VISVESWARAN versus STATE REP. BY S.D.M.

Y.K. SABHARWAL, J. The appellant has been convicted by court for wrongful confinement (Section 346), abduction (Section 366) rape (Section 376). On conviction, rigorous imprisonment for a seven years and fine of Rs. I 0,000 for offence under Section 376 and punishments for other offences were imposed. The conviction and has been maintained in appeal by the High Court in terrns of the impugned judgment which is under challenge on grant of leave.

p. 981, margin A

The appellant at the relevant time was posted as a Constable Prohibition Wing of Conoor Police Station. The victim, PW!, was recently married rustic woman. The commission of crime on the person the victim by a Police Constable has also been fully established and matter in issue. The issue that has been raised in this appeal is identity of the accused.

p. 981, margin B

The established facts are that during March 1989, PW!, her (PW2), Uncle of PW2 (PW4) and their other relatives pursuing the profession of lead coating to vessels/utensils, used to go from place to place purpose of their profession. At the relevant time, they were at Udhagamandalam for the said purpose. Their native place is Pondicherry. the night between I Ith and 12th March, 1989, while all these persons sleeping on the bus stand, a Police Constable came in a taxi at about and asked PW! and PW2 about their identity and profession. On PW! that PW2 is her husband and they had come for the purpose of their profession of lead coating to vessels, they were told that there was a suspicion and were asked to board that taxi. Under these circumstances, they made to board the taxi. After covering some distance, PW2 was pushed from the taxi and when asked why was he pushed out, PW! was told parents had made a complaint and she had to be interrogated alone. forcibly taken into a room in Woodlands Hotel at Udhagamandalam. room was bolted from inside and rape committed on her. In the morning, taxi-driver came and tapped the door, the Police Constable went inside bathroom instructing the driver to bring the taxi. When he was in the bathroom, PW! bolted the door from outside and came out of the hotel. PW! with the help of an old man reached the bus stand and narrated the to PW2 and PW4. They then went to the Police Station Kethi and she the incident which was reduced into writing by Sub-Inspector of Police. Exhibit P-1. Exhibit P-1 was signed by PWI. PWl2 registered a case Sections 366 and 376 !PC and submitted it to the Inspector of Police. P-19 is the First Information Report. PW I 3, the Inspector of Police a copy of Exhibit P-19 and recorded statements of PWI sent PW! for medical examination in the hospital. As in the Police department, PWl3 submitted the file Officer (PW14). Exhibit P-20 is the letter written file to PWl4. The accused was not available when All this happened on 12th March.

pp. 981–982, margin A

On 13th March, PWl4 went to the hospital and by PWI and arrested the accused in Woodlands Hotel. in intoxicating mood, a certificate from the doctor of the accused were also seized. The car driver (PW5) were located at 10 p.m. and so also the taxi. PWl4 of PWS, PW6 and PW7 on 13th March. PW7 is presence taxi was hired for conducting a raid. Accused examination on 14th March, 1989. The car was also under Exhibit P-23 and PWs.5, 6 and 7 were examined PWI appeared as a prosecution witness that she had been raped by a Police Constable. PWI examined the accused at 11.15 a.m. on 14th March, on the accused :

p. 982, margin B

"I. Abrasion with constusion 1/2 cm long

p. 982, margin D

chest in the region.

p. 982, margin D

2. Abrasion 1/2 cm long in the left side of

p. 982, margin E

lateral end of the left clavicle. 3. Abrasion in front of left shoulder 1/2

p. 982, margin E

PWl5 found the above injuries when the accused him to find out his potency. PW15 also found portion of male organ of the accused. The accused, PWJ5 to take the sample of semen stating that he PW 15 also deposed that it is possible for the injuries nails of a girl come in contact when she is raped. Officer, Conoor, after recording the statement of report against the accused under Sections 366 and

p. 982, margin E

The prosecution examined 15 witnesses. None accused. In his statement under Section 313 Cr.P.C., the evidence given by the prosecution witnesses on appreciation of evidence, convicted and sentenced the stated.

pp. 982–983, margin G

It stands established from evidence and could not be questioned that PWJ was picked up and raped by a Police Constable substantially in the manner deposed by her. The only dispute that has been raised is about the identity of the accused. Learned counsel for the appellant contends that the prosecution has miserably failed to establish that the appellant committed the crime. The contention of Mr. Viswanathan is that it is a case of no evidence since there is not even an iota of evidence to connect the appellant with the commission of the offence and, in fact, it stands disproved that the appellant is the person who committed the crime.

p. 983, margin A

In order to properly appreciate the contention of learned counsel, it would necessary to bear in mind the background of the case including the stata of society to which the victim belongs, her profession as also of the accused and the manner in which investigation was conducted. It is a common practice with those carrying the profession which PWJ and PW2 were carrying, to sleep during night on roadside or such similar place, while going from place to place. As above noticed, PWJ, PW2 and PW4 were sleeping on bus stand when PW 1 and PW2 were picked up by a Constable ostensibly for interrogation on a suspicion allegedly on a complaint made. It is also apparent from record that the investigation has been highly defective. The question to be examined, however, is whether despite discrepancies and deficiencies pointed out and strongly pressed into service by learned counsel for the appellant, has the prosecution been able to prove, beyond reasonable doubt, the guilt of the appellant.

p. 983, margin C

The evidence of PWl and PW2 was recorded by the trial court in September 1993. The main discrepancy and deficiency in the case of the prosecution that has been heavily relied upon by Mr. Viswanathan is that none of the witnesses including PWJ and PW2 could identify the appellant. It is correct, as pointed out by the learned counsel, that both PW I and PW2 stated in their evidence that the person who took them in the car was not present in the Court. Similar was the statement of PW4. PW5 who was driver of the vehicle in the question was declared hostile. PW6, the cleaner of the vehicle, was also declared hostile. He also did not name the appellant. PW7, a car mechanic who was present when the taxi was hired from the taxi stand, was examined in the Court of Judicial Magistrate where he stated that the appellant had engaged a taxi and brought a boy and a girl and went with the girl. However, in cross-examination, he stated that the said statement was given at the instance Of the Police and that when he was examined by RDO- PWl4, he had only stated that the person was a Police Constable and had not told his name but in the Court of Judicial Magistrate, the name of the Police Constable as Visveswaran - the appellant was stated only after the Police had told him to do so. In view of this evidence, it was strenuously contended that the present case is of no evidence and, therefore, the appellant is entitled to a clean honourable acquittal and not an acquittal ·as a result of a reasonable doubt in the prosecution case. The further contention of learned counsel was that under these circumstances, the non holding of test identification parade was fatal to the case of the prosecution. At the first blush, we were much· impressed by the contentions but on deeper consideration, we are of the view that in the facts and circumstances of the case, no interference is called for with the findings arrived at by the trial court and affirmed by the High Court on appreciation of evidence despite the aforesaid deficiencies and discrepancies pointed out on behalf of the appellant.

pp. 983–984, margin E

Having already noticed the background of the case, the stata of society to which the victim belongs and the nature of her profession and the established fact that the victim was picked up by a Police Constable ostensibly for interrogation on the pretext of suspicion on some complaint having been made and then used to fulfil sexual hunger, we find no material to come to the conclusion that the appellant was falsely implicated since his involvement in the crime has been established from the circumstances of the case beyond any reasonable doubt. PW! 's deposition was that she could identify the person who raped her. She also told so to the Police. She further stated that his name starts with word 'Visu'. She also told PW14 that she could identify the person who raped her. To the similar effect was the statement of PW2. PW2, on examination by RDO, gave the name of the person as Visveswaran - the Appellant. PW6, though declared hostile, did support the case of the prosecution to the extent that a boy and a girl were taken in the car by the driver at the request of a Police Constable and on way the boy was dropped. He, however, stated that the girl was sent back after interrogation. As already noticed, PW7, though stated before the Judicial Magistrate that the appellant had engaged the taxi and brought a boy and a girl and went with the girl, but in cross-examination, stated that the name of the appellant was given by him at the instance of the Police. The victim was raped by a Police Constable in a hotel. The question is as to the identify of that Police Constable. Was the appellant the said Police Constable, or there was some other Police Constable? It is unfortunate that despite the aforesaid facts, the test identification parade was not held. An important aspect of the case is that the appellant had beard and moustaches when PW I and PW2 were examined as witnesses for the prosecution. It was not so at the time of the occurrence. PW! and PW2, therefore, it is evident, could not identify him in Court and stated in their deposition that the said person is not in Court. It does not mean that the acquittal is to follow as a natural corroboratory from the statements of PW! and PW2. The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a times, crimes are committed under cover of darkness when none is able to identify the accused. The commission of crime can be proved also by circumstantial evidence. In the present case, there are clinching circumstances unerringly pointing out the accusing finger towards the appellant beyond any reasonable doubt.

pp. 984–985, margin C

Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the comts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. Jn defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.

p. 985, margin C

Reverting to the instant case, it i~ no doubt true that if the evidence of witnesses is examined in isolation, without having regard to the aforesaid principles, there may be considerable force in the submission that the identity of the appellant has not been established and likewise as a result of defective investigation of not holding test identification parade, the benefit should go to the appellant. However, when the case is examined having regard to the aforesaid legal principles, the result would be otherwise. Circumstances which have been taken into consideration against the appellant by the trial court as well as the High Court are that the appellant, a Police official, was caught from a· room in a hotel. The proprietor of the hotel was examined as PW3. The hotel record (Exhibits P-4 and P-5) showed booking of the room in that hotel by the appellant and also payment of advance of Rs. I 00/-. PW3 had also been examined by PW14. The appellant could not explain his whereabouts during the time the offence was committed. He was not cooperative during investigation. He declined to give sample of his semen. He was having different appearance at the time of examination of PW I and PW2 in Court. At the time of commission of offence, he did not have beard and the moustaches. However, when PWI and PW2 were examined in Court, he had beard and the moustaches and was wearing Dhoti. The testimony of PW I and PW2 was straightforward. The witnesses, immediately after the commission of offence, had named the· appellant. The non-holding of the test identification parade, having regard the facts of the case, is not fatal and does not create any reasonable doubt the case of the prosecution. We are unable to accept the contention that the identity of the appellant had not been proved. From the proved circumstances, it has been fully established that PW! was picked up and raped in a hotel room as per the case set up by the prosecution by a Police Constable who was none other than the appellant. There is no infirmity in the impugned judgment of the High Court. The appeals are accordingly dismissed. S.K.S. Appeals dismissed.

pp. 985–986, margin F