Prayer: Appeal filed under Section 374 of Crl.P.C against the judgment of the learned I Addl. Sessions Judge, Chennai dated 26.4.2001 made in S.C No. 430 of 1999.
JUDGMENT
1. Both the Appeals arise out of one and the same judgment passed in S.C No. 430 of 1999 on the file of the I Addl. Sessions Judge, Chennai dated 26.4.2001 and therefore, they were taken and heard together and the following common judgment is passed.
2. The appellant in Criminal Appeal No. 428 of 2001 is A9 and the appellants in Criminal Appeal No. 534 of 2001 are A1 to A8 in S.C No. 430 of 1999 on the file of the I Additional Sessions Judge, Chennai, where 1st accused was tried for the offence under Sections 509, 304(Part II) and 354, I.P.C and accused 2 to 9 were tried for the offence under Sections 509, 304(Part II) r/w 34, and 354 r/w 34 I.P.C and they were convicted and sentenced as follows:
Sl. No. Accused Conviction Sentence 1 A1 509, I.P.C Six months' R.I and a fine of Rs. 1,000/- 354, I.P.C Six months' R.I and a fine of Rs. 2,000/- 304-II, I.P.C Five years' R.I and a fine of Rs. 5,000/- 2 A2 to A9 509, I.P.C Six months' R.I and a fine of Rs. 1,000/- each 354 r/w 34, I.P.C Six months' R.I and a fine of Rs. 2,000/- each 304-II r/w 34, I.P.C Five years' R.I and a fine of Rs. 5,000/- each
3. The trial commenced on producing P.Ws.1 to 25 and marking documents Exs.P.1 to P.25 and material objects 1 to 24 by the prosecution when the accused denied the charges framed against them.
4. The case of the prosecution in a nutshell is as follows:
(a) The deceased in this case viz., Sarika Shah, P.Ws.2 to 4 are college-mates and close friends and at the material time, they were studying B.B.M II Year in Ethiraj Women's College at Chennai. On 18.7.1998 at 12.00 noon, Sarika Shah and P.W.2 were proceeding to Shivalaya Building to have juice in a shop put up with Shamiyana there, followed by P.Ws.3 & 4, in a Scooty rode by P.W.4, 10 feet behind them. When P.W.2 and Sarika Shah were walking near a Transformer on the road-P.W.2 on the left side and Sarika Shah on the right side, 7 or 8 persons came in an auto behind them teasing and one among the persons, poured water. The water fell on P.W.2 and Sarika Shah and the person who poured water jumped over the said Sarika Shah as a result of which, Sarika Shah fell down and sustained head injury. Immediately, the person who jumped over Sarika Shah made an attempt to escape. The other persons in the auto also got down and the person who jumped over Sarika Shah ran away alone. When the public gathered, the other persons also escaped from the scene in the said auto. The public available there arranged for an auto, in which, P.W.3 took Sarika Shah to the College. Thereafter, P.Ws.2 and 4 also went to the college in the Scooty following the auto. There, P.W.8, a Senior Lecturer, B.B.M Department, Ethiraj College (Evening) in whose class Sarika Shah and P.Ws.2 to 4 were studying, took Sarika Shah to Apollo Hospital accompanied by P.Ws.2 & 4.
(b) P.W.1, the father of Sarika Shah on the information given by his wife on the same day at 12.40 noon about Sarika Shah sustaining head injury and that she had gone to the hospital, he went to the college where he was informed that Sarika Shah was taken to Apollo Hospital. In the hospital, he found her daughter unconscious. Later, Sarika Shah was taken to a hospital near S.I.E.T College and she was given treatment for 5 days, and died thereafter.
(c) P.Ws.5, 7, 10 and 16 are the employees of Tamil Nadu Electricity Board and they were undertaking maintenance work at the Ethiraj College Road during the time of the occurrence. Though P.Ws.5 and 10 would say that they heard the sound of someone falling down and also found Sarika Shah unconscious and immediately they brought water from the opposite shop and sprinkled on the face of Sarika Shah, they exhibited their ignorance with regard to the incident of teasing and pouring water by the accused and therefore, they were treated hostile witnesses. But P.Ws.7 and 16 corroborated the version of P.Ws.2 to 4. P.W.16 also deposed that the person who jumped on Sarika Shah was attired with red colour banian and brown colour pant.
(d) P.W.6 who is running a tea shop at the platform near Tamil Nadu Telegram Office totally exhibited his ignorance about the incident and thereby he was also treated hostile.
(e) P.W.9 is the Manager of Anand Theatre. In his evidence, he deposed that on 18.7.1998 Youth Congress Meeting was held from 19.30 a.m to 12.90 noon at Umapathi Hall, for which so many members came in cars and autos and the auto rickshaw in which the persons came was tied with Party flag.
(f) P.W.11 who is running a tea shop at the Ethiraj College Road. He saw a person running and one Ramkumar, kerosene vendor chasing the said person and that the person who ran away was wearing brown colour pant and red colour shirt and after one hour 12 persons came in two auto rickshaws.
(g) P.W.12 is the owner of an Auto Rickshaw No. TCV-36 and the permit of the said auto was in the name of P.W 13. Since P.W.13 purchased an auto, the said auto viz., TCV-36 was given to Saravanan (A2) for hire. Since A2 did not pay rent after 25.7.1998.P.Ws.12 and 13 went to the house of A2 and only at that time, they came to know that the auto was involved in an eve teasing case. P.W.14 is also an auto driver. On 18.7.1998 at 1.00 p.m when he was having tea at Bricklin Road by parking his auto, an auto tied with Congress Party Flag came and stopped there and 8 persons got down from the said auto and were talking about Ethiraj College girl student.
(h) On 18.7.1998 at about 7.45 p.m P.W.22, S.I of Police (Traffic Investigation Department), D6 Anna Square Police Station, on receipt of the information from Apollo Hospital, Greams Road, went to the hospital where Sarika Shah was admitted for treatment. But she was taken to another branch of Apollo Hospital at Teynampet for further treatment. He examined Dr. Paul Dilip Kumar, who gave first aid to Sarika Shah at Apollo Hospital, Greams Road and issued Ex.P.8-Accident Register and then he went to Apollo Hospital, Teynampet. But he could not examine Sarika Shah there, as she was undergoing operation. He examined her father P.W.1 He received the Complaint given by P.W.1 and registered a case in Cr. No. 261.D3/98 under Section 337, I.P.C, Section 184 of the Motor Vehicles Act and Section 75 of the City Police Act and the F.I.R prepared is Ex.P.15 He took up the investigation on the same day at 10.30 p.m and prepared Observation Mahazar - Ex.P.16 and Rough Sketch - Ex.P.17 in the presence of witnesses-Manikandan and Sakthivel. On 19.7.1998, he again went to the scene of occurrence and examined P.Ws.5, 10 & 7 and recorded their statements. Then he went to the college and examined P.Ws.2 to 4 and recorded their statements. Since the case comes within the jurisdiction of Law and Order Department, he handed over the files to S.I of Police, F2 Egmore Police Station.
(i) P.W.23, Inspector of Police, on receipt of the transferred files from D6 Anna Square Police Station, registered a case in Cr. No. 1693/98 on the file of F2 Egmore Police Station under the same Sections and its F.I.R is Ex.P.18 and took up the investigation. He examined P.W.6, Ramkumar & Mari and recorded their statements. On the basis of their statements, he altered the offence under Sections 307, 354, 338 r/w 34, I.P.C and sent the Express Report - Ex.P.19 to the Court concerned. He examined P.Ws.1 to 8, 10, 11 and others and recorded their statements. On 23.7.1998, he examined P.W.9 and some of the witnesses. On 24.7.1998 at 10.07 p.m, on receipt of the intimation that Sarika Shah died at 9.35 p.m, from Apollo Hospital, he altered the offences one under Sections 302, 354 & 338 r/w 34, I.P.C and sent the Express Report - Ex.P.20 to the Court concerned. P.W.18, Dr. Siddhartha Gosh who treated Sarika Shah issued Ex.P.9-Death Summary and P.W.19, Dr. Balaji issued Death Certificate-Ex.P.10 On 25.7.1998, P.W.23 went to Apollo Hospital and held inquest over the body of the deceased Sarika Shah in the presence of Panchayatars from 6.30 a.m to 8.30 a.m The Inquest Report is Ex.P.21 Then he sent the body for post mortem to Government General Hospital along with Requisition-Ex.P.11 through Head Constable-P.W.21
(j) On receipt of the requisition, P.W.20, Dr. K. Mathiharan conducted autopsy on the dead body of Sarika Shah on 25.7.1998 at 11.15 a.m and he found the following injuries, which are incorporated under Ex.P.12 — Post-mortem Certificate and he also opined that she died of head injuries:
1. Healing abrasions with dried shrinking scab on the back of the middle of right of arm 1 × 0.5cm, (b) On the back of upper third of left forearm 2 × 1 cm, (c) On left side of super sternal notch 1× 0.5cm, (d) Over front of right knee 1× 0.5cm (e) Over the lateral end of right eye 1.5 × 0.5cm, (f) On upper part of left shoulder blade 5 × 2cm, (g) On upper part of right shoulder blade contusion over an area 4 × 1cm.
2. Laceration in the right parieto occipital area 1.5 × 0.5cm × bone deep. The edges are firmly adherent.
3. A sutured incised right craniotomy surgical wound 28cms in length on left frontal, temporal and parietal area. The edges are firmly adherent.
On reflection of scalp, sub scalpal bruising on the left frontal temporal, parietal and left occipital areas. The left temporal parietal bones and underlying dura mater are found to be removed. The underlying area packed with gel foam (4 burr-holes) on removal of gel foam brain was exposed. Sub dural heemorrhage basal haemotoma partly clotted on temporal area of both sides. Fissured fracture on the right temporal bone i.e sagittal plane 8cms in length. Brain oedematous. Sulci narrowed, gyri flattened. Cut section: Pale Multiple petechial haemorrhage present.
4. A Transverse fracture on the part of border of sphenoid exposing the hypo-physeal fossa with contusion to pituitary gland. Hymen intact. Slight bleeding seen through the hymenal opening. Uterus normal in size with pinhole cervical meatus. On opening the uterus, patchy thickened endometrium seen areas with uterus, patchy thickened endometrium seen in some areas with traces of blood.
(k) P.W.23 in continuation of the investigation, examined the medical witnesses viz., P.Ws.18 & 19 and P.W.21-Head Constable and recorded their statements. On 26.7.1998, he arrested Al near Vyasarpadi Jeeva Railway Station at 11.00 a.m, in the presence of P.W.15 and Barath and recorded the confession statement of Al. On the basis of the admissible portion of the confession statement-Ex.P.2, P.W.23 recovered the dresses of Al (M.Os.1 & 2) under Ex.P.3, arrested A2 to A5 at 12.00 noon on the same day at No. 17, Brightens Road, Kannigapuram, seized the auto bearing Regn. No. TCV-36 under Ex.P.4 from the house of A2. On the same day, at 1.45 p.m, he arrested A6 to A9 at Kannigapuram Boys High School. He brought all the accused to the station and sent them for remand on 27.7.1998 He also sent the recovered objects to the Court under Form 95. He examined the witnesses of arrest and recovery viz., P.W.15 & another and recorded their statements. He also examined the other accused and recorded their statements. He recovered the dresses of the deceased-Sarika Shah (M.Os.3 and 4) as produced by P.W.21 after post-mortem. On 3.8.1998, he gave requisition to the Court to send the material objects for chemical examination. He also sought orders under Ex.P.22 from the Chief Metropolitan Magistrate to conduct test identification parade for identifying Al by P.Ws.2 to 7, 10, 11 and one Ram Kumar and accordingly identification parade of A1 was conducted on 11.8.1998 by XXIII Metropolitan Magistrate, Saidapet, Chennai, who submitted report-Ex.P.25 On 18.8.1998, he gave Application under Ex.P.23 to conduct Test Identification Parade for identifying Al by P.W.16 and accordingly on the orders (Ex.P.5) passed by the Chief Metropolitan Magistrate, P.W.17 VII Metropolitan Magistrate, Chennai wrote a letter (Ex.P.6) to the Central Prison to make necessary arrangements for conducting T.I Parade and on 15.9.1998 test identification parade of A1 was conducted by P.W.17, in which P.W.16 identified A1. The Test Identification Report submitted by P.W.17 is Ex.P.7 On the same day i.e on 18.8.1998, he also gave two Applications-Ex.P.24 series to the Chief Metropolitan Magistrate to record 164, Cr.P.C statements of A1 and A7. On 13.8.1998, he obtained the Post-mortem Certificate from P.W.20, the doctor, examined him and recorded his statement. After obtaining the Chemical Examination Reports viz., Exs.P.13 and 14 series, he filed a final report against the accused under Sections 509, 354, 354 r/w 34, 304(Part II), 304(Part II) r/w 34, I.P.C
5. When the accused were questioned under Section 313, Cr.P.C by the learned Trial Judge, explaining the incriminating evidence connecting the accused in the crime, they denied the same as false and submitted that they have no connection in the case. But A4 and A9 have filed a written statement under Section 313, Cr.P.C and on behalf of A4, Ex.D1 was marked.
6. The learned 1st Additional Sessions Judge, Chennai, considering the oral and documentary evidence produced by the prosecution, came to the conclusion that the evidence of the prosecution witnesses, who supported the prosecution is believable and the prosecution has proved the case against the accused beyond reasonable doubt and therefore, convicted and sentenced the accused as aforementioned. Aggrieved against the same, the Appeals have been preferred by the accused/appellants respectively to set aside the judgment of conviction and sentence passed by the Trial Court.
7. Heard Mr. K.S Rajasekaran, learned Senior Counsel appearing for the appellants and Mr. Hasan Md. Jinna, learned Government Advocate (Criminal Side) for the respondents.
8. The learned Senior Counsel for the appellants would submit —
(i) that the prosecution has wrongly fixed the appellants as the accused in the case without any basis and there is no clinching evidence against the appellants/accused and they have not involved in the crime, and unfortunately they have been implicated in the case falsely
(ii) that P.Ws.2 to 4 who are interested witnesses ought not to have been present at the time and place of the occurrence and they were brought in by the prosecution to adduce evidence in favour of the prosecution, they being the close friends of the deceased and they would have not seen the actual occurrence and that is the reason why none of them could identify any of the accused or at least the 1st accused, who is alleged to have fallen on the deceased girl when she was in the company of P.Ws.2 to 4 as per the prosecution case, in the test identification parade and even if they were happened to be present during the occurrence, it may not be possible for them to observe all the accused when they were nervous and shock on seeing the incident;
(iii) that P.W.9 in his cross-examination would say that approximately 509 to 600 persons attended the Party meeting and they have come in cars and auto rickshaws; when a large number of people have attended the meeting, it is highly impossible to identify certain persons specifically unless they are familiar or distinguished person in the society or unique in physique; whereas he has identified that the accused have come in an auto rickshaw and attended the meeting, which evidence of P.W.9 is found to be artificial and unnatural;
(iv) that in the absence of any satisfactory and acceptable evidence incriminating A2 to A9 in the crime, it is unsafe to rely merely on the confession statement given by A1, a co-accused, to rope in A2 to A9 in the case;
(v) P.W.7, who is said to have seen one of the persons falling on the deceased-Sarika Shah and Sarika Shah also fell down consequently, failed to identify A1 in the identification parade, and therefore it is seen that neither P.Ws.2 to 4 nor P.W.7 could identify A1 in the test identification parade as the person who fell on Sarika Shah and was the cause for the death of Sarika Shah, but they have identified Al before the Court, which shows that Al was fixed as one of the accused without any basis and the prosecution witnesses were tutored by the police by showing photographs in order to identify Al at least before the Court;
(vi) that P.W.16 who alone is said to have identified Al in the T.I Parade also has seen the photograph of Al in the newspapers and television before the test identification parade and therefore, his identification of Al cannot be relied upon as it is artificial and further this aspect was also accepted by the witness during his cross-examination;
(vii) that the identification of A2 to A9 by P.W.14 before the Court on the basis that he saw them coming in an auto, got down in a place where he was having tea in a shop and had discussed about the Ethiraj College girl student, is not acceptable, because it is not possible for anyone to identify eight persons at once whom he saw only once, at a later date, when they are not familiar to him.
(viii) that the arrest of the accused A1 on 26.7.1998 at 11.00 a.m near Jeeva Railway station near Vyasarpadi in the presence of PW.15 and one Bharath and on his confession, arrest of other accused by PW.23 is highly doubtful since the accused were already brought to the police station and for the purpose of foisting the case against the accused by the Investigating Officer and consequential seizure of Auto and clothes of Al would also be very highly doubtful and all these were created for the purpose of strengthening the prosecution case;
(ix) that as far as the identification by PW.14 in T.I Parade in respect of 8 accused excluding A1 could not be relied on for the reason that it is established that PW.14 is not a permanent resident of the place, to which, Ex.D1-letter written to him, was returned ‘unserved’ and therefore, this would clearly reveal the fact that he has no permanent abode and when that being so, his evidence cannot be relied on and further, this witness is none other than a ‘stock witness’ on the file of the concerned police station and he used to be cited as witness in the cases and as such, he was produced before the Court for adducing false evidence;
(x) that the entire prosecution case rests on the circumstantial evidence and the prosecution has miserably failed to prove its case beyond reasonable doubt with clear, cogent and corroborative evidence regarding the arrest of the accused as well as seizure of auto and also clothes of the Al and the evidence adduced by the prosecution witnesses as well as their identification of the accused is not trustworthy to rely on for the purpose of the finding the accused guilty of the offence.
(xi) that even assuming that the occurrence took place in the manner alleged by the prosecution, none of the ingredients of the offence under Section 304 (Part II), IPC were made out against the accused.
9. Calling upon this Court to consider the above points, the learned counsel further submitted that from the over all evidence, it is seen that none of the witnesses who are alleged to have seen the occurrence could identity the accused as the persons who involved in the occurrence and the prosecution has not proved its case beyond reasonable doubt and therefore, the appellants are liable to be acquitted giving the benefit of doubt.
10. Mr. Hasan Md. Jinnah, learned Government Advocate (Criminal Side) appearing for the State would submit in his reply argument —
(i) that P.Ws.2 to 4 are close friends of the deceased Sarika Shah and all of them went to have drinks to a nearby shop during lunch hour and therefore, their presence along with the deceased, during the occurrence could not be doubted and their evidence is clear, cogent and consistent with regard to the incident and they have identified the accused before the Court;
(ii) that the evidence of P.W.9 and 14 cannot be taken as independent evidence and it should be taken as a collective and corroborative evidence and the evidence of P.W.9 confirms the evidence of P.W.14 to the effect the accused are the persons who came in the auto tied with Party flag and got down in the place where he had tea and talked about the incident;
(iii) that the other accused were roped in not only on the basis of the confession statement given by Al, but also on the basis of the other evidence of the prosecution witnesses and there are several decisions of the Hon'ble Apex Court that confession of one of the accused could be relied upon to rope in or convict the co-accused;
(iv) that non-identification of A1 or other accused by the prosecution witnesses in the T.I Parade would not fatal to the prosecution case when the witnesses have identified the accused in the open the Court at the time of trial and furthermore, when the circumstantial evidence collected by the prosecution proved the involvement of the accused in the crime, the significance spread over the identification parade will vanish;
(v) that P.W.16 identified A1 specifically, as the person who was dressed up with brown colour pant and red shirt and it is the person who fell on Sarika Shah, even during the investigation by the police and only based on that identification in his memory, he had identified Al correctly in T.I Parade and therefore, even if he had happened to see the accused in the newspapers before he identified Al in the T.I Parade, it may not matter much. Moreover, he is an independent witness who happened to carry out maintenance work of the Transformer near which the occurrence had taken place on the fateful day;
(vi) that the accused while doming in a speeding auto, one of the accused, i.e Al pounced upon the deceased-Sarika Shah, by which act, she fell down and as a result of which, she sustained head injury which led to her unnatural death and therefore, the ingredients of Section 304(Part II), IPC would attract since the act done by the accused with the knowledge that it is likely to cause bodily injury (pouncing upon the victim girl by Al from a speeding auto, would certainly cause injury, which, Al fully had knowledge of this and he did, but without any intention to cause death), which, in the present case resulted in death and the prosecution has rightly proved the same.
11. The learned Government Advocate further submitted that the evidence of the eye witnesses and the circumstantial evidence proved that involvement of the accused in the crime clinchingly and accordingly they have been rightly arrayed as accused in the case, on which basis, the Trial Court had also rightly convicted and sentenced the accused and the same liable to be upheld.
12. I have given anxious thought to the arguments of the learned counsel for the appellants and the learned Government Advocate and perused the entire records.
13. It is a case where an eighteen year old young college girl student viz., Sarika Shah, who was studying B.B.M II year having many aspirations in her life, was teased in the public place by a group of persons, who came in a speeding auto, in the busy area of Ethiraj Salai in the broad day light on 18.7.1998, by pouring water on her from water packets sitting inside the auto, when Sarika Shah and her friends viz., P.Ws.2 to 4 were proceeding to a juice shop and not only that, one of the accused persons also pounced over the said Sarika Shah from the speeding auto, as a result of which, Sarika Shah fell down and sustained head injuries and died after five days, in spite of the best treatment given to her. The above act of the accused persons shows their indecent behaviour in public place towards innocent young girls and also their teasing against Sarika Shah, which resulted in her unnatural death.
14. The points to be considered in this case is whether the appellants are the persons who are responsible for causing the death of Sarika Shah and whether the prosecution has proved the involvement of the accused through the evidence of the prosecution witnesses beyond reasonable doubt?
15. A careful scrutiny of the evidence adduced on the side of the prosecution doles out answers to the above questions and they are on the lines that P.W.23 arrested A1 on 26.7.1998 at 11.00 a.m near Vyasarpadi Jeeva Railway Station near Vyasarpadi and on the confession statement given by the A1, A2 to A9 were also arrested on the same day and the vehicle involved in the incident was also recovered from the house of A2 and further the prosecution has also recovered the dresses of A1 viz., M.Os.1 & 2, which were produced by A1 himself. The said dress worn by Al at the time of the occurrence was clearly spoken to by P.Ws.7 and 16 even giving the colour of the dress specifically, i.e brown colour pant and red shirt. P.W.16 not only identified the accused before the Court, but also in the T.I Parade as the person, who pounced upon the deceased-Sarika Shah from a speeding Auto. Moreover, P.Ws.2 to 4 being the close friends of the deceased-Sarika Shah, who went along with the deceased to take refreshment during the lunch hours of the college, happened to witness the incident very closely, i.e the shameful act of the accused done against the deceased-Sarika Shah, viz., splashing water from water packets and pouncing A1 on her, which ultimately resulted in her unnatural death at her tender age of 19, and also witnessed that A1 is the person, who jumped on the deceased. Therefore, all of them have spoken very clearly, cogently and consistently without any contradictions. Therefore, the presence of the prosecution witnesses at the occurrence witnessing the incident and the evidence given by them implicating the accused cannot be doubted.
16. The contention of the learned Senior Counsel that P.Ws.2 to 4 who were alleged to have witnessed the incident very closely, could not identify even A1, who was alleged to have pounced upon the deceased, in the identification parade and therefore, the accused cannot be the persons, who were involved in the offence, in my opinion, does not merit acceptance. Admittedly, P.Ws.2 to 4 were of tender age and were college students at the time of occurrence and they would have experienced this kind of traumatic incident in their life unexpectedly and unfortunately and would have been in shock and they might not be in a position to come out of the painful shock, having witnessed the unbearable incident directly and closely which made them to feel fear of their life and also such ugly incident, which might have made them inactive and thereby failed to recognize the accused in the test identification parade conducted. However, later on seeing them in the open Court during the trial of the case, by which time, they became matured and would have able to come out of the shock and fear, have identified the accused correctly and therefore the said failure of the witnesses in the T.I Parade at first instance, cannot shake the prosecution case. Therefore, mere non-identification of the accused by the prosecution witnesses in the T.I Parade cannot be taken as a ground to disbelieve the entire prosecution case since, admittedly, the same prosecution witnesses have identified the accused in the open Court. Leave alone the evidence of P.Ws.2 to 4, P.W.16, who also witnessed the incident, while he was doing repair work of the Transformer near the place where the incident had taken place, has identified Al not only in the T.I Parade but also in the open Court. Therefore, the prosecution case cannot be shaken on the ground that the accused were not identified by some of the witnesses before the T.I Parade.
17. To strengthen the above view, the learned Government Advocate also produced judgment of the Hon'ble Supreme Court reported in Dana Yadav v. State of Bihar, 2002 (7) SCC 295, wherein, it has been held as under:
“7. Apart from the ordinary rule laid down in the aforesaid decisions, certain exceptions to the same have been carved out where identification of an accused for the first time in Court without there being any corroboration whatsoever can form the sole basis for his conviction. In the case of Budhsen, it was observed: (SCC p. 132, para 7)
There may, however, be exceptions to this general rule, when for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration.”
18. Relying upon the said decision, the learned Government Advocate would submit that in exceptional cases the evidence of identification for the first time in open Court without the same being corroborated by previous identification in the test identification parade or any other evidence, can very well form basis for conviction. He pointed out the present case would be considered as exception as though PWs.2 to 4 could not identify the accused in the test identification parade, however, they could very well identified in the open Court which evidence was corroborated by PW.14 and 16 who, particularly PW.16, already identified the accused in test identification parade as well as in open Court. Therefore, the evidence of the prosecution is trustworthy and it can form basis to sustain the conviction against the accused. I find considerable force in the submission of the learned Government Advocate. In view of the fact as stated supra that under which circumstances, PWs. 2 to 4 could not identify the accused in T.I Parade and in view of corroborating evidence of PW.16 who identified the accused in T.I Parade, this Court is impressed by the testimony of PWs.2 to 4 who categorically identified the accused in open Court and the same can be relied safely in order to sustain the conviction against the accused.
19. Further, as rightly contended by the learned Government Advocate there is no animosity for the Police to array the appellants as accused in this grave offences, unless they are identified by the witnesses and accordingly PW.16 identified A1 and on confession of A1, A2 to A9 were also arrested and but for the confession statement of Al implicating the A2 to A9 by giving their names as the persons, who accompanied him on the fateful day and participated in the incident, the police could not have arrested A2 to A9, who neither not denied their friendship with A1 or they are unknown person to him and further, the police also could not have recovered the Auto which was involved in the incident and hired by A2, from the house of A2 who is said to be the friend of A1. The said auto was given in hire to A2 by P.W.12 is also proved by the evidence of P.Ws.12 and 13. Admittedly, P.W.14 who is also an auto driver, as an independent witness, neither having affinity towards the prosecution witnesses nor having selfish motive or animosity against the appellants/accused, came forward and deposed that on 18.7.1998 at 1.00 p.m when he was having tea at Bricklin Road by parking his auto, at that time, an auto tied with Congress Party Flag came and stopped there, from which 8 persons got down and were talking about Ethiraj College girl student and also identified the said persons before the Court as the accused involved in the incident. Further to corroborate the evidence of P.W.14 that the said persons have come in an auto tied with party flag, P.W.9 would speak that there was a Youth Congress Party Meeting at 10.00 a.m which ended at 12.00 noon on the fateful day and seen the accused who attended the meeting in the said auto.
20. The sequence of the occurrence, as established by the prosecution case, could be viewed from the evidence taking right from P.W.9, then by P.Ws.2 to 4, 7 & 16, 11 & 14 and 12 and 13 that on 18.7.1998 viz., to attend the party meeting held at the venue near Ethiraj College at 10.00 a.m, persons have come in cars and autos tied with the Party Flags and after the meeting ended at 12.00 noon, they left in their respective vehicles as spoken by P.W.9 and while on the way, the persons in the auto belonging to P.W.12, misbehaved with the girls and one of the said persons jumped over the deceased which unfortunately took away her life, as spoken by P.Ws.2 to 4, 7 & 16 and thereafter a person running from the place of occurrence as spoken by P.W.11 and finally as spoken by P.W.14 that the accused came to a tea shop where he had tea and talked about the incident and the involvement of the accused could be seen from the arrest of A1 who was identified by PW.15, and on confession of A1, which led to the arrest of the other accused, recovery of the said auto hired from PW.13, in which Al to A9 travelled and the seizure of M.Os.1 and 2 red colour shirt and brown colour pant were established by the prosecution evidence through P.Ws.15 and 22 and the identification of the accused by P.W.16 in T.I Parade as well as before the Court and by P.Ws.2 to 4 and 7 before the Court during the course of trial.
21. Therefore, considering all the above stated circumstances, I find that there is no substance in the contentions raised by the learned Senior Counsel for the appellants. The prosecution examined P.Ws.1 to 15, of them, P.Ws.5, 6 & 10 have not supported the prosecution. However, on a careful perusal of the evidence of P.Ws.2 to 4, who are the classmates of the deceased-Sarika Shah and witnessed the incident very closely and they have despite failed to identify the accused in the identification parade, however, while the accused appeared before the Court, they identified them. The contention of the learned Senior Counsel that the prosecution witnesses were tutored and got knowledge about the identity of the accused by way of media and therefore, their evidence cannot be relied on cannot be sustained because the independent witnesses, i.e PW.16 and PW.14 who are neither having affinity towards the complainant nor having animosity against the accused, have identified the accused correctly and further the evidence of PWs. 2 to 4 and other witnesses is cogent and clear and corroborated with each other. Therefore, I do not find any error of law in the findings arrived at by the Trial Court.
22. Right from time immemorial, the feminine gender has been subjected to harassment in many respects, viz., female foeticide, molestation, rape, dowry harassment, etc., of which, sexual harassment begins even at her childhood. So many cases have been reported in which, little girls who are at their tender age, even below 10 years, were subjected to rape and murder.
23. Apart from rape, which is the extreme end of the sexual harassment spiral, girls and women are being subjected to harassment in the form of “eve-teasing'. It is a euphemism used in our country for sexual harassment or molestation of women by men. Eve-teasing in public places has been a perennial problem. It violates a woman's basic right to live in dignity. It is a typical social crime, where the perpetrators and victims are ordinary people. A civilized society cannot afford to ignore such an issue.
24. In the present case, an innocent girl, Sarika Shah, a student of Ethiraj College in Chennai, fell victim to eve-teasing in the vicinity of her college, she was manhandled and the injuries she sustained proved fatal. Her untimely death was made more poignant because it happened to be on July 23, her birthday. After this shocking incident, in fact, the Government of Tamil Nadu noticed that eve-teasing in public places is a perennial problem and decided to eradicate the menace of eve-teasing as a whole and accordingly, promulgated and enacted the Tamil Nadu Prohibition of Eve-teasing Act, 1998 and it came into force on the 30th day of July, 1998. However, even after this also, many cases were reported wherein, the victims even committed suicide due to pressures caused by Eve Teasing and many other cases go unreported for fear of reprisals and exposure to public shame.
25. An out-of box approach is necessary to deal with the worsening problem of eve-teasing, costing the young lives, as in the case on hand. Violence is directed specifically against a woman because she is a woman or affects women disproportionately. For no fault of them and just for the reason that they are girls, the women or the girls are being reduced to a state of weaker sex. The time is ripe now to give them confidence and a sense of self-defence, when we are witnessing such ghastly incidents in and around, day in and day out, whereby girls and women are the most victimized, so as to face difficult and challenging situations courageously.
26. Socially constructed roles often thwart the potential of girls and women. The culture of silence is of no use now-a-days to the girl children and we must develop physical and emotional strength among the girl children with a powerful survival instinct, by igniting the fire of daring for themselves and to achieve their desire to live and grow and not to allow anybody to pull life out of them. The Government and the parents as well must inculcate in the girl children the courage to deal with such probable events. The Society and the Government as well owes a social responsibility to take all necessary steps to secure the well being of the girls and women.
27. The heartening factor in this case is that the cultural silence injected into the minds of our younger generation and exhibited by the victim at that point of time, without courageously acting against the miscreants has costed her life. Even though violence was unleashed against her by the accused, preceded by a long chase in a busy public road and in broad day light and molestation, in this case, the victim has silently fell prey to it instead of courageously questioning the unbecoming behaviour of the accused. Had the victim raised her voice, questioning the behaviour of the accused at the very inception of violence against her by the accused that is even while the accused sprinkled water on her, instead of trying to escape from the clutches of the accused, she could not have met her Mentor prematurely that too at the instance of unruly elements like the accused. Her cultural silence, besides giving further strength to the accused in pouncing upon her, has ultimately resulted in her complete silence, once and for all. The entire case on hand tells tales of woes faced by the women and girls day in and day out at the hands of unruly elements. This Court was informed that pursuant to the ghastly incident in the case on hand, the Government has promulgated the most-welcomed Eve Teasing Act. A social responsibility is cast on every individual to protect and ensure safer conditions of living to our future generations and to question and thwart any attempt by the miscreants to destroy the same, to avoid recurrence of such incidents.
28. Before parting with this case, keeping the above social menace to the girls and women in mind, this Court feels it appropriate to recommend the State Government for taking necessary action on the following aspects:
(a) Introducing a special subject for girls and women in schools and colleges, relating to the laws of the land under which they can seek appropriate remedies from the legal forums and legal rights to which they are entitled to, such as, how to react and defend themselves in the event of any untoward incidents, viz., eve teasing, molestation, sexual harassment, etc.;
(b) Making it mandatory for all the schools and colleges to conduct classes by the Experts in the field for girls and women atleast once in a week motivating them and educating them of their rights enunciated under law so as to boost their self-confidence, self-vigilance, physical and emotional strength to react and defend themselves whenever such occasions warrants;
(c) Issue necessary instructions to the police authorities that whenever a girl or woman approaches with such complaints, the Police shall act swiftly, on the complaints of the victims without putting them in an embarassiag situation in the society and act in a friendly manner.
29. In view of my foregoing discussion, in my opinion, the learned Sessions Judge has not committed any error in convicting the Appellants and sentences awarded against them, consequently their Appeals fail and the same are dismissed. If the appellants are on bail, they shall surrender to their bail bonds to serve out the sentence inflicted on them.
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