VISWANATHAN & ORS.versusSTATE REP. BY INSPECTOR OF POLICE, TAMIL NADU

                        [2008] 6 S.C.R. 1222


A                    VISWANATHAN & ORS.
                                 v.
    STATE REP. BY INSPECTOR OF POLICE, TAMIL NADU
              (Criminal Appeal No. 97 of 2004)
                         APRIL 29, 2008
B
            (S.B. SINHA AND V.S. SIRPURKAR, JJ.)

        Penal Code, 1860; S. 376(2}(g):
        Gang rape - No injury suffered by the prosecutrix - Test
C identification parade - Not conducting of - Fl.R. - Delay in
  lodging of - Effect on prosecution case - Held: Keeping in
  view the trauma suffered by the prosecutrix and having regard
  to her sociological background, delay in lodging of FIR
  reasonable and justified - She was found unconscious and in
D naked condition - Having regard to the circumstances in which
  prosecutrix was found by the villagers and the fact that she
  knew the main accused, undoubtedly she was subjected to
  rape - Sustaining of injury by the victim not necessary since
  she was a grown- up lady and mother of two children - Test
E identification parade required to be conducted in respect of
  those accused who were not named even in the FIR-Accused
  Nos. 5 to 6 having not been identified even in the Court, they
  cannot be held guilty of commission of offence of rape -
  Accused persons found capable of committing sexual
F intercourse - From the facts and circumstances of the case, it
  is clearly inferred that accused had common intention of
  committing the offence of rape - Hence, all the accused except
  accused Nos. 4 to 6, who were neither named in the FI. R. nor
  were identified in the Court, rightly convicted for committing
  the offence of gang rape punishable uls.376(2)(g) /PC.
G
        Criminal Trial:
        Natural witness - Testimony of - Held: PW7, brother of
  the prosecutrix, is a natural witness - There exists no reason
  to disbelieve his testimony.
H                               1222
VISWANATHAN & ORS. v. STATE REF'. BY INSPECTOR       1223
           OF POLICE, TAMIL NADU

     According to the prosecution, when the victim was A
returning home on the bicycle el her brother, PW 7, on
the way, six persons on their bteyeles 1llegedly chased
her. When brother of the victim protested, one of them
allegedly slapped him. He ran away out of fear. Accused
persons then allegedly taken the victim away to a nearby s
place and gang raped her. In the meantime, brother of the
victim brought some people from the village including PW
8. The victim was taken home and an F.l.R. was lodged on
the next day. Police, after compte\'ing the investigation,
submitted charge sheet agaimit tl'le accused persons for c
committing the offence of gang r'Pll· The trial court found
them guilty of committiftg the offence of gang rape
punishable u/s 376(2)(9) IPC 1nd sentenced them to
undergo rigorous imprisonment for 1O years. Appeals
preferred thereagainst by the convic:ts were dismissed by
                                                            0
the High Court. Hence, th' present appeals.
     Accused-appellants contended that the allegation of
use of force by the accused by Plltting a ~loth in the mouth
of the prosecutrix had not been dieclosed by her in her
deposition; that whereas the proseeutrix named accused E
Nos.1, 2 and 4 in the FIR with specific allegation of
commission of rape by accused Ncs.1 and 3, she changed
her story and attributed the act of commission of rape on
accused Nos1, 2 and 3 in her deposition before the Court;
that evidence of the posecutrix ii neither natural nor F
trustworthy; that PW7, brother of tht victim, merely stated
that accused No. 1 and three other accused persons
called his sister to enjoy which clearly show that he was
not very clear as to how many people followed her and
how many people allegedly raped the victim; that as no G
external injury was found on the body of the prosecutrix
or on her private part, as stated by Medical Officer (PW2),
the prosecution case appears to be doubtful; that there
was no reason furnished by the ~lice iSS to why the Test
Identification Parade could not be conducted; that in the
                                                             H
    1224    SUPREME COURT REPORTS            [2008) 6 S.C.R.


A absence of any charge having been framed under Section
  376(2)(g) IPC which provides for a minimum punishment
  of 10 years, the accused were g :avely prejudiced by
  imposing sentence for 10 years; that the delay in lodging
  the First Information Report has not been satisfactorily
B explained; and that there is nothing on record to show
  that all the six accused persons had common intention
  to commit the offence in question.
        Dismissing the appeals preferred by accused Nos.
  1, 2 and 3 and allowing the appeals preferred by accused
C nos. 4, 5 and 6 the Court
       HELD: 1.1 The fact that the victim was found lying
  naked at the place of occurrence in an unconscious state,
  stands proved not only by PW7, brother of the victim, but
  also by PW8. The evidence of PW8 remains
D uncontroverted. He has not been cross-examined.
  (Para - 12) [1231-C]
       1.2 The victim was sent to the hospital for medical
  examination. Indisputably, the prosecutrix did not suffer
E any injury. For the purpose of proving commission of the
  offence of rape, however, the same was not necessary as
  she was a grown up woman aged between 20 to 23 years
  as opined by Medical Officer. She was furthermore mother
  of two children. (Para - 12) [1231-E]
F      1.3 The victim knew accused No.1, who had taken a
  leading role in the whole episode. He invited others to
  rape her. Having regard to the circumstances in which
  she was found by the villagers including PW8
  undoubtedly she was subjected to rape. (Para - 13)
G [1231-F]
       2.1 The allegations made in the First Information
  Report are not evidence. She might have named four
  persons, namely, accused Nos.1 to 4 in the FIR, but she
  named only accused Nos. 1 to 3 in her deposition. (Para -
H 14) [1231-H]
    VISWANATHAN & ORS. v. STATE REP. BY INSPECTOR         1225
               OF POLICE, TAMIL NADU

         2.2 In a situation of this nature, a Test Identification A
    Parade was required to be held at least for the purpose of
    identification of accused Nos. 5 and 6. Some weight
    should have been given for arriving at a finding as regards
    the guilt of accused Nos.5 and 6, as they had not been
    identified in the court in absence of any Test Identification B
    Parade having been held or they having been identified
    in court, the accused Nos.4 to 6 cannot be held guilty of
    commission of the offence of rape. They have been
    convicted wrongly. (Paras - 15 & 16) [1232-C-E]
          Devinder Singh vs. State of H.P (2003) 1 SCC 488 -      C
    relied on
         3. Some delay has occurred in the lodging of the FIR
    but keeping in view the trauma suffered by the victim, her
    statement that she had regained her composures only in
                                                                  0
~   the evening cannot be disbelieved particularly in view of
    the evidence of PW8. In a situation of this nature and
    particularly having regard to the sociological
    backgrounds from which PW6 and PW7 and other
    witnesses hail, this Court is not in a position to agree with
    the submissions of the appellant that the prosecution's E
    case should be thrown out only on the ground of delay in
    lodging the FIR. (Paras - 17 & 18) (1233-B-C]
         4. PW7 is a natural witness. He was slapped. He was
    put to fear. He was chased. He had run away to his village,   F
    collected some people and came back to the scene of
    occurrence. This Court does not see any reason as to
    why he should be disbelieved. (Para - 19) [1233-D]
          5.1 Explanation-I appended to the s.376(2)(g) IPC
    clearly states that the persons who have common G
    intention to commit the said offence would also be liable
    in terms of Section 376(2)(g) IPC. The common intention
    of all the accused need not be supported by the fact that
    each one of them took part in actual commission of the
                                                                  H
    1226    SUPREME COURT REPORTS               [2008] 6 S.C.R.


A offence. The very fact that they came on cycles and
  dashed with the cycle of PW7 would clearly show that
  they had a common intention to commit the offence. If they
  had the common intention of committing the offence, they
  although were charged under Section 376 IPC in general,
s they could be convicted also under Section 376(2)(g) IPC
  as the latter is merely a graver form of the offence of rape
  as defined in Section 375 IPC. In any event, this Court does
  not find that they were prejudiced in any manner
  whatsoever; as evidently; they not only gathered and
C obstructed the prosecutrix from proceeding towards her
  residence with her brother in the bicycle but also
  deliberately making her and her brother to fall down from
  the cycle; and that' she was physically removed to a
  secluded place and at least three of them took part in
  committing the offence of rape on her one by one. The
0
  evidence of PW6 to the aforementioned extent is cogent
  and convincing and has been corroborated by PW7 who
  not only is a witness of the events which took place
  immediately prior to the actual occurrence of rape but also
  a witness to the scene of occurrence where he found his
E sister lying naked in an unconscious state. (Paras - 21 &
  22) [1234-C-H; 1235-A]
        5.2 The material objects were found to have semen
  stains. The accused persons were also tested as regards
F proof of potency and the doctors who examined them              •
  categorically came to the conclusion that they were not
  incapable of committing sexual intercourse. There may
  be some inconsistency with regard to recovery of the
  clothes or sending the same for chemical examination,
G but findings of this Court on the aforementioned grounds,
  are sufficient to prove the common intention on the part
  of accused Nos.1 to 3. (Para - 22) [1235-B-C]
        CRIMINAL APPELLATE JURISDICTION : Criminal
    Appeal No.97 of 2004.
H
     VISWANATHAN & ORS. v. STATE REP. BY INSPECTOR              1227
          OF POLICE, TAMIL NADU [S.B. SINHA, J.]

          From the final Judgment and Order dated 6.3.2003 of the       A
     High Court of Judicature at Madras in Appeal No. 949 of 2001.
                                 WITH
          Criminal Appeal Nos.100, 99, 98 and 629 of 2004 and
     785 of 2005.                                                       8
          K.V. Viswanathan, K.V. Venkatraman, B. Raghunath, K.V.
     Vijayakumar, Abhijit Sengupta, V.J. Francis, A. Radhakrishnan
     and Anupam Mishra for the Appellant.

         R. Sundaravaradan, V.G. Pragasam, S.J. Aristotle, Prabhu       c
     Ramasubramanian and Subramonium Prasad for the
     Respondent.

          The Judgment of the Court was delivered by
          S.B. SINHA, J. 1. Appellants herein, who are six in number,   0
     have preferred these appeals from a common judgment and
     order dated 6.3.2003 passed by the High Court of Judicature
     at Madras.
          2. Appellants were convicted under Section 376(2)(g) of
     the Indian Penal Code (hereinafter referred to as 'the Code')      E
     and sentenced to undergo rigorous imprisonment for 10 years.
           3. The incident took place on 20.11.1994. The victim was
     working as a Coolie. She was married and had two children.
     She was returning to her home on a bicycle with her brother,
     Palanisamy at about 10.00 pm after watching a movie.               F
•·   Appellants herein allegedly joining hands with each other,
     chased them. They were riding on their own bicycles. They
     dashed with the bicycle of the Palanisamy. Palanisamy and the
     victim fell on the ground. Allegedly, victim was asked to enjoy
     herself. Palanisamy, when questioned about the said conduct        G
     on the part of accused No.1 Babu, who was known to the victim
     as a mason, was slapped by the accused No.1. He ran away
     out of fear.
          4. The victim was taken at a nearby place and accused         H
    1228       SUPREME COURT REPORTS                 [2008) 6 S.C.R.


A   No.2 to 4 and 6, allegedly raped her one after the other. She
    lost her consciousness.
        5. Palanisamy went to the village and brought some people
  with him. They found the victim lying naked in an unconscious
  condition. PW8, Chinnadurai, and others poured water on her
B face. She was taken home after she regained her
  consciousness.

          6. She regained her composure in the evening. They came
    to the Police Station and lodged the First Information Report at
c   about 7.00 pm on 21.11.1994. She was medically examined at
    about 0720 hours on 22.11.1994. No injury on her person,
    however, was found. No injury on her private part was also
    noticed. In the FIR, accused Nos.1 to 4 were named. Accused
    Nos.5 and 6 were not named. It was said to be a moonlit night.
    All the accused, however, were not put on the Test Identification
0
    Parade. On completion of investigation, they were charge
    sheeted and put on trial.
         Admittedly, no charge under Section 376(2)(g) was
    framed.
E
        The allegations made against them in the FIR read as
    under:
           "On the moonlight, I identify one person is Babu who is
           working as a mason along with another three persons
F          were standing along with backside of cycle.
           All the accused were laughed at me when I was standing
           at Kariampalayam bus stop to go for work. I saw them.
           Babu called me to come with him. Immediately my brother
           asked about this, suddenly Babu slapped him. Then Babu
G          rushed with tears in the said cycle. All the three persons
           rushed me to the damaged wall building and place me
           near the tank. I tried to escape from them. The three
           persons pushed me with force and closed the mouth with       .,
           my saree. I cannot do anything. I saw all the faces in the
H          moon light. Babu called one Thangavely and told him that
VISWANATHAN & ORS. v. STATE REP. BY INSPECTOR               1229
     OF POLICE, TAMIL NADU [S.B. SINHA, J.]

      to go with me. Thangavelu placed on me without dress A
      and raped me. Next Thangavely sent one Sakthi. He also
      raped me. Next Babu called one Murugesan and sent to
      me. He also raped me. Then I felt unconscious. I do not
      know about the further matter. When I awakened, the village
      people, my brother, my uncle Chinnan and others poured B
      water on my face and help me to get up. I felt serious pain
    . and am crying and weeping. My brother helped me to
      reach my house. I am not able to get up since I lay down
      in the bed. In the evening I feel better. Immediately I and
      my brother come to the police station and explain the C
      matter."

     7. Before the learned trial Judge 10 witnesses were
examined, material amongst them is the victim herself (PW-6)
and her brother, Palanisamy (PW-7). Before the learned Trial
Judge, the victim did not identify all the accused. She identified   D
accused No.1, 2 and 3. The names of accused Nos.5 and 6
were not mentior:ied by her at all. In her deposition, she stated:
     "They take me to a damaged wall building at
     Kariampalayam and raped me. The first accused sent
     third accused to enjoy me. Third accused removed all the        E
     dresses. I felt unconscious. He do all the wrongs. Then the
     1, 2 accused raped me. Then I do not know what
     happened. I felt unconscious."
     8. PW7, in his deposition, stated that he knew the accused      F
No.1 Babu only. Except Babu, he did not name any other person.
      9. The learned Trial Judge, as also the High Court, as
indicated hereinbefore, found the accused guilty under Section
376(2)(g) of the Indian Penal Code and sentenced them to
undergo rigorous imprisonment for 10 years.                          G
     10. Mr. Viswanathan and Mr. Francis, learned counsels
appearing on behalf of the appellants, in support of the appeals,
would submit
     (1)   The findings of the High Court as also the learned        H
    1230         SUPREME COURT REPORTS                 [2008] 6 S.C.R.


A                Trial Judge are not sustainable as use of force by      ...
                 putting a cloth in her mouth had not been disclosed
                 by the prosecutrix in her deposition except in the
                 First Information Report.
           (2)   Whereas the prosecutrix named Accused Nos.1, 2
8                and 4 in the FIR, with specific allegation of
                 commission of rape by Accused No.1 and 3, she
                 changed her story and attributed the said act on
                 Accused No.1, 2 and 3 in her deposition before the
                 Court.
c          (3)   Her evidence is neither natural nor trustworthy as in
                 the FIR, she named only two persons to have
                 committed the offence, but she improved the said
                 story in her deposition in Court alleging three other
                 persons were on the back of the cycle and in total,
D
                 there w!re six persons; whereas PW? merely stated
                 that Accused 1 and three other persons called his
                 sister to enjoy which clearly go to show that ~hey
                 were not very clear as to how many people followed
                 and how many people allegedly raped her.
E
           (4)   As no external injury was found on her body or on her
                 private part, as stated by Doctor R. Jayabal (PW2),
                 the prosecution case appears to be doubtful.
           (5) Although in the First Information Report, she had
F                named Accused No.4, in her evidence she did not
                 name him at all.
           (6)   There was no reason as to why no Test Identification
                 Parade was held.
G          (7)   In absence of any charge having been framed under
                 Section 376(2)(g) of the Indian Penal Code which
                 provides for a minimum punishment of 10 years. the
                 accused were gravely prejudiced.
           (8)   The delay in lodging the First Information Report has
H
       VISWANATHAN & ORS. v. STATE REP. BY INSPECTOR 1231
            OF POLICE, TAMIL NADU [S.S. SINHA, J.]
•:
                  not been satisfactorily explained.                        A
            (9)   There is nothing on record to show that all the six
                  persons had common intention to commit the offence
                  in question.
            11. Mr. Sundaravaradan, learned senior counsel appearing        B
       on behalf of the State, on the other hand, would support the
       judgment.
             12. The fact that an incident of the nature disclosed in the
       FIR had taken place is not in question. The fact that she was
       found lying naked at the place of occurrence in an unconscious       c
       state, stands proved not only by PW? but also by PWB,
       Chinnadurai. The evidence of PWB remains uncontroverted. He
       has not been cross-examined.
            PW9 is the investigating officer. He stated that the FIR was
                                                                         D
....   lodged at about 7.00 pm in the evening on :-'1.11.1994 .
             She was sent to the hospital for medical examination.
       Indisputably, the prosecutrix did not suffer any injury. For the
       purpose of proving commission of the offence of rape, however,
       the same was not necessary as she was a grown up girl aged E
       between 20 to 23 years as opined by Dr. Gopikrishnan. She
       was furthermore mother of two children.
             13. She knew Accused No.1, Babu. It was the said accused
       who had taken a leading role in the whole episode. He invited
       others to rape her. Having regard to the circumstances in which      F
       she was found by the villagers including PWB, we have no doubt
       in our mind that she was subjected to rape.
             The only question which arises for consideration, therefore,
       is as to who were the persons responsible therefor.                G
             14. The allegations made in the First Information Report
       are not evidence. She might have named four persons, namely,
       accused Nos.1 to 4 in the FIR, but, as indicated hereinbefore,
       she named only accused Nos. 1 to 3 in her deposition. Only
       accused No.1, Babu, has been named by PW? and none other. H
    1232       SUPREME COURT REPORTS                    [2008) 6 S.C.R.


A She, therefore, knew only the four persons. She had not named
  accused Nos.5 and 6 either in the FIR or in her deposition.
        They had been arrested on the basis of the statements
  made by their co-accused. They had not been put to Test
  Identification Parade. The prosecutrix, in her deposition before
8 the learned Trial Judge, neither named nor identified accused
  Nos. 4 to 6. On what basis, therefore, their guilt is said to have
  been established is not known. Both, the learned Trial Judge as
  also the High Court, in their judgments did not deal with this
  aspect of the matter.
c
          15. In a situation of this nature, a Test Identification Parade
    was required to be held at least for the purpose of identification
    of accused Nos. 5 and 6. Some weight should have been given
    for arriving at a finding as regards the guilt of accused Nos.5
    and 6, as they had not been identified in the court.
0
         16. We, therefore, are of the opinion that in absence of
  any Test Identification Parade having been held or they having
  been identified in court, the accused Nos.4 to 6 cannot be held
  guilty of commission of the said offence. They are, in our opinion,
E have wrongly been convicted.
        As regards the identification of the rest of the accused,
    we may notice that in Devinder Singh v. State of H.P [(2003) 1
    sec 488), it was held :
F          "In view of these circumstances even if it is accepted that
           the prosecutrix had a fleeting glimpse of the appellants
           when they lighted the torch in her room, in the absence of
           any other evidence to show that the prosecutrix had
           occasion to see the appellants earlier, or to know them, it
           was incumbent on the prosecution to hold a test
G
           identification parade. This is not a case where an
           occurrence took place in broad day light and the prosecutrix
           had ample opportunity of noticing the features of the
           appellants. This apart, her naming some of the accused
           persons in the First Information Report and not naming
H
       VISWANATHAN & ORS. v. STATE REP. BY INSPECTOR                   1233
            OF POLICE, TAMIL NADU [S.B. SINHA, J.)

            them in the course of deposition casts a serious doubt on A
            the veracity of this witness."
             17. Some delay has occurred in the lodging of the FIR but
       keeping in view the trauma suffered by the victim, her statement
       that she had regained her composures only in the evening cannot
       be disbelieved particularly in view of the evidence of PW8.      B

             18. In a situation of this nature and particularly having regard
       to the sociological backgrounds from which PW6 and PW7 and
       other witnesses hail, we are not in a position to agree with the
       submissions of Mr. Viswanathan that the prosecution's case               c
       should be thrown out only on the ground of delay in lodging the
       FIR.
             19. PW7 also is a natural witness. He was slapped. He
       was put to fear. He was chased. He had run away to his village,
       collected some people and came back to the scene of D
       occurrence. We do not see as to why he should be disbelieved.
       If he was to lodge a false case, he could have done so even
       otherwise.
             20. Whether they were accompanied by the village people
       or their caste people is not a matter of any significance. For the E
       similar reason, whether PW7 was sent back by the Investigating
       Officer to get her clothes or not is again not a matter of great
       significance.
             Section 376(2)(g) of the Code reads as under :                     F
 J..

             "376. Punishment for rape.-(1) ...
             (2) Whoever,-
             (a) to (f) ...
                                                                                G
             (g) commits gang rape,
.._          shall be punished with rigorous imprisonment for a term
             which shall not be less than ten years but which may be for
             life and shall also be liable to fine:
                                                                                H
    1234         SUPREME COURT REPORTS                  [2008] 6 S.C.R.


A          Provided that the court may, for adequate and special
           reasons to be mentioned in the judgment, impose a
           sentence of imprisonment of either description for a term
           of less than ten years,
           Explanation 1.-Where a woman is raped by one or more
B          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."
c         21. Explanation-I one appended to the said provision
    clearly states that the persons who have common intention to
    commit the said offence would also be liable in terms of Section
    376(2)(g) of the Act. The common intention of all the accused
    need not be supported by the fact that each one of them took
    part in actual commission of the offence. The very fact that they
0
    came on cycles and dashed with the cycle of PW7 would clearly
    show that they had a common intention to commit·the offence. If
    they had the common intention of committing the offence, they
    although were charged under Section 376 in general, they could
    be convicted also under Section 376(2)(g) as the latter is merely
E . a graver form of the offence of rape as defined in Section 375
    of the Code. In any event, we do not find that they were
    prejudiced in any manner whatsoever; as evidently :
           (1)   they not only gathered and obstructed her from
F                proceeding towards her residence with her brother
                 in the bicycle but also deliberately making her and
                 her brother to fall down from the cycle; and
           (2)   She was physically removed to a secluded place
                 and at least three of them took part in committing the
G                offence of rape on her one by one.
        22. The evidence of PW6 to the aforementioned extent is
  cogent and convincing and has been corroborated by PW7 who              ...
  not only is a witness of the events which took place immediately
H prior to the actual occurrence of rape but also a witness to the
      VISWANATHAN & ORS. v. STATE REP. BY INSPECTOR             1235
           OF POLICE, TAMIL NADU [S.B. SINHA, J.]

      scene of occurrence where he found his sister lying naked in an   A
      unconscious state.
            The material objects were found to have semen stains.
      The accused were also tested as regards proof of potency and
      the doctors who examined them categorically came to the
      conclusion that they were not incapable of committing sexual 8
>     intercourse. There may be some inconsistency as pointed by
      Mr. Viswanathan with regard to recovery of the clothes or
      sending the same for chemical examination, but our findings on
      the aforementioned grounds, in our opinion, are sufficient to
      prove the common intention on the part of accused Nos.1 to 3. C
            23. For the reasons aforementioned, the appeals preferred
      by accused Nos.1, 2 and 3 are dismissed whereas the appeals
      preferred by accused Nos. 4, 5 and 6 are allowed. They are on
      bail. Whereas accused Nos.1, 2 and 3 are directed to surrender,
                                                                      0
      accused Nos.4, 5 and 6 are discharged from their bail bonds.
      S.K.S.     Civil Appeal Nos. 97, 100, 99 of 2004 dismissed,
                                Civil Appeal Nos. 98, 629 of 2004
                                         and 785 of 2005 allowed .




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