- (1.) THIS revision is against the order of conviction and sentence passed by the learned Additional Sessions Judge, South Arcot , in C. A. No. 57 of 1990 confirming the conviction and sentence imposed by the learned Assistant Sessions Judge, Vridhachalam, in s. C. No. 162 of 1988 for the offence under Sec. 376, Indian Penal Code to undergo rigorous imprisonment for 5 years.
(2.) THE prosecution case in brief is as follows: P. W. 1 who is deserted by her husband, lives alone in Neyveli. Her livelihood is by collecting the waste papers and also the scrap irons. She used to pick the scrap iron within the Neyveli Lignite Corporation premises. Even though security is provided in the Corporation mine area, P. W. 1 and some others stealthily used to pick up the scrap irons lying therein for their livelihood. On 2. 6. 1987 at about'1. 00'clock, she along with P. W. 2 and some others, entered into the Corporation area and tried to pick up the scrap irons in the area known as'b'point. THE accused/ revision petitioner, who was working as Havildar guarding the area, saw these women and called P. W. 1 alone to follow him. Though P. W. 1 was reluctant and was hesitating to obey his direction, due to the persuasion of the other women, she followed him and after reaching some distance this revision petitioner caught hold of her hands and dragged close to him. When she protested, he scolded her saying that she was pretending to be a woman of virtues and pushed her down close to the shrubs grown therein. THEn he undressed himself and raped her. Even though P. W. 1 shouted for help, no one came there. THEre was bleeding from her private parts. She returned back weaping to the place where her campanions were waiting for her and told them the incident. Two persons who came there, enquired them and took them to'b'point security office where P. W. 1 narrated the incident to P. W. 5, the Security Superintendent who recorded her statement under ex. D-1. He also called all the security staff and asked P. W. 1 to identify the culprit. She identified this revision petitioner as the culprit. By about 9. 00 clock, she along with her companions, was brought in a jeep to Neyveli bus stand, where they were dropped and she was given Rs. 105 whereas others were paid each Rs. 25 with a direction that they should not reveal this to anyone as their livelihood itself was by picking up scrap irons within the Corporation area. Some days later, an anonymous letter Ex. P-4 was sent to the Chief vigilance Officer stating that this revision petitioner, even if he had committed any offence, should have been dealt with according to law, but he was beaten on 2. 6. 1987 and that Rs. 2,000 was extracted from him as though it was paid as compensation to the victim woman but actually it was not paid to her and this amount was utilised by the higher officers and their links on drinks. On the basis of this letter, the Chief Security Officer took steps to trace P. W. 1 and obtained a statement Ex. P-1 from her on 25. 6. 1987. THE same was forwarded to the Inspector of Police for necessary action and on the basis of Ex. P-1, P. W. 16 sub Inspector of Police took up the investigation and P. W. 17 Inspector of police charge-sheeted the accused/revision petitioner. Both the courts below have found that the charge against the revision petitioner herein is proved and therefore convicted him to undergo rigorous imprisonment for 5 years for the offence under Sec. 376, indian Penal Code. The learned counsel appearing for the revision petitioner Mr. Balasubramanian, submitted that the courts below have failed to consider the series of suspicious circumstances and also the inconsistent version of P. W. 1 and that the delay of more than 23 days in lodging the complaint also was ignored by the courts below and therefore the conviction is not sustainable. The arguments raised by the learned counsel Mr. Balasubramanian are on the following points: 1. The improbability of P. Ws. 2 and 3 for being present at the time of occurrence. 2. The non-examination of certain persons to whom the alleged act was divulged soon after the occurrence. 3. The failure on the part of P. W. 1 of lodge a complaint to the police for more than 20 days. 4. The absence of symptoms of rape in the medical report; and Inconsistent version of P. W. 1 in Ex. D-1. 5. With regard to the first point, the learned counsel for the petitioner contended that as it is admitted by P. W. 1 that they picked the scrap irons within the protected area stealthily, P. Ws. 2 and 3 and the other woman mentioned in the evidence, would not have gone in a group when especially security is cordoned in that area and it is also artificial to say that when these women were spotted by the revision petitioner. who asked P. W. 1 to follow him the other women viz. , P. Ws. 2 and 3 and other were simply waiting there without trying to escape till P. W. 1 returned releasing from the clutches of the revision petitioner. He also would refer to the evidence of P. W. 2 who says that she saw the revision petitioner catching the hands of P. W. 1 whereas p. W. 3 would state that she heard the shouts of P. W. 1 for help and if really p. Ws. 2 and 3 were present there and saw the revision petitioner catching the hands of P. W. 1 and heard her shouts they would not have been staying idle in the same place till P. W. 1 returned back and therefore P. Ws. 2 and 3 could not have been present along with P. W. 1 near the place of occurrence. The learned counsel further points out the omission of the name of P. W. 3 in the evidence of p. W. 1. Even though the evidence is to the effect that the security guards were employed in the B point area, there is nothing in the evidence indicating that it is prohibited area of the movement of the public. Sometimes even in the non-prohibited areas, security guards might be employed for certain purposes. Therefore, from the evidence, it cannot be taken that no one was allowed to enter the B point without the permission of the authorities. But it is clear that the scrap irons scattered on the earth in that area were stealthily removed by P. W. 1 and other women. P. Ws. 1 to 3 would admit that on 2. 6. 1987, they had been to be'b'point only for collecting the scrap irons. But when they were spotted by the revision petitioner herein, they did not possess any scrap iron with them. Therefore, as these women did not have any scrap iron in their possession at the time when the revision petitioner spotted them, they might not have tried to run away on seeing the revision petitioner. Therefore, the argument of the learned counsel for the revision petitioner that P. Ws. 2 and 3 would not have waited till P. W. 1 returned, is not an acceptable argument.
(3.) THE evidence discloses that the revision petitioner on seeing these four women directed only P. W. 1 to follow him. THE learned government Advocate pointed out that P. W. 1 was a young woman of 21 years old while others were aged and therefore the revision petitioner's eyes fell on her for his carnal urge, that when she was asked to follow him the other women might have thought that for purpose of warning or to threaten her for collecting the scrap irons, she was asked to follow him and therefore they also asked P. W. 1 to obey his direction. Soon after the alleged occurrence P. Ws. 2 and 3 would state that P. W. 1 came to them weeping and two persons who came there, took them to the B point security office. P. W. 5 the Security Superintendent, has stated in his evidence that P. Ws. 1, 2 and 3, and another woman, whose name he did not know, came to him by about 03. 00 p. m. on 2. 6. 1987. From the evidence of P. W. 5, it is clear that P. Ws. 2 and 3 and another woman, were with P. W. 1 when they were in B point. P. W. 8, the Security Officer, also would state in his evidence that P. Ws. 1 to 3 and another woman by name Panki were present in the b point area. THE evidence of P. Ws. 5 and 8 cannot be brushed aside and their evidence makes it clear that P. Ws. 2 and 3 also should have been present with p. W. 1, as all of them came together for picking the scrap irons scattered on the earth. The next point raised by the learned counsel is that though P. W. 3 in her evidence has stated that soon after the occurrence, when they were waiting under the shades of the tree, two persons, who came there, enquired them for their presence in that place and when it was revealed to them, they took them to the security office and though it is the version of p. Ws. 1 to 3 that they revealed this incident to those persons, they were not examined as witnesses and similarly though P. W. 1 has stated in her evidence that soon after her return to the house, she told about this incident to the owner of the house in which she was staying he also was not examined and this is an infirmity in the prosecution case. P. Ws. 1 to 3 did not mention the names of those persons who enquired them when they were staying under the shades of the tree. Even though those two persons were not examined P. W. 1 has narrated the incident to P. W. 5, also the security officer. If P. W. 1 had not revealed this incident to anyone on that day, we can suspect the truth of her version. But she has told this incident to P. W. 5 after the occurrence. Therefore, non-examination of the strangers, who took P. Ws. 1 to 3 to security office, will not affect the prosecution case. Similarly the non examination of the owner of the house in which P. W. 1 was residing also has no significance because P. W. 1 has already informed about the occurrence to P. W. 5. Hence, the non-examination of the above mentioned persons will have no consequence in this case. The third point is the failure on the part of P. W. 1 to lodge a complaint to the police. The learned counsel refers to the decision in Vijayan and others v. State, by Inspector of Police, 1992 L. W. (Crl.)597, wherein the delay of 54 hours was considered to be fatal for the prosecution. But the delay in this case has been considered by the courts below elaborately and the prosecution also has explained the reasons. P. W. 1 has stated that her livelihood was by collecting the waste papers and also picking the scrap iron wherever found on earth. From the evidence of P. Ws. 1 to 3 as the scrap iron was easily, available within the Lignite Corporation area and particularly in B point, these women used to go there to pick them. The security guards are there to protect the properties of the Corporation and in spite of that, these women somehow were able to collect the waste and scrap iron found in that area. Therefore, certainly, it will amount to theft though the value of this scrap iron might have been negligible. P. W. 1 would state that as she had to go for picking these waste materials within the premises of the Corporation, breaking the surveillance of the security guards, she did not want to earn their enmity by lodging a police complaint against the person who misbehaved with her. No doubt after the alleged occurrence, they went to P. W. 5 to complain about the conduct of this revision petitioner. That was at the instance of two strangers who took them to the security office. Probably, soon after the occurrence, p. W. 1 might have felt in the fit of anger that she must get justice for the act of violence against her. The evidence discloses that P. W. 1 and other two women were made to wait in the security office till night and they were dropped in neyveli bus stand paying each some amount and they were also advised to forget about this incident as they had to face the security guards in their day-to-day life and therefore, she did not think to give a complaint against the accused. As mentioned above picking the waste and scrap iron in that area cannot be done without the co-operation of the security guards. Sometimes, they might have allowed these things to go on taking pity upon these poor women, who live by this manner and also taking into consideration the negligible value of the scraps. But if anyone of the security guards was made to face the trial by giving a complaint, that would infuriate them all and these women cannot enter into the premises of the Corporation. Therefore, as rightly held by the courts below, P. W. 1 might have felt that it would be foolish on her part to give a complaint against the revision petitioner especially when she was advised by the security staff who dropped them in the bus stop, advising them to forget about the incident and that too after paying Rs. 105 to P. W. 1. Therefore, P. W. 1 realising her enduring life, with the sympathy of the security men who did not drive her from picking the scrap irons, had to bury her feelings against this revision petitioner. Ex. P-4 shows that someone interested in the revision petitioner sent an anonymous letter to the Chief Vigilance Officer for the way in which this revision petitioner was dealt with, by beating him and also extracting Rs. 2,000 from him and only on the basis of this anonymous letter, the chief Vigilance Officer seems to have directed his staff members to trace p. W. 1 for the purpose of taking action against the offender. Therefore, Ex. P-1 was recorded from P. W. 1 on 25. 6. 1987 and the same was forwarded to the police. The evidence discloses that P. W. 1 due to the circumstances mentioned above was forced to forget about this incident on 2. 6. 1987 itself but the Chief Vigilance officer, on knowing this from Ex. P-4 wanted to un-earth the incident to take action against the concerned person and therefore it has come to light to the police. Hence, the delay in lodging Ex. P-1 has been properly explained and certainly it will not affect the prosecution case. ;