IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/10/2004
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
and
THE HONOURABLE MR.JUSTICE M.THANIKACHALAM
Criminal Appeal No.1674 of 2002
Mohan .. Appellant
-Vs-
State by,
Inspector of Police,
Thalai Gnayiru Police Station
(Crime No.190 of 2001) .. Respondent
PRAYER: Appeal against the judgment dated 5.3.2002 made in S.C.No.28
of 2002 on the file of Additional Sessions Judge, Nagapattinam.
!For Appellant : Mr.E.R.K.Moorthy
^For Respondent : Mr.A.N.Thambithurai
Government Advocate (Crl.Side)
:JUDGMENT
(Judgment of the Court was delivered by P.D.DINAKARAN,J.)
The appeal is directed against the judgment dated 5.3.2002 made in
Sessions Case No.28 of 2002 on the file of the Additional Sessions Judge,
Nagapattinam, whereunder the appellant herein, sole accused was tried for the
offence punishable under Section 366 I.P.C., as well as for the offences
punishable under Sections 376(f), 302 and 201 I.P.C., in connection with the
occurrence said to have taken place at about 8.00 p.m., on 24.03.2001 in
Sadaiyankadu village, within the jurisdiction of Thalai Gnayiru Police
Station, Nagapattinam District, for having said to have abducted, raped and
consequently murdered one Amulu alias Kalaijyothi, aged about 10 years at the
time of occurrence.
2.1. The case of the prosecution was built up on the statement lodged
by P.W.1 to P.W.2, Village Administrative Officer at about 10.30 a.m. on
25.03.2001, which was subsequently marked as Ex.P1. P.W.1 is nonetheless the
father of the deceased. Based on the complaint (Ex.P1 ), a First Information
Report (Ex.P18) was registered by the Sub Inspector of Police (P.W.17) at
about 11.30 a.m. on 25.3.2001.
2.2. The story of the prosecution is that P.W.1, the father of the
deceased was residing at Vettaikaraniruppu village and he had two children
viz., the deceased Amulu alias Kalaijyothi and Venkatesan. P.W.1’s daughter
Amulu alias Kalaijyothi was staying with her grandfather, P.W.15 and was
studying at a school near Pallivasal at Tiruvarur. The accused, a resident of
Vanavanmahadevi village, was working under P.W.15, who was residing at
Sadaiyankadu village. The house of P.W.1, the father of the deceased was
situated at + k.m.distance from the house of P.W.15 and the accused used to
take the deceased from the house of P.W.15 to the house of P.W.1 and vice
versa. On 24.03.2001, at about 7.00 p.m., the accused, who was carrying
kerosene and sugar, took the deceased and her brother Venkatesan from the
house of P.W.1 5 to the house of P.W.1. Thereafter, he left the brother of
the deceased at the house of P.W.1 and took the deceased on the guise of
taking her to the house of P.W.1 for studying. However, he took the deceased
near Harichandra river, where, under a tree, he raped the deceased by closing
her mouth and nose with hands in order to restrain her from raising alarm,
following which the deceased died due to shock. Thereafter, the accused, with
a view to cause disappearance of evidence of offence, threw the dead body of
the deceased Amulu alias Kalaijyothi in the Harichandra river. Thereafter,
the deceased was not seen by anyone.
2.3. On 25.03.2001, at about 6.00 a.m., P.W.6 Sadasivam came to the
house of P.W.1 and asked him as to the whereabouts of his daughter, to which
P.W.1 replied that he had sent his daughter to the house of P.W.15 along with
the accused. P.W.6 informed P.W.1 that the dead body of his daughter is found
in Harichandra river. Immediately, P.W.1, his wife Venkateswari and P.W.6
rushed to the scene of occurrence, where they found the body of the deceased
floating on the river. They brought the body to the banks of the river and
when examined, they found that the deceased’s eyes were protruding and there
was bleeding in the nose, mouth and also in the private parts.
2.4. Thereafter, P.W.1 went to the house of P.W.2, the Village
Administrative Officer of Vettaikaraniruppu village and gave a statement,
pursuant to which P.W.2, along with P.W.3, village menial went to Thalai
Gnayiru Police Station and handed over the statement given by P. W.1.
P.W.17, Sub Inspector of Police, received the said statement and registered it
in Crime No.190 of 2001 for the offence under Sections 376 and 302 I.P.C.
Ex.P.18 is the printed F.I.R.
2.5. Pursuant to the F.I.R. (Ex.P18), the investigating officer (P.
W.20) undertook the investigation, visited the place of occurrence, prepared
an Observation Mahazar (Ex.P4) and also a Rough Sketch (Ex.P21 ), recovered
material objects from the scene of occurrence viz., M.O.1 – skirt, M.O.2 –
Tops, M.O.3 – bangle pieces (four), M.O.4 – Ear studs, M.O.5 – white colour
beads, M.O.6 – blood stained mud, M.O.7 – sample earth, M.O.8-lungi,
M.O.9-Shirt and M.O.10-Jatty, under mahazar Exs.P5 and P7 in the presence of
P.Ws.7 and 8. He also conducted inquest on the body of the deceased, which is
marked as Ex.P.22. After seizing the clothes worn by the deceased, the body
of the deceased was sent for post mortem with the requisition marked as
Ex.P.8, through P.W.16 – Police Constable, who handed over the body of the
deceased to P.W.4, Doctor attached to the Government Hospital, Nagapattinam.
2.6. P.W.4, who conducted post mortem at 4.45 p.m. on 25.3.2001 and
issued Post Mortem Certificate (Ex.P.10), found the following external
injuries.
“There was a tear of 1.5 cm in the 6’O clock position of the hymen. Abrasion,
swelling and blood stained discharge was seen at the edges of the tear.
Vagina freely admitted two fingers. There was no injury in the vagina. There
was no injuries in the thighs or chest. Vaginal smear and cervical smear was
taken. On microscopic examination, no spermatozoa seen.”
P.W.4 reserved the cause of death pending the report of chemical analysis of
viscera. On 17.4.2001, Ex.P.9, chemical analysis report of the examination of
viscera was issued by the Regional Forensic Science Laboratory, Medical
College Buildings, Thanjavur, whereunder it was opined that the deceased would
appear to have died of shock due to subarachnoid haemorrhage 18-21 hours prior
to post mortem.
2.7. On the very same day of occurrence viz., on 24.3.2001, P.W.20
Inspector of Police arrested the accused near the banks of Koozhai river and
he gave a confession statement in the presence of P.W.8 and another. The
admissible portion of the confession statement given by the accused is marked
as Ex.P.6. Thereafter, the accused took the police party to the house of the
president of the village and from the roof of the house, produced the material
objects M.Os.8 to 10, which were seized in the presence of P.W.8 and another
under mahazar Ex.P7. The material objects were forwarded for chemical
analysis through the Court and accordingly, chemical analyst’s report
(Ex.P.13) and Serologist’s report (Ex.P.14) were obtained.
2.8. On 27.3.2001, P.W.20, sent a requisition to the Court for the
medical examination of the accused and also a requisition for chemical
analysis of the material objects. He examined the witnesses and recorded
their statements on various dates. Thereafter, as P.W.20 was transferred, his
succeeding officer completed the investigation and filed the final report on
15.8.2001.
3.1. The accused, however, denied the charges and hence he was tried
in S.C.No.28 of 2002 on the file of Additional Sessions Judge, Nagapattinam.
3.2. On behalf of the prosecution, 20 witnesses were examined. P.W.1
is the father of the deceased, who spoke about the accused taking the deceased
with him to the house of P.W.15, P.W.2 is the Village Administrative Officer,
P.W.4, the doctor who conducted post mortem, P.W.16 is the Head Constable, who
handed over the body of the deceased to P.W.4 for post mortem, P.W.17 is the
Sub Inspector of Police, who registered FIR, and P.W.20 is the Investigating
Officer, through whom documents referred to above were marked as Exs.P1 to
P.22 and Material Objects referred to above were produced and marked as M.Os.1
to 10.
4. When the accused was questioned under Section 313 Cr.P.C., after
the trial, he pleaded not guilty. However, the learned Additional Sessions
Judge, Nagapattinam, after appreciating the evidence on record, convicted the
appellant for the offence punishable under Section 36 6, 376, 302 and 201
I.P.C. and sentenced him to undergo 2 years rigorous imprisonment with a fine
of Rs.100/-, in default 3 months rigorous imprisonment for the offence under
Section 366 I.P.C., 10 years rigorous imprisonment with a fine of Rs.200/-, in
default 6 months rigorous imprisonment for the offence under Section 376
I.P.C., imprisonment for life with a fine of Rs.500/- in default six months
rigorous imprisonment for the offence under Section 302 I.P.C., and two years
rigorous imprisonment with a fine of Rs.100/-. In default 3 months rigorous
imprisonment, for the offence under Section 201 I.P.C. Hence, the above
appeal.
5. Mr.E.R.K.Moorthy, learned counsel for the appellant challenges the
conviction of the appellant as well as the sentence imposed on him on the
following grounds:-
(i)The case of the prosecution attributing and fixing the offence under
Section 366 I.P.C., as to the kidnapping of the deceased by the appellant is
highly contradictory, as P.W.1, the father of the deceased says that he
himself has sent his daughter along with the accused to the house of P.W.15;
and
(ii)P.W.4, the doctor who conducted postmortem on the dead body issued Ex.P10,
postmortem certificate, without giving any opinion about the cause of death
and whether the deceased was raped and only at the time adducing of evidence,
the doctor says that the deceased died due to shock and haemorrhage.
6. Mr.A.N.Thambithurai, learned Government Advocate (Criminal Side),
on the other hand, justifies the conviction of the appellant and also the
punishment imposed on him, as the same is based on the evidence of P.W.1 that
the accused alone has taken the deceased along with him to the house of
P.W.15, which is corroborated by the evidence of P.W.6, who saw the deceased
accompanying the accused and also the evidence of P.W.4, the doctor who
conducted postmortem , opining that the death was due to shock and
haemorrhage. The learned Government Advocate (Crl.Side) also contends that
the evidence of P.W.1 and P.W.6 is corroborated by the evidence of P.W.5, who
was present with P.W.1 in his house, when the accused took the deceased along
with him. 7. We have given a careful consideration to the
submissions of both sides.
8. Concededly, the presence of the deceased along with the accused on
the fateful day has been witnessed by P.Ws.1, 5 and 6, who have categorically
spoken about the deceased being taken by the accused. The master and servant
relationship between P.W.15 and the accused is also not disputed and there is
every chance of the accused having proximity with the deceased, who, thinking
that the accused will safely leave her in her grand father’s house,
accompanied him. However, the fact that the accused asked the deceased to
accompany him to the house of P.W.15 is not well established by the
prosecution, as P.W.1, in his evidence, has spoken to the effect that he
himself has sent his daughter/deceased along with the accused. Hence, the
offence under Section 366 is not made out. Accordingly, the accused is liable
to be acquitted from the said offence. However, the accused taking advantage
of the situation and the innocence and tender age of the deceased, indulged in
brutal rape and gruesome murder.
9. The case of the prosecution is not based on the direct evidence or
eye witness, but based on circumstantial evidence. Since every circumstantial
evidence is relied upon by the prosecution and have a probative link for a
safe conviction, the same must not only satisfy the test of reasonability, but
also confirmed on certainty. The circumstance relied upon in support of
conviction must, therefore, be fully established and the weight of evidence
furnished by those circumstances must be so complete. Therefore, the link in
the chain should be fully established to a conclusive nature but not on mere
suspicion to hold the accused guilty. In other words, all the circumstances
cumulatively taken together should lead only to the irresistible conclusion
that the accused alone is the author of the crime. Therefore, when the case
of the prosecution is based on circumstantial evidence, each and every
incriminating substance must be clearly established by a reliable and
clinching evidence and the circumstances must be proved from a chain of
evidence, from which only irresistible conclusion for the guilt of the accused
can be safely drawn. Hence, we are inclined to analyse the evidence
microscopically to satisfy ourselves as to the chain of the circumstances that
led to the only inference of the guilt of the accused without any break in the
link.
10. The evidence of P.Ws.1 and 15, father and grandfather of the
deceased, aged 10 years, speaks about the case of the prosecution that the
accused was working in the house of P.W.15, where the deceased girl Amulu
alias Kalaijyothi was staying to pursue her education in the school near
Pallivasal at Thiruvarur. The distance between the house of the deceased and
her grandfather P.W.15 is about + km. Deposing confidence in the servant,
both P.W.1 and P.W.15 used to ask the accused to take the deceased from the
house of P.W.15 and P.W.1 and vice versa. P.W.5 is the neighbour of P.W.1
living at four to five houses away from the house of P.W.1. As per the
evidence of P.Ws. 1, 5 and 15, the accused brought the deceased from the
house of P.W.15 on 24.3.2001 evening, bringing some kerosene and sugar at
about 7.30 p.m., when P.W.5 was present in the house of P.W.1, and after
handing over the kerosene and sugar, the accused took the deceased back to the
grandfather’s house, P.W.15, where she is ordinarily staying to pursue her
education. P.W.13 is a fisherman, who deposed that he saw the deceased
accompanied by the accused, was coming from the house of P.W.1, and when
enquired, she replied to P.W.13 that she was going to her grandfather’s house
P.W.15, to study. According to P.W.14 a fisherman, when he was fishing on
24.3.2001, he heard noise 100 feet away of something being thrown into the
water at about 8.15 p.m., and thought that someone had thrown the fishing net
into the water for fishing. After 15 minutes, when he was returning home for
his dinner, he saw the accused running towards western side wearing a wet
lungi. When he enquired the accused, he replied that he slipped into the
river while washing his legs. The evidence of P.Ws.6,7 and 8 would show that
they saw the body of the deceased floating on the river on the next day i.e.,
on 25.3.2001 at 6.00 a.m. The further evidence of P.W.8 is that, based on the
statement of the accused in the presence of P.W.8, the police recovered
M.Os.8,9 and 10, viz., lungi, shirt and jatti, which was marked under mahazar
Ex.P.7, which corroborates with the evidence of P.W.14, that he saw the
accused running towards western side wearing wet lungi. Of course, in the
cross examination, P.W.14 could not say the colour of the lungi, the accused
was wearing. P.W.14 explains that he could not see the colour of the lungi
due to the darkness and the explanation is convincing. The further evidence
of P.Ws.1 3 and 14, identifying the body of the deceased, corroborates with
the evidence of P.Ws.1,5,6,7,8 and 15 as to the truth that the deceased was
seen in the company of the accused, satisfying the last seen theory.
10.1. Then, what remains is as to the act of rape committed by the
accused on the deceased girl of 10 years age. The evidence of P.Ws.1,4,5 and
15 categorically proved that the deceased was a 10 years old girl. What is
more important is the postmortem certificate marked as Ex.P.10, which speaks
about the injury and the evidence of P.W.4, doctor who conducted the
postmortem. It is more apt to refer the relevant portion of the postmortem
certificate marked as Ex.P.10.
“Appearances found at the postmortem of a body of a female lying on its back:
Axillary and pubic hear not developed. Mammary glands not developed. There
were totally twenty four teeth, twelve in the upper jaw and twelve teeth in
lower jaw. Second molar teeth not developed.
External Injuries:
There was a tear of 1.5 cm in the 6’O clock position of the hymen. Abrasion,
swelling and blood stained discharge was seen at the edges of the tear.
Vagina freely admitted two fingers. There was no injury in the vagina.”
The above report will speak about the tender age of the deceased, who was
subjected to heinous crime of rape by the accused. The evidence of P.W.4, a
lady doctor, who conducted the postmortem, through whom Ex.P.10 was marked,
clearly shows that there was a tear of 1.5 cm in the 6’O clock position of the
hymen; abrasion, swelling and blood stained discharge was seen at the edges of
the tear and the vagina freely admitted two fingers. The above report of the
doctor is strengthened by the chemical analysis report of the viscera Ex.P.9,
in which it was opined that the deceased would appear to have died of shock
due to subarachnoid haemorrhage 18-21 hours prior to post mortem. The above
piece of evidence clearly shows that the deceased was brutally raped and due
to shock, the deceased breathed her last.
10.2. The evidence of P.W.9, who examined the accused as to the
potentiality of the accused, would clearly establish that the accused persists
enough to perform normal sexual intercourse and he is able to procreate.
11. From a closer analysis of these witnesses, a chain of following
circumstances lead to the only inference of the guilt of the accused.
i.The deceased, tender aged minor girl, viz., the daughter of P.W.1 and
granddaughter of P.W.15, was staying in the house of her grandfather P.W.15,
to pursue her education in a school near Pallivasal at Thiruvarur;
ii.the accused was working as servant in the house of P.W.15;
iii.deposing confidence in the accused, both P.W.15 and P.W.1, used to send
the girl to the house of P.W.1 and P.W.15 vice versa, accompanied by the
accused;
iv.on the fateful day, viz., 24.3.2001 evening, the deceased was sent in the
company of the accused, from the house of P.W.15 and P.W.1 with kerosene and
sugar and he reached the house of P.W.1 at 7.30 to 8.00 a.m., when P.W.5 was
present and after some time, the accused took the deceased back to the house
of P.W.15. Both the deceased and the accused were going to the house of
P.W.15;
v.P.W.13 enquired the deceased as to where she was going, to which she replied
that she is going to her grandfather’s house for studying;
vi.thereafter the body was found floating in the river, as seen by
P.Ws.1,5,6,7,8 and 15;
vii.the evidence of P.W.4, the lady doctor, who conducted postmortem, through
whom Ex.P.10 was marked, proves that the deceased, a tender aged girl, was
subjected to rape;
viii.the evidence of the doctor P.W.9 is that the accused is potential enough
to commit the crime of rape;
ix.the possibility of any person other than the accused being the author of
the crime becomes impossible when the accused was returning wearing wet lungi,
as spoken by P.W.13; and
x. the above chain of circumstances satisfy the last seen theory, since
the accused was seen last with the deceased and thereafter the deceased was
raped and found dead.
12. From the above facts, it is clear that each and every
incriminating circumstance was clearly established by a reliable and clinching
evidence and the chain of events discussed above irresistibly proves the guilt
of the accused for safe conviction as the same is not merely based on
suspicion or conjecture and every link stands satisfactorily proved and the
link between each of circumstantial evidence is in proximity to the time and
situation.
13. Of course, when the accused was questioned on the above aspect of
the prosecution case, his defence was a total denial and plea of ignorance.
The bald statement of the accused, either denying the evidence of the
prosecution, or pleading ignorance of the same, only proves his adamant
attitude of total denial and such false denial and plea of ignorance assume
importance as it would supply a missing link in the chain, if any, even though
nothing as such was pointed out by the learned counsel appearing for the
appellant.
14. In Kamta Tiwari -vs- State of Madhya Pradesh { 1996 (6) S.C.C.25
0}, where the deceased was aged about 7 years and the accused not only
brutally raped and but also killed her and thrown her body into a well, the
Supreme Court following the decisions in Bachan Singh v. State of Punjab AIR
1980 SC 898 and Machhi Singh v. State of Punjab, AIR 1983 SC 957, has held
thus,
“When an innocent hapless girl of 7 years was subjected to such barbaric
treatment by a person who was in a position of her trust, his culpability
assumes the proportion of extreme depravity and arouses a sense of revulsion
in the mind of the common man. In fine, the motivation of the perpetrator,
the vulnerability of the victim, the enormity of the crime, the execution
thereof persuade us to hold that this is a “rarest of rare” cases where the
sentence of death is eminently desirable not only to deter others from
committing such atrocious crimes, but also to give emphatic expression to
society’s abhorrence of such crimes.”
15. Hence, holding that the prosecution has proved its case beyond
all reasonable doubt, we are inclined to dismiss the appeal confirming the
order of conviction and sentence dated 5.3.2002 made in S.C.No.2 8 of 2002 on
the file of Additional Sessions Judge, Nagapattinam, however, with the
modification as indicated below.
i.The conviction and sentence imposed on the appellant for the offences
punishable under Sections 376(f), 302 and 201 I.P.C., is confirmed.
ii.The conviction and sentence imposed on the appellant for the offence
punishable under Section 366 I.P.C., is set aside.
iii.The sentences shall run concurrently, instead of consecutively as stated
in the order of conviction passed by the trial Court.
Index : Yes Internet : Yes KST/sl. To
1. The Additional Sessions Judge, Nagapattinam District.
2. The Inspector of Police,Thalai Gnayiru Police Station.
3. The Public Prosecutor, High Court, Chennai.