IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.2.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI H.C.P.No.179 of 2008 Ganesan .. Petitioner Vs. 1. Home Secretary Government of Tamil Nadu Fort St. George, Chennai-600 009. 2. Inspector General of Prisons 1 and 2nd Floor Thazhamauthu Natarajar Maaligai Egmore, Chennai 600 008. 3. Superintendent of Prison Central Prison (Men) Vellore. 4. Superintendent of Police Vellore District, Vellore. 5. Inspector of Police Bagayam Police Station Vellore District. 6. Vajiravelu 7. Tamilselvan 8. Mahendra Varman 9. Balamurugan 10.Murthy .. Respondents Petition filed under Article 226 of the Constitution of India for issue of Writ of Habeas Corpus as stated therein. For Petitioner : Mr.R.Sankarasubbu For Mr.P.Ravi Kumar For Respondents : Mr.N.R.Elango Addl. Public Prosecutor O R D E R
(Made by P.D.DINAKARAN,J.)
The petitioner is a convict for the offence punishable under Sections 366 and 376 IPC and undergoing imprisonment in the Central Jail, Vellore. It is alleged that when his wife Nadhiya, aged 25 years, the detenue herein, used to visit the prison to see him, respondents 7 to 10 befriended her. His further allegation was that the eighth respondent after the detenue’s visit to the jail on 15.11.2007, took her on a bike to his residence, respondents 7, 9 and 10 went to the residence of eighth respondent, gave a cool drink to her and thereafter, she was forcibly subjected to gang rape by respondents 7 to 10 and the same was informed to the petitioner, when she visited him on 3.1.2008.
2. According to the petitioner, he lodged a complaint on 15.1.2008 to the second respondent. Since the detenue did not visit him thereafter, suspecting danger to her life and person, he made a further complaint on 24.1.2008 and following the same, the petitioner filed the above petition seeking production of the detenue before this Court and set her at liberty.
3. Considering the seriousness of the allegation, when the matter came up before this Court for admission on 15.2.2008, this Court observed as follows:
“As the allegations, prima facie, appear to be very serious and painful; and if the same are substantiated, it would not only cause a dot but also throw a dirt on the Uniform Forces. Therefore, we are of the considered opinion that a duty is cast upon the executives to remove the stigma caused by the impugned complaint.
That apart, in order to remove the cloud as to the bonafide of the complaint, we direct the learned Principal District Judge, Vellore, to visit the jail personally, record a statement from the petitioner relating to the impugned complaint and forward the same to the Registry for our consideration.”
4. When the matter came up for further orders on 18.2.2008, it was reported that the first respondent, in order to show their bona fide, transferred respondents 7 to 10 to different Central Jails and this Court passed the following interim order:
“From the above materials, it is obvious that the Additional Director General of Police (Prisons) had not given serious concern over the entire issue. Therefore, we are constrained to pass the following directions:-
(i) the Home Secretary, the first respondent herein, is directed to give appropriate directions to the Director General of Police, to entrust the entire investigation of the case to a competent police officer not below the rank of Superintendent of Police for more effective investigation, who shall file a report to that effect within a period of one week; and
(ii) since the Inspector of Police, Vellore Taluk Police Station, has not taken note of the seriousness of the allegation, as even now he has registered the case only under ‘Women Missing’, necessary directions shall be issued by the Home Secretary to the Director General of Police in this regard.”
5. Pursuant to the orders of this Court referred to above, respondents 1 to 4 took untiring efforts to search the detenue, basically to erase the apprehension as to the danger to the life and person of the detenue and of course, to remove the stigma cast on the uniformed force by the impugned allegation, and have successfully secured the detenue and produced her before this Court on 22.2.2008. However, they sought further time to file a detailed report today.
6. Today, they filed a detailed report dated 25.2.2008 after examining 34 witnesses, which includes a medical witness, the relevant portion of the said report dated 25.2.2008 is extracted hereunder:
” 7. I respectfully submit that the following are the facts that emerge from the deposition of the witnesses, perusal of the documents and from my enquiry.
(i)Nathiya left the petitioner’s house on her own accord, since there was no conducive atmosphere for her stay in that house.
(ii)She totally rejected the averments made by the petitioner in his petition and she declared hereself that she is a virgin. She is mentally strong and very clear in her averments. She never had any sexual intercourse with Ganesan or anybody else. She hardly lived with him for few days before he was put in jail (on 04.09.2007).
(iii)Her assertive declaration of her virginity was corroborated by a team of Doctors namely Dr.Shanthi and Dr.Yashmin of Govt. Vellore Medical College and Hospital. The team of Doctors clearly and categorically asserted that the rims of hymen are intact and her vagina admits only one finger tightly. The team of Doctors opined that there is no evidence of forceful sexual intercourse or external injuries as per clinical findings.
(iv)On a disputed dated (13.11.2007), the respondents 7 to 9 were on duty inside the Central Prison as per the “in and out record” maintained by the Jail authorities. Respondent 10 was also on duty but he was engaged in attending to electrical works.
(v)The neighbours in and around the alleged place of occurrence stated that the alleged occurrence did not take place.
(vi)In the Central Prison, particularly the area between the main entrance and the visitors hall, is totally within the public view and on any visitors’ day, there may be a crowd of more than 100 visitors, remand prisoners and escort personnel. There is no scope for sexual torture in the above place.
(vii)There are many contradictions between the petitioner’s affidavit and his statement with regard to the place of alleged occurrence and the manner of the alleged occurrence.
(viii)My discreet enquiry reveals that the petitioner is a torture-oriented sexual maniac and has spoiled many women in and around his village. The cruel behaviour was exposed through the statement of his first wife Saritha and even the petitioner has not spared the handicapped sister of the first wife to satiate his lust.
(ix)The petitioner is a convict prisoner, convicted by the FTC Court, Vellore on 04.09.2007 for the offence of abduction and rape u/s.366 and 376 IPC committed by him against one Vijayakumari and this shows his character and mindset.”
7. Of course, we are conscious of our jurisdiction conferred on us under Article 226 of the Constitution of India, in a habeas corpus petition. The alleged sordid tale, of course, has come to an end with the production of the detenue. In the circumstances, suffice it to record the statement of the detenue that she, being a major, is desirous of going with her mother Radha and close the above petition. But, the backdrop of the case requires some thing more to be referred and directed for further action.
8. One cannot ignore as to why this Court took a very serious note of the allegation made in the above petition. Rape is a most hatred crime. It is a crime against basick human rights and violates the most cherished fundamental right, namely the ‘right to life’ guaranteed under Article 21 of the Constitution of India. Rape is, therefore, not only a crime against the victim, but also against the entire society. It not only destroys the entire psychology of the victim, but also pushes her to deep emotional crisis, which in turn stirs the society. The Court has to consider the plight of the victim in a case involving a rape and the social stigma that may follow the victim to the grave, which, in most cases, practically ruins all prospects of a normal life for the victim.
9. What is complained in the instant case is a gang rape against the detenue, who is allegedly the wife of a convict for the offence of rape itself, by the persons who are supposed to guard such an individual, whose husband is in confinement.
10. That apart, the ‘right to life’ means something more than survival or animal existence. ‘Right to life’ includes the right to live with human dignity. ‘Human dignity’ is the essence and soul of human rights. Any abrasion, laceration or contusion on ‘human dignity’ shall be an extensive and massive infarction to ‘right to life’.
11. But, fortunately, the allegation was found to be untrue and baseless, not only from the reports submitted by the second respondent; but also as per the statements recorded from the detenue herself.
12. That is why, we like to be more stringent in directing respondents 1 to 6 to register a case for appropriate offence against all the persons concerned for having, not only made false allegations against respondents 7 to 10, but also for having attributed allegation of rape against the detenue falsely, when there is no iota of truth in the same, as per the materials collected pursuant to the orders of this Court, and having caused damages on the human dignity of the detenue; and to proceed against all the persons concerned, whomsoever, independently, in accordance with law.
13. At this juncture, as Mr.Sankara Subbu and learned counsel on record have come forward to pay a token sum of Rs.5,000/- to the detenue for the embarrassment caused to the detenue by filing the above petition, we record the same and permit them to make the payment directly to the detenue; and the same is without prejudice to her right to stake any further claim for the damages caused to her human dignity.
14. That apart, we also record our appreciations that the first respondent has transferred respondents 7 to 10 in order to show their bona fide. As the stigma cast on respondents 7 to 10 has been wiped away, based on the report filed by the fourth respondent and the statement of the detenue herself, the second respondent is at liberty to restore them to the original position and to take appropriate decision to transfer the petitioner to some other Central Jail, if it is deem fit and necessary.
This habeas corpus petition is closed with the above observations and directions.
(P.D.D.J) (R.R.J.)
25.02.2008
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P.D.DINAKARAN,J.
AND
R.REGUPATHI,J.
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H.C.P.No.179 of 2008
25.2.2008