Back
2003(3) Supreme 566
SUPREME COURT OF INDIA
(From Chennai High Court)
Y.K. Sabharwal & H.K. Sema, JJ.
Visveswaran -Appellant
versus
State Rep. by S.D.M. -Respondent
Criminal Appeal Nos. 929-930 of 2002
Decided on 28-4-2003
Counsel for the Parties :
For the Appellant : K.V. Viswanathan, K.V. Venkataraman, Atul K. Sinha, Kunwar Ajit Mohan Singh, K.V. Vijay Kumar, Advocates.
For the Respondents : Krishnan Venugopal and P.N. Ramalingam, Advocates.
Held : 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 courts 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. In 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. (Para 12)
(ii) Indian Penal Code, 1860-Sections 346, 366 and 376-Appellant, a police constable picked up victim who was sleeping by road side with her husband, carried her in a taxi and committed rape on her in a hotel room-Conviction by trial Court and confirmed in appeal by High Court-SLP-Question of identity of appellant-No TIP was held-Identification of accused either in test identification parade or in Court is not sine qua non in every case if from circumstances guilt was otherwise established-Clinching circumstances unerringly pointing out accusing finger towards appellant beyond any reasonable doubt-Conviction could not be interfered with.
Held : 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.100/-. 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 PW1 and PW2 in Court. At the time of commission of offence, he did not have beard and the moustaches. However, when PW1 and PW2 were examined in Court, he had beard and the moustaches and was wearing Dhoti. The testimony of PW1 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 to the facts of the case, is not fatal and does not create any reasonable doubt in 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 PW1 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. (Para 13)
JUDGMENT
Y.K. Sabharwal, J.-The appellant has been convicted by the trial court for wrongful confinement (Section 346), abduction (Section 366) and rape (Section 376). On conviction, rigorous imprisonment for a period of seven years and fine of Rs. 10,000/- for offence under Section 376 and lesser punishments for other offences were imposed. The conviction and sentence has been maintained in appeal by the High Court in terms of the impugned judgment which is under challenge on grant of leave.
2. The appellant at the relevant time was posted as a Constable in the Prohibition Wing of Conoor Police Station. The victim, PW1, was a young, recently married rustic woman. The commission of crime on the person of the victim by a Police Constable has also been fully established and is not a matter in issue. The issue that has been raised in this appeal is about the identity of the accused.
3. The established facts are that during March 1989, PW1, her husband (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 for the purpose of their profession. At the relevant time, they were at Kethi in Udhagamandalam for the said purpose. Their native place is Pondicherry. On the night between 11th and 12th March, 1989, while all these persons were sleeping on the bus stand, a Police Constable came in a taxi at about 1 a.m. and asked PW1 and PW2 about their identity and profession. On PW1 replying 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 on them and were asked to board that taxi. Under these circumstances, they were made to board the taxi. After covering some distance, PW2 was pushed out from the taxi and when asked why was he pushed out, PW1 was told that her parents had made a complaint and she had to be interrogated alone. She was forcibly taken into a room in Woodlands Hotel at Udhagamandalam. The room was bolted from inside and rape committed on her. In the morning, the taxi-driver came and tapped the door, the Police Constable went inside the bathroom instructing the driver to bring the taxi. When he was in the bathroom, PW1 bolted the door from outside and came out of the hotel. PW1 thereafter with the help of an old man reached the bus stand and narrated the incident to PW2 and PW4. They then went to the Police Station Kethi and she narrated the incident which was reduced into writing by Sub-Inspector of Police. It is Exhibit P-1. Exhibit P-1 was signed by PW1. PW12 registered a case under Sections 366 and 376 IPC and submitted it to the Inspector of Police. Exhibit P-19 is the First Information Report. PW13, the Inspector of Police received a copy of Exhibit P-19 and recorded statements of PW1 and PW2 and thereafter sent PW1 for medical examination in the hospital. As the accused was serving in the Police department. PW13 submitted the file to the Revenue Divisional Officer (PW14). Exhibit P-20 is the letter written by PW13 submitting the file to PW14. The accused was not available when PW14 searched for him. All this happened on 12th March.
4. On 13th March, PW14 went to the hospital and seized the clothes worn by PW1 and arrested the accused in Woodlands Hotel. As the accused was in intoxicating mood, a certificate from the doctor was obtained. The clothes of the accused were also seized. The car driver (PW5) and the cleaner (PW6) were located at 10 p.m. and so also the taxi. PW14 recorded the statement of PW5, PW6 and PW7 on 13th March. PW7 is a car mechanic in whose presence taxi was hired for conducting a raid. Accused was sent for medical examination on 14th March, 1989. The car was also seized on 14th March under Exhibit P-23 and PWs.5, 6 and 7 were arrested. The doctor who examined PW1 appeared as a prosecution witness (PW10). PW1 told PW10 that she had been raped by a Police Constable. PW15 another doctor, who examined the accused at 11.15 a
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
