HARIDAS PILLAI Vs. STATE

JUDGEMENT

(1.) THE appeal is presented on behalf of the six accused persons who were tried in Sessions Case No. 4 of 1951 in the Sessions Court at Anjikaimal. The learned Judge after hearing the evidence for the prosecution found that all the six persons were guilty under Sections 129, 346 and 456 of the Cochin Penal Code. Section 129 corresponds to Section 143 of the Indian Penal Code Which refers to an unlawful assembly consisting of five or more members. Section 346 corresponds to Section 366 of the Indian Penal Code which provides punishment for abducting a woman to Compel her to illicit intercourse. Section 356 of the Cochin Penal Code corresponds to Section 376 of the Indian Penal Code which provides punishment for rape. After convicting them under these sections, the learned Judge has sentenced accused 1, 2 and 4 to 6 to rigorous imprisonment for five years and to a fine of Rs. 100/-with a direction that in default of payment of fine they should undergo rigorous imprisonment for a further period of three months. The third accused who was found to be the person who played the chief part in perpetrating these offences was sentenced to seven years' rigorous imprisonment and to pay a fine of Rs. 100 with a similar direction for undergoing imprisonment in default of payment of fine. All these accused persons have brought the criminal appeal to this Court. On behalf of the State, a revision petition has been filed which is already referred to. The point taken in the revision petition is that the sentences are not adequate in view of the offences committed by the accused persons. The prayer is for enhancing the sentence.

(2.) THE victims of the offences of abduction and rape are P. ws. 1 and 2 who are two young women who arrived in Ernakulam from their native place which they said is Thodupuzha. They are both 18 years of age and they are first cousins being the daughters of two brothers. On the date of occurrence, they seem to have run away from their home in Thodupuzha. They travelled by motor bus to Always and from there they got into the train and got down at Ernakulam at about mid-day on 12. 8. 1125 corresponding to the 25th of March 1950. After they got out of the railway station, their version is that they went to a water tap in the vicinity of the level crossing not far from Ernakulam South Railway Station and there while they were waiting to proceed further, the third accused who was going about on a cycle noticed them. Their case is that they had come to Ernakulam in order that they may go to a convent. The exact position they wanted to secure in the Convent is not clear. There is a suggestion made that in Thodupuzha the father of p. w. 1 approached the priests in charge of the local convent and he found that it would be very expensive to get P. w. 1 admitted with the idea of ultimately becoming a nun in the convent. The intention of both these girls who are Roman Catholic Christians, was that they should enter the convent in Ernakulam in some capacity or other. The idea that emerges from the vague statements made by them seems to be that they wanted to employ themselves at least as servants in the convent in Ernakulam. They were strangers to the place. They had not come to this place on any prior occasion. Therefore, they did not know their way to the convent. That was why they were loitering to ascertain how best they could reach the convent and make their request to the Mother Superior of the convent. The 3rd accused, as already stated, passed up and down the road on his bicycle when he noticed' these two girls standing and looking puzzled. He thought that they needed some sort of assistance and, therefore, he accosted them and started talking to them. He gathered from their conversation that they were strangers to this place, that they had just arrived a short while before his talking to them by train and that they were anxious to reach the convent in order that they may attain their object. He thereupon told them that he would show them the way to the convent. According to the prosecution, this was by way of enticement. He never intended to fulfil that promise. He merely wanted to have some control over the two girls with a nefarious scheme in his head. That if what is suggested on behalf of the prosecution and that is what appears from the subsequent conduct of the accused person. This accused accordingly asked the girls to go with him and he walked along with them leading the cycle and not riding on it. He took them to the residence of P. W. 11 Khathija who was a Muslim married lady with whom the 3rd accused we slightly acquainted and he requested her to permit P. Ws. 1 and 2 to remain in her house for a time. In the interval he was to go out and get the necessary permission to get the girls admitted into the convent. P. W. 11 did not like the idea of accommodating these two girls who were absolute strangers to her even for a time and therefore she refused the request made by the 3rd accused. He accordingly toot the girls with him to the residence of P. W. 12 who is the wife of P. W. 13. The third accused was slightly, acquainted with these persons as well. He made a similar request to P. W. 12 when her husband was not at home and she consented to permit the girls to remain in her house for a few hours in order that the 3rd accused may make the necessary arrangements which they wanted to make. Accordingly after leaving P. Ws. 1 and 2 in the house of P. Ws. 12 and 13 during the absence of P. W. 13 who had gone for his work, the 3rd accused left the place for a time. In the evening when P. W. 13 who is the husband of P. W. 12 came back and saw these two girls in the house he objected to their presence and he suggested that they may leave the house. They accordingly left the house and were standing near the entrance to the house from the road. At that stage the 3rd accused came back. He told them that he had gone to make arrangements for getting them. admitted to the convent as they desired and he took them along with him up to Ravipuram Junction. At that place he engaged two rickshaws which were pulled by P. Ws. 10 and 19. At that stage the 4th and 5th accused Joined the third accused. The procession started from that spot, the two girls riding in the rickshaws engaged for them, the 3rd accused riding on his cycle and accused 4 and 5 walking. They had given directions to the rickshawmen to take the two passengers P. Ws. 1 and 2, to Karikamuri where the 6th accused had taken up a room on rent belonging to an advocate of this place. The 3rd accused seems to have secured the key of this room from the tenant. He opened the room and asked the girls to get inside. While they were inside the room, the 3rd accused went out and got a packet of rice. P. W. 1 did not like to eat it, but P. W. 2 ate a portion according to her version. By this time, it was nearly 9. 30 P. M. At that stage, the second accused came on a cycle to the room and reported that the first accused wanted the girls to be taken to the convent. P. Ws. 1 and 2 were meant to hear this announcement. After delivering the message, the 2nd accused left the place. The third accused accompanied by accused 4, 5 and 6, the tenant of the room who had arrived in the meantime, proceeded towards Valanjambalam and there they were joined by the first and second accused. The first accused asked whether the two girls had their food and on hearing that only P. W. 2 had eaten the rice which was supplied by the third accused, he wanted P. W. 1 also to be given her dinner. At his direction, accordingly P. W. 1 was taken to a Muslim hotel called the Swaraj Hotel in the vicinity, and there she was given all that she wanted and after she had finished her dinner she was taken out and all the six accused persons accompanied by P. Ws. 1 and 2 walked towards the scene of occurrence which, according to the prosecution evidence, was a paddy Held not far from the Swaraj Hotel. While they were proceeding in that direction, P. W. 1 seems to have entertained some suspicion especially when she noticed that they were taking a route which was not frequented by a number of pedestrians and she-asked the question whether that was the way to the convent. The answer was given by the first accused that they will soon be there in the 'madhom'. That was the expression that he used. After some time when they reached a lonely place where there was a cemetry, the version given by P. Ws. 1 and 2 is that they were taken -to different parts, P. W. 1 was taken to a low wall by the side of the cemetry. P. W. 2 was taken down into the field and their version is that all the accused persons committed rape upon them. After the incident, all the accused with the excretion of accused 4 and 5 left the place. The suggestion is that they left taking P. W. 2 with them. Accused 4 and 5 are alleged to have committed rape on P. W. 1 after the other accused had left and then they walked towards the room in the occupation of the 6th accused. The girl was walking between the two men and the evidence is they were holding her hands while they were proceeding. On the way, three other witnesses, P. Ws. 5, 6 and 7 happened to be coming from the opposite direction, P. W. 5 was a police constable who was on leave. The two accused persons who were walking with P. W. 1 recognised him and they promptly ran away leaving P. W. 1 alone on the road. This excited the suspicion of these three people. and they went up to her and asked her why her two companions had bolted. Then she made a statement about all that had happened previous to the three witnesses meeting her. They then took her to the Police station. They gathered on their way that the Police Sub Inspector was not in the station. Therefore, they proceeded to his house where in answer to the questions put to her by the Police Sub Inspector P. W. 1 made a statement which has been reduced in writing and marked as Ext. A in the trial court. This contains an abstract of the events that had transpired before P. W. 1 was met by the police Constable and taken to the Sub-Inspector. The Sub-Inspector did a bit of vigorous investigation. He thought that since P. W. 1 was a stranger to the place the proper persons to approach for ascertaining the place where the room of the 6th accused is situated would be the two rickshawmen. Fortunately, when he approached the place where rickshaws are usually kept, he saw both of them there. They are P. Ws. 10 and 19 They showed the Police Sub Inspector the room in Karikamuri to which place they had taken P. Ws. 1 and 2 in their rickshaws. The Police Sub-Inspector found the door of the room bolted from inside. He knocked at the door loudly and then it was opened. When the door was opened the Police Officer found all the six accused persons congregated there inside the room. The suggestion made on behalf of the prosecution is that when accused 4 and 5 ran away from P. W. 1 on seeing the Police Constable P. W. 5 they must have gone straight to the room to sound a note of warning to the other accused. The Sub Inspector suspected that P. W. 2 might be somewhere in the room. He demanded that he must be shown where P. W. 2 is. Then it was discovered that she was lying behind a screen evidently introduced for the purpose of preventing her from being seen by any Policeman who wanted to come to the room. She was taken charge of by the Police Officer who also arrested all the six accused persons and sent them to the Police lockup with a proper escort.

(3.) THE main contention urged on behalf of the appellants is with reference to the offence of rape under Section 356 of the Cochin Penal Code. Learned Counsel who pointed out all the weaknesses in the prosecution stresses the fact that there was no satisfactory evidence to show that the offence was committed. The suggestion made is that there is nothing to indicate that the act was done without the consent or against the will of the victims. These contentions may be well founded. The evidence of the two doctors who were examined at the trial shows that on an examination of the two women by the lady doctor who was examined as P. W. 4 she was not able to notice any signs which would conclusively show that there was forcible intercourse. She noticed certain marks which according to her did not necessarily indicate that I there was any force used and rape was committed. Similarly, the evidence of P. W. 3 is to the effect that there was no indication on the persons of the Six accused persons who were convicted by the court below to support the case of rape. Moreover, there is no evidence of violence on the bodies of the two girls. They had said that when they were about to shout out two of the accused caught them by the throat and threatened to kill them. No marks of violence were found on the necks of these two girls. The dress worn by them was not in any way torn or damaged. Applying all the usual tests that are generally applied in cases of this kind, it is not possible to assert that the offence if rape was committed by the six accused persons. They all admit that they had sexual intercourse with the two girls except accused 2 and accused 6. Against them, there is evidence to show that they also participated. But it cannot be positively asserted that the evidence called for the prosecution has definitely made out that the offence of rape was committed. This is a case in which the six accused persons are entitled to the benefit of a reasonable doubt. There are very strong suspicious circumstances but in the absence of legal proof, it is not correct to convict them of the offence of rape. We accordingly hold that the evidence on record is not sufficient to hold that the offence of rape was committed. On the other hand, the evidence creates a reasonable doubt as to whether the offence was committed in the manner alleged by P. Ws. 1 and 2. Giving the six accused persons benefit of the doubt, we hold that although there are very strong suspicious circumstances against them, the conviction for rape cannot be upheld. The conviction under Section 356 of the Cochin Penal Code must therefore be set aside.