JUDGMENT
L. Manoharan, J.
1. Five accused persons were charged under Sections 363, 367, 368, 376 and 114 read with Section 34, IPC. Learned First Additional Sessions Judge, Thiruvananthapuram found accused 1 to 3 guilty of the offences, punishable under Sections 363 and 376, IPC and convicted them there under. First accused was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- in default to undergo rigorous imprisonment for two years under Section 376, IPC. He (first accused) was also sentenced to undergo rigorous imprisonment for seven years under Section 363, IPC. Second and third accused each were sentenced to undergo rigorous imprisonment for seven years under Section 376, IPC and to undergo rigorous imprisonment for three years under Section 363, IPC. The sentences were directed to run concurrently. Accused 4 and 5 were found not guilty and they were acquitted. Set off was allowed to the said convicted accused persons. In these appeals accused 1 to 3 challenge the said conviction and the sentences awarded to them.
2. Crl. Appeal 143 of 1989 is by the 3rd accused, Crl. Appeal 164 of 1980 is by the 1st accused and Crl. Appeal 232 of 1989 is by the 2nd accused.
3. PW-6, Rejitha aged 16 years and 9 months was a second year pre-degree student in Sagar Parallel college at Varkala. She used to board the bus for the college from the bus stop at Villikadavu situated near the shops of P.Ws. 3 and 4. On 6-10-1987 at about 9 a.m. while she was waiting for bus along with P.W. 2, a friend of her at about 9.15 a.m., first accused came in an Ambassador Car KLK 5068 driven by second accused, stopped it in front of the bus stop and the first accused caught Rejitha (PW-6) by hand and forced her into the car. She screamed and protested, but she was confined in the car by him (1st accused) when the 2nd accused sped away the car. Her leg was protruding outside which was pushed in by the 1st accused. While she was being forced into the car by the 1st accused, her M.O.I lunch box, M.O.2 series and M.O.3 books fell on the road and were scattered, on the way on seeing PW-5, she clamoured for help and asked 2nd accused to stop the car; but the 2nd accused drove away the car to Deva Bhavanam belonging to 3rd accused at a place in Edamulakkal Village situated about 30 mns. away from Villikadavu. On reaching there, she pleaded with the 3rd accused for help and told her that she (PW-6) was forcibly taken against her will by the 1st accused. But instead of rendering in any help to her, 3rd accused demanded her to come out, and dragged her to a room in the first floor of her (3rd accused’s) house.
4. After some time 1st accused came to the room and threatened that she should be done away with unless she behaved. He said that her people did not allow him to marry her and that she should agree for it, but she refused. Then he bolted the door from outside and went to the ground floor, She (PW-6) was wrongfully confined in the room. At about noon, the 3rd accused brought lunch. Again she implored the 3rd accused to take her home and told her all that happened; but her request fell on deaf ears. She (3rd Accused) did not render any help or assistance to her. After some time a boy brought tea to her, she took a portion of it and emptied the rest out side through the window. At dusk, again the first accused came to the room disregarding her protests and pleading, he (1st accused) caught hold of her and threatened her that she would be done away with and forcibly kissed her. Then he locked the door from outside and went down to the ground floor. All along she was weeping.
5. At about 9.30 p.m. 1st accused again came to the room and said that he wanted to marry her. She did not agree. Then he forced her on the bed and took away her jetty and raped her. After committing rape, he said, now nobody would marry her.
6. In the meanwhile, P.W-1, a brother-in-law of PW-6 on getting information from PW-3 that his (PW-1’s) sister-in-law was kidnapped by the 1st accused, went to the police station and tendered Ext. P1 F.I. Statement at 1 p.m. on the same day before PW-18, the Head Constable. He registered Ext.Pl(a) FIR under Section 363, IPC against the 1st accused. PW-20, Assistant Sub Inspector of Police took over investigation on the same day. He proceeded to the bus stop and prepared Ext. P8 scene mahazar at 2-30 p.m. and seized M.Os. 1 to 4 from the scene. Later, the investigation was taken over by PW-21, the Circle Inspector of Police. On getting information that PW-6 is confined in Deva Bhavanam he reached there and conducted a search. He got opened the room in which PW-6 was confined and found PW-6 in the room. He seized M.Os. 11, 14 and 15 from the said room under Ext. P6 scene mahazar which he prepared at 5 a.m. on 7-10-1987. He arrested accused 1 and 2 from the court-yard of the house at 4 a.m. on 7-10-1987. On reaching the police station he sent PW-6 for medical examination. She (PW-6) was examined by PW-13 who issued Ext. P9 certificate. PW-21 seized M.Os. 6 to 10 the dresses worn by PW-6 under Ext. P7. He arrested the 3rd accused from Deva Bhavanam on 8-10-1987. The 1st accused was examined by PW-19 doctor who issued Ext. P14 certificate. He (PW-21) questioned the witnesses, completed the investigation and laid the charge against accused persons.
7. All the accused persons pleaded not guilty to the charge, thereupon prosecution examined PWs. 1 to 21, produced Exts. P1 to P23, M.Os. 1 to 19 and caused production of Ext. XI. On the side of the defence DWs. 1 to 6 were examined and DW-3 produced Ext.X-2.
8. When the first accused was questioned under Section 313, Cr.P.C. he denied to his having committed any offence. He claimed that he was taken away from his house by the police at 3-30 p.m. on 7-10-1987 that himself and PW-6 were in love for the last over four years. She (PW-6) is his maternal uncle’s daughter. PW-1 was against the said relationship. He is ready to marry PW-6 and that he has not committed any offence. Second accused denied the allegations against him and said that neither had he driven the car nor does he know how to drive a car. Third accused too denied the allegation against her and stated ] that since her daughter was not well, she was away at her daughter’s house at Thiruvananthapuram.
9. As per M.O. 5 S.S.L.C. Book of PW-6 which was seized by PW-21 under Ext.P18, the date of birth of PW-6 is 6-1-1971. PW-15, Executive Officer of Ilakaman Panchayat proved Ext.P11 certificate. She said the date of birth shown in Ext.P 11 is as per the entry in Ext. XI(a) in Ext. XI register kept by the Panchayat and the date of birth of PW-6 therein is 6-1-1971. PW-7, the mother of PW-6 has also sworn to the effect that, the date of birth of PW-6 is 6-1-1971. The defence made a feeble attempt to contend that 6-1-1971 is not the date of birth of PW-6 but is the date of birth of her (PW-6) younger sister who died few months after birth. Reliance was made on the evidence of DW-1 who claimed himself to be the brother of PW-6’s father. He was an accused in a murder case, the victim was his own son. Though, he would say that the younger sister of PW-6 was born on 6-1-1971 he does not even know the date of birth of his own son. On a perusal of his evidence, we have no hesitation to hold that he is not a trustworthy witness. Reliance was also made by the defence on Ext. X2 produced by DW 3, Executive Officer of Adithyanallor Panchayat. Ext. X2(a) entry relates to a girl born on 6-1-1971 at Holy Cross Hospital. Except the name of the parents, there is no details, there is nothing worthy to connect her with PW-7 or her husband. In view of M.O. 5 there can be no doubt that the date of birth of PW-6 is 6-1-1971. The occurrence being on 6-10-1987, on the date of occurrence PW-6 was 16 years and 9 months of age.
10. PW-6 being the prosecutrix in the circumstance, her evidence has to be adverted to first. PW-6 is the youngest child of PW-7, she was studying in the second year Pre-degree class in a parallel College at Varkala. She is a resident of Villikadavu and she used to board the bus at the bus stop at Villikadavu which is near the shops of PWs. 3 and 4. PW-6 said, as usual at about 9 a.m. she came to the bus stop. While she was waiting for bus along with PW-2 at about 9-15 a.m., first accused came there in an Ambassador Car KLK 5068 driven by the 2nd accused and stopped where they were standing and the 1st accused whisked her into the car against her will and in spite of her protests; she struggled and cried, but the car sped away. Her leg was protruding out and after some distance, it was pushed in by the 1st accused. On the way, on seeing PW-5 she wanted the 2nd accused to stop the car. He did not pay any heed. He (2nd accused) was threatened by the 1st accused from stopping the car. They reached Deva Bhavanam about 30 Kms. away from Villikadavu bus stop. She said, on reaching there, the 3rd accused opened the gate, that first accused said something to the 3rd accused and that with tears she (PW-6) pleaded with the 3rd accused to save her. According to her (PW-6) instead of lending any help she (third accused) demanded her to come out and dragged her to a room in the first floor of her (3rd accused) house. PW-6 proceeded to swear that after some time the first accused came to the room, threatened that she should be done away with if she did not behave, that her people did not allow him to marry her and that she should agree; but she protested and said she would not. He belted the door from outside and left. PW-6 then said that, at about noon lunch was brought by the 3rd accused. Then also she pleaded with the 3rd accused in tears to help her to go home; but she (3rd accused) only mockingly asked whether she did not know why she (PW-6) was brought there. Later, after some time, a boy brought tea, she took a portion of it. At about 3 p.m., she heard the sound of a car being started and saw the second accused driving away. She said, at dusk 1st accused again came to the room and forcibly caught her, but she resisted and that he (1st accused) repeating the threat that she should be done away with forcibly kissed her, she cried. Then he locked the door from ‘outside and went out to the ground floor. She said, at about 9-30 p.m. the 1st accused came to the room and said that he would marry her at Guruvayoor on the next morning. When she protested, he caught hold of her, she pushed him back, then the 1st accused tore his shirt (M.O. 12) which he was wearing into two pieces and threw it on the floor, stamped it and declared that she would be torn like that. Then he forced her on the bed; he asked her to remove her jetty (M.O. 10). She did not agree. He forced down her skirt and removed M.O.10 jetty, then he raped her. She said, she was weeping all the time. Afterwards he asked, whether now anyone would marry her, and then he went down to the ground floor.
11. PW-6 proceeded to state that she wore a kaily and then afterwards again changed to her own dress including the jetty. After some time he (1st accused) again came and asked her that she should marry him, she could only shed tears, and while so police came and took her to the police station. From there she was sent to the doctor for medical examination. She says, after examination when she returned, her sister who also came to the police station brought dress for her and she changed the dress.
12. The evidence of PW-6 thus shows, she was kidnapped by accused 1 and 2, detained in the house of the 3rd accused who did not accede to her request to allow her to go home and the first accused committed rape on her. What is significant to be noted is, the evidence of PW-6 brings out the active collaboration and support by the 2nd and 3rd accused. Naturally, therefore, the focus of attack by the counsel for the accused persons particularly the first accused was on the evidence of PW-6. The main thrust of the argument was, that there was really consent by PW-6 for sexual intercourse and no offence was committed. Even if there was consent the same is not an answer to the offence punishable under Section 363, IPC as she was below 18 years. Learned Counsel contended that PW-6, an adolescent girl was tutored to swear against them at the instance of PW-1 and other’s who are hostile to the 1st accused. Learned Counsel for the 2nd accused maintained that, he had nothing to do with the offence punishable under Section 367, IPC and that he never knew that it was PW-6 who was being taken in the car.
13. Learned Counsel for the third accused maintained that the third accused was not present in the house at the time when the alleged offence was committed and that there was no proper identification of the 3rd accused.
14. The prosecutrix being not an accomplice, no corroboration is necessary to act upon her evidence if otherwise her evidence is acceptable. In the context, a girl of 17 would normally fight shy of revealing that she was a victim, of rape. The stigma that she should bear would make her slow to reveal it in a court of law. Normally therefore, the testimony of the prosecutrix would have enough probative force in the absence of something inherent in her evidence to disbelieve her or other circumstances against her reliability. In this case, not only there is nothing inherent in the evidence of PW-6 to disbelieve her, but her evidence gets enough corroboration also. Therefore, we shall now advert to the pieces of evidence that corroborate the evidence of PW-6. After such advertance, we will then see what is the offence, if any, committed by the respective accused persons. Now the pieces of evidence that corroborate the evidence of PW-6; PW-3 has a shop near the bus stop; though he turned hostile, he said that PW-6 used to board the bus from the bus stop near his shop. PW-4, another shop owner near the bus stop though also turned hostile, said, PW-6 used to board the bus from the bus stop near his shop, and while he was paying his attention was attracted by a commotion in the road and he noted a car being driven away from that place and a lunch box thrown on the road.
15. PW-20, Sub Inspector of Police prepared Ext. P8 scene mahazar at 2.30 p.m. He seized MOs. 1 to 4 from the road. The evidence of PW-20 would show that, books and lunch box were seen scattered in the road. The name of PW-6 was seen inscribed on the lunch box MO-1. Thus the evidence of P.Ws. 3, 4 and 20 along with Ext. P8 would corroborates PW-6 that on the date and time of occurrence she was kidnapped from the bus stop.
16. PW-5 is a teacher in S.N.V. High School. He said, while he was on his way to the school, he saw a car KLK 5068 coming in the wrong side in a erratic manner. He said, he saw PW-6 stretching out of car and calling for help, and the first accused pulling her inside the car. He noticed the second accused was at the wheel. He said, the second accused was once a. student of his school. The criticism against his evidence is that he did not lend any help in spite of his claim that he saw PW-6 clamouring for help, and that he did not report the matter to the police, instead he coolly went to his school. According to the learned Counsel for the accused the strange behaviour of PW-5 would make his evidence unworthy of acceptance. In the re-examination PW-5 said that, the first accused is the son of his father’s niece and that first accused’s elder brother married his sister This relationship is relevant in considering as to why PW-5 did not report the matter to the police. Further, one cannot attribute uniform behaviour to all persons; in a given situation people may behave differently. He being a teacher and since school time was near he opted to go to the school. That cannot be held as a circumstance against his veracity. It is not as if he kept what he saw upto himself; he said, he told of the occurrence to his fellow teachers in the school. We do not see anything adverse to reject his evidence. This piece of evidence when taken along with other circumstances to which we have adverted early would corroborate the evidence of PW-6 that she was kidnapped from the bus stop by accused 1 and 2 and was taken in the car.
17. The medical evidence and the other circumstances also support the version of PW-6 that she was a victim of rape in the house of the 3rd accused. PW-21 said, on learning that PW-6 is detained in the house of the 3rd accused, he went to Deva Bhavanam, searched and found out PW-6 in the room in the first floor of the house. He arrested accused 1 and 2 from the court yard of the house at 4 a.m. on 7-10-1987. PW-6 and accused 1 and 2 were taken to the police station from where she (PW-6) was sent with requisition to PW-13 the doctor.
18. The evidence of PW-1 would show that PW-6 was brought to the police station at about 4-30 a.m. At about 8-30 a.m. she (PW-6) was sent to the doctor. Doctor, PW-13. in Ext. P-9 as well as in her evidence said that, the girl told her that at 9-30 a.m. on 6-10-1987 on her way to college she was forcibly taken in a car and was raped under threat. PW-13 noted that her (PW-6’s) skirt was torn at the top edge on the front side and the zip of the under skirt was displaced. She noted stains on the under skirt and jetty and she (PW-6) had pain while walking. PW-13 said, she noted the following injuries and features.
X. Condition of clothes
1. Indicating struggle — The skirt is torn at the top edge in the front side. The zip of the under skirt is displaced.
2. Presence of stains — There is presence of stains in the under skirt and jetti. These clothes were not taken for chemical examination as per the requisition of the police and there were no other dresses with the girl to wear.
xi. Gait
Pain during walking — Yes.
xii. Injuries
1. General — Bite mark 1 cm long seen in the inner side of both lips. Reddish blue in colour. A linear abrasion 2 cm long in the right cheek extended from the angle of the right mandible to 2 cm away from the angle of the mouth.
2. Genitalia
Condition of Hymen — Hymen is torn, Fresh wound clotting present at the torn edges.
Condition of Vagina — Vagina admits two fingers. No matting of pubic Hair.
No loose hair.
The opinion of the doctor is as follows: “There is evidence of recent sexual act. There is evidence of signs of resistance. The final opinion is reserved pending report from the chemical examiner….” Evidence of PW-14 and Ext. P10 report would show that, Skirt (M.O.7), Jetty (M.O.10) and Bed Sheet (M.O.11) had human semen; and M.O.10 had human blood stain also.
19. In the cross-examination of PW-13, an attempt was made to distinguish sexual act from sexual intercourse and to bring out. sexual act need not be sexual intercourse. The re-examination clearly brought out that, the characteristics noted by her showed recent intercourse and that the fact that the vagina admitted two fingers showed that there was penetration. (The readable copy of PW-13 contains mistakes and errors).
20. It is well settled, to constitute rape even slightest penetration of penis into the vagina would be sufficient and that could even be without rupturing the hymen Madan Gopal Kakkad v. Naval Dubey 1992 (3) SCC 204 : (1992 AIR SCW 1480). The data furnished by Ext. P9 and the evidence of PW-13 unambiguously would show that, there was sexual intercourse and the fact that at the earliest point of time PW-6 revealed to PW-13 as to circumstances under which she had to submit to sexual intercourse is a factor which, in the circumstance, has paramount importance. Her (PW-6) hymen was ruptured; though no semen was detected in the vaginal swab that need not mean that there was no penetration as the evidence of PW 14 and Ext. P-10 would show that in MOs. 7, 1.0 and 11 semen was detected and in MO-10 human blood also was detected. The evidence of PW-6 would show that, after the rape at the threat of the first accused, she had to wear a lunki but later she changed to her own dress. Ext. P9 and the evidence of PW-13 would show that the hymen was ruptured and there was blood clots. That explains how MO-10 jetty had human blood stains. MO-11 is the bed sheet which PW-21 seized from the room, that too had human semen. As per Section 375, IPC penetration is sufficient to constitute rape which the features and injuries noted by PW-13 brings out. The said evidence also thus corroborates the evidence of PW-6.
21. According to PW-6 the sexual intercourse was against her will and without her consent. On the other hand, learned Counsel for the first accused strongly maintained, the circumstances would show that there was consent. He pointed out that, though there was enough opportunity for her (PW-6) to escape from her confinement by attracting the attention of others; she did not attempt the same. He also relied on her statement in her cross-examination that she took a portion of the lunch and also a portion of the tea which were brought to her. He maintained that with due regard to the background and the circumstance, consent could be inferred. It was contended that, the fact that no semen could be detected in the vaginal swab would show the care taken by the first accused and that too is a circumstance to show that the intercourse was with consent. Learned Counsel also questioned the seizure of MOs. 6 to 10 under Ext. P7 by PW-21.
22. We may now advert to the argument against the seizure of MOs. 6 to 10. PW-21 said, on reaching the police station, she (PW-6) was taken to PW-13, the doctor and from there when she returned, her sister brought dress for her and she changed her dress. PW-21 proceeded to state that, the sister of PW-6 produced MOs. 6 to 10 which he seized under Ext. P-7. There is nothing to suspect the seizure of MOs. 6 to 10 under Ext. P7 whose attestor is PW-10.
23. Now coming to the question of ‘consent’ the same has to be considered with due regard to the sequence of events that ultimately resulted in sexual intercourse. An isolated approach to the occasion for the sexual intercourse will be un-realistic particularly in the context of the endeavour to discern whether there was consent for the sexual intercourse. In this regard the circumstance under which she found herself in the room on the first floor of the house of the 3rd accused is of much importance. We have already pointed out, the evidence of PW-6 that she was kidnapped at about 9-15 p.m. on 16-10-1987 from Villikadavu bus stop not only is acceptable but has got enough corroboration also. There can be no doubt that she was forcibly taken in the car in spite of her protest and pleading; her cry for help nobody heeded. Everybody left her to her fate, the condition of the mind of such damsel in distress could easily be understood; even her last attempt to plead with the 3rd accused, a mother of four children of whom one is already married turned futile, she (PW-6) pleaded with tears to her (A-3) to save her. Completely subjugated by harassment, and threats in captivity she was forced to submit for sexual intercourse. Consent obtained in such circumstance cannot amount to consent under law. The submission by the learned Counsel for the first accused that she (PW-6) did not make any effort to escape from her confinement is least appealing to us. She was confined in the room. Her cry and pleading were met with stiff threats from the 1st accused. The house itself has got a large compound; under the shadow of threats PW-6 could do nothing. The argument could not surmount or neutralize the effect of the hard facts proved by acceptable and cogent evidence. That PW-6 took a mouth-full of tea and a hand full of rice during the course of her confinement can never be taken as a circumstance to infer consent. The condition of her wearing apparels and the injuries detected on her person are eloquent testimony to her resistence. In the face of the overwhelming evidence as to the sexual intercourse against her will and without her consent it is impossible to discern ‘consent’, as is canvassed by the learned Counsel for the first accused. We do not find out way to accept the argument of the learned Counsel for the first accused to the effect that as a matter of fact there was consent for the sexual intercourse.
24. The question that now arises for consideration is whether the second accused could be held guilty of the offence punishable under Section 376 with the aid of Section 114 of the IPC. The question also would arise whether the third accused could also be held liable for the offence under Section 376 read with Section 114, IPC; her (A-3) liability under Section 368, IPC also will fall for consideration.
25. As noticed the complicity of the 2nd accused in the kidnapping cannot be doubted. Reliance was placed on the cross-examination of PW-6 by the second accused in support of the contention that, he is not even liable under Section 363, IPC. PW-6 said that as soon as she saw PW-5 on the way, she asked second accused to stop the car, that the second accused then said, had he known it was PW-6, he would not have taken the car and that he said to her when they reached the house of the 3rd accused, that he was not aware that it was herself who was to be taken in the car. First of all, it was only a pretence by him when he realised that the 2nd accused identified him and, also was a vain attempt to project himself before her as an innocent person. His subsequent conduct evidences an attitude of active collaboration. On reaching the house of the 3rd accused he remained there till 3 O’clock in the evening, later he was arrested by PW-21 along with the first accused in the court yard of the house of the 3rd accused at about 4 a.m. on 7-10-1987. We have absolutely no doubt in our mind that the second accused was an accessory to the kidnapping of PW-6 from the bus stop, her captivity and all that be fell on her later in the night.
26. Learned Sessions Judge finds in paragraphs 20 and 21 of the judgment that 2nd and 3rd accused abetted the commission of rape. The question for consideration is whether the 2nd accused intentionally aided the commission of rape. As per Explanation 2 to Section 107, IPC anything done in order to facilitate the commission of an act would amount to aiding the commission of the act. From the evidence to which we have already adverted, there can be no doubt that there was intention for the second accused to facilitate the commission of rape. Of course he aided intentionally to kidnap PW-6. It is true, that the crime could not have been committed without the aid of the abetter may not be sufficient to constitute the offence under Section 107, IPC. In relation to the offence under Section 376 the question is whether the second accused too can be held to have abetted the commission of the said crime. With due regard to the Explanation 2 to Section 107, IPC he has aided the commission of rape by securing PW-6 to the house of the 3rd accused, and what transpired before that would show, he intentionally secured such presence of PW-6 in the house of the 3rd accused for facilitating the rape. Intention being a condition of mind locked in the bosom of the concerned, necessarily should be a matter for inference from the attending circumstances. The circumstance has to be assessed, discerned and understood with due regard to the usual human conduct.
27. When a man assists kidnapping of a young girl and secure her to a room for another, normally he should be imputed with the intention of aiding sexual intercourse. In the circumstance it is not possible to assume such confinement of PW-6 was with any intention other than sexual intercourse, particularly when she was openly kidnapped. The infatuation of the 1st accused towards PW-6 along with his attitude of defiance was the driving force for the kidnapping to which the second accused willingly co-operated. It is futile, in the circumstance, for the 2nd accused to contend, he had no intention to be an accessory to the commission of rape on PW-6. The circumstances unambiguously show that, the 2nd accused abetted the commission of the offence under Section 376, IPC also. Though PW-6 said he (A-2) left by about 3 p.m. on 6-10-1987, since he was later arrested by PW-21 at about 4 a.m. on 7-10-1987 from the court-yard of the house of 3rd accused, his absence was only temporary. Being so he is liable for the offence punishable Under Section 376 read with Section 114, IPC. Thus the 2nd accused is also guilty of the offence punishable under Section 363 and also the offence punishable under Section 376 read with Section 114, IPC.
28. Now the question that remains for consideration is as to the offence committed by the 3rd accused. Learned Counsel for the 3rd accused contended that, the 3rd accused was not present at the time when the occurrence took place and the identification made by PW-6 in court, in the circumstances is not acceptable. Learned Counsel relied on the decision in State of Maharashtra v. Sukhdeo Singh 1992 (4) JT SC 73 : (1992 Cri LJ 3454). In the said decision it is observed :
In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeing glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
(Emphasis supplied)
So the question is whether PW-6 had only a fleeting glimpse and whether she had any particular reason to remember the 3rd accused. This court in the decision in Appu v. State of Kerala, 1990 (2) ILR Kerala 445 : (1990 Cri LJ 2281) held that absence of test identification parade is not invariably fatal, for assurance as to the identification made in court may be available from other sources and circumstances. It is, now necessary to recapitulate the occasion for the acquaintance of PW-6 with the 3rd accused and also result and impact the same could have generated in PW-6. The harassed PW-6 agonised by the spine chilling and shocking experience of the kidnapping was the subject of threats and harassment during the travel till she met the 3rd accused is a factor that shoud be kept in view to know her condition when she in tears implored the 3rd accused to help her; certainly a girl of her age in distress could have eagerly hoped for consoling help from 3rd accused, instead the 3rd accused demanded her to come out and dragged her to the room in the first floor. This conduct of the 3rd accused would have delivered a rude shock to PW-6, who normally could have felt relieved on seeing an elderly lady like the 3rd accused on the hope of salvation from the clutches of the first accused. But for her attitude PW-6 would not have suffered the harrowing experience at the hands of the first accused. That was a moment when PW-6 found all were against her. By that, she knew what was in store for her. She would never forget persons who were responsible for pushing her to such a situation. The face of such a person would get etched into her memory never to be forgotten till the end of her life.
29. Further the 3rd accused came to the room in which she (PW-6) was confined and talked with her. The circumstances and the duration of acquaintance are such that we have absolutely no doubt in our mind that PW-6 certainly could not make a mistake in the identification of the 3rd accused. The evidence of DW-5, her (A-3’s) son-in-law that A-3 was with him at Thiruvananthapuram, in face of the evidence of PW-6 and the evidence of PW-21 that 3rd accused seen in that house, is least convincing. Now having found that the 3rd accused afforded facility for the first accused to lodge PW-6 in her house, the offence committed by her has to be found. With due regard to the date revealed from the evidence of PW-6 whose evidence, we have already found totally acceptable, it is clear that the 3rd accused knew that PW-6 was kidnapped and she allowed her (PW-6) to be confined in a room of her house; clearly she (A-3) is liable for the offence punishable under Section 363 read with Section 368, IPC. The facts and circumstances revealed from the evidence of PW-6 would clearly demonstrate that the 3rd accused intentionally aided the first accused in committing the offence under Section 376, IPC. In other words she (A-3) has abetted the commission of offence under Section 376; she was present in the house at the time of commission of the offence. Therefore, she is liable for the offence punishable under Section 376 read with Section 114, IPC. Thus, first accused is guilty of the offences punishable under Sections 363 and 376, the second accused is guilty of the offence punishable under Section 363 as well as the offence punishable under Section 376 read with Section 114, IPC, and the 3rd accused is guilty of the offence punishable under Section 363 read with Section 368 and the offence punishable Under Section 376 read with Section 114, IPC.
30. As regards the sentence, counsel appearing for the accused contended that the sentences awarded are excessive and are not commensurate with the offence committed by the accused persons. Learned Counsel for the first accused contended that, inasmuch as the offence against the first accused does not fall under Section 376(2), IPC, the sentence of imprisonment for life should not have been awarded. According to the learned Counsel first accused wanted to marry PW-6. Therefore, that itself is a mitigating circumstance in deciding upon the sentence to be awarded. The evidence of PW-6 unambiguously shows that whenever the first accused said that he wanted to marry her (PW-6) she stubbornly opposed the same. What the first accused said to PW-6 after committing rape itself would show his mind and what he wanted to accomplish. After committing rape, as a victory cry he said to her (PW-6) now nobody would marry her. He wanted to impose himself on an unwilling girl, and the method adopted by him was to spoil her to the knowledge of all; that was why he kidnapped her in the open, he wanted all others to know and learn that PW-6 lived with him, thus to make her unacceptable to another. The whole scheme of the first accused was to force himself on a girl throughout her life. The injury caused to the mind and personality of the prosecutrix would be far greater and painful than the physical injuries. The circumstance pleaded by the learned Counsel, far from being an extenuating circumstance would call for deterrent punishment.
31. The arrogant and audacious conduct of the first accused defying the very fabric of the society by openly kidnapping a girl from a bus stop while she was on her way to college is one significant aspect which we have to take into account when we exercise the sentencing jurisdiction.
32. Section 376(2) only enjoins, in case where the offence falls under the said subsection, the sentence shall not be less than 10 years — the said sub-section only prescribes the minimum sentence. In appropriate cases the maximum sentence prescribed under Section 376(1) can be awarded irrespective of the question whether the same falls under Sub-section (2) of Section 376 or not. The learned Sessions Judge awarded the maximum sentence under Section 376 to the principal offender first accused; and second accused and third accused were awarded rigorous imprisonment for seven years each under Section 376, the sentences, in the circumstance, are neither harsh nor excessive.
33. The conviction of the first accused under Sections 363 and 376, IPC. and the sentences awarded to him are confirmed. The conviction of second accused under Section 363, IPC is confirmed. The conviction of second accused under Section 376 is modified and is convicted under Section 376 read with Section 114, IPC. The conviction of the third accused under Sections 363 and 376 is modified and is convicted u/ S. 363 read with Section 368, IPC, and Section 376 read with Section 114, IPC. The sentences awarded to them Under Sections. 363 and 376 are confirmed. Of course the sentences shall run concurrently, and they shall be entitled to set off also.
34. The bail bonds of the accused 1 to 3 are cancelled; they shall be taken into custody forthwith to undergo the respective sentences awarded to them.
The appeals are dismissed.