IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

RESERVED ON : 24.02.2023

Dated :      29.09.2023

CORAM:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN

Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,

 657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673, 679, 682, 690 and 692 of 2011 and

Crl.M.P.Nos.12773 of 2018 & 12069 of 2022

Crl.A.No.618 of 2011

L.Nadhan Vs. State represented by The Deputy Superintendent of Police, CBI/SEP Madras	…Appellant
Crime No.R.C.3/(S)/95	…Respondent

Prayer in all the Appeals: These Criminal Appeals are filed under Section 374(2) of Cr.P.C. 1973 to call for records and set aside the judgment of conviction and sentence dated 29.09.2011 passed against the appellants in

S.C.No.1 of 2008 by the learned Principal Sessions Judge, Special Court of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Dharmpuri.

For Appellant           : Mr.C.Arulvadivel @ Sekar

Senior Advocate for Mr.M.Dinesh

For Respondent        : Mr.AR.L.Sundaresan

Additional Solicitor General Assisted

by Mr.G.Arjunan  Public Prosecutor (CBI)

******

COMMON JUDGMENT

These criminal appeals have been filed against the judgment of conviction and sentence dated 29.09.2011 passed by the learned Principal Sessions Judge, Dharmapuri, in S.C.No.1 of 2008.

• The respondent police registered a case in Crime

No.RC.3/(S)/95 for the offence under Sections 143, 147, 149, 323, 427, 344

of IPC, 323 r/w 34 IPC, 376, 201 and 203 of IPC, Section

3(i)(x)(xi)(xiii)(xv) of the Scheduled Caste and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (in short “the SC/ST Act”), 3(ii)(vi) and (vii) and Section 4 of SC/ST Act, against 269 accused, who were Forest Officials, Revenue Officials and Police Officials respectively. After completing investigation, they laid charge sheet, which was taken on file in S.C.No.1 of 2008.

• In order to prove the charges, prosecution has examined 75 witnesses as P.Ws.1 to 75 and marked 324 documents as Exs.P1 to P324, besides two material objects were exhibited as M.Os.1 and 2. After completing examination of prosecution witnesses, when incriminating circumstances culled out from the evidence of prosecution witnesses and put before the accused, they denied the same as false and pleaded not guilty. On the side of the defence, D.Ws.1 to 3 were examined and Exs.D1 to D32 were marked.
• The learned trial Judge, on completion of trial and hearing the arguments advanced on either side, by judgment dated 29.09.2011 convicted the accused as follows.

 

Sl. No .	Rank of the Accused	Charge	Sentence
1.	3 to 5, 7, 10 to 16, 18 to 33, 35, 36, 38 to 41, 43, 45 to 47, 49 to 55, 57 to 62, 64 to 66, 68 to 79, 81, 82, 84, 85, 87, 88, 90 to 92, 94 to 100, 104 to 111, 113, 114, 116, 117, 119 to 123, 125, 126, 128, 129, 130 to 134, 136, 137, 139 to 143, 145 to 149, 150, 152 to 155, 157 to 160, 162 to 165, 168, 170 to 173, 176, 178, 180, 181, 185 to 189, 191 to 200, 202 to 214, 216, 218 to 220, 223 to 228, 230, 231, 233 to 237, 239 to 246, 248, 251 to 264, 266 to 269	No.1: 147 IPC No.2: 342 r/w 149 IPC	2 years RI 1 year RI; fine – 1000/each, i/d 3 months SI
2.	3, 10, 15, 24, 28, 38, 50, 53, 59, 71, 72, 76, 77, 90, 91, 99, 114, 152	No.3: 323 IPC	1 year RI; fine – Rs.1000/each, i/d 4 months SI
3.	12, 18, 22, 25, 32 36, 39, 40, 43, 51, 52, 60, 69, 74, 85, 88, 92, 98, 107, 108, 110, 111, 113, 116, 117, 119 to 123, 125, 126, 128, 129, 131 to 134, 136, 137, 139 to 143, 145 to 148, 153, 171, 172, 181, 185, 187, 192, 197, 199, 207, 219, 223, 225, 226, 239, 241, 244,	No.4: 323 r/w 149 of IPC	1 year RI; fine – Rs.1000/each, i/d 3 months SI

 

Sl. No .	Rank of the Accused	Charge	Sentence
	248, 252, 258, 260, 262, 264, 266 to 269
4.	3 to 5, 7, 10, 11, 14 to 16, 19 to 21, 23, 24, 26 to 31, 33, 35, 38, 41, 45 to 47, 49, 50, 53 to 55, 57 to 59, 61, 62, 64 to 66, 68, 70 to 73, 75 to 79, 81, 82, 84, 87, 90, 91, 94, 95, 99, 100, 104 to 106, 109, 114, 149, 152, 154, 155, 157 to 160, 162, 163, 170, 173, 176, 178, 180, 186, 188, 189, 191, 193 to 196, 198, 200, 202 to 206, 208, 214, 216, 218, 220, 224, 227, 228, 230, 231, 233 to 237, 240, 242, 243, 245, 246, 251, 253 to 257, 259, 296, 263	No.5: 3(2)(iii) of SC/ST Act	3 years RI; fine – Rs.1000/- each, i/d 9 months SI
5.	3 to 5, 7, 10, 11, 14 to 16, 19 to 21, 23, 24, 26 to 31, 33, 35, 38, 41, 45 to 47, 49, 50, 53 to 55, 57 to 59, 61, 62, 64 to 66, 68, 70 to 73, 75 to 79, 81, 82, 84, 87, 90, 91, 94, 95, 97, 99, 100, 104 to 106, 109, 114, 149, 152, 154, 155, 157 to 160, 162, 163, 170, 173, 176, 178, 180, 186, 188, 189, 191,	No.6: 3(1)(x) of SC/ST Act	3 years RI; fine – Rs.1000/- each, i/d 9 months SI

 

Sl. No .	Rank of the Accused	Charge	Sentence
	193 to 196, 198, 200, 202 to 206, 208 to 214, 216, 218, 220, 224, 227, 228, 230, 231, 233 to 237, 240, 242, 243, 245, 246, 251, 253 to 257, 259, 261 and 263
6.	10, 11, 20, 22, 24, 25, 26, 40, 49 to 53, 76, 107, 110 and 152	No.7: 376 IPC	7 years RI; fine – Rs.2000/- each, i/d 21 months SI
7.	10, 11, 20, 24, 25, 26, 49, 50, 53, 76, 110 and 152	No.8: 3(1)(xi) of SC/ST Act	3 years RI; fine – Rs.1000/- each, i/d 9 months SI
8.	10, 11, 20, 24, 25, 26, 49, 50, 53, 76, 110 and 152	No.9: 3(2)(v) of SC/ST Act	10 years RI; fine – Rs.1000/- each, i/d 30 months SI
9.	3 to 5, 7, 10, 11, 14 to 16, 19 to 24, 26 to 31, 33, 35, 36, 38, 39, 41, 45 to 47	No.10:           355 IPC	1 year RI
10.	2 to 5, 7, 10, 11, 14 to 16, 19 to 24, 26 to 31, 33, 35, 36, 38, 39, 41, 45 to 47	No.11:           342 IPC	1 year RI
11.	3 to 5, 7 10, 11, 14 to 16, 19 to 21, 23, 24, 26 to 31, 33, 35, 36, 38, 39, 41 and 45 to 47	No.12: 3(i)(v)       of SC/ST Act	3 years RI; fine – Rs.1000/- each i/d 9 months SI
As far as charge No.13 is concerned, the accused were acquitted from the offence under Section 3(1)(viii) SC/ST Act
12.	1	No.14:     201	9 months RI
Sl. No .	Rank of the Accused	Charge	Sentence
		IPC
13.	1	No.15: 3(2)(1)       of SC/ST Act	3 years RI; fine Rs.1000/i/d 9 months SI
As far as Charge No.16 is concerned, A1 is acquitted from the offence under Section 3(2)(vi) of SC/ST Act.
14.	1, 3 to 5, 7, 155, 157 to 160, 162 and 163	No.17: 4 of SC/ST Act	3 years RI; fine Rs.1000/each i/d 9 months SI
As far as Charge Nos.18 and 19 are concerned, the accused were acquitted from the offence under Sections 143 IPC and Section 427 r/w 149 IPC.

• Aggrieved over the judgment of conviction and sentence, the appellants are now before this Court.
• During pendency of the appeals, some of the accused died and hence the appeals against them alone were dismissed as abated.
• There are huge number of accused involved in the present case and they engaged a separate counsel and hence in order to avoid the overlapping and repetitions and for better understanding, arguments of all the learned counsel for the appellants have been consolidated as follows.
• The learned counsel for the appellants would submit that

villagers of the Vachathi village were involving in the offence of smuggling of sandal woods and several cases have been registered against them and hence  in order to wreck vengeance, false case has been foisted against the appellants, who are the officials of Forest Department, Police Department and Revenue Department. In the month of June, 1992 since large number of smuggling activities have taken place with the help of the Vachathi villagers and huge number of smugglers were involved and also heavy sandal woods have been smuggled, the Forest Department had planned for a mass raid in and around the Vachathi village. On 20.06.1992, various officials went to the village and found some of the villagers were involved in smuggling of sandal wood and they were caught hold by the various officials and at that time they raised alarm and huge number of villagers surrounded the officials with weapon like iron rods, rocks and attacked them. 22 officials sustained injury one selvaraj sustained grievous injuries. All the injured officials were taken to the Hospital and first aid was given and some of the officials were referred to Salem Government Hospital for further treatment. In order to escape from the said case, the Villagers with the help of some of the prosecution witnesses concocted the story as if the uniformed service officials committed rape on the young ladies of the Vachathi Village.

• All the appellants/accused persons had not participated in the said raid and there is no materials to prove that all the accused actively participated in the raid. The alleged occurrence is said to have taken place between 4.00 to 5.00 p.m. at Vachathi Village on 20.06.1992, but during the relevant period even all the officials were not available in the Vachathi Village. Further there is no material to show that the accused were present at Vachathi village at the relevant point of time. Even the medical records shows that the said Selvaraj was admitted in the Hospital in the morning itself and further he was referred to Salem Government Hospital for further treatment. Some of the officials were also admitted in the hospital and took treatment. The Doctor, who admitted them also examined and relevant documents were also marked. The trial Court has miserably failed to consider all these material facts and rejected the contention of all the appellants.
• It is the further contention that the Investigating Officer has no power to investigate the matter. According to Rule 7(1) of SC/ST Act the offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. In this case the investigating officer was not appointed in consonance with the Rule 7(1) of the SC/ST Act, which is fatal to the case of the prosecution. The charges were not framed properly by the trial Court and SC/ST Act would not at all attract. The Investigating Officer has not collected Community Certificates of the victims from the competent authority and proved that the victims are members of ST community. There is no evidence to show that the entire villagers of the Vachathi are either members of SC or ST community. The Hon’ble Apex Court repeatedly held that for attracting offence under the

SC/ST (PoA) Act, prosecution has to establish that the accused persons are not belong to members of SC/ST community and the victims are belong to SC/ST community. In the absence of the same and evidence against the appellants for commission of offence under the SC/ST Act, the charges under the SC/ST Act are not sustainable in law. Therefore non production of community certificate is fatal to the case of the prosecution.

• There are lots of contradictions between evidence of the prosecution witnesses. Even they have not identified the accused while conducting the Test Identification Parade, whereas, after 10 years, during trial before the trial Court, they were able to identify the accused in open Court, which is not believable. When test identification parade was conducted in the year 1995, victim could not identify the accused, but, after 10 years they were able to identify the accused, which proves the fact that the Investigating Officer has fixed the accused and shown to the witnesses and made them to identify. There are contradictions between the evidence of prosecution witnesses regarding one Perumal Oor Goundar, who was alleged to have been attacked by the witnesses at the instigation of the uniformed services. There are two persons named Perumal and there is no clear evidence that who is the person alleged to have attacked by the witnesses at the instance of the uniformed force.
• It is contended by the learned counsel for the accused that at the relevant point of time, the witnesses stated that the accused forced them to attack the Oor Goundar by broom, but, they have not named the person, who insisted them to commit such act. One Velliayan, who  was examined as P.W.9 was the Oor Goundar at the relevant point of time, whose evidence clearly falsified the case of the prosecution.
• Further they would submit that all the Drivers of the vehicle also been wrongly impleaded and shown as accused, but, they have not committed any offence and there is no specific overt act as against them. The Investigating Officer has not obtained the documents from the officials viz. list of participants in the raid through Mahazar and observation mahazar also not prepared and documents also not collected through recovey Mahazar.
• Even the place of occurrence itself is not correctly fixed by the prosecution. Some of the witnesses have stated the place of occurrence is Banyan Tree in the Vachathi Villge and some of the witnesses have stated lake area and some of the witnesses have stated that River bed and bushes and some of the witnesses have stated that they assembled under the Tamarind Tree. Therefore the place of occurrence itself is doubtful and the Investigating Officer has not prepared the Mahazar and also the rough sketch showing the exact place of occurrence, which itself creates a doubt in the prosecution story. Even in the writ petition, the department has filed counter stating that there is no such occurrence taken place. Several communication between the concerned department and Ministry of Forest reflects the correct picture and true version. The Investigating Officer has lost sight of it and the trial Court also failed to look into the same.
• The victims were also not subjected to medical examination.

Further there is no materials to show that the officials who went for the raid only damaged the property of the Vachathi Villagers. Even immediately soon after the occurrence, RDO enquiry was ordered and the RDO also submitted his report dated 10.08.1992, which was marked as Ex.P195, in which it is clearly stated that the villagers of Vachathi Village were smuggling the huge number of sandal wood trees and when it was prevented by the Forest and Police officials, they were attacked by the Villagers and a case was also registered for the same. It is further stated in the report that in order to escape from the criminal case, the villagers themselves might have caused damages to their property. Therefore, there is no truth in the prosecution story.

• Without ascertaining the details of the officials who were really preset in the Vachathi village at the time of so called occurrence between 4.00 to 5.00 p.m. on 20.06.1992 and who were actively participated in the raid, the Investigating Officer simply collected the list from the Office and shown all the names mentioned in the list as accused. The Investigating Officer has not conducted the investigation in a fair manner.
• Further all the victims have not stated that which of the accused took them and which of the accused committed rape and even when test identification parade was conducted, the victims could not identify the accused exactly who has committed rape on them and that be the situation, it is highly unbelievable that they could identify the accused before the trial Court during trial, which only shows that the Investigating Officer fixed the accused and made the victims to identify. However the fact remains that the Vachathi villagers were engaged in smuggling of sandal wood and when the forest officials had taken effective steps to prevent the same and retrieve the hidden sandal wood, in order to wreck vengeance they set up false case. The trial Court failed to appreciate the facts and convicted the accused only on the sympathy grounds without even any materials.
• All the 18 victims have not given complaint before the Annamalai. All the victims were forced to give such complaint. Even the complaint was not identified by the victims. Prosecution has not proved all the signatures/thump impression found in the complaint are that of the victims. The genesis of the prosecution case is based on Ex.P133, which is the complaint lodged at the first instance. The said complaint contains Left Thumb Impression of the victims. Most of the Left Thumb Impressions in the complaint namely Ex.P133 were not tallied with the Left Thumb Impressions available in the deposition of the witnesses namely P.Ws.39 to 58. Therefore persons, who had affixed Left Thumb Impression in Ex.P133 have not deposed before the Court and the persons who deposed before the Court have not affixed the Left Thumb Impression in Ex.P133.
• It is the further contention of the learned counsel for the appellants that the act of destroy of any of the property of the members of SC/ST by fire or explosive substances by the non member of SC/ST is the offence under Section 3(2)(iii) of SC/ST Act. In the present case, it is not the case of the prosecution that the accused either by fire or explosive substances caused damage to the properties of the victims, which clearly proved that the Investigating Officer without any application of mind submitted the charge sheet before the trial Court and the trial Court also failed to appreciate the facts and without applying its mind framed the charges. At any angle, prosecution has not proved its case beyond

reasonable doubt. It is well settled proposition of law that prosecution has to prove its case beyond all the reasonable doubts against the accused. If any doubts arises and when two views are possible, benefits of doubt has to be extended in favour of the accused and the view which favours the accused has to be taken into account. Unfortunately the trial Court failed to look into the settled proposition of law and wrongly convicted the accused, which needs serious interference of this Court.

• It is to be noted that all the accused are Government servants and to prosecute the Government servant for the offence committed during the course of official duty, prior sanction has to be accorded from the competent authority. In this case all the accused are only public servant in Forest Department, Police Department and Revenue Department, but no sanction for prosecution has been accorded by the Investigating Officer, which is fatal to the case of the prosecution.
• The complaint itself given belatedly, for which prosecution has not offered any valid explanation. The victims have not stated before the Judicial Magistrate about the injuries sustained by them or the fact that they were subjected to sexual assault by the Uniformed Force. Further he would submit that the Inspector of Police has not recorded the statement directly from the witnesses/victims and the statements are not recorded by the Investigating Officer as spoken by the witnesses.
• Learned counsel appearing for the appellants in Crl.A.No.649 of 2011 in support of his contentions that there are contradictions in the evidence of the prosecution witnesses and non compliance of the mandatory provisions under the SC/ST Act with regard to appointment of the

Investigating Officer to investigate the matter, has placed reliance on the following judgments of the Hon’ble Supreme Court and this Court:

1. MANU/SC/1255/2022 (Chotkau vs. State of Uttar Pradesh)
2. 2009 CRI.L.J.350 (Gorige Pentaiah vs. State of Andhra Pradesh
3. 2010 (1) MWN (Cr.)100 (Thangarasu and another vs. State by

Deputy Superintendent of Police, Bhavani, Vellithiruppur Police

Station)

4. 2012-1-L.W.Crl.184 (Sekan vs. Sate of Tamilnadu)
5. A.No.277 of 2008 (V.Ponnusamy vs. State of Tamilnadu)
6. (2014) 12 SCC 279 (Krishnan Alias Ramasamy and others vs. State of Tamilnadu

23 Learned counsel appearing for the appellants in Crl.A.No.671 of 2011, to support his contentions, has placed reliance on the following judgments of the Hon’ble Supreme Court and this Court :

1. MANU/SC/0091/1982 (Mohd.Abdul Haffes vs. State of Andhra

Pradesh)

2. MANU/SC/0763/2002 (Dana Yadav and Ors. vs. State of Bihar)
3. (2011) 2 MLJ (Crl) 212 (Jayabalan and Ors vs. State rep. by the

Inspector of Police, CBCID, Villupuram, Villupuram District)

4. MANU/SC/0308/1987 (Subash and Ors. vs. Sate of Uttar Pradesh)
5. MANU/TN/0412/1992 (Vijayan and Ors. vs. The State)
6. (2011 ) 2 SCC 490 (Ranindra Kumar Pal @ Dara Singh vs. Republic of India)

24 Learned counsel appearing for the appellants in Crl.A.No.626, 657 and 658 of 2011, to support his contentions, has placed reliance on the following judgments of the Hon’ble Supreme Court and other High Courts :

1. 2000 (7) Supreme 177 (Abdul Wahab Anzari vs. State of Bihar and another)
2. 2000 (6) Supreme 442 (State of Andhra Pradesh vs. Lankpalli

Venkateswarlu)

3. AIR 1960 SC 82 (Abdul Rehman Mohmed Yusuff vs. Mohmmed

Haji Ahmed Agbotwala)

4. AIR 1961 Kerala 99 (State of Kerala vs. Samuvel
5. Docid # IndianCases/295407 (Satya Deo and another in Crl.A.No.671 of 2006)
6. (2009) 15 SCC 246 (Akula vera Venketa Surya Prakash alias Baby vs. Public Prosecutor)
7. 2009 (4) Supreme 363 Vallaba Neni Venkateswara Rao vs. State of

A.P.)

8. 2012 (4) Supreme 530 (Anand Mohn vs. State of Bihar)
9. (2006) AIR SC 2500 ( Budh Singh and others vs. State of U.P.)
10. 2014 (10) SCC 270 ( Sukhgit Singh vs. State of Punjab)
11. AIR 1954 SC 657 ( Moti Das vs. State of Bihar)
12. 2007 (5) Supreme 222 (State of Punjab vs. Sanjiv Kumar alias

Sanjive)

13. 1997 (2) Supreme 67 (State of U.P. vs. Dansingh

14.(2009) 6 S.C.R. 145 (State of M.P. vs. Chunnia Lal alias Cunni

Singh)

15. 2000 (1) Supreme 584( Masum Sha Hasana Sha Musalman vs. State of Maharashtra)
16. (2009) 2 S.C.R. 2009 382 (Ashbai Machindra Adhagal vs. State of

Maharashtra and ors. )

17. (2020) 9 S.C.R.593 ( Supreme Court in Hitesh Verma vs. State of Uttar Khand)
18. 2001 (1) Supreme 549 (Rukaram Annaba Chavan & anr vs.

Machindra Yashwant Patil & Anr.)

19. AIR 1987 SC 1222 (Subash and Shiv Shankar v. Sate of U.P.)

25 Learned Senior Counsel appearing for the appellants in Crl.A.No.622 and 670 of 2011, to support his contentions, has placed reliance on the following judgments of the Hon’ble Supreme Court and other High Courts :

1. 2003 CRI. L. J. 1333 (Smt.Alka A.Misra vs. J.P.Shoke and ors.)
2. 2004 SCC (Cri) 2104 (State of Orissa through Kumar Raghvendra

Singh and ors. vs. Ganesh Chandra Jew)

3. 1996 SCC (Cri) 128 (R.Balakrishna Pillai vs. State of Kerala and another)
4. 2015 CRI.L.J. 2958 (Kartik Ram & ors. vs. State of MP)
5. 2006-2-L.W.(Crl) 546 (The Inspector of Police P.R.C.Unit,

St.Thomas Mount Police Station, Chennai. vs. Kaliyaperumal)

6. 2009-2-L.W.(Crl.) 1347 ( V.P.Kuppurao vs. The DGP, Tamilnadu)

26 Learned counsel appearing for the appellants in Crl.A.No.618 of 2011, to support his contentions, has placed reliance on the following judgments of the Hon’ble Supreme Court, with regard to prior sanction to prosecute the Public Servant:

1. (2015) 12 SCC 231 ( D.T.Virupakshappa vs. C.Subash)
2. (2006 ) 4 SCC 584 (Sankaran Moitra vs. Sadhna Das and another)

27 Learned counsel appearing for the appellants in Crl.A.No.625 of 2011, to support his contentions, has placed reliance on the following judgments of the Hon’ble Supreme Court:

1. (2000) 8 SCC 323 (Navinchandra N. Majithia vs. State of Meghalaya

and ors)

2. (2022) 9 SCC 321 (Jagjeet Singh and ors. vs. Ashish Mishra @ Monu and anr. )
   • Learned counsel appearing for the appellants in Crl.A.No.665 of 2011, to support his contentions, has placed reliance on the decision of the Hon’ble Supreme Court reported in (2011) 5 SCC 423 (Shaji and ors vs. State of Kerala) and the learned counsel appearing for the appellants in Crl.A.No.660 of 2011, to support his contentions, has placed reliance on the decision of the Hon’ble Supreme Court in the case of Dana Yuadav @ Dahu & Ors vs. State of Bihar in Crl.No.1156-57 of 2001.
   • Per contra the learned Additional Solicitor General for the respondent would submit that no doubt the wrong doers have to be dealt with due process of law. It is the primary defence of the appellants/accused that since the Vachathi Villagers involved in smuggling of large number of sandal woods, the Forest officials took action against the Villagers and hence the Villagers foisted false case against the officials. Even assuming that there was smuggling of sandal wood in the Chitheri hills near Vachathi Village, some of the villagers might have been involved in the smuggling, which does not mean the entire innocent villagers have to be suffered.
   • No doubt, the forest officials went for raid and they have taken action to prevent smuggling of sandal wood, but however, in this case, it cannot be stated that the entire villagers were involved in the smuggling activities. The victims have clearly stated that they were in their houses and some of them were in the field. At that time, the forest officials went and dragged them out from their houses and in the respective places or fields to the Banyan tree. All the witnesses have categorically stated that while they were in the house or the agricultural field or grassing the cattle, the officials went there and caught hold their tuft and dragged them to the Banyan tree and they gathered all Villagers under the tree. The uniform force beaten the Villagers and later they identified 18 young ladies alone and took them in a

Lorry under the guise of finding out the sandal woods to the lake area and committed rape on them. Even though, during the test identification parade, they could not identify, due to various reasons, but however, during trial when they were produced before the Court they were able to identify the accused and merely because they could not identify the accused during test identification parade does not mean subsequently they could not identify them before the trial Court.

• Further he would submit that the victim ladies soon after the occurrence immediately were taken to the Forest Range Office, Harur and they were kept there for a whole night and obtained thump impression and signatures. Subsequently on the next day they were remanded to judicial custody alleging that they committed the offence of smuggling of sandal wood and also they attacked the officials and prevented them from discharging their official duty. They were all under the custody and control of the police officials as well as the forest officials for a whole day and because of criminal intimidation made by the appellants, they could not reveal the same before the Judicial Magistrate for more than a month.

Thereafter two month later they came out on bail.

• Even the complaint lodged by the victims had not taken for investigation immediately and after some efforts, they approached this Court. The Deputy Superintendent of Police, CBI/SEP, registered the case in pursuance to the direction of this Court and investigated the matter. The occurrence had taken place on 20.06.1992, whereas, investigation started only in the year 1995. The Investigating Officer gathered all the documents from the Department concerned as to who are all participated in the raid and also they went to Vachathi Village and examined the victims and some of the villagers and found that the occurrence had taken place during the relevant period and after collecting all the particulars and oral and documentary evidence, laid charge sheet.
• Prosecution in order to prove its case examined 75 witnesses and all the witnesses have categorically stated about the occurrence and also the oral and documentary evidence proved that the appellants/accused have committed the charged offence. Since all the documents are gathered by the Investigating Officer from the Department concerned through official communication based on the request letter, seizure of the materials through seizure mahazar is not fatal to the case of the prosecution. The documents are all official documents obtained through proper channel and hence non preparation of Receovery Mahazar is not fatal to the case of the prosecution.
• Further he would submit that the occurrence said to have taken place on 20.06.1992, whereas the case was registered only in the year 1995 and investigation conducted thereafter and hence question of conducting medical examination on the victims would not helpful and would not serve any purpose. Victims are only members of ST community and already case was registered after two years and there was no dispute that the victims are not members of the ST community. Mere non production of the community certificate is not fatal to the case of the prosecution, since which are all undisputed facts. As already stated the occurrence was in the year 1992 and the case was registered in the year 1995 and the accused are all members of uniform force. It is very difficult for the victims to speak freely about the occurrence and identify the accused.
• All the contradictions pointed out by the learned counsel for the appellants are not material contradictions and the same are not fatal to the case of the prosecution. It is contended that to prosecute the public servant while discharging official duty, prior sanction is necessary and prosecution has failed to obtain sanction. It is to be noted that during the raid, the uniform force assaulted the Villagers and committed the offence of rape on 18 young ladies of the Village and also caused damage to the properties of the Villagers, which are all not official duties. Therefore, the prior sanction would not applicable to the appellants.
• Based on the directions of this Court, CBI registered the case and Special Officer was deputed for investigation and therefore the Investigating Officer is the competent officer and hence the accused cannot dispute the competency of the Investigating Officer. Further, for the very first time, during the appeal, the appellants are raising this defence, which cannot be accepted. Prosecution has proved from oral and documentary evidence that the appellants/accused committed the charged offence. The trial Court has rightly appreciated the evidence and has come to the conclusion that the appellants/accused have committed the charged offence and therefore convicted the appellants/accused. There is no merit in these appeals and the same are liable to be dismissed by confirming the judgment of conviction and sentence passed by the trial Court.
• Heard the learned respective counsel for the respective accused and the learned Additional Solicitor General for the respondent. Perused the materials and original records and also the citations relied on by the respective counsel.
• All the accused are the officials of Forest Department, Revenue Department and Police Department. Crux of the prosecution case is that on

20.06.1992 more than 200 officials from the Forest Department, Revenue Department and Police Department assembled unlawfully under the guise of preventing the Villagers from smuggling the Sandal Woods in large numbers in and around the Vachathi Village and restrained the Villagers from moving and beaten them and raped 18 young ladies and also caused damages to their properties, who belong to SC/ST community.

• As already stated in order to prove the case of the prosecution, on the side of the prosecution, totally 75 witnesses were examined and 324 documents were marked. On the side of the defence, 3 witnesses were examined and 32 documents were marked.
• As far as competency of the investigating officer is concerned, the learned counsel for the appellants vehemently contended that the Investigating Officer P.W.75 is not a competent officer to conduct investigation, which is violation of mandatory provisions under the SC/ST Act. This is the peculiar nature of the case that the case was not registered immediately soon after the occurrence based on the complaint given by the affected parties. Admittedly this Court vide its order in W.P.No.14945 of 1992 dated 24.02.1995 directed the CBI to register the case and investigate into the matter. Accordingly CBI registered the case and investigated the matter. P.W.75 was authorised to investigate the case. It is the main contention of the learned counsel for the appellants that since the offence involved in this Case is under the SC/ST Act, officials who are not less than a rank of DSP alone should conduct investigation. In this case, even P.W.75 in his deposition has stated that he is DSP, CBI and therefore he is a competent person. Even otherwise, the offence said to have taken place on

20.06.199. This Court in W.P.No.14945 of 1992 vide its order dated 24.02.1995 given direction to CBI to register case. Even though the Act was enacted in the year 1989 and came into force on 11.09.1989, whereas the Rules formulated only in the year 1995, which came into force on 31.03.1995. This Court allowed the writ petition on 24.02.1995 and the CBI registered the case in RC 3/5/1995 on 20.03.1995, which was marked as Ex.P228. Therefore the rules came into force only on 31.03.1995 and hence the case was registered on 20.03.1995 i.e. prior to the Rule came into force.

Hence at any angle the contention of the learned counsel regarding competency of P.W.75 is not sustainable and this Court finds P.W.75 is the competent officer.

• Coming to the defence of prior sanction of prosecution, no doubt all the accused are public servants. Even though they engaged in performing the official duty, but, however when all the officials exceeded their limit and were involved in criminal offence, the sanction of prosecution is not necessary.
• In this case, the allegation against the appellants are on

20.06.1992 all the appellants went to Vachathi Village between 4.00 to 7.00 P.M and assembled there unlawfully and went to the houses of the villagers and took the victim girls from their residence in an unlawful manner by threatening, attacking and dragging them and gathered them under Banyan tree. The accused also dragged some of the victims, who were in the agricultural work or grassing the cattle and forced them to assemble under the Banyan tree and also restrained them. Thereafter they picked 18 young ladies and took them in a Lorry under the guise of finding out the hidden places of the sandal woods to the lake area and committed rape on them and in and around the place they were subjected to sexual assault, which is not official duty. The allegation against the appellants are the commission of offence under the IPC and SC/ST Act and also some of the victims were forcefully made to beat Oor Goundar by threatening them if they failed to do that, they would be dealt with otherwise. Hence the victims have also beaten him. Since all the victims belong to ST community, the accused also committed the offence under the SC/ST Act. Therefore the allegations are not while discharging the official duty. Hence sanction of prosecution is not necessary. Therefore the contention of the learned counsel is not acceptable and non obtaining of sanction of prosecution is not fatal to the case of the prosecution.

 

• One of the main contentions raised by the appellants is that all

the appellants went for official duty and hence no question of unlawful assembly and hence the offence under Section 147 IPC would not attract and even otherwise there was no charge under Section 146 IPC and without making 146, 147 would not get attracted. It is the further contention that prosecution has not proved the common intention to form unlawful assembly and the appellants were involved in any illegal activities and hence charge under Section 149 would also not attract.

• In this Case, there is no doubt, since there were smuggling of sandal wood activities at Chitheri hills, there was a plan for mass raid. Further since large number of Vachathi villagers were involved in smuggling of sandal wood and whenever the appellants went for raid, the smugglers escaped and hidden in the forest, the official could not secure them. Therefore the appellants formed big team in order to conduct raid on 19.06.1992. The team of members consisting 40 forest officials under the head of A17 went to Chitheri hills and stayed there. On next day on 20.06.1992 they proceeded at 5.00 a.m. and at Kalasambadi, on the way, they were able to chase some of the persons who were involved in smuggling of sandal wood and they reached near Vachathi village, which is adjacent to the Chitheri hills. Forest officials made enquiry regarding removal of sandal wood in and around the place and during the course of enquiry, the officials beaten P.W.5 on hearing his alarm, some of the villagers reached the place and there was a quarrel between the officials and the Villagers and there was untoward incident taken place due to which some of the officials got injuries. In that way P.W.3 got grievous injury and with the help of the villagers, he was taken to the Hospital at Harur by Bullock Cart. Thereafter the team of the various officials and police and revenue officials arrived at the Vachthi Village at 4.00 p.m. They thought that the entire Vachathi Villagers prevented and attacked the officials together and hence in order to teach lesson to the Vachathi Villagers, they chased young ladies and children and some of the male members those who were in the house, in the field and some of them returned from the working place. The officials dragged the villagers, who were available at that time and gathered under the Banyan Tree situated in the Vachathi Village nearby the Temple.
• The witnesses have clearly stated that they were in the house and preparing foods. The Officers of Uniform Force entered into their houses and forcibly took them to the Banyan Tree and restrained them from moving. At 6.00 p.m. the officials selectively chosen 18 young girls and took them to the lake area in and around the lake and river bush they were rapped by the uniform force. Therefore, the act committed by the officers are not coming under the purview of the official duty. Even though they may gathered to the Vachathi village in order chase the smugglers of sandal wood and also to catch the wrong doers and recover the sandal wood, the moment they turned to forcefully take the innocent ladies who were in their houses, in third hand methods and assembled them under the Banyan tree and restrained them for more than hours and at last they took 18 young girls separately and committed rape on them, they deviated from their official duty and gathered unlawful assembly of all the officers and committed the offence under Sections 147 and 149 IPC. The 18 victim ladies have also clearly spoken that some of them were in the home, some of the them have stated that they were in the field, few of them were grassing the cattle. The uniform force came to the Vachathi village and forcibly took whoever available dragging them by holding tuft and assembled them under the Banyan tree.
• The officials went to the extent of taking 18 young ladies and committing rape on them. Subsequently at the night hours, the officials took all the persons to the Forest Range Office, Harur, where they forced all the family members and made the victims to beat the Oor Gounder with broom and when the victims refused to do the same, the officials attacked the ladies and threatened them and forced them to beat the said Oor Goundar with brooms and hence as no other option, they also beaten the Oor Goundar with brooms. The uniform force tortured the victims and obtained signature and their thumb impression forcefully. Some of them were beaten by the uniformed force and the victims sustained injury. On the next day night they were remanded to judicial custody. They were kept in prison for more than a month. Later they came out on bail.
• Further evidence of the witnesses clearly shows that after taking the villagers from the Banyan tree to the Harur Forest Range office at about 8.00 p.m. on the next day, the remaining officials, who were stayed in the Vachthi Village entered into the village and damaged the goods, properties and houses of the Villagers and snatched the things which were kept in the houses and also chopped the goats and cooked and eaten the same and they continued the atrocities for a weak. Some of the officers took away the valuable properties, goats and chickens of the Villagers. Therefore the act committed by the appellants not in the course of the official duty. The trial Court also rightly appreciated the oral and documentary evidence and found the accused guilty for the charged offences.
• Further the learned counsel for the appellants contended that the prosecution has not produced community certificates of any of the victims to show that they belong to the members of the ST community and in the absence of the same conviction under the SC/ST Act is unsustainable.
• Admittedly the case was registered after two years based on the directions issued by this Court. Thereafter CBI investigated the matter and collected materials and filed charge sheet before the Court below. Based on the materials available, the trial Court framed charges and one of the charges framed under the SC/ST Act. All the victims have clearly stated that they belong to the members of ST community. Even in the deposition itself their community has been mentioned as ST and further more while cross examination the appellants never questioned the community of the victims. They have also not disputed the community of the victims and had not stated that the victims are not members of the ST community. Even the appellants during cross examination put a suggestion that most of the Vachathi Villagers are members of the ST community and they were involved in smuggling of sandal wood. Therefore since the communities of the victims are not disputed and CBI also after two years of occurrence based on the directions of this Court started investigation, they could not secure the community certificates of all the victims. Mere non production of the community certificate may not be a fatal to the case of the prosecution, when the communities of the victims are not disputed by the appellants. Therefore the defence of the appellants in this regard is not sustainable.
• Under the guise of raid from 20.06.1992 to 24.06.1992 the uniform force have committed several unlawful activities. Most of the villagers of Vachathi were arrested and remanded to judicial custody and some of them have escaped and hidden in the hills. The victims, after coming out on bail, along with some of the villagers, with the help of local MLA made complaint to the officials, but action has not been taken on the same. They filed writ petition before this Court and the matter went up to the Hon’ble Supreme Court and on directions of this Court, CBI registered the case and investigated the matter based on the complaint given by the 18 raped victims.
• In order to substantiate the case, before the trial Court, prosecution examined 75 witnesses. P.W.64, Annamalai, ex-MLA of Harur has deposed that he has taken several steps to register the case against the uniformed force, who had participated in the raid in Vachathi village during the relevant period. Soon after receiving the information, he also conducted inquiry in Vachathi village and approached the authorities, but he could not get any fruitful result and therefore he approached the Court and there also they could not get any remedy for suffered villagers. At last, he approached this Court by way of writ petition, in which directions had been issued and the case has been registered by the CBI.

 

• W.63 who was a President of All Women Association in Tamilnadu at the relevant point of time, has deposed that in the year 1992 one Pankajavalli members of the association informed her about the occurrence in the Vachathi village. Soon after receiving the information, she went to the Vachathi Village on 31.07.1992 and enquired the villagers and also the raped victims and based on the information gathered, she sent a report to P.W.72. Based on the same P.W.72 took note of that and conducted enquiry in the Vachathi Village in respect of occurrence and based on the same she sent report Ex.P210 to SC/ST National Commission.
• It is surprise to note from reading of the evidence of P.W.64 the local man, who took all pain to lodge complaint and succeed and the evidence of P.W.63 who was in position in the All Women Association, Tamil Nadu and who sent a report to the leaders of the SC/ST community and atlast P.W.72, who also made enquiry and sent report to the SC/ST National Commission, even then no action was taken by any of the officials and no case was registered against the erred officials. The erred officials registered several cases against innocent ladies in the Vachathi for the alleged offence of smuggling of sandal wood and assaulted them and remanded them to judicial custody. They also assaulted the Villagers and the ladies physically and sexually. Their properties were also damaged and also looted and one of the persons in the Village namely Oor Goundar has also been humiliated with their own village ladies by brooms. But unfortunately none of the authorities have taken note of the same and initiated action much less than the counter case. After much pain of some of the Socials Workers as stated supra, at last the case was registered based on the directions of this Court in W.P.No14949 of 1992 dated 29.09.1995 Ex.P174 by the CBI. Even then, they have not registered any case against actual sandalwood smugglers.
• The another main contention taken by the appellants that none of the witnesses have identified any of the appellants as to whether they have participated in the raid during the occurrence and none of the witnesses have identified those who are alleged to have committed rape. Test identification parade was conducted by the Chief Judicial Magistrate at that time witnesses have not identified the accused and therefore prosecution has not proved its charges beyond reasonable doubt against any of the appellants and therefore the appellants are entitled for acquittal on the ground of benefit of doubt. Further they contended that the Investigating Officer has not conducted investigation properly and they have not prepared observation mahazar and the documents were not collected/seized through seizure mahazar. In the absence of the same, case of the prosecution is unsustainable and prosecution has not proved that all the appellants participated in the raid and they have committed the offence. Therefore the appellants/accused are entitled to get acquittal.
• Admittedly, the alleged occurrence is said to have taken place on 20.06.1992 to 22.06.1992. Since most of the villagers who were caught hold by the officials were remanded to judicial custody for more than a month and thereafter only they came out on bail. When they came back to their village, they found all the properties and houses were damaged and cattle, pumpset and other valuable things like engines in the agricultural field were also damaged and some of their properties were looted. While the victims were in prison they got information from some of the victims and therefore P.W.64 tried to bring home the atrocities and offence committed by the accused. He approached several authorities and in that way he approached this Court and they were able to get order only in the year 1995 and thereafter investigation started. However, no case was registered against the real sandalwood smugglers.
• The learned Judicial Magistrate, who conducted Test

Identification Parade on 15.09.1995, has given a report, which was marked as Ex.P172. In that report he has clearly elaborated the difficulties faced by him and the atrocities made by the members of the uniformed force during the test identification parade. Further he has stated that a group of persons produced for conducting the test identification parade have not co-operated for the parade and they have wantonly created some problems and hence he could not even conduct the parade, since there is no safety for him and the witnesses. The report Ex.P172 itself clearly shows that the accused, who participated in the identification parade had not allowed the Magistrate to conduct the parade in a peaceful manner and they have not even allowed the victims to identify the accused. It is surprise to see that even the Magistrate himself faced these kind of difficulties during the parade, it could not be imagined that what kind of difficulties that could have been faced by the innocent villagers of Vachathi Village. Therefore the defence taken by the learned counsel that the victims had not identified the accused is not at all sustainable.

• Further, the victims themselves have clearly spoken that they were criminally intimidated by the accused that if they revealed anything about the sexual assault, they would take away the life of their family members. Therefore the witnesses could not identify, for which the accused are not entitled to get acquittal. However during the trial before the trial Court, the victims felt somehow safe and protected and they identified some of the accused were involved in the offence under Section 376 IPC and other offences.
• It is not the case that immediately soon after the occurrence, case was registered and investigation started and the accused are ordinary men, still the victim could not identify the accused, whereas in this case, all the appellants are public servants viz. officials of Forest, Police and Revenue Departments and the victims are remote villagers, who are illiterate tribal and they are only coolie workers. The uniform force under the guise of raid mishandled the villagers and committed all type of atrocities both physically, verbally and also mentally.
• It is the contention of the learned counsel for the appellants that the Investigating Officer has mechanically included all the names in the list as accused and has not find out those who have actually participated in the raid and that list was also not collected through any mahazar. From the evidence of P.W.75 Investigating Officer it is clear that it is only the official document obtained through official communications. Therefore the question of preparation of mahazar does not arise.
• Even in the document Ex.P134 filed by A3, it was admitted that more than 200 persons had participated in the raid. Therefore combined reading of the Ex.P143 and evidence of P.W.13 it is proved all the

appellants had participated in the raid.

• From a careful reading of the evidence of P.Ws.13, 63, 64 and 72, it is clear that there were atrocities made by all the appellants towards the victims and the other members of the village and damaged properties of the villagers which also corroborated by evidence of the victims and other villagers. Evidence of P.W.1, 3, 6, 7 proved the conduct of raid, which is not disputed. Even the evidence of P.W.3 clearly proved that on 19.06.1992, 90 forest officials at the head of A17 went to the Chitheri hills and stayed there at night hours then on the next day morning they proceeded to Vachathi at 5.00 a.m. on 20.06.1992 and while going on the way to Vachathi they went to Kalasambadi.
• W.1, who is one of the members participated in the raid and was working in the Forest Department has deposed that on 20.06.1992 @ 5.00 a.m. they started Chitheri hills to Kalasambadi. P.W.4 who was working as  Post  Master during the relevant period has  deposed  that  at 9.00 a.m.   P.W.3 came to Kalasambadi when he was standing outside  the

Post Office around 50 Forest officials followed him under the head of A17 and they called him, but when he refused, the officials threatened and forcefully took him and also caught hold of three persons. They all went to Vachathi Village and nearby Tamarind tree there was altercation between the Villagers and the officials and thereafter he left the place. He has also admitted during the cross examination that both of them have attacked each others.

• W.5 has also deposed that he is the resident of Vachathi village and he was having agricultural land, in which, some of the smugglers hided the sandal wood and he refused for the same, but, they promised to pay Rs.200/- and requested not to inform anyone. On 20.06.1992, the forest officials came for raid to that place and enquired about the hidden sandal wood and the forest officials attacked him and he fell down and lost his conscious. Thereafter he left the place.
• W.6 who is also a Vachathi villager has stated that on

20.06.1992 the forest officials were in the land of P.W.5 and at that time during the course of enquiry the officials beaten P.W.5 and on hearing the alarm, around 15 to 20 villagers gathered in the land of P.W.5. On seeing the Forest Range Officials, the villagers questioned them and there was altercation due to which some of the officials also sustained injuries.

• W.7 is the Oor Gounder at the time of occurrence and he has given evidence that the villagers were doing Coolie work in the agricultural field and some of them were engaged by the outsiders to cut and remove the sandal wood in the hills near-by the Vachathi village. The villagers were engaged only as Cooli that too not all the villagers and some of them only were engaged. Other cooli workers were doing their agricultural work in their field. Several times complaints were made before the official concerned, but no action was taken, since some of the forest officials themselves colluded with the smugglers and with the help and assistance of some of the higher officials only the sandal woods were smuggled.
• On the date of occurrence on 20.06.1992 one of the officials

one Selvaraj sustained grievous injuries and the Vachathi villagers only helped to take him to the Hospital. Therefore the main contention of the learned counsel for the appellant that the Vachathi Villagers were involved in the smuggling activities and when the officials went there for raid they were attacked with deadly weapon by the villagers and  the officials went without any weapons and therefore subsequently they were arrested and registered the case and to escape from that case, they foisted false case are not acceptable.

• From the evidence of P.W.13, it is clear that they have given complaint before the District Collector and District Forest Officer and Superintendent of Police regarding the smuggling of sandal wood by the outsiders with the help of the members of the Vachathi village. The persons namely Murugan, Ganesan, Pollachi Ramasamy and Namakkal Mastan with help of various Range Officers Thandapani and Nagarajan, had engaged some of the members of Vachathi villagers in the work of cutting and removing and hiding the sandal woods illegally. It has become usual for the smugglers with help of forest officials and the above said persons come and take the sandal woods from the hidden places. Therefore from the evidence of the above villagers, it is clear that there were large number of smuggling activities of sandal wood but all were doing by the big shots with the help of the forest officials. Unfortunately these innocent villagers were made as accused in the offence of smuggling of sandal wood and foisted several cases against them. There are no materials to show that the Forest officials have filed case against those named sandalwood smugglers.
• Further the version of the forest officials is that they went only without any arms and any weapon. The evidence of the victims clearly shows that even one month prior to the raid, several times the officials went to Vachathi Villge for raid. W.1 deposed that on 30.12.1991, they went to Kappukkad for raid which is also form part of Chitheri Hills, at that time large number of Vachathi Villagers gathered and restrained the forest officials and they attacked and scolded the officials and some of the male members went and hidden in the hills. Therefore they planned for mass raid on 18.05.1992 and it was postponed. From the evidence of P.Ws.1  and 3, it is clear that whenever the officials went for raid, the Vachathi villagers gathered in large numbers and attacked the officials and prevented them from doing their job of searching sandal wood, which were hidden illegally.

It is also their version that the Villagers attacked them with deadly weapon. Under these circumstances, it is not believable that the officials went without any weapon and the villagers only attacked the officials. When they themselves admitted villagers are powerful and as and when the officials went for raid they gathered mass and prevented them and attacked them and hence they planned to conduct mass raid and gathered more than 500

officials and planned for raid, if that be the case of the officials, it is highly unbelievable that they went without any weapons knowing fully well that the villagers are powerful and more in numbers and the contention of the learned counsel that the villagers only attacked the officials is not acceptable.

• It is clearly admitted that on 20.06.1992 morning there was an incident and at that time since the officials attacked ex Oor Gounder and he sustained injury, the villagers went there and questioned the same. There was untoward incident and both side sustained injury. The fact remains from the evidence of P.W.7, 9 only they made arrangements to take the injured officials to the hospital. Admittedly the officials did not come with any vehicle and they stayed during night hours on 19.06.1992 at Chitheri hills and they came by walk over the hills and went to Kalasambadi.
• According to defence more than 100 persons gathered and attacked them. If at all as contended by the learned counsel for the appellants that the Villagers wanted to attack the official and they have deadly weapons, they should not have taken P.W.3 to the Hospital who sustained grievous injury. The villagers took P.W.3 to the Hospital by bullock cart. Therefore the defence taken by the learned counsel for the appellants are not acceptable.
• From the evidence of P.W.7 to 13, it is clear that Vachathi villagers and P.W.7 Oor Gounder along with some of the Villagers made complaint before the District Collector, District Forest Officer, but no action was taken.
• There is no materials to show only smugglers were arrested and action was taken only against the smugglers. All the materials shows all the accused, against whom the officials registered cases, are only the innocent villagers. Even after this incident, some of the villagers with the help of the Voluntary organisation or the member of the Welfare Association and SC/ST Commission, have taken the matter to the Court. The authority concerned have not heard the voice of the innocent people and even the then Government has also not paid any attention, which clearly shows that to safeguard some of the stake holders, like Revenue officials, Police officials and Forest officials, no action was taken and only innocent villagers were targeted, since they could not compete the higher officials.
• No doubt, several cases have been registered against the villagers and they also fairly stated that they were engaged by the smugglers and with the help of the forest officials smugglers were doing the smuggling activities. For the statistical purpose unfortunately the forest official registered cases against only the innocent villagers and for the reason best known to them and they have not taken any action against the real culprits.
• W.7 and 13 have informed some of the persons those were involved in smuggling and who are all the officials helped the smugglers. There is no records to show that the officials taken any action and the real sandal wood smugglers were brought within the clutches of law. Therefore defence taken by the appellants is not acceptable. P.W.8 has clearly stated that the uniform force selected 18 young ladies those who are gathered under the banyan tree and took them to the lake area at 6.00 p.m. and brought back only at 7.00 p.m.
• W.10 also stated some of the official caught hold of the ladies and dragged them from their houses to the Banyan Tree. P.W.11 has sated that revenue people were also present nearby the Banyan tree and also identified A2 to A69. P.W.12 has also stated two of the officials came there and assaulted with wooden log and they took the ladies nearby the Banyan Tree and restrained them from moving.
• W.13 also stated that one of the officials took the ladies and beaten. They also made complaint before A3 and he has not taken any action. P.W.14 has stated that village ladies were subsequently attacked by the uniform force and they sustained injuries. P.W.15 has stated that they helped to take P.W.3 to the hospital in bullock cart. P.W.16 has stated that 18 ladies were taken to lake area from the Banyan Tree. Subsequently on the next day, they also chopped the goats and damaged the goods of the villagers. P.W.17 also stated one of the official caught hold on her tuft and dragged from her house to Banyan Tree and thereafter they chosen 18 ladies and took them to lake area.
• W.24 stated that they were sexually assaulted by the uniform

force and also obtained thumb impression while they were detained in the Forest Range Office, Harur at night. P.W.25 also stated that some of the village ladies were taken to lake area and also the uniform force assaulted the villagers and took them to Forest Range Office, Harur and made them to attack the Oor Koundar.

• W.26 stated that 10 to 15 members of uniform force entered into the house and forcefully dragged them to the Banyan Tree and subsequently some of the ladies were taken by the uniform force to the lake area and thereafter they were taken to Forest Range Office, Harur, where their Thumb impressions have been obtained forcefully and she also identified A105 and A111. The witnesses have also spoken about the damages of the properties by the uniform force. P.W.27 also corroborated the evidence of P.W.26. P.W.28 also corroborated the same and identified the accused A25, A47, A70 and A105. She has stated that she was dragged from the house by the uniform force and they also obtained signatures in the office, which were marked as Ex.P20 and 21.
• W.29 also corroborated evidence of the other witnesses and identified the accused 39, 54, 59, 60, 61, 90, 92, 95 and 111. They assaulted them with wooden log and she also sustained injury and they obtained signature in the forest office. Exs.P22 and 23.
• Evidence of P.W.30 is corroborated by the evidence of other witnesses and identified A90 and A95 who assaulted and dragged her. They took them to the Forest Range Office, Harur and forced them to attack Oor Gounder. They damaged the properties of the villagers and obtained thumb impression, which were marked as Exs.P24 and 25. P.W.31 had also stated that while she was in the house, A39, 58, 61, 70, 90, 95 assaulted her with gun wood and also she has corroborated the evidence of the other witnesses.

 

• W.32 deposed that when she was present in the village A43, 59 came to her house and assaulted her and she was brought to the Banyan tree. Her evidence also corroborated with the evidence of the other witnesses.
• W.37 has stated that while she was in her house A38, A53, A76 and A99 came and dragged her and she was assaulted by A114, 152. Thereafter at 6.00 p.m. they took 18 ladies to the lake area and subsequently took them to Forest Range Office, Harur, where they made her to attack the Oor Gounder with broom. On the next day they obtained her signature and thumb impression, which were marked as Ex.P95 and Ex.P69.
• W.38, who was woman constable and participated in the raid stated that at 4.00 p.m. she reached Vachathi Village at that time more than

15 members of uniform force were gathered under the banyan tree. Thereafter at 6.00 p.m., they selected about 20 young ladies and took them to lake and returned back at 7.30 p.m. and subsequently they also brought them to the Forest Range Office, Harur.

• Even the evidence of victims P.Ws.39, 41, 42, 43, 44, 46, 47,

48, 49, 50, 51, 52, 53, 54, 55 and 58  have clearly stated at 4.00 to 5.00 p.m. while they were in their house some of the members of uniform force came there and attacked and dragged them from their houses to the Banyan tree. Subsequently they took them and in and around the lake, the river bed and bushes they were rapped by the members of the uniform force. They also identified the persons who attacked and rapped them.

• The main contention of the learned counsel for the appellants is that while test identification parade conducted by the Magistrate, the victims did not identify the accused. But, subsequently, during the course of recording evidence, they identified the accused. As already stated it was not done soon after the occurrence and offence committed by ordinary men. This is the case where the large number of uniform force in the various departments forcefully took the 18 young ladies and made physical and sexual torture. Further the victims were took to the Forest Range Office and they kept there and made several tortures through out the night hours and on the next day night they were remanded to judicial custody. Further, the Magistrate, who conducted the test identification parade has also clearly stated about the atrocities made by the uniform force. Therefore the defence of the appellants are not acceptable.
• One of the defence taken by the appellants is that if at all any of the village ladies were assaulted sexually or physically by the uniform force, while remanding, they could have informed to the Magistrate, but no victim has revealed anything about the allegation of sexual assault, which shows that there was no occurrence as alleged by the prosecution.
• A careful reading of the entire materials would reveal that it is not the situation that a private individual committed the offence and a single victim made complaint before the police and the police arrested the accused and remanded, in which, the contention of the learned counsel can be accepted. But, in this case all the accused are members of uniform force both the Forest as well as the police and revenue official also participated in the crime. The victims were under the custody of them for the whole night and evidence of the victims clearly show that they were threatened by the uniform force not to reveal the sexual assault committed by the uniform force and if it was revealed to anyone they would take away the life of the individual or their family members. Therefore, under such circumstances, mere non-mentioning of the atrocities made by the uniformed force during remand before the Magistrate, may not be a ground to disbelieve the evidence of the victims, who clearly explained the situation and under the said circumstances, this Court cannot accept the defence version.
• The victims are the ladies especially P.W.48 was only 13 years old minor girl at the time of occurrence. The accused without any humanity took her too and committed the offence of rape. The accused had not stopped there itself and they coloured the victims as smugglers of sandal wood. Considering the above facts and also the situation prevailed on the date of occurrence, the contention of the appellants are not acceptable. One of the victims, who in fact 8 months pregnant at the time of occurrence has also deposed that she was brutally attacked and rapped by the official.

Therefore the contention of the learned counsel for the appellants that in order to escape from the sandal wood case, they have foisted false case, is not acceptable.

• Further more, it is shock and surprise to read the evidence of P.W.56 Head Constable in the Prison, who has deposed that all the ladies were brought for remand on 21.06.1992 at mid-night at 12 ‘O clock. P.W.57 is also one of the lady Constable, accompanied P.W.56 and she has deposed that all the ladies from Vachathi village were remanded on 21.06.1992 at mid-night at 12 O’Clock and for few days, they did not talk with any one and they looked very sad and after a week, they informed her that they were raped by the members of uniform force.
• W.38 the Police Constable who had also participated in the raid at Vachathi Village and on 20.06.1992 at 5.00 p.m., was also present nearby the Banyan Tree. At that time the forest officials took 18 young ladies to the lake area under the guise of finding out the hidden place of sandal wood and came back at 7.30 p.m. and no lady constable was allowed to accompany them.
• If at all as defended by the accused that in order to find out the hidden place of sandal wood only they took the ladies, they should have taken any lady constable along with them or they should have taken any male members of the Vachathi Village. Therefore evidence of P.W.38 clearly shows that despite the lady constable was available near the banyan tree at the time of occurrence, the accused did not take the ladies with the lady constable. They have selectively chosen 18 young ladies and one of them is only 13 years old and one of them was 8 months pregnant. The uniform force have not even taken any male member to find out the sandal wood and taken only the 18 young ladies, which clearly shows the intention of the accused.
• Prosecution has clearly proved its case from the evidence of

P.Ws.39 to 55 and 58 that the members of uniform force forcefully took them from their resident to the Banyan Tree in an inhuman manner handling with third hand method and from there they picked 18 young ladies and took them to lake area and committed rape. Those victims have also identified the accused, those who have taken them to the Banyan Tree and attacked and those who have committed rape on them and also while detaining in the Forest Range Office, Harur, forcefully obtained thumb impression. The above facts all clearly shows the appellants/accused went for raid, assuming that it may be a legal object, but subsequent activities of the appellants clearly shows that they exceeded their limits and went to the extent of doing unlawful activities, destroying the whole village. They committed charged offences since all the victims are members of the ST community, which was not disputed by the defence. The appellants also made the victims to attack Oor Gounder, who also belongs to ST community.

• Further, this Court quashed the cases registered against the victims as false cases, which also proves that the case foisted by the officials against the victims are purely false one and in order to escape from the offence committed by them they foisted the sandalwood case.
• As far as the defence regarding genuineness of the complainant is concerned, cases of this nature, a case may be registered even from the information received from public, if the same is found to be true and genuine. Even though certain discrepancies and inconsistencies regarding signature, Thumb impression and names, admittedly the complaint has not been given under normal circumstances. However, all the 18 victims have clearly deposed about the atrocities of the accused and hence they given complaint. It is settled proposition of law that the complaint is not an encyclopedia. However, the case was registered only based on the direction of the Court. Therefore the contention of the appellants are not sustainable.
• W.63, who is a social activist viz. National Vice President of All India Women Association has clearly deposed that while she was in the post of Tamil Nadu Executive Secretary of the All India Women Association, on an information from Dharmapuri District Secretary of the above Association , she and the General Secretary went to the Vachathi Village on 31.07.1992 and conducted an enquiry. After conducting the enquiry, they informed to P.W.72, who was the Director of SC/ST Commission. Based on the complaint Ex.P209 given by state wing, she went to the Vachathi Village and conducted an enquiry between 06.08.1992 and 08.08.1992 and sent a report Ex.P210 to National Commission of SC/ST. The same was brought to the knowledge of the State Government and the then State Government has not taken any action against the erred offiers or even the Police has not registered any case. Subsequently the case was registered only by the CBI based on the directions of this Court in the writ petition. Till then no case was registered by the Harur Police on the complaint given by P.W.64.
• The evidence of P.Ws.63, 64, 57 and 72 clearly shows that there was rape committed by some of the appellants and neither the police has registered the case nor the revenue officials initiated any proceedings.

Even though the Tahsildar conducted investigation and filed a report Ex.P204, but reading of the same would go to show that in order to safeguard the officials, false report has been filed. The reports of P.W.63 and 72 also clearly shows that even prior to registering the case, they went to Vachathi Village and enquired the victims and the victims have clearly stated that they were rapped by the members of the uniform force. Subsequently the witnesses have been examined before the Court as witnesses and they have corroborated the same and also stated that P.W.63 and P.W.72 also enquired them. Subsequently CBI officials came and enquired. Therefore the report of P.W.72 clearly shows that the appellants have committed the offence.

• This Court as a final Court of fact finding has to re-appreciate the entire evidence and give its independent finding. Accordingly this Court has re-appreciated the entire evidence and finds that the appellants have committed the charged offences. The witnesses have clearly deposed that on the next day i.e. on 21.06.1992 guise of the raid, officials went and damaged the properties and also looted cattle of the villagers and chopped and cooked them with fire and taken as food. Subsequently, they had done the same thing for 3 days. The villagers are members of ST community. Even though the accused are public servants, the act committed by the appellants are not the official duty and they all committed all type of unlawful and illegal acts towards the innocent villagers of Vachathi Village.
• Even though the learned counsel for the appellants submitted that A59 accompanied P.W.3 while going to the Hospital, he was all along with him and he could not be present in the Vachathi village at the time of occurrence and the Medical Officer has also stated that he was present, however on reading of evidence of P.W.3 he himself has not stated that A59 accompanied him and he only took him to the Hospital. P.W.7 and P.W.9, who are the villagers have clearly stated that they only took P.W.3 to the Hospital by arranging Bullock cart. None of the witnesses have stated that

A59 accompanied P.W.3. Even the witness P.W.33 who was working as

Doctor in the Harur Hospital has deposed that on 20.06.1992 one Selvaraj came to the Hospital and accompanied Rajarathinam A59, however, during cross examination he has not stated so. Therefore none of the witnesses either P.W.3 or the other witnesses who made arrangement to send P.W.3 to the Hospital have spoken that A59 accompanied P.W.3. Further, these documents were obtained only after registration of the case and the Doctor was also not sure whether A59 alone brought P.W.3 and he was all long with the injured. Once the accused took a plea of alibi, it is for him to substantiate his defence. Except the words of Doctor, he has not shown any materials to prove that he was in the Hospital at the relevant point of time. The Doctor was also not sure whether A59 accompanied the injured.   A59 is not a known person to the Doctor. Therefore, the defence version is not acceptable.

• From reading of oral and documentary evidence it is clear that all the appellants while conducting the raid, deviated the object of the raid. From the evidence of the witnesses it is clear that all the officials including the District Collector, District Forest Officer and the Superintendent of Police even though know who are the real culprits, for the reason best known to them, they have not taken any action against them and to safeguard the real culprits, the innocent villagers were victimised. Therefore this Court comes to the conclusion that prosecution has proved that all the appellants committed the offence. Even though there are discrepancies and contradictions, considering the peculiar nature of this case, and in view of the fact that unfortunately the case was also not registered immediately due to several hurdles and started investigation only after 3 years of the occurrence and trial was conducted after 10 years, which was inevitable, those are not material contradictions, which would go to the root of the case of the prosecution.
• This Court finds that the evidence of all the victims and prosecution witnesses are cogent and consistent, which are reliable. This Court as appellate Court finds that the prosecution has proved through the evidence of the prosecution witnesses and documents, which inspires confidence of this Court.
• For the above observations and reasons, the citations relied on by the respective counsel are not applicable to the present case on hand, since the facts of the present case are unique and differ from the cases relied on by the learned counsel for the appellants and this Court has given elaborate reasons for the same. Further, the evidence of defence witnesses do not inspire the confidence of this Court and as such, the same are rejected.
• The then Collector of Dharmapuri District and the Revenue officials have not shown any interest in the matter and did not care about the seriousness of the issue, even P.W.13 had given complaint to them prior to the raid regarding smuggling of sandalwood by named persons. They have not taken any action against real sandalwood smugglers. In order to safeguard the actual smugglers and the big-shots, the revenue officials, police officials and also the forest officials, with the help of the then Government, played a big stage drama, in which the innocent tribal women got affected much and the pain and difficulties faced by them have to be compensated in terms of money and jobs. Even there is no Check Post between the Vachathi Village and the hills which is the distance of the quarter kilometer. When it is the case of the appellants/accused that the Vachathi villagers were involved in the cutting and smuggling of Sandalwood trees and whenever it was questioned and conducted raid the same was prevented by them by attacking the officials, the Government should have taken effective steps to prevent the same atleast by setting up a Check Post in the way, through which the alleged smuggling had taken place. But, to monitor and to prevent the alleged smugging by the Vachathi villagers, the Forest Department officials have not taken any effective steps, which clearly shows that the officials colluded with the real smugglers, who engaged some of the Villagers as Coolie. Unfortunately the then Government failed to protect the tribal women and it only safeguarded the erred officials and also failed to find out the real sandal wood smugglers.
• In view of the above observations and considering the nature of offence and since the appellants, who are the Government officials chatted the entire Vachathi Villlage, the following directions are issued:

1. Despite prior to the raid P.W.13 given many complaints to the District Collector and District Forest Officer, they have not taken any action on the complaint. Hence the Government of Tamil Nadu is directed to pay Rs.10 Lakhs immediately to each of the victims directly to their accounts in line with the decision of the Division Bench of this Court reported in 2016 (2) LW 561 (The Divisional Manager, The Oriental Insurance Company Limited, Kannur, Vs. Rajesh and Others), if the victim is not alive, pay the compensation to the family members of the victim concerned and out of Rs.10 lakhs, the Government shall recover 50% i.e. Rs.5 Lakhs from the accused, who have been convicted for the offence of rapre on the 18 victims and report the same before this Court.
2. Further, the Government of Tamil Nadu is directed to provide a suitable jobs either by self employment or by permanent job to the 18 victims or their family members for their livelihood, which were destroyed by the then Government officials.
3. The Government of Tamil Nadu shall report to this Court regarding the welfare measures taken to improve the livelihood and standard of living of the Vachathi Villagers, after this incident.
4. Further, stringent action shall be taken against the then District

Collector, the then Superintendent of Police and finally the then District Forest Officer during the relevant period.

104. In view of the above discussion and for the foregoing reasons, this Court finds all the accused have committed the charged offences. There are no merits in these appeals and the same are liable to be dismissed.
105. Accordingly, all the criminal appeals stand dismissed as devoid of merits and substance. Consecutively connected miscellaneous petitions are closed. The trial Court is directed to secure the custody of the appellants/accused to serve remaining period of sentence, if any.
106. At the time of pronouncing the judgment today, it is brought to

the notice of this Court by the learned counsel for the appellants in Crl.A.No.665 of 2011 that the fourth appellant therein, namely A-176 A.Kuppu Singh died on 03.05.2023, in proof of which, he has also produced a copy of the Death Certificate. Accordingly, Crl.A.No.665 of 2011 shall stand dismissed as abated insofar as A-176 alone (fourth appellant) is concerned.

 

29.09.2023

Index    : Yes/No

Speaking Order/Non Speaking Order

Neutral Citation: Yes/no cgi

Pre-Delivery Judgment in Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,  657, 658, 659, 660,

 662, 665, 666, 668, 669, 670, 671, 673, 679, 682, 690 and 692 of 2011

29.09.2023