to move a petition for production and it is
based on an order from the court, those had been produced
and made available before the commencement of the
examination of PW.3, who was examined as PW.1 in that case.
Thus, Ext.C2, disowned statement and the statements dated
8.3.1996, 10.3.1996 and 15.3.1996 are the five statements
not produced or furnished to the accused resulting in
alleged prejudice.
124. So, we have now to consider which among the
two statements, stated to be recorded on questioning by
PW.82, is the real statement recorded from PW.3 on
27.2.1996. For this purpose, we have to go through the
case diary and ascertain the contents of the “admitted
statement”, notwithstanding the provision contained in
Section 162 Cr.P.C., but keeping in mind that it should not
be made use of as evidence in this case. At the same time,
as the copies of Ext.C2 are with either party and as either
party has knowledge about its contents and as it is
referred to in the impugned judgment, the contents thereof
shall also be dealt with, keeping in mind the same
precaution. That was why we refrained from considering
this aspect earlier in this judgment, while discussing the
evidence adduced.
125. To substantiate that Ext.C2 is the real
statement recorded from PW.3 by PW.82, several aspects are
pointed out by the appellants. First, it is submitted that
a copy of this was obtained on behalf of the accused, by
DW.1 for the purpose of moving a bail application.
Secondly, it is submitted that when the case diary was made
available to the District and Sessions Judge, Thodupuzha,
during the hearing of that bail application, the Judge
seems to have examined this statement given by the victim.
This is evident from the reference to the prosecution case
made mention of in the bail order Ext.D14, which is Ext.D29
in the second case. The reference to the statement of the
victim therein has similarity to the contents contained in
Ext.C2. Thirdly it is submitted that Ext.X2 crime ledger
kept by PW.95 shows that the pages relating to the case
diary mentioned in Ext.X2 correspond to the number of the
pages of Ext.C2, rather than the “admitted statement”.
Fourthly, it is submitted that Ext.C2 refers to one Sivaji,
who is alleged to have molested the victim. But in the
admitted statement, no such name is appearing. The name
“Stephenji” appears therein. Linking Ext.C2 to the
statement dated 10.3.1996 recorded by PW.93, it is
submitted that PW.3 had clarified to PW.93 that she had
stated that:

.”
(I have stated to police as Stephenji. I have not
stated as Sivaji).
This portion of that statement has come in evidence as
Ext.D2(b). If PW.3 had to say so to PW.93 on 10.3.1996,
there must have been a reference to Sivaji in any of her
earlier statements, so that PW.93 had to get a
clarification. On the basis of Ext.D2(b) it is submitted
that the existence of Ext.C2 is probabilised. Fifthly, it
is also submitted referring to the evidence of the victim
who was examined as PW.1 in the second case that she had
deposed in the court below that Dharmarajan had taken her
to the Park in Ernakulam before they checked into Anand
Lodge at Ernakulam, on 17.1.1996. Ext.C2 also refers to
the visit to the park along with Dharmarajan on the said
day. There was no reference to the visit to the park in
any statement including the admitted one recorded by PW.82.
Sixthly, it is contended by the appellants that Ext.C2 also
contains a version by the victim that she had gone along
with Dharmarajan for a Hindi movie, after checking into the
Anand Lodge, Ernakulam at about 6.45 P.M. To substantiate
this, Dharmarajan had attempted to produce a newspaper
dated 17.1.1996 to show that a Hindi film “Gambler” was
being exhibited in one among the theatres in Ernakulam.
Almost similar name is referred to in Ext.C2. But the
court did not permit due proof of the said news paper by
summoning its circulation manager, on the ground that it
was a protracting tactic adopted by the accused. It is
submitted that this aspect is referred to, to show that the
accused Dharmarajan had taken effective steps to prove the
real existence of Ext.C2 referring to this movie aspect as
well.
126. Existence of Ext.C2 is sought to be
substantiated by pointing out reference to certain minute
details like name of one class mate of PW.3 viz., Little
Flower, names of her teachers viz., Sister Linet and Sister
Andrissamma, route to the house of Accused No.39 where PW.3
had stayed etc. which were known to PW.3 alone at that
time. So Ext.C2 could not have been recorded without PW.3
disclosing those facts known to her alone. These details
were not available in any other records.
127. The existence of Ext.C2 is also sought to be
substantiated by referring to the “disowned statement”
stated to be recorded by PW.95, as well. It is,
admittedly, a part of the case records. That statement has
been recorded on the next day i.e. 28.2.1996. There is
much dispute from the side of prosecution about the
veracity of the `disowned statement’, as according to them,
it was one manufactured by PW.95 to screen off several of
the accused. `Disowned statement’ also refers to one
`Vikasini’, with whom PW.3 had been entrusted by
Dharmarajan for a stay for four days. The very same name
appears in Ext.C2 in the same context. Referring to the
`disowned statement’, it is submitted that existence of
Ext.C2 is thus fortified. The admitted statement does not
refer to Vikasini. Instead, it refers to that person as
“Vilasini”. If Ext.C2 was not there and the admitted
statement was the real statement, the name Vikasini could
not have crept into the disowned statement, it is
contended.
128. It is further submitted that the contention
of the prosecutor that there was no occasion for P.W.95 to
record `disowned statement’ is belied by Ext.X 11(a),
weekly diary of PW.95, which shows that the victim had been
questioned on 28.2.1996 at about 10.30 A.M. Ext.X 11(a) is
a document duly kept in the normal course of duty. There
is no reason to disbelieve it. In her evidence PW.3 also
admits that she had been questioned by PW.95. It is also
evident from Ext.X 11(a) that PW.3 had been taken by PW.95
to PW.73, the doctor, for medical examination at 1 P.M. on
that day. PW.3 had also deposed before the court below
that she had come to the Munnar Police Station by about 11
O’ clock. Necessarily, there was much probability of her
being questioned by PW.95, who had admittedly taken up
investigation of the case by that time. The entry in Ext.X
11(a) that she had been questioned by him at 10.30 A.M. on
that day becomes more probable in the light of the evidence
on record as discussed above.
129. When PW.3 had admitted that PW.95 had
questioned her, necessarily, facts revealed in that
questioning, in the normal course, as in the case of any
investigating officer, must have been reduced to writing
based on the note he may prepare. It is also spoken to by
PW.3 that she came to the station at 11 A.M. and that she
had been taken to the doctor from the station at 1 P.M.
Necessarily, there was sufficient time available for
questioning PW.3 and to ascertain the details from her. As
admitted by the prosecution, PW.95 had been entrusted with
the investigation of the case by that time. It is also to
be noted that an investigating officer like the Circle
Inspector who takes up investigation immediately would have
questioned the victim in the normal circumstances and in
the normal course of his duty. It is also to be noted
that, even according to PW.93, the investigating officer
who succeeded PW.95, the `disowned statement’ was available
in the case diary when he had taken up investigation of the
case, on transfer from PW.95 on 8.3.1996. Thus, these
details are sufficient enough to show that the disowned
statement dated 28.2.1996 is one duly recorded by PW.95,
the investigating officer in this case at that time in the
normal conduct of the investigation and there was all
probabilities that it has been recorded after the admitted
questioning of PW.3 on 28.2.1996, it is submitted.
130. It is also submitted to substantiate this
point, that Accused No.28, George Cherian was implicated as
an accused only by Ext.P157 report dated 21.3.1996. His
name appears in the “admitted statement” dated 27.2.1996.
Allegedly based on the `admitted statement’, a list of
accused was submitted to the court on 11.3.1996 as per
Ext.P166 report. But that report does not contain the name
of Accused No.28 George Cherian. Had the `admitted
statement’ been in the case records, necessarily, there was
no reason for not including the name of Accused No.28 in
Ext.P166 report dated 11.3.1996. Absence of the name of
Accused No.28 in the list of eighteen accused mentioned in
Ext.P166 shows that the victim had not disclosed his
complicity on that date. There is yet another report,
Ext.P121 dated 18.3.1996 adding 8 more accused. There also
his name was not included. Such non inclusion of Accused
No.28 at that time is more probable on the basis of the
contents of Ext.C2 and the `disowned statement’, both of
which did not refer at all about the complicity of A28
George Cherian. So, the non-inclusion of the name of
Accused 28 in Ext.P166 report or in the latter report
Ext.P121 dated 18.3.1996 suggests that the admitted
statement was not available in the case records until
18.3.1996, the counsel contends.
131. It is further submitted that the statement
admittedly recorded by PW.93 from PW.3 on 10.3.1996
(undated) shows that she had spoken to him as follows:

.”
(The ASI and CI of Munnar station had taken my
statement. What I have stated therein are
correct).
This has been duly confronted to PW.3 and marked as Ext.D2
in the second case and PW.93 had admitted that he had
recorded the said statement, as spoken to by PW.3. If she
had to say that she had given a statement to ASI and CI of
Munnar Station, there must have been a statement taken by
the C.I. of Munnar Station, who is none other than PW.95.
The only statement of PW.3 recorded by PW.95 available in
the case diary is the `disowned statement’. Therefore,
that also probabilises the existence of the `disowned
statement’, it is submitted. It was unlikely that the
Munnar CI referred to in Ext.D2 could be PW.93 who was
himself recording that statement. That explanation is
improbable, artificial and unworthy of acceptance.
132. It is further submitted that the prosecution
is now introducing a statement dated 8.3.1996 said to be
taken by PW.93 from PW.3 which reveals as follows:

.”
(I have not
given a statement as now read over to me to the CI,
Munnar. CI Munnar had never taken any detailed
statement from me, nor had he questioned me in
detail).
This statement, admittedly taken by PW.93, from PW.3 does
not reveal anything more. Necessarily, any inquisitive
investigating officer, with an urge to find out the truth,
should have questioned her further then and there to
ascertain what were the details that she had (or had not)
spoken to PW.95, Circle Inspector, Munnar, when he
questioned her. This aspect is not seen pursued on
8.3.1996 or at any time thereafter by PW.93 or any of the
later three investigating officers. That is indeed
strange. If such a statement was really recorded, it must
have occurred to PW.93 that his predecessor PW.95 was
guilty of gross indiscretion. No investigating officer
worth his salt would have left matters there without
subjecting PW.3 to closer questioning to ascertain what
portion of the disowned statement was true and what not.
In this regard, our attention is drawn to the three
statements produced by the prosecution as of 8.3.1996,
10.3.1996 and 15.3.1996 and pointed out that the statement
recorded on 8.3.1996 contains the date, that recorded on
10.3.1996 does not contain any date, whereas that recorded
on 15.3.1996 is given a date. It is submitted that the
statement now produced as of 8.3.1996 is one prepared later
and ante dated 8.3.1996 to cover up the `disowned
statement’. This is evident from Ext.X 13 dated 14.3.1996,
which does not refer to the statement taken on 8.3.1996.
To quench our curiosity, we requested the Public Prosecutor
to show us any entry made by any Investigating Officer
after PW.95 handed over investigation to indicate that the
subsequent Investigators had perceived any such
indiscretion on the part of PW.95. In fact, the subsequent
report marked as Ext.X 13 prepared by PW.91 would indicate
that the subsequent Investigating Officers/superior
officers had no grievance that PW.95 had committed any such
indiscretion except a casual statement made by PW.97 at the
time of filing the charge sheet that action may have to be
contemplated against PW.95 after completion of trial.
There is no contemporaneous entry which would indicate that
PW.93 or subsequent Investigating Officers had expressed
reservations about the investigation conducted by PW.95.
No such contemporaneous record is available in the case
diary until PW.97 chose to submit his final report.
133. In answer to these contentions, the Public
Prosecutor submits that PW.82 had categorically disclosed
in the court below that so long as he was in charge of the
investigation, until the afternoon of 27.2.1996, PW.3 had
been questioned by him once only and he himself had taken
down the admitted statement in his own handwriting, without
the aid of any scribe. Therefore, there was no occasion
for DW.10 to record a statement from PW.3 upon questioning
by him. This evidence of PW.82 is sufficient to discard
Ext.C2, the prosecutor submits. Our attention is also
invited to the evidence given by PW.95. When he commenced
investigation, he had never seen Ext.C2 in the case
records. It is also submitted by the Public Prosecutor
that there was no occasion for DW.10 to write down Ext.C2
because, even according to DW.10, he had been deputed for
the investigation of Crime No.34/96, as is revealed by
Ext.X 10 case diary relating to that case. There is a
report, Ext.P102 by DW.10 revealing the investigative steps
that he had taken in connection with Ext.X 10 case at
Kumali, Kambam and Theni, which lie far away from Munnar.
Therefore, based on the contents of that report given by
DW.10 to PW.95, there was no occasion for him to be present
in Munnar Police Station earlier than 5 P.M. on 27.2.1996.
The report Ext.P119 detailing the counts of offences, based
on the information revealed by PW.3 to PW.82 had reached
the magistrate on 27.2.1996 itself. Therefore, the
statement given by PW.3 to PW.82 could not have been
transcribed by DW.10.
134. It is further submitted by the Special
Prosecutor that the evidence of DW.1 that he had obtained a
copy from the police station at Devicolam also cannot be
believed. According to that witness, he had obtained a
photo copy of Ext.C2 on a Maundy Thursday which was really
on 4.4.1996. By that date, the case diary had already been
transferred to PW.91. So, there was no occasion for DW.1
to get copy of Ext.C2 from the Devicolam Police Station.
Therefore, what he had stated before the court below cannot
be believed.
135. The Public Prosecutor also submitted that
reference in Ext.D 14 bail order about the case of the
prosecution is not with reference to what the victim had
spoken to the investigating officers, but with reference to
the notes of investigating officers based on the
information collected from the accused persons as well.
That was why Ext.D14 order refers to a cash transaction of
Rs.1,600/-. It does not have any bearing on Ext.C2.
136. It is further submitted that PW.93 had to
cross check with PW.3 about Sivaji on 10.3.1996 and had to
obtain a clarification, because on arrest of Accused No.4
on 10.3.1996 at about 10.45 P.M. at his house, he had said
about Sivaji. He referred to Accused No.10 as Sivaji. It
is to clarify that position that PW.3 was questioned on the
mid night of 10.3.1996 itself and therefore, reference to
Sivaji in the statement dated 10.3.1996 has nothing to do
with Ext.C2.
137. Coming to the `disowned statement’, it is
submitted by the Public Prosecutor that PW.3 had
categorically deposed before the court below that PW.95 had
never recorded a statement. Therefore, much veracity
cannot be attributed to the `disowned statement’ dated
28.2.1996, or to the contents therein. It is submitted
that, it was prepared only to screen off several of the
accused. Even according to PW.95, the disowned statement
had been recorded by none other than PW.96. Based on his
diary produced in court and Ext.P178 note book of PW.96, it
is contended that PW.96 was not available in Munnar at the
time when PW.3 was questioned by PW.95 and therefore, there
was no occasion for him to record the disowned statement.
138. It is further submitted that the reference to
Vikasini in the `disowned statement’ was designed by PW.95
and 96 deliberately to probabilise the contents in Ext.C2.
They prepared the disowned statement with a motive to
substitute the `admitted statement’ which they could not do
as the case diary had been transferred to PW.93. So
reference to Vikasini in the disowned statement and Ext.C2
does not have any bearing at all.
139. Referring to the class mate of PW.3 named
Little Flower, the two teachers and to the route to the
house of PW.18, a relative of Accused No.3 Jamal at
Elappara, mentioned in the `disowned statement’, it is
submitted by the Special Public Prosecutor that those are
included to probabilise that PW.3 was questioned.
140. With reference to the contention regarding
non-inclusion of Accused No.28 in the array of accused
until 21.3.1996 in Ext.P157 statement, it is submitted by
the Public Prosecutor that it was only an inadvertent
mistake.
141. So, according to the Public Prosecutor, there
cannot be any prejudice at all with reference to Ext.C2
which had never been recorded from PW.3. Therefore, it is
not a statement under Section 161 Cr.P.C. The `disowned
statement’ had also never been recorded. So, these are not
really part of the case records or documents, the copies
whereof have to be produced in court and furnished to the
accused. Necessarily, no prejudice whatsoever arises in
this case.
142. It is a statutory requirement in terms of
Section 173(5) Cr.P.C. that all documents and statements
recorded from the witnesses on whom the prosecution
proposes to rely, have to be produced in court. That
includes all the statements, if more statements had been
taken from a particular witness and not any one statement
or the final one. If the prosecution chooses to place
reliance on any witness, all statements of that witness
recorded under Section 161 Cr.P.C. have to be produced,
whether the prosecution wants to rely on or disown any one
of such statements. Section 207(iii) Cr.P.C. further
enjoins that copies of all such statements and documents
shall be furnished to the accused. These are the mandates
to ensure a fair trial.
143. The concept of fair trial entails familiar
triangulation of interests of the accused, the victim and
the society. A trial which is primarily aimed at
ascertaining truth has to be fair to all concerned. As
held by the Supreme Court in Zahira Habibulla H.Sheikh v.
State of Gujarat {2004 (4) S.C.C.158}.

“There can be no analytical all comprehensive or
exhaustive definition of the concept of fair trial,
and it may have to be determined in seemingly
infinite variety of actual situations with the
ultimate object in mind, viz., whether something
that was done or said either before or at the trial
deprived the quality of fairness to a degree where
a miscarriage of justice has resulted.”
The Apex Court further pointed out:

“Failure to accord fair hearing either to the
accused or the prosecution violates even minimum
standards of due process of law. It is inherent in
the concept of due process of law, that
condemnation should be rendered only after the
trial in which the hearing is a real one, not sham
or a mere farce and pretence. Since the fair
hearing requires an opportunity to preserve the
process, it may be vitiated and violated by an
overhasty stage-managed, tailored and partisan
trial.”

Denial of fair trial is as much injustice to the accused as
is to the victim and the society. Thus assurance of fair
trial is the first imperative of justice. The fair trial
for a criminal offence consists not only in technical
observance of the frame and forms of law, but also in
recognition and just application of its principles in
substance, to find out truth and prevent miscarriage of
justice. As pointed out by the Apex Court:

“It is as much the duty of the Prosecutor as of the
Court to ensure that full and material facts are
brought on record so that there might not be
miscarriage of justice.”
Therefore, it need not be stated in the background of the
statutory provisions, that non-production or non-furnishing
of the relevant documents or the statements will result in
prejudice so far as the accused is concerned.
144. It is now trite law in the light of the
decision in Pulukuri Kottaya and others v. Emperor {AIR
(34) 1947 PC 67} that the non-furnishing of the copies
shall result in irresistible conclusion of prejudice.
Therefore, it need not further be enquired into whether non
furnishing of a relevant document or statement recorded
will result in prejudice.
145. But, when more statements are recorded from a
particular witness and few of such statements had been
given to the accused, it must be shown what is the extent
of prejudice caused to the accused in not furnishing the
copies of one or few of such statements. In such
circumstances, prejudice cannot be assumed to hold that
trial was totally unfair. The extent of prejudice shall
have to be examined by the court. In the decision reported
in Rugmini v. State of Kerala {1986 KLT 1356}, it has been
held, though in yet another context that:
“The question whether such irregularities, if any
would lead to miscarriage of justice is a matter to
be decided during trial and in the light of
evidence.”
The Supreme Court has also held in the decision reported in
Sunitha Devi v. State of Bihar and another (AIR 2004 SCW
7116), examining the case law on the subject that:
“the court has to give a definite finding about the
prejudice or otherwise”.
146. In this case, the court below had come to the
conclusion that Ext.C2 had never been recorded. Therefore,
there was no prejudice in not furnishing the said copy.
But that finding has to be again tested in this appeal
based on the contentions and the law as aforesaid. We have
to come to a definite finding as to which among the
statements – `admitted statement’ or Ext.C2 was really
recorded on 27-2-1996.
147. The contention centered around Ext.P157 dated
27-2-1996 is a weighty contention. It is the admitted case
of the prosecution that Accused No.28 George Cherian had
been included among accused only on 21-3-1996. If the
admitted statement had been on record on 27-2-1996,
normally, he should have been included when the first list
of accused was furnished to the court on 11-3-1996 as per
Ext.P166 report. If there were any omissions due to
oversight in including his name, his name could have,
necessarily, been included in Ext.P121 report dated
18-3-1996, because that report was filed by yet another
investigating officer who could, after examining the case
diary detect that omission based on the contents in the
`admitted statement’. That Accused No.28 was included only
on 21-3-1996 shows that there was no material until that
date divulged by PW.3 regarding the complicity of Accused
No.28. The admitted statement cannot be in existence,
therefore, until 21-3-1996. This convincingly shows the
probability of the existence of not only Ext.C2, but also
the `disowned statement’ stated to be recorded by PW.95.
Both these statements do not refer to any criminal act said
to be committed by Accused No.28, though his name has been
specifically referred to by PW.3. Further those statements
exonerate Accused No.28 from any complicity and he was
styled as a person who prompted and persuaded PW.3 to
escape from the clutches of Accused No.4. Necessarily,
PWs.82, 93, 95, and PW.85 Dy.S.P. Jose who investigated
the case, successively could not have omitted to notice the
alleged omission of each of their previous investigating
officers in not including Accused No.28 in the array of
accused. It was not an omission at all. It was only on
21.3.1996 he was included. Necessarily, it is thus
probable that Ext.C2 was in existence all the while and not
the `admitted statement’.
148. As regards the evidence given by DW.1, in the
second case it has to be borne in mind that the defence
need not conclusively, disclose the source from which a
photo copy of Ext.C2 had been obtained by DW.1. It may be
a practice that deserves condemnation. As far as DW.1 is
concerned, he could manage a copy because of the defect in
the police machinery in the State, perhaps. Anyhow, when
viewed in the angle of defence, necessarily, it cannot be
omitted to be reckoned though obtained not through fair
means.
149. Both sides agree that Ext.D14 bail order
refers to payment of Rs.1,600/-, when Dharmarajan sent PW.3
home on 26.2.1996. That version given by PW.3 is available
only in Ext.C2. When the court, while passing Ext.D14
order, referred to some facts as the prosecution case and
when admittedly the case diary had been passed on to the
court for reference and when it is discernible from the
order that the case diary had been perused by the court,
the prosecution case recited in para 4 of Ext.D14 must
necessarily be as stated by the victim as then disclosed by
the case diary. Therefore, the reference to these aspects
in Ext.D14 probabilises the existence of Ext.C2. It is
very difficult to swallow the contention of the Public
Prosecutor that the court in Ext.D14 had referred to such
particulars from out of the statement of the accused
Dharmarajan or from the notings of the investigating
officer based on the disclosure made by Dharmarajan. This
circumstance also probabilises the existence of Ext.C2.
150. Of course, the Public Prosecutor is well
justified in submitting that much veracity need not be
attributed to Ext.X2 crime ledger which had been prepared,
kept and maintained at the office of PW.95, the Circle
Inspector.
151. But the explanation given by the Public
Prosecutor with regard to the reference to Sivaji in
Ext.D2(b) in the second case is most unconvincing. We have
extracted supra the real words of the victim as recorded by
PW.93 that what she had stated to the police was Stephenji
and that she had never said to the police as Sivaji. From
the tenor of the statement dated 10.3.1996, we find that
Ext.D2(b) therein was with reference to her own previous
statement referring to Sivaji. It cannot be with reference
to a statement said to be given by Accused No.4 as
suggested by the Public Prosecutor. Accused No.4 was
arrested at about 10.45 P.M. on 10.3.1996 from his house
at Kottayam. Even admittedly, as submitted before us, his
statement was not recorded on 10.3.1996. It was recorded
only on the next day. So, there arises no situation for
obtaining any clarification on Sivaji from PW.3 on
10.3.1996. Therefore, the reference to Sivaji appearing in
Ext.D2(b) in the second case could not be based on the
statement given by Accused No.4; but can only be with
reference to the statement given by PW.3 herself on an
earlier occasion. The only such statement is Ext.C2. This
also convincingly probabilises the existence of Ext.C2.
152. There is yet another aspect as well. Even
going by the prosecution case, Stephenji is a close friend
of Accused No.4 Reji, who had, while at Kuravilangad,
telephoned to Stephenji to come there to have an
intercourse with PW.3. Such an invitation can only be to a
close friend in the normal circumstance. Mistake in the
name of such a close friend as Sivaji instead of Stephenji
by Accused No.4 is certainly incompatible to commonsense.
Therefore, on that reason also the contention advanced by
the Public Prosecutor cannot be accepted, again
probabilising the existence of Ext.C2.
153. Though, not of much importance, the admitted
version of PW.3, when examined in the second case as PW.1,
is that she had visited the park on 17.1.1996 at Ernakulam.
This also appears in Ext.C2. This is also in tune with the
check out time from Metro Lodge at Kottayam on the morning
of 17.1.1996 {Ext.P-57(a)} and the checking in, in Anand
Lodge at Ernakulam at about 6.45 P.M. {Ext.P-58(a)} on the
same day. Necessarily, PW.3 and Dharmajan would have spent
this long time during day light somewhere together. This
also probabilises the existence of Ext.C2.
154. Further, reference to Little Flower, the
class mate, two teachers of PW.3 and the route to certain
places where she had been taken and other minor and
intricate details in Ext.C2 also probabilise that such
information could have been divulged to the one who had
recorded it only by PW.3, as such details were not
available at that time from anywhere else. This also
probabilises the existence of Ext.C2.
155. Further, the name of the film mentioned in
Ext.C2 has also resemblance to the Hindi film `Gambler’
shown on 17.1.1996 in one of the theatres at Ernakulam as
disclosed by the news paper attempted to be brought in
evidence by Dharmarajan, as mentioned above. As per
Ext.C2, PW.3 has seen the film with Dharmarajan after their
check in at Anand Lodge at about 6.45 P.M. Gambler is the
only Hindi cinema exhibited at that time in Ernakulam,
going by the said news paper. This could not have been
known to the policemen in Munnar on 27.2.1996 except as
told by PW.3. This also probabilises the existence of
Ext.C2.
156. It is admitted by PW.3 that PW.95 had
questioned her on 28.2.1996. PW.95 started the
investigation of the case only on that day. As admitted by
PW.3 she reached the police station at about 11 A.M. and
at about 1 P.M. she had been taken from the police station
to PW.73 doctor for detailed examination. Necessarily, she
was available in the station for two hours. So, in all
probabilities, PW.95 who took up investigation of the case
on that day would have questioned her for ascertaining
details and recorded such details. He would have thus
prepared a statement with the details he had gathered from
PW.3 with regard to the commission of the offence. Even
though PW.96 who had transcribed the statement recorded by
PW.95 was deputed for investigation of Crime 34/96, {Ext.X
10 (e) in the second case}, at Kumali on 27th and 28th
February, 1996, it cannot be stated that he would not have
been available on 28th, to transcribe that statement.
Ext.P178 note book shows that he was available on 28th
night in Munnar police station. The entries in such note
book need not be taken as gospel truth with every minute
details therein. As he had been present on that day,
necessarily, whatever information gathered by PW.95 on
questioning PW.3 could have been transcribed by PW.96. So,
the disowned statement cannot be brushed aside and it being
one recorded under Section 161 Cr.P.C. by PW.95, a copy
thereof must be produced before the court and furnished to
the accused, as insisted by the Code.
157. When such statement is thus available,
reference therein to Vikasini, has much force to relate it
to Ext.C2. This Vikasini is none other than Accused No.39,
who is named, as now disclosed, as “Vilasini”. Vikasini is
an uncommon name in Kerala. Necessarily, the name
appearing as Vikasini in the `disowned statement’ must have
crept in there, because of the reference to that name in
Ext.C2 thereby again probabilising the existence of Ext.C2
apart from the `disowned statement’.
158. The existence of the disowned statement is
also probabilised by reason of the reference to a statement
given by PW.3 to Munnar Circle Inspector as contained in
her another statement dated 10.3.1996 (Ext.D2 in the second
case) recorded by PW.93. It is again probabilised by the
statement dated 8.3.1996 in which PW.3 refers that she had
not given a statement to PW.95 as had been read over to
her. In such circumstances, as already mentioned above,
the officer who recorded that statement, ought to have
ascertained from her as to what had been really spoken by
her to PW.95, because as admitted by her PW.95 had
questioned her. It is the duty of the investigating
officer like PW.93 when he had his fingers on the `disowned
statement’ to put each of the statements contained therein
to PW.3 to ascertain the veracity of each of such
statement. As it has not been done so by PW.93 who
recorded the statement dated 8.3.1996, the probability is
that PW.95 would have recorded the statement from PW.3.
These details are sufficient enough to probabilises the
existence of the `disowned statement’.
159. In the light of the controversy with regard
to the two statements dated 27.2.1996, we had, taking much
pain, compared both the statements as transcribed. Though
the contents are almost same, no allegation of rape against
Dharmarajan had been revealed by PW.3 in Ext.C2. She has
also not attributed any absence of consent specifically to
any of the present alleged rapes. We have also noticed
that something more is added with reference to the
complicity of Dharmarajan and with regard to the
ingredients of rape in the `admitted statement’ dated
27.2.1996 as an improvement to Ext.C2, the disputed
statement. A close examination of both these statements
discloses, from the striking off and corrections at
different places in the `admitted statement’, that it had
been attempted to be copied and improved from Ext.C2. The
contention of the Public Prosecutor that PW.95 designed the
`disowned statement’ to probabilise the existence of Ext.C2
which he, along with PW.96, wanted to substitute later in
place of the `admitted statement’ is too far fetched and is
supported with no evidence or probabilities.
160. Thus, these are the situations and
circumstances which probabilises that the first statement
given by PW.3 to any of the investigating officer was
Ext.C2 and not the `admitted statement’ and that the
`disowned statement’ is the one recorded by PW.95 on
questioning PW.3 on 28.2.1996.
161. The accused in that regard had on all
probabilities discharged their burden to show that there
had been a first statement earlier than the `admitted
statement’. It has been withheld not only from the
accused, but from the court as well. When that statement
did not reveal the offence of rape so far as Dharmarajan is
concerned and it did not spell out absence of consent from
PW.3 in respect of some of the alleged rapes, necessarily,
all the accused could have made use of it to contradict
PW.3, moulding their defence on that aspect from the
beginning of the trial itself. Non furnishing of Ext.C2
amounts to denial of a fair opportunity to mould their
defence. Equally so is the non production/non furnishing
of the `disowned statement’ which is really found to be
recorded on questioning PW.3 by PW.95. This necessarily
results in prejudice.
162. This controversy could not have occurred, if
the police had adopted a fair and reasonable method as
prescribed in the Code in the matter of registration of the
crime. As already mentioned by us, Ext.P1 first
information statement nor Ext.P1(a) FIR reveals commission
of any cognizable offence for the police to proceed with
the investigation. The statement given by PW.1 – father of
PW.3, is that she had gone out of the house. He did not
have a suspicion even that she had been kidnapped or
abducted. What PW.1 had revealed to PW.82, while giving
the first information was that

.”
(I do not know why she had run
away).
This does not reveal any commission or suspicion of
commission of a cognizable offence to attract Section 154
Cr.P.C. which obliges a police officer to obtain a signed
statement and to record it in the FIR book. Merely because
certain instructions contained in the Police Manual oblige
the Station House Officer to record a man missing case in
the FIR book, it will not make it an F.I. Statement under
Section 154 to proceed with the investigation in terms of
Section 156 Cr.P.C. An offence has been revealed only by
the statement given by PW.3 to PW.82 on 27.2.1996.
Necessarily, going by the statutory provisions, that must
be taken as the revealing of information regarding
commission of a cognizable offence to be entered in the FIR
book to proceed with the investigation. In this regard,
the law has been made explicitly clear by the decision
reported in Mani Mohan Ghose v. Emperor [AIR 1931 Calcutta
745}. It was held as follows:

“The conditions as to writing in S.154 of the Code
are merely procedural. If there is an “information
relating to the commission of a cognizable offence”
it falls under S.154 and becomes admissible in
evidence as such, even though the police officer
may have neglected to record it in accordance with
law. Owing to this neglect in particular cases,
the Courts have laid down from time to time that
the information which starts the investigation is
the real first information under S.154 and should
be treated in evidence as such. It does not depend
on the sweet will of the police officer, who may or
may not have recorded it. But the condition as to
the character of the statements is really two fold:
first it must be an information and secondly, it
must relate to a cognizable offence on the face of
it and not merely in the light of subsequent
events.”
It was therefore incumbent even in man missing cases to
register an FIR under Section 154, when the offence is
first revealed subsequently. In State of Assam v. Upendra
Nath, Rajkhowa {1975 Crl.L.J. 354}, it was held that:

“An information to have the status of first
information report under Sec.154 must be an
information relating to the commission of a
cognizable offence and it must not be vague but
definite enough to enable the police to start
investigation.”
It has also been held in Arun Kumar v. State {AIR 1962
Calcutta 504} that :

“A first information report has to answer certain
tests, namely that it must relate to a cognizable
offence. A report that some body is missing is not
an information relating to the commission of a
cognizable offence under Section 154 of the Code of
Criminal Procedure.”
163. So, had the information given by PW.3 on
27.2.1996, been registered as FIR, necessarily, it would
have reached the court immediately and there would not have
been any controversy as to which of the two statements
dated 27.2.1996 really forms the first statement given by
PW.3. Certainly, as submitted by the Public Prosecutor,
the police adopted the prevailing practice of registering
man missing cases in FIR form and further statements being
taken under Section 161 Cr.P.C.
164. In such circumstances, we make it clear that
it will be advantageous to the police and the machinery for
administration of criminal justice to follow the procedure
in terms of the Code strictly in future. However, as the
police has, in this case, only adopted the practice that
was being followed till then, the non registration of the
statement dated 27.2.1996 given by PW.3 as an FIR will not
result in vitiation of the investigation nor the trial.
165. But, at the same time, when the existence of
Ext.C2 is probabilised and when Ext.C2 did not attach any
complicity on Dharmarajan and even does not spell out
absence of consent, necessarily, the non-production and non
furnishing of the copy thereof will result in prejudice so
far as the allegations of rape and gang rape are concerned.
166. We have already come to the conclusion that
the allegations of the offences punishable under Section
376(1) and 376(2)(g) have not been established beyond
doubt. Apart from that, the accused are also prejudiced in
that context because of non furnishing of copies of Ext.C2.
167. So far as the accused other than Dharmarajan
are concerned, they had not been provided with the copies
of Ext.C2, the `disowned statement’, the statements dated
8.2.1996, 10.3.1996 and 15.3.1996 until the completion of
the cross-examination of PW.3. We have already adverted to
the importance and significance of those statements in the
search for truth in this case. The accused had to file a
petition seeking copies thereof which had been objected to
by the prosecution. Ext.D37 marked in the second case is
that objection wherein the existence of Ext.C2 has been
disputed. All the other four statements had been produced
in the court at that stage. It is submitted by the counsel
for the accused that the belated production of those
statements will not satisfy the requirement of law. Apart
from that, copies of such statements must be furnished to
the accused. They have not received it. It is submitted
by the Public Prosecutor that a memo was filed showing
service of copies. Had it been so, necessarily, that
aspect ought to have been referred to in Ext.D37, objection
filed by the prosecutor. Though it is submitted that the
copies of the statements have been furnished subsequently
and memo had been filed showing service of copies, we are
not able to place our fingers on such a memo to come to the
conclusion that there was furnishing of such statements.
The judgment does not show specifically that the copies
were furnished. Even if those copies had been furnished
later at the fag end of trial, after completion of the
cross-examination of PW.3, for days together, it will not
serve any purpose to cure the damage that the accused have
already suffered because of absence of those documents at
the time of her examination. Thus prejudice had resulted
therefrom at the time of cross-examination of PW.3. They
have also moulded their defence based on the then available
details only. They were disabled to mould their defence
effectively after receiving the copies in time. So it
caused prejudice to the accused in the first case totally.
The details including the arraying of Accused No.28 and the
reference to Sivaji that we have examined earlier are of
much importance for the other accused to mould their
defence with reference to the said statements which
contained very important details which could have been made
use of by them for moulding their defence strategy.
Therefore, belated production cannot cure the defect of
prejudice arising out of non production in time and non
furnishing of copies in time, even assuming that such
copies were furnished after Ext.D37.
168. It is true, as contended by the counsel and
as discussed above, departure from the mandatory and
protective statutory procedure will cause prejudice. But
the court has to examine whether that prejudice will affect
the case in its entirety or not, as held by the Supreme
Court in Sunitha Devi v. State of Bihar and another {2004
AIR SCW 7116}. So, we have to examine whether such non
production/non furnishing disabled Dharmarajan from meeting
the charges under Sections 366 A and 372 IPC, that he had
been called upon to meet.
169. In that regard, we have to make it clear that
the departure from the statutory provisions now disclosed
with regard to the non furnishing of Ext.C2 is not so
violent as to strike at the root of the trial in respect of
the said two offences. If the procedure adopted was one
which the Code positively prohibited, it was possible that
the procedure had worked out actual injustice to the
accused. Violation must be so obvious that they will speak
for themselves as, for example, a refusal to give the
accused a hearing, a refusal to allow him to defend
himself, a refusal to explain the nature of the charge to
him and so forth, so that prejudice shall be so patent
through out and the procedure adopted shall be so abhorrent
to well established notions of natural justice that the
trial is reduced to mockery and does not conform to the
norms envisaged by law. So, in the complete absence of any
substantial injustice or in the complete absence of
anything that outrages what is due to natural justice in
criminal cases, it cannot be said that non-supply of Ext.C2
goes to the root of the trial vitiating it totally.
Because the real question is whether disregard of a
particular provision amounts to substantial denial of a
just and fair trial as contemplated by the Code and
understood by the comprehensive expression “Natural
Justice”.
170. Even if the non furnishing of Ext.C2 resulted
in prejudice, so far as Dharmarajan is concerned, it can
result in prejudice only with reference to the details
contained therein vis-a-vis the allegation of conspiracy,
kidnapping, rape and gang rape. That prejudice will not
percolate into other allegations. He has even admitted
taking the girl from place to place. During such time,
several others had illicit intercourse with her. The other
statements recorded by the other investigating officers, on
closer scrutiny of the details revealed during the course
of the investigation, were given to him. It contained the
particulars for meeting the allegation of the offences made
punishable under Section 366 A and 372 IPC. Furnishing of
Ext.C2 would not have placed him in any better position
substantially in the defence of those charges.
171. Thus, in this case, as the other statements
containing details regarding those allegations had been
furnished, it cannot be said that in the matter of trial of
the said offences, there had been any prejudice so far as
Dharmarajan is concerned, much less substantial prejudice
or miscarriage of justice.
172. Going by the evidence of PW.3 and by the
admitted case of Dharmarajan, it is conclusive that
Dharmarajan had taken PW.3 from place to place and during
that journey, it is clear that, she was subjected to sexual
intercourse by others. That sexual intercourse is illicit
intercourse as she was a minor at that time, and she was
not related to any one by marriage. Even according to
Dharmarajan, he did not have any relation with that girl.
If as admitted by Dharmarajan the girl had followed him
from Ernakulam to different places mentioned in his
statement under Section 313 Cr.P.C., necessarily, it was on
inducement by Dharmarajan. Dharmarajan has thus induced
PW.3 who was admittedly under the age of 18 years to go
from place to place and she had been subjected to illicit
intercourse during that period. The irresistible
conclusion, therefore, is that he has committed the offence
punishable under Section 366 A IPC.
173. It is also clear from the same evidence and
the stand taken by Dharmarajan in his Section 313 statement
that he had disposed of PW.3 while she had been taken from
place to place, to several other persons for immoral
purpose. It is clear from the evidence of PW.3 that she
had been subjected to illicit intercourse by several of the
accused in the first case during the period when
Dharmarajan had admittedly taken her from place to place
and at other places as spoken to by PW.3. Of course, there
is no specific evidence of collection of money to find him
guilty of selling of the girl or letting her for hire.
174. PW.95, when he questioned PW.3 and recorded
the `disowned statement’, had thought of collecting proof
from the details he had gathered and recorded therein. At
that stage, it would appear that the attempt was to
concentrate on this aspect of inducing the minor girl to
illicit intercourse. But that idea had not been properly
conceived by other investigating officers to proceed in
that line, in which case, the 1st or 2nd degree of the
offence under Sections 372 and 373 IPC would be revealed.
Anyhow, it has been conclusively proved based on the
evidence on record that PW.3 had been at least disposed of
to others by Dharmarajan for illicit intercourse or for
unlawful and immoral purposes thereby committing the
offence punishable under Section 372 IPC also.
175. Under those two counts, he had been found
guilty, by the court below. But no separate sentence has
been ordered as the maximum sentence of life imprisonment
for the offence punishable under Section 376 (2)(g) was
imposed, which we have now vacated. As we have confirmed
the conviction under the said two provisions, so far as
Dharmarajan is concerned, we have also to pass an order of
sentence on those counts.
176. We are also conscious of the contentions
urged by the Public Prosecutor that going by Charge I in
the first case as conspiracy for commission of the offence
including that for wrongful confinement, rape and gang
rape, at difference place has been made against the other
accused as well, they must also be found guilty of the
offence under Sections 366 A and 372 IPC. There was
specific allegation of conspiracy for wrongful confinement,
for rape and for gang rape and also the allegation of
substantive offence under Sections 372 and 373 IPC, so far
as the accused in the first case are concerned. But all of
them had been found not guilty and were acquitted of the
offences under Sections 372 and 373 IPC. In such
circumstances, they cannot be found guilty of the offences
under Sections 372 or 373 in these appeals filed by them.
177. The specific charge of the offence under
Section 366 A IPC was made only against the first accused
and not against others. It is submitted that Charge No.1
regarding conspiracy also takes in the allegation of
conspiracy for commission of the offence under Section 366
A as well. There is specific charge of conspiracy for
wrongful confinement, rape and gang rape at different
places, which cannot be done without moving her from place
to place. Therefore, they should also be roped within the
conviction under Section 366 A, the Public Prosecutor
submits.
178. The prosecution has raised a charge under
Section 120 B as charge No.1. Only the allegations of
conspiracy for wrongful confinement, rape and gang rape are
specifically raised therein. The allegation of conspiracy
for the offence under Section 366 A IPC can never be spelt
out from that charge. Moreover, there is no evidence
regarding the conspiracy for the purpose of commission of
offence under Section 366 A or on any inducement to PW.3
said to be made by any of the accused in the first case to
move her from place to place for the purpose of illicit
intercourse by any one of them. In the absence of such
evidence regarding the conspiracy for the offence under
Section 366 A in this case, we cannot accept that
contention of the Public Prosecutor. There was also no
charge of the offence under Section 366 A as such against
any of the accused in the first case, except accused No.1
who did not have, as admitted by the prosecution, any role
except for alleged kidnapping which is found against the
prosecution. Therefore, any of the accused in the first
case cannot be stated to have committed the offence under
Section 366 A.
179. But, when Dharmarajan is found guilty of
disposing of a minor for unlawful and immoral purpose,
there must be another one or more guilty of obtaining that
girl for unlawful and immoral purpose, made punishable
under Section 373 IPC. The offences punishable under
Sections 372 and 373 are that relating to sex trade. The
accused in the first case were charged with those offences.
They also faced trial on that count. The court below, in
the first case, acquitted all of them of the said two
offences. Unfortunately, the State did not prefer an
appeal against such acquittal. Even in the scenario of the
said accused filing several appeals as mentioned above,
assailing conviction on other counts, and the pendency of
such appeals for about four years, the State did not seem
to have taken that aspect seriously. When thus there is no
appeal by the State against the acquittal of the accused in
the first case of the offences of sex trade, punishable
under Sections 372 and 373 IPC, we cannot punish them on
those counts, in the appeals filed by them.
180. We have now to decide the quantum of
punishment so far as Dharmarajan is concerned for the
offences punishable under Sections 366 A and 372 IPC. At
this juncture, the counsel for Dharmarajan Sri.Thomas
Mathew was heard on the question of sentence.
181. It is submitted by him that the court below
did not pass any sentence after having found him guilty of
the offences under Sections 366 A and 372 IPC. Sentence
was imposed only for the offence under Section 376(2)(g)
IPC. Therefore, unless there is an appeal under Section
377 Cr.P.C. by the State seeking enhancement of the
sentence under Sections 366 A and 372 IPC, this court may
not pass an order of sentence on Dharmarajan on those two
counts, it is urged. It is further submitted that he is
now placed in a very difficult situation having lost his
mother. He is facing divorce proceedings from his wife.
He has to maintain his aged father and a child. He has
already suffered imprisonment for two years and 92 days
including that at the pre-trial stage. In such
circumstances, a most lenient view may be taken in his case
to minimise the sentence, prays the learned counsel. It is
also submitted that, such approach may be adopted when all
the other accused have been acquitted.
182. With regard to the contention raised in terms
of Section 377 Cr.P.C., we are afraid, we cannot accept it.
A reading of the impugned judgment will show that there was
conviction on all the counts including under Sections 366 A
and 372 IPC; but no separate sentence on those two counts
was imposed, as the court below felt that the imposition of
the maximum sentence provided for the offence punishable
under Section 376(2)(g) would be sufficient the interests
of justice. When a person had thus been ordered to be
imprisoned for life, the court below felt that no separate
term of sentence need be passed for other offences.
183. When there was a conviction, the court below
was obliged to impose a sentence on each of the several
counts of conviction and it could, at the best, have
directed that the sentences should run concurrently, rather
than imposing no sentence, in the light of the more severe
sentence passed for a graver offence. In such
circumstances, the State need not have taken an appeal
under Section 377 Cr.P.C. for enhancement of sentence,
because there was no sentence at all on those two counts.
On the other hand, when one is found guilty of an offence,
he has to suffer the sentence provided for, for that
offence. This being not the case of enhancement of
sentence, when his appeal is allowed in part setting aside
the conviction for the offence on which he had been
sentenced for a longer term, he shall have to face sentence
in respect of the convictions which we are confirming in
this appeal filed by him. Therefore, we are of the view
that we must impose sentence under the said two counts. We
have such power in terms of clause (b) of Section 386, if
not clause (e) thereof.
184. Taking into account the nature of the offence
committed and the plight of the victim, who had been
subjected to such offence for about long 40 days, we feel
that no leniency need be shown to such an accused. We are
of the view that taking into account all circumstances, a
sentence of rigorous imprisonment for 5 years with a fine
of Rs.25,000/-, on each of the said two counts of offences
shall meet the ends of justice in this case. In default of
payment of fine as aforesaid, he shall undergo simple
imprisonment for one year each on those two counts.
185. Accordingly, we allow Crl.A.No.877/02 as
aforesaid, setting aside the conviction of the appellant
therein on all the counts except under Sections 366 A and
372 IPC and modify the sentence passed on him by the court
below, as aforesaid, for the said two offences. We make it
further clear that fine, if realised, shall be paid to the
victim, PW.1 in Sessions Case No.241 of 2001 leading to
Crl.A.No.877/02. The substantive sentences of imprisonment
shall run concurrently. He will also be entitled to set
off under Section 428 Cr.P.C. The court below shall issue
non-bailable warrant against him to execute the sentence.
186. The remaining criminal appeals arising from
S.C.No.187/99 are allowed setting aside the conviction of
the appellants therein and vacating the order of sentence
passed on them. Bail bonds executed by them shall stand
cancelled.
187. Now, we will have to consider the three
Crl.M.Cs. filed by PWs.95, 96 and DW.10. In the light of
our findings as above, it cannot be said that any of them
has gone wrong warranting any strictures against them. We
have already set aside the impugned judgments, except
insofar as the conviction under Section 366 A and 372 IPC
so far as Dharmarajan is concerned. Consequently, the
strictures made against them shall stand vacated.
Crl.M.Cs. therefore succeed.
188. We are indebted to the counsel appearing in
these cases, including the special public prosecutor for
the able assistance rendered to us to dispose of these
appeals and Crl.M.Cs. The arguments have been long and
meticulous. We have been taken through all the relevant
inputs even minor ones in detail. We place on record our
indebtedness to counsel, in that regard.
189. At the same time, we shall express ourselves
that we had been slightly disturbed by the attitude shown
by the print and electronic media during the hearing of
these appeals. Two or three days before, there appeared a
news item in more than one vernacular daily that this court
had come to the conclusion that the investigation done by
certain officers was not proper, even before the hearing
was complete.
190. Any report appearing in leading daily news
papers will be read by thousands of people and they will
carry impressions on its basis. We are afraid that if the
report comes on like this, the business of the court will
be affected. We feel that those who are making such
reports are unmindful of the repercussions of such reports.
Many of the legal reporters are lawyers who are in the know
of what is happening in the court rooms. Nobody accepts a
mute judge. A mute Judge may not be able to render
justice. A Judge may have to convey ideas and express
doubts. An effective adjudicatory machinery can work only
by conveying ideas. When the Judges are posing questions
to one, it will, in certain situations, be couched with the
contentions to the contra placed before the court by his
adversary. Such questions however hard it may be, shall be
answered giving the response on that particular contention
to the court. If a reporter of a news paper who casually
comes to the court room and hears such questions then, and
forms a wrong idea that the court has formed an opinion;
and consequently reports his impression as the views
expressed by the court, it will not be a responsible
journalistic approach with an anchor on the society in
general. It may help in generating sensation, which is of
no use. Misplaced sensation can drive even the earnest
truth seekers away from the right path pursued by them. Of
course, the courts will certainly not be carried away by
such incorrect reports or sensation created thereby. But
the public at large should not be allowed to carry wrong
notion on the views of the court. Therefore, it is high
time that the journalists reporting the proceedings in
court, shall bestow care and responsibility to report the
proceedings truly and correctly. The legal reporters must
understand and comprehend the sublime processes that go on
in courts. Discussion, debate, exchange of ideas and
attempt to meet one reason with a better one are the
foundations of that noble process. Search for truth
becomes effective and purposive only when the adjudicator
expresses doubts and exchanges ideas. Queries from the
bench and clarifications sought must be understood and
their impact comprehended by the law reporters. If they
cannot comprehend and perceive the soul of such sublime
interactions in court, they must desist from such
reporting.
191. We were again disturbed that almost all the
daily news papers today have carried reports about the
contents of this judgment, which is not even complete now.
Our judgment bears the date of today. Evil is that a
report on its contents was published by media yesterday and
today morning. It is true that after hearing almost for
long two months and bearing all the materials with much
clarity in our minds, we thought of delivering our judgment
with the able assistance of the counsel and in their
presence forthwith. Moreover, it is the duty of the court
to deliver the judgment as quickly as possible so that the
parties will get the fruit of their appeal right from the
mouth of the court itself at once. A pronouncement can be
called a judgment only when the last word is pronounced and
a date is given to that pronouncement. Until then, it is
possible that certain observations or conclusions in one or
two segments already dictated earlier may be modified.
Moreover, in a Division Bench, it is also possible that the
opinion expressed by one judge need not always be accepted
by the other judge, who may form a different opinion. A
judgment of a Division Bench will be conclusive only when
its delivery is complete and the other judge sitting in the
court concurs with the view so expressed by such delivery
by the other. Until then, it cannot be termed as a
Judgment. It is not proper, we feel, for the responsible
media people to serve half-baked judgment to the public and
in case any mistake occurred in the dictation is corrected
later, it will create again a chaos as to what prompted the
court to deviate from the mistaken portion, which has been
published by the media as the verdict of the court.
192. Therefore, it is high time, to caution the
media, both print and electronic, that the proceedings in
court must be published with much care and restraint and
only after ascertaining the truth and not from any
truncated or partial version. The sublimity of the court
process must be imbibed by the reporter when he makes the
report. No harm will occur in such circumstances, if the
publication is delayed by a day. It will not affect
anybody’s right to information which means the right to
receive correct and true information. Report on a document
like the judgment shall be based on its complete contents.
It cannot be reduced to the type of report on a public
speech or address. We hope that the media and the public
will take this observation in its true spirit. We do not
in any way mean to curb the free press in their activity.
What is required is only a responsibility with some amount
of restraint to deliver the true information to the public,
so far as the court proceedings, which the people of the
country consider with high esteem, are concerned and not to
cause embarrassment to courts.
193. It is advisable that there shall be some
guidelines in that regard so that one can follow the same
with clarity and certainly.
194. We, therefore, appeal to the Press Council of
India that they shall consider framing some regulations
with regard to the reporting of proceedings in the court
including the judgment.
195. A copy of this judgment shall be sent to the
Press Council of India. In the meantime, we are hopeful
that the media will conceive in true spirit the sentiments
expressed above and exercise restraints and constraints
wherever necessary in reporting the proceedings of the
court.

(K.A.ABDUL GAFOOR)
JUDGE.
tm/nan/sk/-
CONCURRING OBSERVATIONS BY JUSTICE R. BASANT.
196. I have heard the judgment dictated by my
learned brother immediately after conclusion of the very
long arguments which have spread over a period of two
months. I do wholly concur with the final conclusion that
the appellants in all these appeals are entitled to the
benefit of doubt in respect of all offences alleged against
them-except Dharmarajan the principal accused in so far as
it relates to the offences punishable under sections 366A
and 372 of the Indian Penal code. I do also concur with
the sentence imposed on him for the said offences. But I
feel obliged to give expression to a few disturbing
thoughts that are aroused in my mind after considering the
facts in this case.
197. We have attempted on the facts of this case
to draw the frontier line between consent and mere passive
resignation and acquiescence. It is the unavoidable but
onerous duty of courts on the facts of each case to
identify, ascertain and demarcate that real, yet elusive
and difficult, line between voluntary consent and passive
acqueiscence, subject of course to the law relating to
burden of proof and benefit of doubt. This by any
standards has not been an easy task in this case. We are
not unmindful of the plight of the victim lass in distress.
Consent in the law of rape need not always be a prudent or
even intelligent one. It is easy to assume that no minor
if prudent and intelligent, and if her faculties of
reasoning and sense of righteous behaviour are properly
developed and intact, would choose in the Indian context to
consent to extra marital and pre marital sexual
intercourse. Law in its wisdom chooses to concede to a
girl, below 18 but above sixteen, the right to consent to
sexual intercourse. That legislative wisdom cannot be
questioned by the courts. The courts under the present law
can only enqire whether consent in fact is there and
whether such consent if any is vitiated. If such consent
is given by a girl aged less than 16years the same can be
ignored. But if the minor girl is aged above 16years, the
courts can only enquire whether such consent was there and
whether such consent if any is vitiated on any of the
grounds enumerated in S.90 IPC or clauses thirdly to
fifthly in S. 375 IPC; not whether it was moral or proper
for the girl to give consent and for the indictee to accept
and act on such consent of a minor. Her age, by itself,
cannot be reckoned as sufficient to vitiate consent.
Criminality and culpability according to law, and not
morality of the consent or that of the indictee, are the
questions before a criminal court.
198. The age at which a female offspring is
reckoned as available (or competent to give the requisite
consent) for sexual intercourse has often been reckoned as
one safe indicia to assess the culture of a polity.
Refined societies treat their children with concern and
compassion. In the march of civilizations towards
progress, puberty was earlier reckoned as the biological
rubicon which had to be crossed by a female child to be
eligible for according consent in marriage and sexual
activity. But as civilisations advanced it was considered
atrocious that the line could be drawn at such an early
age. Hence the Indian legislature in its wisdom has now
drawn the line at sixteen years.
199. To me, it rebels against logic and reason
that a system which considers a person aged less than 18
years to be a child/ minor, not competent to take major
decisions affecting herself or others for the puposes of
the Indian Majority Act, Contract Act, Juvenile Justice
Act, Child Marriage Restraint Act, Representation of
Peoples Act — nay for even Secs. 361, 366, 368 etc of the
Indian Penal Code, should concede to such child the right
to consent to sexual intercourse. Marry, she cannot at
that age even with the consent of her parents. She cannot
be taken out of the keeping of her lawful guardian even
with her consent for lesser purposes. But consent she can
to sexual intercouse so long as she does not go out of the
keeping of her lawful guardian ! Strange propositions !
Is law the quintessence of the enlightened common sense of
the community? One is compelled to lament in resignation
that there can be nothing more uncommon than common sense.
200. The Law Commission of India did attempt in
its 84th report to bring up the age of consent in rape to
18 years in tune with other enactments and consistent with
refined and modern notions regarding the concern and
compassion which society should bestow on its younger
members. The consent for intercourse allegedly given by
PW3, on which aspect we have chosen to concede the benefit
of doubt to the appellants, could easily have been ignored
if that suggestion of the Commission were accepted by the
Parliament. But alas that was not accepted. With the
result the age of consent in an offence of rape continues
to be 16 years even today.
201. In the fiercely consumerist society that we
live in, a young girl child is also exposed to so many
temptations that it is difficult for the child which has
not been groomed in proper atmosphere with a proper value
system inculcated in it, to resist such temptations. Such
children can be termed deviants but cannot be merely
condemned and left to their fate . They too deserve the
sympathy of the system as it is no crime of theirs that
they are born and forced to grow up in such atmosphere. It
is the duty of the secular state to give the requisite
education to instil a proper value system in such future
citizens. That must be reckoned as the incident of the
constitutional obligation of the State to give free primary
education. That obligation cannot be relegated by the
State to religious or optional institutions. They too
deserve the protection of the law against unintelligent,
imprudent and immoral consent being extracted from them at
that early age. No one should be permitted by law to rely
on such alleged consent given by a minor aged less than 18
years, the fond child of law and equity. I may sum up by
stating that raising the age of consent for sexual
intercourse to 18 consistent with the stipulations in the
saner subsequent enactments appears to be the unavoidable
imperative before the system. At least the Kerala
Legislature must take bold efforts to bring in suitable
local amendments to S.375 of the Indian Penal Code and give
leadership to others.
202. Making of the law in a democratic polity is
an agonisingly slow process. The needs of the society have
to be perceived by the polity. Opinion makers have to
perceive the need. Public opinion has to be generated,
Such public opinion must get expressed on the floor of the
legislature and must get translated into legislative
action. Legislative stipulations have to be enforced by
the executive and interpreted by the adjudicators. It is
only then that relief is ultimately enjoyed by the polity.
203. Wait, we must. But the process has to start
here and now. Such unfortunate incidents like the one in
this case, which seem to be too frequent in the Kerala
scenario of late, should not be viewed merely as god sent
opportunities for improving stakes in the electoral battles
to follow. They must make the enlightened polity aware of
the need for changes in the law. Meaningful discussions
must be aroused. Observations by courts may help to
accellerate the pace of the march towards ideal laws. The
purpose of this added note is just that.
Dated this the 20th day of January, 2005.

(JUSTICE R. BASANT)
Nan/

K.A.ABDUL GAFOOR &
R.BASANT, JJ.
————————————————-

Crl.A.Nos. 590, 591, 599, 600, 602, 603, 604
605, 606 to 619, 627, 632, 633, 633 and 637 of 2000
877 of 2002, Crl.M.C. Nos.7136 of 2001,
3862 of 2002 & 4141 of 2003

JUDGMENT

20th January, 2005.
————————————————–
Source : http://judis.nic.in/judis_kerala/chejudis.aspx



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