Visveswaran Vs. State Rep. by S.D.M. - Court Judgment

Excerpt:
criminal - indian penal code - section 346, 366, 376 - appellant convicted for wrongful confinement, abduction and rape - appellant posted as a constable in the prohibition wing of the police station - identity - accused was sent for medical examination and injuries was found in his body as well as dried semen - accused did not permit the sample of semen to be taken - necessary to bear in mind the background of the case including the state of society to which the victim belonged, her profession and the manner in which the investigation was conducted - victim was picked up by a police constable ostensibly for interrogation - no material to come to the conclusion that appellant falsely implicated - test identification parade not held - appellant caught from room in hotel - appellant could not explain his whereabouts during the time of the offence and was not cooperative during the investigation - appeal dismissed evidence act, 1872 (a) sections 9, 3 with indian penal code, 1860 - sections 366, 376 - the case deals with the establishment of the identity of an accused police constable in an instance when a rustic woman, carrying profession of lead coating, was picked up at night from bus stand and raped.- in the particular case, the accused police constable could not be identified by the women.- according to the supreme court, the guilt of the accused was proved by circumstances.- it was not necessary that the victim identify the accused if guilt was proved by other means. (b) section 3 with criminal procedure code, 1973 - section 167 and penal code, 1860 - sections 366, 376 - the case debates whether the defective investigation was a good basis for acquittal in rape cases.- according to the supreme court, the courts have to be cautious and they must not base the acquittal of the accused only on the above mentioned ground. - [a.k. sarkar,; k.n. wanchoo and; raghubar dayal, jj.] in 1949, the banking companies act was passed with a view to protect and secure the interests of depositors. in 1953 s. 45-o was enacted by the banking companies (amendment) act, in pursuance of the recommendations of the banking companies liquidation proceedings committee. section 45-o (1) provided that in computing the period of limitation prescribed for an application by a banking company which is being wound up, the period commencing from the date of the presentation of the winding up petition shall be excluded; and s. 45-o (3) provided that sub-s. (1) shall also apply to a banking company in respect of which the winding-up petition was presented before the commencement of the amendment act, that is, 30th december 1953. on 1st may 1947, a decree for a sum of money had been passed in favour of the appellant--bank, against the respondents. the decree provided that the amount which was due on 30th may should be paid in 6 annual instalments each payable on 30th december from 1947 to 1952. the decree also provided that if the respondents failed to pay any instalment within 4 months of its becoming due, the appellant shall be entitled to realise all the amounts then due, by execution. none of the instalments was paid. on may 11, 1948 a petition for winding up of the appellant was presented and it was ordered to be wound up on august 3, 1948. in august 1956 the liquidator filed an execution application on the original side of the high court, for realising the amounts. the application was allowed, but the high court, in letters patent appeal, held that the application was barred by time. in appeal to this court, the appellant contended that in view of s. 45-o the application was within time: while the respondents contended that: (1) all the instalments fell due by 1st may 1948 by operation of the default clause, and therefore, the application was barred by art. 182 (7) of the limitation act, 1908, by the time s. 45- 0 was brought on the statute book; (ii) the section has no retrospective operation so as to revive a debt which had become barred at the date of its enactment; and (iii) if the default clause gave only an option to the appellant so that it could apply for execution as and when an instalment fell due, then, the instalments which fell due in 1947, 1948 and 1949 had become barred before the enactment of the section; and the instalments which fell due during the years 1948 to 1952 were also not saved from the bar of limitation, as the section applied only to those cases where the right to execute had arisen before the presentation of the winding-up petition. held: (by full court): section 45-0 saved the execution application from the bar of limitation imposed by art. 182(7) of the limitation act. [712h; 719a; 727d; 742a] (i) per sarkar, j: the right to apply for execution in respect of the instalments under the decree arose on the dates on which they respectively fell due. [713h] the default clause was only intended for the benefit of the appellant and gave an option to the appellant to sue for the entire amount or waive the benefit of the option, and the appellant had not taken advantage of it. [713d, e, h] ram culpo bhattacharji v. ram chunder shome, (1887) i.l.r. 14 cal. 352, referred to. (ii) per sarkar, j: there is no reason why a distinction should have been intended between debtors, the claims against whom might have become barred before the section was enacted and those, the claims against whom, became barred thereafter. in fact, the object of the section would be better achieved by applying it to both classes. [715 f-g] one of the methods by which, the object of the act which was to protect depositors, could be achieved is by extending the period of limitation for enforcement of the claims of a bank in liquidation, so that more money may be collected for payment to the depositors. that being so, the largest extension of the period, which the language used is capable of, must have been intended. [715e-f] besides, s. 45-o(3) expressly makes sub-s. (1), applicable to a banking company being would up on a petition presented before 30th december 1953 under s. 45-0(1) and (3) a period which had started to run before that date could be excluded, and, there is no hint that such exclusion is confined to cases where the right had not become barred by that date. subs. (3) must have been intended to give full retrospective effect to subs. (1), as otherwise, it need not have been enacted, because, sub-s. (1) would, by its own terms, apply to cases of winding up on a petition presented before the amending act, and, considering the intention of the act, sub-s. (3) could not have been enacted as a surplusage or ex abundanti cautela. therefore, s. 45-0(1) applies to applications by the banking company, even when they had become barred before the amending act. [716 b-e h; 717 c] per wanchoo, j: the appellant would be entitled to exclude the entire period from 11th may 1948--the date of presentation of the winding-up application--upto the date of the execution application and would thus be entitled to execute the decree for the total of the 6 instalments due. [726 e] the language of s. 45-0(1) implies that it was meant to be retrospective and that conclusion becomes inevitable when it is read with sub-s. (3), in the background of the remedy that the legislature intended to provide for the benefit of depositors. section 45-0(1) imperatively lava down that where an application is filed by a banking company which was being would up on or after 30th december 1953 the court must exclude the period commencing from the date of presentation of the winding up petition to the date of the application in computing the period of limitation. further by virtue of subs (3), subs. (1) applies not only to those banking companies which were being wound up on petitions presented on or after the section came into force, but also to those banking companies where the winding-up petition was made before 30th december 1953 and whether the winding up order was made before or after that date provided the banking company was in the process of being wound up when the application was filed; and, there is no scope for the court to consider whether the application, if filed before 30th december 1953, would barred by limitation or not. [722h; 723 a-b, d-e; 724 e] per raghubar dayal j: the appellant's application for execution is maintainable and not barred by time, because, the effect of s. 45-0(1) is that, in applications made by a banking company which is being would up, or for whose winding up a petition has been presented before 30th december 1953, the period of limitation is arrested on the date of the presentation of the winding up petition, and it is not material whether such date is earlier than 30th december 1953 or net. therefore, the sub-section is retrospective, and an application can be made even in regard to matters with respect to which such action could be taken on the date of the presentation of the windup petition, but could not be taken, because of efflux of time, on 30th december 1953. [731c; 736g. 737e] one of the conditions for the application of the sub- section is that a "banking company is being wound up", and this condition would be satisfied by all companies with respect to which winding up orders had been made either before 30th december 1953 or thereafter. there is nothing in the language of the sub-section to limit the expression to those companies which respect to which winding up orders are made subsequent to that date. the provision is not for the benefit of such companies only, but, is for the benefit of all companies which would be in the process of winding up during the enforcement of the act. this is also apparent when sub-ss. (1) and (3) are read together. so read, the period of exclusion would be available in connection with applications by a banking company which is being wound up or with respect to which a petition for winding up has keen made prior to 30th december 1953. if the provisions of sub- s. (1) can apply to the banking companies with respect to which proceedings on a winding petition were pending on 30th december 1953, there is no reason why they should not apply to banking companies with respect to which winding up orders had been made prior 'to that date. further, if a restricted interpretation is given to sub-s. (1), by confining it to cases where the cause of action was not barred on 30th december 1953, then sub-s. (3) will have no utility, because, that sub-section only provides that whatever advantage a banking company can derive from the provisions of sub-s. (1) when it is being wound up, would be available to it even if it is not being wound up, if a petition for its winding up had been presented prior to 30th december 1953. the only case in which the banking company can take advantage of sub-s. (3), then, would be vhen the cause of action for the application has not lapsed by that date and the proceedings on a winding up application were pending on that date. but, such cases would be covered by the language of sub-s. (1)itself, for, the cause of action would be alive on 30th december 1953 and the winding up order would be made subsequent to that date. [734-b-e; 736b, e-h] case law referred to. (iii) per sarkar and raghubar dayal, jj.: section 45- 0(1) should be read as permitting the exclusion of the entire period commencing from the date of the presentation of the winding up petition where the debts became due before that date, and, in cases there the debt became due subsequently such part of that period as commences from the date of the accrual of the debt. [718e; 741f] per sarkar, j.: there is no reason why it should have been intended that debts which fell due before the presentation of the winding up petition but were not barred by that date could be recovered, and not those which became due thereafter. no doubt, if the sub-section is applied to the case of a debt accruing due to a banking company after the presentation of a winding up petition, such a debt would be completely free from the bar of limitation, but since it has that effect in the case of debts which accrued due prior to the presentation of the petit,ion and had not become barred on that date, the section must be construed as permitting the whole of the period commencing from the presentation of the petition to be excluded where in fact it could be done, and a part of that period only where the whole of it could not be excluded. [717f, h; 718c, h] cortis v. the kent water works company, 7 b & c 314, referred to. per raghubar dayal, j: the appellant waived its right under the default clause of the decree and sought execution for the realisation of the various instalments. even so the execution application was within time, because, a banking company is entitled to exclude, the period from the date on which the winding up petition was presented upto the date of the institution of the application, from the period of limitation prescribed, and it would be illogical to hold that it is not entitled to ask that a shorter period, as the case would be, when the cause of action arose subsequent to the presentation of the winding up petition, should be excluded. it may be that this means, the entire period of limitation is abrogated with respect to causes of action arising subsequent to the date of the winding up petition, but it would be anomalous to hold that action can be taken with the help of the sub-section with respect to causes of action' which had arisen much earlier than the date of the presentation of the winding up petition, but action cannot be taken with respect to causes of action arising subsequent to such a date if it had not been taken within the prescribed period of limitation. [740g, 741c, g-h] per wanchoo j.: the present case is governed by s. 45- 0(3)' because, the winding up petition was presented before s. 45-0(1) came into force, but by virtue of sub-s. (3), sub-s. '(1) would apply. as there was default in the payment of the instalment due on 30th december 1947, the right to execute all the remaining instalments arose on ist may 1948 and since that right was not waived, limitation for all the instalments began even on ist may 1948, while the winding up application was filed on 11th may 1948, and so, the appellant could take advantage of the section and execute the decree for the entire amount. [726a-e; 727c-d] exclusion of time cannot take place where time has not begun to run before the date from which the exclusion begins. therefore, in order that s. 45-0(1) should apply, it is necessary that the period of limitation for the application should have begun to run before the date of winding up petition, but should not have run out. [724-c] on this interpretation, in the case of instalment decrees without a default clause, the instalments which became due and were not paid before the winding up petition may be recoverable by execution, while in the case of instalments which became due after the presentation of the petition, the exclusion provided by the section would not come into play. but if the sub-section is interpreted as stopping limitation in all cases, after the presentation of the winding up petition, it will result in another anomaly, that there would be no limitation at all in a case where the liquidator files a suit and gets a decree. [7241; 725a]  - learned counsel for the appellant contends that the prosecution has miserably failed to establish that the appellant committed the crime. circumstances which have been taken into consideration against the appellant by the trial court as well as the high court are that the appellant, a police official, was caught from a room in a hotel.y.k. sabharwal, j.1. the appellant has been convicted by the trial court for wrongful confinement (section 346), abduction (section 366) and rape (section 376). on conviction rigorous imprisonment for a period of seven years and fine of rs. 10,000/- for offence under section 376 and lesser punishments for the offences were imposed. the conviction and sentence has been maintained in appeal by the high court in terms of the impugned judgment which is under challenge on grant of leave.2. the appellant at the relevant time was posted as a constable in the prohibition wing of conoor police station. the victim, pw1, was a young, recently married rustic woman. the commission of crime on the person of the victim by a police constable has also been fully established and is not a matter in issue. the issue that has been raised in this appeal is about the identity of the accused. 3. the established facts are that during march 1989, pw1, her husband (pw2), uncle of pw2 (pw4) and their other relatives pursuing the profession of lead coating to vessels/utensils, used to go from place of place for the purpose of their profession. at the relevant tim,e they were at kethi in udhagamandalam for the said purpose. their native place is pondicherry. on the night between 11th and 12th march, 1989, while all these persons were sleeping on the bus stand, a police constable came in a taxi at about 1 a.m. and asked pw1 and pw2 about their identity and profession. on pw1 replying that pw2 is her husband and they had come for the purpose of their profession of lead coating to vessels, they were told that there was a suspicion on them and were asked to board that taxi. under these circumstances, they were made to board the taxi. after covering some distance, pw2 was pushed out from the taxi and when asked why was he pushed out, pw1 was told that her parent had made a complaint and she had to be interrogated alone. she was forcibly taken into a room in woodlands hotel at udhangamandalam. the room was bolted from inside and rape committed on her. in the morning, the taxi-driver came and tapped the door, the police constable went inside the bathroom instructing the driver the taxi. when he was in the bathroom, pw1 bolted the door from outside and came out of the hotel. pw1 thereafter with the help of an old man reach the bus stand and narrated the incident to pw2 and pw4. they then went to the police station kethi and she narrated the incident which was reduced into writing by sub-inspector of police. it is exhibit p-1 was signed by pw1. pw12 registered a case under sections 366 and 376 ipc and submitted it to the inspector of police. exhibit p-19 is the first information report. pw13, the inspector of police received a copy of exhibit p-19 and recorded statements of pw1 and pw2 and thereafter sent pw1 for medical examination in the hospital. as the accused was serving in the police department, pw13 submitted the file to the revenue division officer (pw14). exhibit p-20 is the letter written by pw13 submitting the file to pw14. the accused was not available when pw14 searched for him. all this happened on 12th march. 4. on 13th march, pw14 went to the hospital and seized the clothes worn by pw1 and arrested the accused in woodlands hotel. as the accused was in intoxicating mood, a certificate from the doctor was obtained. the clothes of the accused were also seized. the car driver (pw5) and the cleaner (pw6) were located at 10 p.m. and so also the taxi. pw14 recorded the statement of pw5, pw6 and pw7 on 13th march. pw7 is a car mechanic in whose presence taxi was hired for conducting a raid. accused was sent for medical examination on 14th march, 1989. the car was also seized on 14th march under exhibit p-23 and pws. 5, 6 and 7 were arrested. the doctor who examined pw1 appeared as a prosecution witness (pw10). pw1 told pw10 that she had been raped by a police constable. pw15 another doctor, who examined the accused at 11.15 a.m. on 14th march, found following injuries on the accused:'1. abrasion with contusion 1/2 cm long in the right side of the chest in the region. 2. abrasion 1/2 cm long in the left side oft he chest just below the lateral end of the left clavicle. 3. abrasion in front of left shoulder 1/2 cm long.'5. pw15 found the above injuries when the accused was produced before him to find out his potency. pw15 also found dried semen at the lower portion of male organ of the accused. the accused, however, did not permit pw15 to take the sample of semen stating that he was impotent at that time. pw15 also deposed that it is possible for the injuries to be caused when the nails of a girl come in contact when she is raped. the revenue divisional officer, conoor, after recording the statement of witnesses laid the final report against the accused under section 366 and 376 icp.6. the prosecution examined 15 witnesses. none was examined by the accused. in his statement under section 313 cr.p.c., the accused stated that the evidence given by the prosecution witnesses is false. the courts below, on appreciation of evidence, convicted and sentenced the accused as above stated.7. it stands established from evidence and could not be questioned that pw1 was picked up and raped by a police constable substantially in the manner deposed by her. the only dispute that has been raised is about the identity of the accused. learned counsel for the appellant contends that the prosecution has miserably failed to establish that the appellant committed the crime. the contention of mr. viswanathan is that it is a case of no evidence since there is not even an iota of evidence to connect the appellant with the commission of the offence and, in fact, it stands disproved that the appellant is the person who committed the crime.8. in order to properly appreciate the contention of learned counsel, it would necessary to bear in mind the background of the case including the state of society to which the victim belongs, her profession as also of the accused and the manner in which investigation was conducted. it is a common practice with those carrying the profession which pw1 and pw2 were carrying, to step during night on roadside or such similar place, while going from place to place.as above noticed, pw1, pw2 and pw4 were sleeping on a bus stand when pw1 and pw2 were picked up by a constable ostensibly for interrogation on a suspicion allegedly on a complaint made. it is also apparent from record that the investigation has been highly defective. the question to be examined, however, is whether despite discrepancies and deficiencies pointed out and strongly pressed into service by learned counsel for the appellant, has the prosecution been able to prove, beyond reasonable doubt, the guilt of appellant.9. the evidence of pw1 and pw2 was recorded by the trial court in september 1993. the main discrepancy and deficiency in the case of the prosecution that has been heavily relied upon by mr. vishwanatahn is that none of the witnesses including pw1 and pw2 could identify the appellant. it is correct, as pointed out by the learned counsel, that both pw1 and pw2 stated in their evidence that the person who took them in the car was not present in the court. similar was the statement of pw4. pw5 who was driver of the vehicle in the question was declared hostile. pw6, the cleaner of the vehicle, was also declared hostile. he also did not name the appellant. pw7, a car mechanic who was present when the taxi was hired from the taxi stand, was examined in the court of judicial magistrate where he stated that the appellant had engaged a taxi and brought a boy and a girl and when the girl. however, in cross- examination, he stated that the said statement was given at the instance of the police and that when he was examined by rdo-pw14, he had only stated that the person was a police constable and had not told his name but in the court of judicial magistrate, the name of the police constable as visveswaran - the appellant was stated only after the police had told him to do so. in view of this evidence, it was strenuously contended that the present case is of no evidence and, therefore, the appellant is entitled to a clean honourable acquittal and not an acquittal as a result of a reasonable doubt in the prosecution case. the further contention of learned counsel was that under these circumstances, the non holding of test identification parade was fatal to the case of the prosecution. at the first blush, we were much impressed by the contentions but on deeper consideration, we are of the view that in the facts and circumstances of the case, no interference is called for with the findings arrived at by the trial court and affirmed by the high court on appreciation of evidence despite the aforesaid deficiencies and discrepancies pointed out on behalf of the appellant.10. having already noticed the background of the case, the state of society to which the victim belongs and the nature of her profession and the established fact that the victim was picked up by a police constable ostensibly for interrogation on the pretext of suspicion on some complaint having been made and then used to fulfil sexual hunger, we find no material to come to the conclusion that the appellant was falsely implicated since his involvement in the crime has been established from the circumstances of the case beyond any reasonable doubt. pw1's deposition was that she could identify the person who raped her. she also told so to the police. she further stated that his name starts with word 'visu'. she also told pw14 that she could identify the person who raped her. to the similar effect was the statement of pw2. pw2, on examination by rdo, gave the name of the person as visveswaran - the appellant, pw6, though declared hostile, did support the case of the prosecution to the extent that a boy and a girl were taken in the car by the driver at the request of a police constable and on way the boy was dropped. he, however, stated that the girl was sent back after interrogation. as already noticed, pw7, though stated before the judicial magistrate that the appellant had engaged the taxi and brought a boy and a girl and went with the girl, but in cross-examination, stated that the name of the appellant was given by him at the instance of police. the victim was raped by a police constable in a hotel. the question is as to the identify of that police constable. was the appellant the said police constable, or there was some other police constable?11. it is unfortunate that despite the aforesaid facts, the test identification parade was not held. an important aspect of the case is that the appellant had beared and moustaches when pw1 and pw2 were examined as witnesses for the prosecution. it was not so at the time of the occurrence. pw1 and pw2, therefore, it is evident, could not identify him in court and stated in their deposition that the said person is not in court. it does not mean that the acquittal is to follow as a natural corroboratory from the statements of pw1 and pw2. the identification of the accused either in test identification parade or in court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. many a times, crimes are committed under cover of darkness when none is able to identify the accused. the commission of crime can be proved also by circumstantial evidence. in the present case, there are clinching circumstances unerringly pointing out the accusing finger towards the appellant beyond any reasonably doubt.12. before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. the cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accuse on charge of rape. in such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. the evidence is required to be appreciated having regard to the background of the entire case and not in isolation. the ground realities are to kept in view. it is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. in defective investigation, the only requirement is of extra caution by courts while evaluating evidence. it would not be just to acquit the accused solely as a result of defective investigation. any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.13. reverting to the instant case, it is no doubt true that if the evidence of witnesses is examined in isolation, without having regard to the aforesaid principles, there may be considerable force in the submissions that the identity of the appellant has not been established and likewise as a result of defective investigation of not holding test identification parade, the benefit should go the appellant. however, when the case is examined having regard to the aforesaid legal principles, the result would be otherwise. circumstances which have been taken into consideration against the appellant by the trial court as well as the high court are that the appellant, a police official, was caught from a room in a hotel. the proprietor of the hotel was examined as pw3. the hotel record (exhibits p-4 and p-5) showed booking of the room in that hotel by the appellant and also payment of advance of rs. 100/-. pw3 had also been examined by pw14. the appellant could not explain his whereabouts during the time the offence was committed. he was not cooperative during investigation. he declined to give sample of his semen. he was having different appearance of the time of examination of pw1 and pw2 in court. at the time of commission of offence, he did not have beard and the moustaches. however, when pw1 and pw2 were examined in court, he had beard and the moustaches and was wearing dhoti. the testimony of pw1 and pw2 was straightforward. the witnesses, immediately after the commission of offence, had named the appellant. the non-holding of the test identification parade, having regard to the facts of the case, is not fatal and does not create any reasonable doubt in the case of the prosecution. we are unable to accept the contention that the identity of the appellant had not been proved. from the proved circumstances, it has been fully stablished that pw1 was picked up and raped in a hotel room as per the case set up by the prosecution by a police constable who was none other than the appellant. there is no infirmity in the impugned judgment of the high court.14. the appeals are accordingly dismissed.