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Judgment
M. Karpagavinayagam, J.—This is yet another ease in which the important evidence regarding the identity of the accused through the
identification parade is lost, due to the inaction of the Police agency, that too, in a case of mass rape.
The petitioners are A1 to A4 in the case registered in Crime No. 287/97 by the respondent, the Inspector of Police, Annamalai Nagar Police
Station. The victim in this case is one Malarkodi, a married woman. On 26.6.1997 one Dhanam, the mother-in-law of the victim was admitted in
Muthiah Medical College Hospital at Annamalai Nagar.
On 27.6.1997 at about 1.30 p.m., the victim along with her brother-in-law Kolanjinathan left the village Vanathirayan Pattinam, Udayarpalayam
Taluk and came to see her mother-in-law in the hospital. In the evening they were informed that the said Dhanam had to undergo an operation. The
victim and the said Kolanjinathan went to Chidambram and purchased white cloth and worshipped in the Natarajar temple. Then, in order to go
back to hospital, they were waiting for the bus near Gandhi statue. Since they were informed that the bus would not come, they were walking
towards the hospital. It was at about 8.00 p.m. When they came near Muthiah Nagar bridge, the victim Malarkodi went to the left side of the road
in order to pass urine. Kolanjinathan was standing at a distance. At that time, three persons suddenly pounced upon her and forcibly took her into
''kattamani'' plants. The said Kolanjinathan on seeing the incident cried, but he was threatened by another accused. Immediately, the said
Kolanjinathan came to the Police Station and informed about the incident suspecting that the victim was likely to be raped and murdered. So, the
case was registered in Crime No. 287/97 under S.364 I.P.C.
The said victim was traced only next day evening at about 6.00 p.m. She stated that four persons, the petitioners herein took her forcibly to a
nearby Kattamani bush and raped her one after another. She came to know the names of all the petitioners when they were conversing with each
other. After committing rape, she was taken in an Auto and dropped near the Muthiah Hospital. On this statement, the case was altered into one
under S.376 I.P.C.
She was examined by me Doctor, who gave wound certificate for the injuries found on the victim. The Doctor also took smear and pubic hair
for chemical analysis. On 29.6.1997 at about 10.00 p.m. all me petitioners (A1 to A4) were arrested and confessions were obtained from them.
On the date of remand, a requisition was given by the investigating agency to the Magistrate for directing to conduct potentiality test on the
accused. Accordingly, after the written consent was obtained from them, the learned Magistrate directed for the potentiality test. The Doctor
examined them on 1.7.1997 and gave a certificate that they are potents.
On 4.7.1997 the petitioners filed an application in C.M.P. No. 2034 of 1997 under S.54 Cr.P.C. for a direction to be issued to the
Government Doctor, Chidambaram to take sample blood and semen from the petitioners and send the same alongwith vaginal smear taken from
the victim girl, to the Director Molecular Biological Research Institute, Hyderabad to conduct D.N.A. test and to find out whether the semen found
in the vagina of the victim girl tallies with the sample blood and semen of any of the petitioners. On 15.7.1997 on behalf of me respondent, a
counter was filed stating that the accused persons were already subjected to potentiality test and that all the accused were said to have committed
rape on the victim girl and the prayer for comparison in the said petition is not reasonable and proper, as the overt act of all the accused on me
victim girl were continuous and cogent acts.
However, the learned Magistrate sent a requisition to me Regional Forensic Science Laboratory, Thanjavur, in order to know whether the
D.N.A. test could be possible, as requested by the petitioners. The learned Magistrate received a reply stating that the vaginal smear taken from
the victim woman on 29.6.1997, after two days of the rape, may not be a true representative sample of seminal residues and that it may not be a
useful bio-specimen for reliable analysis. Thereafter, after hearing the parties, the learned Magistrate dismissed the application stating that the said
test is not possible in this case and would not give any fruitful result and further, the presence of semen on the vaginal part need not be a must, since
mere penetration would amount to rape as per the section. Now, this order passed on 18.8.1997 is challenged in this Revision.
This Revision has been filed exactly at the end of the expiry of the period of 90 days for filing revision, that is, on 14.11.1997.
In the meantime, the petitioners filed an application in Cr.M.P. No. 3837 of 1997 before the Sessions Court, Cuddalore for bail. When the bail
application was taken up, on being questioned by this Court the investigating agency informed that identification parade was not conducted.
Therefore, in order to give an opportunity to the prosecution, on 12.8.1997 the learned Sessions Judge directed to conduct the required
identification parade and posted the matter on 18.8.1997. When the matter was taken up on 18.8.1997, the Investigating officer was not present.
The Police Constable, who appeared before the Court was not able to say anything about the steps taken for conducting identification parade.
Under these circumstances, the learned Public Prosecutor did not raise any objection. So, on the basis of this the Sessions Judge has passed the
following order:-
Heard both. Inspite of opportunity given for conducting identification parade and inspite of such direction given by the Court on 12.8.97, no
tangible steps have been taken by the police yet Further, the Investigating Officer is also absent today to explain the steps taken as directed by the
Court. The Police Constable who appeared before this Court is not able to speak anything about the direction or steps taken in this case. The
petitioners are in custody nearly for the past 50 days. The learned P.P. has no serious objections. Under such circumstances, the petitioners can be
released on bail with stringent condition. Therefore, the petitioners are ordered to be released on bail on their each executing a bond for Rs.
5000/- (five thousand) with two sureties each for a like sum to the satisfaction of J.M.I., Chidambaram and also on condition that they should
remain at Mayiladuthurai and appear before the J.M., Mayiladuthurai daily at 10.30 a.m., until further orders.
From these things, two things are clear. (1) There is no identification parade; (2) In spite of the direction by the Sessions Court, no steps were
taken for conducting identification parade. When such a serious offence of mass rape had been reported to the police, it is not known as to why
there were no steps taken by the Inspector of Police, who investigated the case, for requesting the learned Magistrate to arrange for the
identification parade. Moreover, even on the hearing of the bail application, the Inspector of Police was instructed, rather directed by the Sessions
Judge to make arrangement for conducting the parade. I am at a loss to understand as to why this direction had not been complied with.
Furthermore, the Inspector of Police was conveniently absent on 18.8.1997, when the bail application was finally disposed of. In fact, the
learned Sessions Judge had pointed out this inaction of the police in the said order itself.
Identification parade is a valuable evidence, especially when the accused were not earlier known to the victim. Despite the direction of the
Court, this was not done. This would create an impression that the Inspector of Police wantonly did not do his duty, probably to help the
petitioners. Furthermore, the very fact that the Inspector of Police was absent on the date when the bail application was ordered on 18.8.1997 and
the very fact that the learned Public Prosecutor did not raise any objection, would create some sort of doubt in the mind of this Court against the
Investigating officer. At any rate, it is clear that the investigating agency for the reasons best known to them have committed a serious blunder and
caused a very heavy damage to the interests of the prosecution.
A woman of 22 years, at about 8.00 p.m., in a main road had been forcibly taken by four persons, that too, in the presence of her brother-in-
law, who was threatened to go away from the place and thereafter, a mass rape had been committed on her by taking her to a nearby bush. If this
sort of serious offence committed in the big town like Chidambaram had not been properly investigated by the Inspector of Police and had not
been supervised by senior officials, then it would definitely create a situation where the people would lose confidence in the police force.
It is common knowledge that the victim in a rape case would, with great reluctance, come to the police station to give a complaint, since her
future honour would be at stake. But, despite such a risk when a mass rape is reported to the police by the victim, if the police merely register a
case without conducting any proper investigation by not conducting identification parade in spite of the fact that the Investigating Officer was
directed so by the Sessions Court, then it would amount to not only dereliction of duty and violation of the order of the Court, but also, in my view,
molestation of the Institution itself.
Because of the wanton inaction of the Inspector of Police, who investigated this case and because of the lack of proper guidance to be given
by the concerned Superintendent of Police and because of the absence of proper legal advice by the Assistant Public Prosecutor to the Inspector
of Police, to arrange for the identification parade, a very serious and flagrant miscarriage of justice has been caused in this case.
No doubt, it is true that the rape had been committed by four persons by taking considerable time. So, the victim would have got the
opportunity of seeing them on seeing their physical features clearly. On the basis of that, if she has given evidence in the Court identifying the
accused, the said evidence would certainly be taken into consideration by the trial Court, if her evidence is found to be reliable. But, it is settled law
that when the persons who committed the offence were not known to the victim earlier, the investigating agency should conduct identification
parade through the learned Magistrate and collect the said evidence regarding identity which is a most important process in the investigation.
However, this has not been done for the reasons best known to the officer concerned.
Therefore, while dismissing this Revision holding that the impugned order refusing the prayer of the petitioners under S.54 of Cr.P.C.,
upholding the reasons contained therein, I direct the Director General of Police to conduct enquiry in regard to the inaction by the Officer
concerned and take suitable action. The result of the enquiry shall be intimated to this Court within two weeks.
The respondent is directed to finish the investigation and file the final report in this case of rape in the meantime. It is made clear that any
observation made in this order with regard to failure to conduct identification parade would not affect the credibility of the prosecution case, if the
evidence of P.W. 1 is found to be reliable in the trial.