Case: SUBRAMANI Vs. STATE BY INSPECTOR OF POLICE

1. The appellant in this appeal was charged for offences punishable under sections 302 and 376 for having committed the rape and murder of one Vaishnavi on 15th January, 1996. The learned sessions judge, south Arcot Vallalar division, Cuddalore, after trial found the accused guilty of offence charged against him and convicted him u/s 302 IPC and sentenced him to undergo imprisonment for life. He also found him guilty of offence punishable u/s 376 IPC, he sentenced him to undergo rigorous imprisonment for 10 years. On appeal the High Court of judicature at Madras has confirmed the said conviction and sentence and it is against the said conviction the appellant is before us in this appeal. 2. The brief facts necessary for the disposal of this appeal before us is that on 15th January, 1996 at about 5.30 p.m. while PW-2 Kamalakannan was returning from the agricultural field in which he was working, he found the dead body of Vaishnavi with injuries all over her body in a channel near a tamarind tree. He proceeded to the village and informed his elder brother PW-3 about the finding of the dead body of Vaishnavi who in turn approached PW-1 who is the brother-in-law of the deceased and informed him of the same. It is the prosecution case that on hearing of the incident, PW-1 and other villagers went to the spot and found the dead body of Vaishnavi with injuries on her body and nail marks on her neck and other injuries which showed that she was also sexually assaulted. At that point of time, it is stated that PWs. 5, 6 and 7 informed PW-1 that they had seen the accused around 2.15 p.m. near the tamarind tree where about the dead body was found. Having come to know of the same PW-1 approached the hose of the accused but could not find him in the house Thereafter PW-1 went to Panruti police station where he lodged the complaint about the incident which was recorded by PW-14 and after registering the FIR, said PW-14 came to the spot and conducted spot rnahazar and on next morning recorded the statement of PWs 4.5, 6 and 7. During the safe investigation, he came to know that on 15th January, 1996 PWs 5 and 6 when they were travelling in a bus, had seen the accused at the spot where the deceased was playing. It is the further case of the prosecution that the presence of the deceased at the spot was also noticed by PW-4 who is a young girl of 14 years age and who on being invited by the deceased played with the deceased till about 2.00 p.m.. Prosecution further alleges that PW-7 while passing through the said place had also seen the accused sitting near the place where deceased was playing. The further case of the prosecution is that PW-7 that afternoon when he was returning back at about 2.30 p.m. saw the accused at the same spot and the accused requested PW-7 to give him lift in his cycle which was refused by PW-7 on the ground that the accused was drunk. It is based on these facts PW-14 arrested the accused on 21.1.1996 and on an information given by the accused a bag containing tools used for masonry work and two lungis which contained blood stains were recovered. 3. It is based on the evidence of PWs. 4. 5, 6 & 7 and the recovery of blood stained lungi and the non explanation or the accused as to what happened after he was last seen with the deceased, the courts below held the appellant guilty as charged. 4. In this appeal before us, the learned counsel for the appellant contended that the evidence of prosecution is solely based on circumstantial in nature and the prosecution having tailed to prove all the circumstances beyond reasonable doubt, same should not be accepted. It is also contended that the evidence of PWs.5 and 6 that they had stated that they had seen the accused while travelling in the bus which is very artificial, hence, should not be accepted. In regard to evidence of PW-4. learned counsel contends that if really PW-4 had seen the deceased with the accused person she would have mentioned the same to PW-1 and others which she did not do, therefore, her evidence is also doubtful. It is also contended that evidence of PW-7 is likewise doubtful and the blood stains in the lungi of the accused having not been proved to be of same blood group as that of the accused even the recovery will not help the prosecution, therefore, the appellant is entitled to be acquitted. 5. We have considered the arguments of the learned counsel and pursued the records. We do notice the fact that the prosecution case is based on circumstantial evidence. The circumstances relied on by the prosecution are- (i) Accused was seen on the fateful day standing near the place where the deceased was playing. (ii) She was never seen alive thereafter. (iii) Her body was found at place close to the spot where both deceased and accused were last seen together. (iv) The body of the deceased contained number of injuries some of which were bleeding injuries. (v) Accused was not seen in his house or the village after the incident. (vi) Accused had no acceptable explanation for his absence. (vii) Accuseds lungi contained blood and he had no explanation for the same. (viii) Accused had no explanation for when and in what circumstances he separated company of the deceased. 6. We will now analyse whether the prosecution has proved beyond reasonable doubt whether the above circumstances have been established, and if so a reasonable inference could be drawn from such proved circumstances that the accused and the accused alone was guilty of the charge of murder leveled against him. 7. The prosecution from the evidence of PWs.4 to 7 in our opinion has established the afternoon of 15.1.1996 deceased Vaishnavi was playing near the tamarind tree and the accused was standing close by which is spoken to by PW-4 who is also a girl of almost the same age as that of the deceased. She has stated that she played with the deceased for sometime. Almost about the same time PWs.5 and 6 were travelling in a bus which passed the place where tamarind tree was, also noticed the deceased playing near the tamarind free and the accused standing there. Similar is the evidence of PW-7 who says when he passed through that place, he saw the deceased and the accused and on return the deceased had asked for a ride in his cycle which he refused. From this evidence it is clear that the accused was the only person who was last seen near Vaishnavi when she was alive. Learned counsel for the appellant has of course pointed out certain discrepancies in the evidence of those witnesses mainly pertaining to then on mentioning of the name of the accused in the complaint even though PW-1 was told about accuseds presence at the place when deceased was playing. We do notice this omission but as contended on behalf of the State it is very much possible that at that point of time though it had come to the knowledge of PW-1 that the accused was last seen near about where the deceased was playing, he might not have thought that accused would have committed such a ghastly crime, this omission does not in any manner discredit the evidence of PWs.4 to 7 that they did see the deceased alive at a point of time when accused was standing close to her and that she never seen alive thereafter. Therefore we think the courts below were justified in coming to the conclusion that from the evidence of PWs.4 to 7 the prosecution has established that the deceased and the accused were found at the same spot in the afternoon of 15.1.96. It goes unchallenged that the deceased was never seen alive thereafter and her dead body was found from a place close to where she and the accused were found by PWs.4 to 7. 8. The fact that the deceased met with a homicidal death which is primarily caused by strangulation and also because of other injuries suffered by her including to her private parts and that she was raped is not challenged before us. The defence of the appellant has been one of total denial. The prosecution having proved beyond doubt that the appellant was found in the company of the deceased in the afternoon of 15.1.1996 the burden shifts to the accused to prove when and in what manner he parted company with her since she was never seen alive thereafter. In our opinion that burden has not been discharged by the accused. As noted above and as seen from the mahazar deceased had suffered bleeding injuries and the lungis seized by the investigating agency from the accused contained blood stains. The serologist has opined that the blood stains are of human being but was not able to establish the blood stains are of human being but was not able to establish the blood group. As noted above, learned counsel for the appellants had contended in the absence of such identification of the blood group the stains found on the lungi would not in any manner inculpate the accused in the crime. We do not think this argument can be accepted. The accused has admitted that the lungi belongs to him and was seized from him, for that matter he says he gave the lungi to the investigating officer but he has not explained how the blood stains which are at least proved to be human blood came to be there on the lungi. The absence of any explanation in this regard would only strengthen the prosecution case that blood must have stained the lungi at the time of the attack on the deceased. It is also to be noted from the conduct of the accused immediately after the incident in question he disappeared from his house and the village, and in regard to this disappearance also no satisfactory explanation has been given. It is also to be noticed that no motive whatsoever has been attributed to the prosecution witness PWs.4 to 7 to falsely depose against this accused. These factors coupled with the fact that the appellant has failed to give any explanation as to how and when he parted company with the deceased, in our considered opinion leads to the one and the only conclusion that the charged of rape and murder of Vaishavi leveled against the appellant stands proved.

Decision:
0[ds]5. We have considered the arguments of the learned counsel and pursued the records. We do notice the fact that the prosecution case is based on circumstantial evidence. The circumstances relied on by the prosecution are-(i) Accused was seen on the fateful day standing near the place where the deceased was playing.(ii) She was never seen alive thereafter.(iii) Her body was found at place close to the spot where both deceased and accused were last seen together.(iv) The body of the deceased contained number of injuries some of which were bleeding injuries.(v) Accused was not seen in his house or the village after the incident.(vi) Accused had no acceptable explanation for his absence.(vii) Accuseds lungi contained blood and he had no explanation for the same.(viii) Accused had no explanation for when and in what circumstances he separated company of the deceased.7. The prosecution from the evidence of PWs.4 to 7 in our opinion has established the afternoon of 15.1.1996 deceased Vaishnavi was playing near the tamarind tree and the accused was standing close by which is spoken to by PW-4 who is also a girl of almost the same age as that of the deceased. She has stated that she played with the deceased for sometime. Almost about the same time PWs.5 and 6 were travelling in a bus which passed the place where tamarind tree was, also noticed the deceased playing near the tamarind free and the accused standing there. Similar is the evidence of PW-7 who says when he passed through that place, he saw the deceased and the accused and on return the deceased had asked for a ride in his cycle which he refused. From this evidence it is clear that the accused was the only person who was last seen near Vaishnavi when she was alive. Learned counsel for the appellant has of course pointed out certain discrepancies in the evidence of those witnesses mainly pertaining to then on mentioning of the name of the accused in the complaint even though PW-1 was told about accuseds presence at the place when deceased was playing. We do notice this omission but as contended on behalf of the State it is very much possible that at that point of time though it had come to the knowledge of PW-1 that the accused was last seen near about where the deceased was playing, he might not have thought that accused would have committed such a ghastly crime, this omission does not in any manner discredit the evidence of PWs.4 to 7 that they did see the deceased alive at a point of time when accused was standing close to her and that she never seen alive thereafter. Therefore we think the courts below were justified in coming to the conclusion that from the evidence of PWs.4 to 7 the prosecution has established that the deceased and the accused were found at the same spot in the afternoon of 15.1.96. It goes unchallenged that the deceased was never seen alive thereafter and her dead body was found from a place close to where she and the accused were found by PWs.4 to 7.8. The fact that the deceased met with a homicidal death which is primarily caused by strangulation and also because of other injuries suffered by her including to her private parts and that she was raped is not challenged before us. The defence of the appellant has been one of total denial. The prosecution having proved beyond doubt that the appellant was found in the company of the deceased in the afternoon of 15.1.1996 the burden shifts to the accused to prove when and in what manner he parted company with her since she was never seen alive thereafter. In our opinion that burden has not been discharged by the accused. As noted above and as seen from the mahazar deceased had suffered bleeding injuries and the lungis seized by the investigating agency from the accused contained blood stains. The serologist has opined that the blood stains are of human being but was not able to establish the blood stains are of human being but was not able to establish the blood group. As noted above, learned counsel for the appellants had contended in the absence of such identification of the blood group the stains found on the lungi would not in any manner inculpate the accused in the crime. We do not think this argument can be accepted. The accused has admitted that the lungi belongs to him and was seized from him, for that matter he says he gave the lungi to the investigating officer but he has not explained how the blood stains which are at least proved to be human blood came to be there on the lungi. The absence of any explanation in this regard would only strengthen the prosecution case that blood must have stained the lungi at the time of the attack on the deceased. It is also to be noted from the conduct of the accused immediately after the incident in question he disappeared from his house and the village, and in regard to this disappearance also no satisfactory explanation has been given. It is also to be noticed that no motive whatsoever has been attributed to the prosecution witness PWs.4 to 7 to falsely depose against this accused. These factors coupled with the fact that the appellant has failed to give any explanation as to how and when he parted company with the deceased, in our considered opinion leads to the one and the only conclusion that the charged of rape and murder of Vaishavi leveled against the appellant stands proved.