1. Accused 1,6 & 2 are the applts. Accused 1 & 2 were convicted under Sections 376, 453, 609 (ii) & 341, T. P.C. & sentenced to rigorous imprisonment for five years, under Section 376, rigorous imprisonment for 6 months under Section 453 & another 6 months' rigorous imprisonment under Section 509 (ii). They were also given a sentence of simple imprisonment for one month for the offence under Section 341, T. P.C. Accused 6 was convicted under Section 453, 509 (ii) & 341, T. P.C. & sentenced to rigorous imprisonment,, for 6 months under Section 453, another 6 months under Section 509 (ii) & simple imprisonment for one month under Section 341, T. P.C. The sentences were directed to run consecutively. In convicting accused l & 2 under Section 509 (ii), & 341, Section 28, T. P.C. was also applied. Accused 3 to 5 were acquitted & set at liberty.
2. The prosecution case was follows: P. W. 1 who was a young girl of 19 had been married to P. W. 2 a goldsmith on 20 7-1124. After marriage they were living as husband & wife in a building in Netttayam in Vattiyoor Kavu. P. W. 2 was engaged in the business of making ornaments in gold & silver & for this purpose he had taken on rent a portion of the building where they were living. The building itself belonged to P. W. 5 who was occupying another portion of the same building & conducting a tailor shop. It was stated that at about 9 P.M. on 17-8.1124 all these accused 1 to 6 formed themselves into an unlawful assembly with the common object of committing rape on P. W. l. With this object in view accused 5 went in advance & called P. W. 2 who was inside the house after closing the front entrance. He came out after removing the shutter planks in front & engaged himself in a conversation with accused 5 who wanted to have a necklace made for him. Whilebe accused 6 came there with a torch light, caught hold of P.W. 2 & kept him there threatening injury by showing a dagger or Bichua M.O. 1 against him. Accused l then got into the house, caught hold of P. W. 1 & took her out forcibly. Accused a joined him then & both of them carried her away by force towards the south for some distance & then towards the west by a lane to a shed marked F in ex, N plan. This was about 8 furlongs away from the residence of P. Ws. 1 & 2 Accused 3 to 5 were stated to have joined accused 1 & 2. Inside the shed P. W. 1 was laid on her back. Accused l disrobed her & when she cried out accused a thrust a piece of cloth into her mouth. Accused 1 was then stated to have sexual intercourse with her without her consent & against her will. Accsed 2 to 6 were afterwards stated to have in their turn committed rape on bar. In the meanwhile P.W. 3 came to the spot where P.W. 2 was kept under wrongful restraint by accused 6 & ascertained from them that P. W. 1 was carried away by accused 1 & 2, He traced them out in the shed. He brought P. W. 1 back to her house at about midnight. She was then run down & exhausted. Then accused 6 again threatened P. W. 9 that if they continued to live at the place they would meet with more danger. On the advice of P. Ws. 3 & 4, P.Ws. 1 & 2 left the place the very same night. They came to a house near Gandhari Amman Koil Street in the Trivandrum City & spent the whole of the 13th there. On the 19th they proceeded toP. W. 1's father's house in Vanchiyoor & spent three days there. Later on they proceeded to Chackai & took up abode in the house of one Velu Pillai a Band Master in the military. They had not revealed the incident out of shame. But the Poojappura Police got scent of these happenings at Nattayam two or three days afterwards. They were making enquiries about the whereabouts of P.Ws. 1 & 2. P. W. 1 & 2 came to know of such enquiry started by the Police & on the advice of Valu Pillai & others they went to the Aoojappurai Police station on the evening of 25th Meenom 1124 where P. W. 1 gave Ex. a statement. With the help of a lady P.W. 9 living in the neighbourhood of the Police Station a mahazar Ex. A (1) as to the condition of P. W. 1's private parts was prepared. The next morning P. W. 1 was sent to the women and children's Hospital, Thucaud for elimination & treatment. P.W. 12, the Resident Medical Officer examined her & gave Ex. K certificate. P.W. 1 was treated as an out-patient. The police thereafter, started the investigation & laid the charge against accused 1 to 6 under Sections 140, 509 (ii), 841, 463 & 376 read with Section 28, T. P.C. All the six persons were committed to stand their trial before the Ses. Ct. The Addl. Ses.J. Trivandrum, tried these accused and acquitted accused 3 to 5 as the evidence against them was not sufficient to being home the guilt to them & convicted accused 1, 2 & 6 as mentioned above.
3. The plea of the applts. in the lower Ct. as well as here was that they were not guilty. (After discussion of the evidence the judgment proceeds:) The evidence mentioned above would clearly indicate that P. W. 2 was being kept under wrongful restraint by accused 6.
4. The evidence of P. Ws. l, 2 & 11 was that after they had taken their supper they were inside the shop when accused 5 came & called P. W. 2 out for arranging with the latter to make a necklace for him. The role played by accused 6 was highly suspicious. But we do not propose to go minutely into that as accused 3 to 5 were acquitted by the Ct. below & the State had not preferred any appeal against the decision of the lower Ct. Anyhow it was clear from the evidence that while P. W. 2 & accused 6 came there talking outside the house accused 6 came these, caught hold of p. W. 2 & threatened him with a dagger M.O.1 saying that he would be done away if he raised any trouble. Accused l then came there & on the instruction of accused 6 got inside the house & brought out P. W. 1 by force. Accused 1 & 2 then took her away; though P. W. 5 had a leaning to help the accused, he admitted that he bad seen accused 1 & 2 holding P. W. 1 by the hand & taking her away from the place by force. It was clear that accused 6 had helped accused l to commit house trespass for the object of carrying away P. W. 1.
5. Accused 6 had been convicted under the second part of Section 509 for criminal intimidation by threat to cause grievous hurt. He did really intimidate P. W. 2 & for this purpose he used the dangerous weapon to gain his object. The conviction therefore under this part of Section 509 was proper. The evidence of P. Ws. 3 to 7 would also show that he had kept P. W. 2 under wrongful confinement for a sufficiently long time in order that accused 1 & 2 might gain their object. The circumstances in the case would show that these accused came there with the common intention of doing some mischief to P. W. 1 so that they were constructively liable for what the others did. Accused 6 had therefore committed the offence under Section 341 & also under Section 453 read with Section 28, T. P.C. The same reasoning would apply to accused 1 & 2 so that accused 1 had committed the main offence under Section 453 & the offences under S3. 509 (ii) & 341 read with Section 28, T. P.C. Accused 2 though he had not taken any active part in wrongfully confining P. W. 2 or in trespassing into the house for the purpose of carrying away P. W. 1 had by virtue of provision in Section 28, T. P.C. committed the offence under this section. Thus the conviction against accused 1 & 2 & 6 by the Ct. below under these sections was proper & hence is confirmed.
6. The main act for which accused 1 & 2 were convicted was for the alleged rape on P. W. l. In this accused 6 bad nothing to do as the evidence stands. But be could also have been convicted under the section by making use of Section 28, T. P.C. The lower Ct. had not however convicted him under the section & we do not therefore propose to interfere in that respect.
7. (After discussing the oral and medical evidence the judgment proceeds:) If she had approached the Police & the Medical Officer immediately after the alleged occurrence the prosecution would have obtained the first hand evidence relating to this. If she had been raped & if the signs of the same were noticed on her person that could have been treated as a circumstance to corroborate her version before the Ses Ct. That was why it was held in Abdul Kani v. Sirkar (1945) T. L. R. 109 that corroboration need not be by direct evidence of the commission of the act by the accused & that circumstantial evidence would be sufficient. Their Lordships in that ruling dismissed the question of corroboration & pointed out how by Circumstantial evidence the version of the prosecution could be corroborated. In cases where the question of the woman's consent or non consent was material the first & foremost circumstance that could be looked upon was the evidence of resistance which one would naturally expect from a woman unwilling to yield to sexual Intercourse forced upon her. Such a resistance might lead to tearing of clothes, the infliction of personal injuries & even injuries on her private parts. In that case the clothes worn by the lady contained marks of semen. There were several injuries on the different parts of her body including injuries to the vaginal regions. A complaint also had been made to the Police soon after the occurrence. Such evidence was held to foe sufficient in the absence of other invalidating circumstances, to accept the version given by the ravished woman.
8. The extreme delay in informing the Police & in P. W. l being subjected to medical examination had obliterated whatever evidence there was on the person & clothes of P. W. 1 as to the commission of offence of rape. Thus the medical evidence is of practically no help to us. Apart from the evidence of P. W. 1, there is no other evidence. Even as regards P. W. l the lower Ct. had refused to rely on her as regards her statement regarding accused 3 to 5. It would there. fore be unsafe to act on her testimony as to the commission of rape on her by accused 1& 2, We ate therefore forced to hold that the evidence in the case is not sufficient to bring homo the guilt to accused l & 2 under Section 376, T. P.C. They are accordingly acquitted of this offence.
9. Bat accused 1 & 2 could not escape for what they did to P. W. l. We had relied on the evidence of P. W. 4 in the Mag's. Ct. & of P. W. 5 both in the Mag's. Ct. & the Seas. Ct. to show that accused 1 & 2 had forcibly carried away P. W, 1 from her residence at about 9 P. M. on 17 8-1124. Their object could not have been a legitimate one. As noticed already there was an idea in the accused even before the date in question to commit mischief on p. W. 1. For this we referred to the evidence of P. Ws. 1 & 3. So these people could have taken away P. W. 1 by force at night for the purpose of outraging her modesty. There can be no explanation for this act by these accused persons. Their act would therefore come under S 354. T. P.C. All the elements required for proving an offence under that section are mentioned in the charge framed against accused' 1 & 2 & so there would be no difficulty in convicting them for the minor offence under Section 354, T. P.C. We would under these circumstances change the conviction to one under Section 354, T. P.C. & for this we sentence them to undergo the. maximum period of imprisonment that is rigorous imprisonment for two years.
10. In the result therefore we acquit accused 1 & 2 of the offence under Section 376, T. P.C. Accused 1 is convicted under Section 354 & 453, T. P.C. & also under the second part of Section 509 & under Section 341, T. P.C. read with Section 28, T. P.C. He is to undergo rigorous imprisonment for two yearn for the offence under Section 354, 6 months' rigorous imprisonment under Section 453, another 6 months rigorous imprisonment under the second part of Section 509 & also simple imprisonment for one month under Section 341, T. P.C. Thus in all he is to undergo rigorous imprisonment for three years & simple imprisonment for one month. Accused 2 has tiled Cri. App. 149 of 1950. He is acquitted of the offence under Section 376 but convicted under Section 354, 453, 509 (ii) & 341, T. P.C. read with Section 28, T. P.C. He will also undergo rigorous imprisonment for two years under Section 354, rigorous imprisonment for six months under Section 453/28, another period of rigorous imprisonment for six months under Section 509 (ii)/28 & simple imprisonment for one month under Section 341/28, T. P.C. He will also thus undergo rigorous imprisonment for three years & simple imprisonment for one month.
11. The appeal by accused 6 is dismissed. He will undergo rigorous imprisonment for six months under Section 453/28, T. P.C. rigorous imprisonment for another period of six months under Section 509 (ii) & simple imprisonment for one-month under Section 341, T. P.C. so that he will undergo rigorous imprisonment for a total period of one year & simple imprisonment for one month. He is now on bail; his bail bonds are cancelled. He will be taken to custody forthwith, & sent to prison to serve the remaining portion of the sentence.
12. The appeals are decided as mentioned above.