IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1710 of 2005()
1. AJAYAN @ RAJAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :05/10/2009
O R D E R
K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.
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Criminal Appeal No.1710 of 2005
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Dated 5th October 2009
Judgment
Balakrishnan Nair, J.
The appellant is the accused in Sessions Case No.403/04, on
the file of the Additional District and Sessions Judge (Ad hoc), Fast
Track Court-I, Pathanamthitta. He challenges, in this Criminal
Appeal, the conviction and sentence imposed on him for the offences
punishable under S.376 and S.302 IPC by the trial court in the said
case. The case of the prosecution is as follows :
2. The victim Ms.Soorya, the daughter of PW1, was a student
of 6th standard of Government High School, Kadampanadu. On
08.10.2002, while she was returning home after the classes, at about
4 pm., the appellant, who was waiting for her under a bridge, seized
her by force, overpowered her and committed rape. The victim
resisted. So, he applied blunt force on her neck. Thereafter, he
threw her body into the nearby stream. So, she died of strangulation
and drowning. The prosecution, to prove its case, examined PW1 to
PW19, marked Exts.P1 to P26 and also produced material objects
MO1 to MO5 series. The trial court, after hearing both sides and
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taking into account the materials on record, found the appellant guilty
of the offences punishable under S.376 and S.302 IPC and
sentenced him to undergo rigorous imprisonment for 7 years and to
pay a fine of Rs.50,000/- and in default, to suffer rigorous
imprisonment for four years for the offence punishable under S.376
IPC. He was also sentenced to undergo imprisonment for life and to
pay a fine of Rs.50,000/- and in default, to suffer rigorous
imprisonment for 4 years, for the offence punishable under S.302
IPC. The fine amount, if realised, was directed to be paid to the
mother of the victim, by way of compensation. Feeling aggrieved by
the conviction and sentence, this appeal is preferred.
3. The learned counsel for the appellant Shri.Grashious
Kuriakose took us through the deposition of the witnesses and the
documents produced by the prosecution and submitted that except
the recovery of the blouse of the victim, there is nothing on record, to
connect the accused with the crime. The recovery of the blouse is
also clouded by the circumstance that the accused revealed hiding of
the same at the time of the second round of questioning, after the
first round of questioning and recoveries were over. So, noticing the
absence of evidence, planting the blouse by the police and causing it
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to be recovered through the appellant, cannot be ruled out. Even
assuming that the recovery is found to be genuine, that by itself, is
not sufficient to prove the guilt of the accused beyond reasonable
doubt. A mere suspicion is not sufficient to sustain the conviction.
The learned counsel also submitted that the trial court relied on six
circumstances, enumerated in paragraph 14 of the judgment under
appeal. The learned counsel submitted that circumstance (b) that
there was an earlier alleged attempt from the part of the appellant to
ravish a school going girl, cannot be pressed into service as a link in
the circumstances proved against him. It is also submitted that the
extra-judicial confession, stated to be given to the doctor, mentioned
as circumstance (f) in paragraph 14 of the judgment, being one made
while in police custody, has to be eschewed from consideration. If
those two circumstances are excluded, the chain of incriminating
circumstances is not complete and therefore, the appellant is entitled
to get the benefit of doubt.
4. The learned counsel for the appellant pointed out that the
second husband of PW1, Shaji was the real culprit. The victim was
staying in a neighbouring house as a domestic help because of the
ill-treatment of her by Shaji, her stepfather. The police did not
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question him or make him a witness. The chances of the girl, being
raped and killed by him, cannot be ruled out, it is pointed out.
5. The learned Public Prosecutor, on the other hand, submitted
that there is no reason to doubt the genuineness of Ext.P14
mahazar, under which the blouse of the victim, which was hidden
under the wild grown grass was recovered. The injuries on the body
of the appellant, including those on his private parts, remained
unexplained. He was found near the scene of occurrence, by an
independent witness. There is also evidence on record that the victim
reached near the place of occurrence at the relevant time. The
recovery of the blouse, at the instance of the accused and the
medical evidence regarding the injuries on him alone are sufficient to
sustain the conviction. They unerringly point to the guilt of the
accused. The trial court has rightly found him guilty. Even if the extra-
judicial confession made by him, while in police custody, is also
excluded from consideration, the remaining circumstances are
sufficient to complete the chain and to prove the guilt of the accused
beyond reasonable doubt. It is also pointed out that regarding the
injuries sustained by him, the appellant has given a false explanation
under S.313 IPC, stating that the injuries suffered on his body were
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those caused by a motor-bike accident. When the medical evidence
regarding the injury on his penis was put to him, he simply denied
that he sustained any injury there. The omission to explain the injury
on his private parts and the false explanation given to the injuries,
are circumstances against the accused. The learned Public
Prosecutor pointed out that the doctor, in his deposition, has stated
that the injuries found on the body of the appellant cannot, normally,
be caused on a fall from a motor-bike. Therefore, the learned Public
Prosecutor prayed for dismissing the appeal.
6. Before dealing with the rival contentions, we will refer to the
evidence on record. PW1 is the mother of Soorya, the victim. Her
daughter did not reach the house of PW3, where she was staying, in
time on 08.10.2002. When she did not reach the house of PW3 even
by 6 pm. on the said date, Sony, the brother of PW3 went to the
house of PW1 and told her about the same. Therefore, she, along
with her husband Shaji went to the house of PW3 and enquired
about the matter. On the next day morning, PW1 went to the Police
Station and gave Ext.P1 F.I. statement regarding the missing of her
daughter. She identified MO1 blouse as that of Soorya. She also
identified MO2 bag and the contents of the bag like books, tiffin box,
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water bottle etc. The learned Sessions Judge has recorded that on
seeing them, the witness wept loudly from the box. The body of her
daughter was recovered from the nearby river on 10.02.2002 and she
was told of her death, only at the time of burial of the body.
7. In the cross examination, an attempt was made to show that
Shaji, the second husband of PW1 was ill-treating her daughter and
therefore, she was sent to the house of PW3. She has also deposed
that on 8.10.2002 at 6 pm, Shaji was also in the house and they
together went to the house of PW3 to enquire about Soorya. We
notice that nothing has been brought out in the cross examination,
which makes her version unreliable.
8. PW2 is a person, residing in the neighbourhood of PW1. She
knew Soorya and also the appellant. While she was sitting in her
house, which is by the side of the road, at about 4 pm., on 8.10.2002,
she saw Soorya going home from the school. She stated that Soorya
was carrying a school bag and an umbrella. She was wearing a blue
coloured blouse and skirt. She identified MO1 blouse as the one
worn by Soorya, at the relevant time. She also identified the school
bag MO2. She was also cross-examined by the defence, but nothing
was brought out to discredit her version.
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9. PW3 was residing at a distance of about one km. from the
house of PW1. Soorya was residing with her for about ten days
before 8.10.2002. She has seen her last at 9 am. on 8.10.2002,
when she went to the school. At that time, she was wearing a blue
skirt and blouse with golden lace on its hands. She was studying in
Kadambanad Government High School. Normally, Soorya returned
from school at about 4.30 pm. On the aforementioned day, she did
not reach home even after 5 pm.. So, she sent her brother, Sony to
the house of PW1, to inform her about the same. She identified MO1
blouse worn by Soorya and also MO2, which is her school bag. The
attempt of the defence in her cross-examination was to show that
Shaji, the second husband of PW1, was harassing Soorya and
therefore, Soorya was sent to the house of PW3, by PW1. But her
version remained unshaken, notwithstanding the cross-examination
by the defence.
10. PW4 is a friend of the deceased. They were studying in the
same school. On 8.10.2002, they came together in the same bus.
They got down at Nellimughal Junction. It was raining and they
walked together upto the house of PW4. Since Soorya was not
having any umbrella, she gave her umbrella to Soorya. She saw
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Soorya, going home with her umbrella. At that time, she was wearing
a blue coloured silk skirt and blouse. She identified MO1 blouse as
the one worn by Soorya. She also identified MO2 series school bag
and its contents. Nothing was brought out to discredit her version in
her cross examination by the defence.
11. PW5 is a person, residing in the neighbourhood of the
appellant. He is a rubber tapper. The witness and the appellant
reside in the same colony. The house of the appellant is at a distance
of 100 yards from his house. On 8.10.2002, he went to the shop of
one Mr.Thankachan in the afternoon. Since it was raining, he waited
there for some time. Later, after purchasing milk, he returned home
at about 3.45 pm. On the way, when he reached Kurumakkad bridge,
he found the accused standing under the bridge. He was peeping out
from under the bridge. He thought, the accused was fishing from the
stream. Later, on coming to know that the school bag of Soorya was
recovered from a place near to the bridge, he told Thankachan and
others on 9.10.2002 that he had seen the appellant under the bridge
on the previous day. He has also deposed that the appellant entered
the house of one Ravindran, PW6, by removing the roof tiles and
tried to outrage the modesty of Ravindran’s daughter, two years
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back. Thereafter, the appellant had gone underground and has
returned only about 5 months back. That was the reason, why he
doubted the accused and told about sighting him near the bridge at
the relevant time, to others. He was also extensively cross-examined
by the defence, but nothing was elicited to discredit his version.
12. PW6 was examined to prove that the accused, about two
years back with reference to the date of the incident in this case, had
attempted to rape his daughter by entering his house, after removing
the roof tiles. He stated that because of his concern for the future of
his daughter, he did not complain about the incident before the
police. The defence cross-examined him, suggesting that it was a
false story cooked up by him, but he denied the same.
13. PW7 was the witness to Ext.P2 mahazar, as per which MO2
school bag was recovered from the bushes on the bank of the stream
called “Pallickal Aar”. He was not cross-examined by the defence.
PW8 was a witness to Ext.P3 inquest report, prepared by the Sub
Inspector of Police on 10.10.2002. PW9 was the witness to Ext.P4
scene mahazar, prepared by the Investigating Officer. PW10 was the
doctor, who examined the appellant on 12.10.2002 at about 2 pm. At
the relevant time, he was the Medical Officer in the Department of
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Forensic Medicine of Thiruvananthapuram Medical College. He
examined the accused produced by the police and issued Ext.P5
wound certificate. The said certificate recorded the following injuries
found on the body of the appellant :
“1. Contusion 2×1.2 cm on the right side of neck, 5 cm below the
ear.
2. Abrasion 1×0.3 cm, oblique, on the top of right shoulder 8 cm
outer to root of neck and overlying the collarbone.
3. Abrasion 1.5×0.3 cm. on the right shoulder, 1 cm above the
collarbone and 4 cm inner to the former injury.
4. Abrasion 3×0.2 cm oblique, on the left shoulder, across the
collarbone, the upper inner end 2 cm above the collarbone and 5
cm. outer to root of neck.
5. Three abrasions 1.5×0.1 cm, 1.8×0.1 cm. and 2×0.1 cm, all
being oblique and parallel to each other, over an area of 3×2 cm,
on the back of right elbow.
6. Healing superficial wound 0.4×0.3 cm, oblique, on the back of
right ring finger, across the nail base, it was covered with brown
adherent scab.
7. Abrasion 0.4×0.3 cm. on the back of right ring finger 3.5 cm.
below its root.
8. Multiple small abrasions, varying in size from 0.2×0.2 cm to
0.6×0.6 over an area of 4×3.5 cm on the front and inner aspect of
right knee.
9. Abrasion 0.5×0.2 cm on the front of right leg 6 cm below injury
No.8.
10. Multiple small abrasions of sizes varying from 0.2×0.2 cm to
0.5×0.3 cm over an area of 2.5×2 cm, on the top of root of right big
toe.
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11. Abrasion of 0.6×0.2 cm on the inner aspect of right big toe, 1.5
cm in front of its root.
12. Abrasion 0.6×0.2 cm on the inner aspect of root of left big toe.
13. Abrasion 1.5×1 cm on the front of left leg 4 cm below the knee.
14. Abrasion 0.4×0.3 cm on the front of left leg 15 cm below injury
No.13.
15. Abrasion 2×0.1 cm oblique on the back of left forearm, the
lower inner end 16 cm above root of middle finger.
16. Abrasion 0.5×0.3 cm on the back of chest 4 cm to the left of
midline and 11.5 cm below the level of top of shoulder.
17. Two abrasions 0.5×0.1 cm and 0.6×0.1 cm, 0.5 cm apart, one
below other and horizontal on the back of chest 1.5 cm to the right
of midline and 7 cm below the level of root of neck.
18. Abrasion of 0.8.0.5 cm on the back of hip 4.5 cm to the right of
midline and 2 cm below the rim of hip bone.
19. Abrasion 0.2×0.2 cm covered with reddish brown adherent
scab on the right side of inner aspect of foreskin, its edges were
swollen.
All the abrasions were covered with reddish brown adherent
scab, the contusion was reddish brown in colour.”
The history and alleged cause of injury recorded in Ext.P5 wound
certificate is that the appellant sustained them while attempting to
overpower the girl. The doctor has deposed that the history and
alleged cause of injury was noted as alleged by the appellant. He
opined that the injuries found on his body could be caused by the
struggling victim, at the time of rape and strangulation. The injuries
found on his private parts may also be caused by the victim, at the
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time of rape. The doctor denied the suggestion that the injuries found
on the appellant could be caused in a motor-bike accident. The
witness added that the injuries would have been more severe, if they
were caused in a bike accident. He was extensively cross examined
by the defence. But, we find that nothing has been elicited to
discredit his version. The doctor also examined the appellant and
gave Ext.P6 potency certificate, in which he has certified that nothing
is found to take the view that the appellant was incapable of sexual
act.
14. PW11 is the doctor, who conducted autopsy on the body of
the victim and gave Ext.P7 postmortem certificate. She noted the
following injuries on the body of the deceased :
“1. On flap dissection of neck under bloodless field, the following
antemortem injuries were noted.
a. Contusion 5×1.5×0.4 cm of the front portion of right sterno-
mastoid muscle, 4.3 cm above its lower attachment.
b. Contusion 2×0.5×0.2 cm of the front portion of left sternohyoid
muscle at a point 4.6 cm above its lower attachment.
c. Contusion of back wall of pharynx 1.5×0.8 cm involving its whole
thickness.
Hyoid bone, cartilages and other neck structures appeared normal
except for decomposition changes.
2. On examination of the external genitalia, the following
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antemortem injuries were noted.
a. Laceration 3x2x0.5 cm involving the lower meeting point of labia
majora and adjoining part of posterior vaginal wall.
b. Contusion 3.2×1.5×0.3 cm of the left lateral wall of vagina 2cm
above its outlet.”
Ext.P8 is the final opinion given by PW11 regarding the cause of
death, after receipt of Exts.P11 and P12 FSL reports. As per the
final opinion, death was caused by the blunt force applied to the neck
and drowning. PW11 has also stated that rape has been committed
on the victim. The doctor has deposed that injury Nos.2(a) and (b) in
Ext.P7 could be caused on account of the possible penetration of
penis.
15. PW12 is the Assistant Director, Biology in the Forensic
Science Laboratory, Thiruvananthapuram. Exts.P11 and P12 FSL
reports were proved by the said witness. As per the FSL reports,
blood was found on Item Nos.3 and 4, which were MOs 3 and 4.
They were the dothi and the shirt of the appellant, recovered as per
Ext.P15 mahazar, from the house of the accused. Though there
was human blood on those items, it was not possible to do grouping
for want of sufficient quantity of blood. PW13 is the Village Officer,
who prepared Ext.P13 site plan. PW14 is an independent witness,
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who witnessed the recovery of MO1 blouse of the victim under
Ext.P14 mahazar. He stated that on a Sunday at about 8.30 am,
while he was coming back from the market, he saw Police and the
accused, standing on Kurumakkad Bridge. He also stood there, on
seeing the police. The police, along with the appellant, moved
towards the north. Out of curiosity to know what was happening, he
also followed them. He found that in the nearby land, wild grass was
growing. The accused from under the grass, took the dress of a
child. He watched the same. It was a blue coloured blouse. Its hands
had golden lace. He identified MO1 blouse as the one recovered on
the said day. Though he was cross examined suggesting that he is
speaking falsehood, we think, nothing has been brought out to
disbelieve the witness.
16. PW15 was the person, who witnessed the recovery of MO3
dothi and MO4 shirt from the house of the accused under Ext.P15
mahazar. PW16 was the Police Constable, who received the
deadbody after inquest and took it to the Medical College,
Thiruvananthapuram for postmortem examination. After the autopsy,
he released the body to the relatives. PW17 was the Sub Inspector of
Police, who recorded Ext.P1 F.I. statement, for the missing of Soorya
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and also registered a crime for man-missing as per Ext.P16 FIR.
PW18 was the Circle Inspector of Police, at the relevant time, who
conducted major part of the investigation. He caused the conduct of
preparation of the inquest report and sent the body for postmortem
examination. He questioned the witnesses and recovered MOs 1 to
4. MO1 blouse was recovered, based on Ext.P14(a) confession
statement. The relevant portion of the said confession statement, on
translation, would read as follows :
“While returning home, I placed the blouse under the grass
in the land belonging to Kunhikrishnan, Kizhakke Chakkur House. If
I am taken there, I will take out the blouse from there.”
17. Based on Ext.P15(a) information, MO3 dhoti and MO4 shirt
were recovered from the house of the accused under Ext.P15
mahazar. Based on the materials disclosed, PW18 filed Ext.P17
report before the learned Magistrate, incorporating the offences
punishable under Sections 376 and 302 IPC. PW19, the successor
Circle Inspector of Police, completed the investigation, verified the
charge and laid the final report before the Judicial First Class
Magistrate’s Court, Adoor. The learned Magistrate committed the
case for trial by the Sessions Judge, as the offences disclosed were
exclusively triable by the Court of Sessions.
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18. Going by the deposition of the above witnesses, we do not
find any vitiating circumstance to disbelieve any of the witnesses.
The contention of the learned counsel for the appellant is that MO1
was recovered under Ext.P14, at the time of the second round of
questioning and therefore, the same is not reliable. The doubt raised
by him regarding the recovery of MO1 cannot be accepted. We find
no reason for the police to falsely implicate the appellant in this case
by sparing the real culprit. But, the point to be considered is whether
the facts unfolded before the Court were sufficient to sustain the
conviction against the appellant. According to the learned counsel for
the appellant, the chain of events proved, are not sufficient to say
that it was the accused, who committed the crime. We notice that
MO1 was recovered under Ext.P14, from a “purayidom”(dry land),
which is not frequented by people. Wild grass was growing there.
MO1 blouse was hidden under the grass. The deadbody recovered
was naked. PW2, the lady in the neighbourhood, PW3, with whom
the victim was staying and PW4, the schoolmate of the victim have
identified MO1 as the blouse worn by the victim on the fateful day.
PW1 has stated that MO1 was the blouse belonging to the victim.
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When the deadbody of the victim was found naked and it was proved
that she was raped, strangulated and later thrown into the river,
which caused her death and the accused produced MO1 from a
hidden place, it can be safely inferred that it was the appellant, who
committed the crime. Otherwise, he should come up with a proper
explanation as to how MO1 blouse came to his hand and why he hid
it under the grass. We find that he has not given any explanation
whatsoever, for hiding MO1 blouse under the grass in a “purayidom”
near the scene of occurrence. The medical evidence, concerning the
injuries on the body of the appellant including those on his penis,
would further corroborate the case of the prosecution. He sustained
the injuries, which could be caused by the victim, while struggling to
save herself. Going by the medical evidence, he has given a false
explanation for the injuries sustained by him. So, the presence of
injuries on the body of the appellant, for which a false explanation
has been given by him, is a very strong circumstance against him.
Further, the presence of the victim and the appellant, at the scene of
occurrence at the relevant time on the fateful day, is also spoken to
by independent and reliable witnesses. We feel that the prosecution
can be asked to prove, only what it can prove. We cannot ask them
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to prove the impossible. The appellant committed the crime stealthily,
unnoticed by others. Normally, a crime of rape will be committed,
only in such a situation. We think that the recovery of naked
deadbody of the victim and the recovery of MO1 blouse, coupled with
the proof of injuries on the body of the appellant, are sufficient to hold
that it was the appellant, who committed the crime. The medical
evidence proved beyond doubt that the victim died of blunt force
applied on the neck and drowning. It also shows that she was
subjected to rape. So, the death of the victim is homicide and it is the
appellant, who committed the crime. So, even after eschewing from
consideration, the extra judicial confession made by the appellant to
the doctor, while in police custody, we are of the view that the
remaining evidence is sufficient to sustain the conviction. In the
result, we find no merit in the appeal and accordingly, it is dismissed.
K.BALAKRISHNAN NAIR, JUDGE
P.BHAVADASAN, JUDGE
sta
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