IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE [ENTITY] & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY ,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940 CRL.A.No. 805 of 2012 AGAINST THE JUDGMENT IN [SECTION] of IIND ADDL SESSIONS COURT, KOLLAM DATED 28-01-2012 AGAINST THE ORDER/JUDGMENT IN [CASE NUMBER] of J.M.F.C.-I, PUNALUR APPELLANT/ACCUSED: [ENTITY], S/O OMANA BABU, C.NO, 6897, CENTRAL PRISON, THIRUVANANTHAPURAM BY ADVS. [ENTITY] [ENTITY] [ENTITY] [ENTITY] RESPONDENT/COMPLAINANT: STATE OF KERALA, REP. BY C.I. OF POLICE, KULATHUPPUHA P.S, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADVS. [ENTITY] S, SPL.PP ATROCITIES AGAINST WOMEN & CHILDREN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5.09.2018, THE COURT ON 25.09.2018 DELIVERED THE FOLLOWING: [CASE NUMBER] -:2:- JUDGMENT
Shaffique, J.
This appeal is filed by the appellant/accused challenging the conviction and sentence passed by the Second Additional Sessions Judge, Kollam in [CASE NUMBER] in [CASE NUMBER] of the Judicial First Class Magistrate Court-I, Punalur, arising out of [CASE NUMBER] of the Kulathuppuzha Police Station.
2. There are two accused in the case. One of them was a juvenile-in-conflict with law (for brevity, 'juvenile') who was arrayed as second accused in the case. His case was dealt with as per the provisions of [ACT] and the first accused alone faced trial in this case.
3. After the trial, the accused was found guilty under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT] He was convicted and sentenced to undergo imprisonment for life for the offence under [SECTION] with a stipulation that he shall not be released till suffering thirty years of imprisonment. Rigorous imprisonment of ten years each was awarded for offences under [SECTION], [SECTION], [SECTION] and [SECTION] and a fine of `10,000/- each for all five offences and in default, one year imprisonment each.
4. The deceased [ENTITY] was aged about 8 years at the time of incident. She was the foster child of [ENTITY] (PW1) and [ENTITY] (PW2). The inhabitants of the colony, in and around the place of occurrence, were people displaced from the catchment area in connection with the Ecotourism Project at Thenmala. There were around 60 units of very close buildings built to rehabilitate them. The prosecution case is that, on 25/02/07, at or about 11.00 pm, the appellant herein along with a juvenile named [ENTITY], in furtherance of their common intention of kidnapping for sexual abuse and then to murder a minor girl [ENTITY], committed house trespass into the house of PW1 '[ENTITY]' where the minor girl child was sleeping along with her mother PW2 in the verandah area of the house, kidnapped the child and taken her away to a place near a 'vettimaram' and a 'paalamaram' (certain trees) situated at 'Pangalukadu Reserve Forest' within Anchal Forest Range and committed rape and carnal intercourse on her. Thereafter they murdered the victim by strangulating and by hanging with '[ENTITY]' (MO3) on the branch of a paalamaram.
5. Admittedly there are no eye witnesses in the case. Prosecution relied on circumstantial evidence to prove the case. Prosecution examined PWs 1 to 20 as witnesses, Exts.P1 to 24 including Exts.P1(a), P2(a), P4(a) and P5(a) were marked and Material Objects MO 1 to 9 including MO1(a), MO1(b), MO1(c) and MO4(a) to MO4(i) were identified.
6. Sri.[ENTITY], learned Counsel appearing on behalf of the appellant/accused argued that the accused has been roped in by the police to hide their failure to book the real culprit. The entire evidence put forward by the prosecution is confusing, self-contradictory and contradictory to each other. The prosecution miserably failed to prove beyond reasonable doubt that the appellant committed the crime and hence the appellant need to be acquitted. It is argued that the Sessions Judge relied on the following circumstances to find that appellant/accused is guilty. Firstly that the appellant/accused and the juvenile were seen by witnesses engaged in a conversation in the evening at the courtyard of the house of the appellant/accused which is situated near the house of PW1 till 10 p.m. and they were not available for searching the missing child though most of the people of the colony were searching for the child. Secondly, that the appellant/accused was thereafter found only in the morning and when questioned by the people, he explained that he had gone for second show which was not possible on that night after 10 p.m. Thirdly, that the appellant/accused gave information leading to the recovery of MO1(a) undergarment and MO1(b) thread worn by the child and fourthly that he gave information leading to recovery of MO6 series clothes alleged to be worn by him at the time of occurrence which contained bark particles of the tree on which the child was hung and fibres of the dhothi in MO6 series were found on the hands of the deceased child. The learned counsel argued that out of the four circumstances relied on by the Court below to convict the appellant, the first two need to be considered together to get the exact picture of the evidence. Prosecution relied on the oral testimonies of PW1, PW2, PW3, PW4, PW5 and PW12 to conclude in affirmation the above- said two circumstances. Two scene plans were prepared in this case. But the plan detailing the location of the houses of the deceased and the appellant were not prepared by the prosecution to suppress the truth from Court. PW19, the Investigating Officer deposed that PW1's house is 69.6m North-East to the house of the appellant. Evidence of the witnesses who have stated that appellant and the juvenile were seen conversing each other in front of the house of appellant need to be considered in the light of the said deposition of PW19. By any logic, it is not believable that PW1 saw the appellant along with the juvenile at 10 pm on the date of crime. He had no such case in his previous statement. It is nothing but an omission amounting to contradiction. It can be seen from the evidence that the witnesses including PW12 deposed in the same line. PW12 deposed for the first time in Court that he saw the appellant and the juvenile in front of the appellant's house by 9.30 pm on the date of incident. It shows the attempt on the part of the prosecution to create an occasion against the appellant to falsely implicate him in the crime.
7. It is seen from evidence that there is a pathway in between houses of appellant and PW1. The house in which PW1 was allegedly watching TV was 25m South of PW1's house. PW1 stated that he saw accused and the juvenile talking to each other, while proceeding to PW3's house to watch TV. From the nature and location of PW3's house, it is impossible to have such a view.
8. There were 60 houses in the colony settlement. There is no case that all people of the colony participated in the search. Merely for the reason that the appellant did not participate in the search, cannot be taken as a circumstance against the appellant.
9. PW3 deposed that he had seen the appellant coming along with his mother in the next morning. In 313 also, he explained that he was with his mother at that night. That version cannot be ruled out. The deposition that the witnesses saw the appellant in the morning under suspicious circumstance walking along the boundary road is not at all believable. Also there are serious discrepancies with regard to the time of seeing the accused in the versions of witnesses. It shows that their version is not worthy of credit.
10. It is alleged that the arrest of the appellant was on 27/02/2007. Recoveries were allegedly made on 28/02/2007. Detailed inquest was prepared prior to the recovery. Hence it can be seen that the said recoveries are fabricated. In fact, they were recovered from open space and no concealment can be attributed to them. No sanctity can be attached to the said recoveries. Chemical and forensic evidence based on said recoveries are also not credible as the recovery itself is fabricated. Blood stains were detected but no grouping was done. It is true that some are human blood. But others are not traceable. There is no evidence to show that blood stain belongs to the deceased child. No DNA test was conducted. There is no evidence to prove that MO6 series dress belonged to the appellant. Nobody identified them in Court. Even place and time of occurrence is not proved by the prosecution. Hence the benefit of doubt should go to the accused.
11. The learned Public Prosecutor Smt.[ENTITY] vehemently opposed the contentions raised by the appellant. According to her, this crime is the outpouring of the carnal cravings of two totally depraved minds. The victim in the case, an innocent girl child of eight years of age, at the time of incident, was sleeping in the veranda area of her house along with her foster mother. The accused along with the juvenile, kidnapped the child, took her to the forest area, committed rape and carnal intercourse on her. Thereafter, he murdered her by strangulation and her body was hanged on the branch of a Paalamaram.
12. It is contended by the Prosecutor that the entire prosecution case is believable and the case against the appellant is proved beyond reasonable doubt. It is evident from the deposition of PW2 that the deceased was sleeping with her on the day. At around 12 O' clock, she noticed that her child is missing. With hue and cry, she went to the house of PW3 where her husband was watching television. Following that, everybody in the locality started searching for the child. They reached the house of the appellant also. A pair of chappal was found outside the door of the house. The door was just kept closed without locking it. It was also found that mat was set in the room and a pillow was over it.
13. PW1 is the foster father of the deceased. He deposed that on the date of incident at 10 p.m. he saw the appellant and the juvenile standing in front of the house of the appellant, talking each other. PW12 also deposed that he saw the accused together at 09.30 p.m.
14. The learned Public Prosecutor emphasized that the witnesses in this case are rustic witnesses. It is too technical to expect from them depositions with precision as to the distance in feet or meters. It is to be noted that their evidence is consistent in its substance and hence reliable. When considering as a whole, their version and veracity need not be doubted.
15. Yet another circumstance pointed out by the learned Prosecutor is that both accused did not participate in the attempt of the neighbours in searching the missing child. It is clear from the depositions that they searched all houses of that colony. It is a settlement colony surrounded by a ring road. They could not search in the forest area because it was not possible to do so at that odd time. Next day, in the morning, appellant/accused was seen by many of the witnesses. Appellant was seen coming from the boarder road. It is immaterial whether appellant was seen by the witnesses at 7 am or 8 am. It is not the time that assumes importance but the fact that all of them saw the appellant in the next day morning is the crucial fact.
16. According to the Prosecutor, it is pertinent to note that when the people of the locality including PW4 enquired with the accused, their whereabouts on the previous night, they replied that they had gone for a second show film. Since they were seen together at 9.30 p.m and 10 p.m on the previous day, the people did not believe them as the cinema hall for the second show was far away from their place. It is in evidence that the local people kept the accused in detention and handed them over to police. The neighbours might have told to the police that they had suspicion about the appellant.
17. The appellant was arrested on 27/02/07. The kaily mundu used to strangulate the child on the paalamaram was the one used by the child to cover herself while sleeping. PW1 and PW2 identified the said mundu as MO3. Scalp hairs of the child were found at the place of occurrence and were collected from the place of hanging. It shows that the place of crime is somewhere near the tree on which the child was strangulated. The recovered articles were hidden at a place which was within the special knowledge of the accused. The area around the place of occurrence is part of forest area of Anchal Forest Division. Tall and medium sized trees and shrubs were there. The recovery of the items based on the disclosure statement of the accused and at his instance shows that the said recovery is credible and the accused is the person who hid them there from the sight of others. MOs were found hidden. All the parameters of [SECTION] recovery were complied with by the investigating agency. The witness to the mahazar admitted his signature and also deposed that he saw the accused taking and handing over to police, the recovered articles. Exts.P4, P3 and P5 were the recovery mahazars.
18. Ext.P20 report shows that in the clothes of the accused and in the skirt and undergarment of the child, semen was found. It is true that there was no DNA test conducted to prove that the semen was that of the accused. But it is not material considering the fact that appellant himself produced it and it was within his knowledge how semen appeared in his clothes.
19. Item number 7 is the bark particles taken from the bark of the tree on which corpus was hanged. Particles of the bark of the tree on which the minor girl was strangulated were found in the dress of the accused also. Item nos. 30 and 31 were the said dresses of the appellant. Item no.14 in the FSL Report is the frock of the deceased child. The same bark particles were found in the said frock also. Item No. 24 was the lunki with which the child was hanged. In that lunki also, bark particles were found. The fibres of the shirt of the appellant (Item no.5) were found matching with the fibres collected using cellophane tape from both the hands of the deceased child. Item No.9 is the blood stained fragmented leaves. In item no. 30, which is the dress of the appellant, similar fragments of leaves were found. These are strong scientific evidence and incriminating circumstance against the appellant herein. Scalp hair of the girl child was found throughout the place of occurrence. The broken bangles belonging to the minor girl was also collected from the scene of occurrence. It proves the fact that the rape, unnatural intercourse and the murder took place in and around the palamaram and vettimaram. The above evidence fix the place of occurrence beyond ambiguity. The learned Public Prosecutor relied on the decision of the Apex Court in [PRECEDENT] to substantiate the point that the accused cannot claim any benefit on the strength of a stale argument that in the absence of report regarding the origin of the blood, the accused cannot be convicted.
20. Learned Public Prosecutor further argued that the medical evidence proves the fact that the tender girl was ravished brutally. Human spermatozoa were found in vagina and vaginal smear. Spermatozoa found in the anal smear prove the commission of offence under [SECTION] of the [ACT] All the above mentioned circumstances prove beyond doubt the guilt of the appellant.
21. Coming to the evidence, it is revealed from the depositions of PW1 to 5 and 12 that the appellant/accused and the deceased were neighbours and the witnesses know them.
22. Ext.P6, the extract of admission register of deceased [ENTITY] is proved through PW11 the Head-Mistress of Government U.P. School, Kulathuppuzha and it shows that the date of birth of the deceased was 29.05.1998. It proves that the girl was aged only 8 years at the time of incident and was a minor.
23. The oral evidence of PW1, PW2 and PW3 when read together would show that the child was sleeping along with her foster mother PW2 and the minor girl was taken away by someone from the lawful custody of her parents at that odd hour by trespassing into their house.
24. PW1 and PW2 identified MO3 [ENTITY] which was used for covering the child while she was sleeping beside her on the date of incident.
25. The fact that on the next day morning the dead body of the child was found hanging on the paalamaram of the nearby forest area is undisputed.
26. Ext.P3 Inquest Report proved through PW6 and the depositions of PWs 1, 4, 5, 7 and 8 would show that the child was found hung on the branch of the 'paalamaram' using MO3 as ligature.
27. In Ext. P8 post-mortem certificate, altogether thirty three (33) ante-mortem injuries were noted by PW13 Dr. [ENTITY], Associate Professor of Forensic Medicine, Medical College Hospital, Thiruvananthapuram who conducted the autopsy of the deceased.
"1. Pressure abrasion (ligature mark) 19.5 cm long obliquely placed on the neck over and above the thyroid, cartilage and showed a discontinuity of 3 c.m on the left side of back. It was placed 5 cm below left ear (6.3 cm broad) with oblique grazing upwards and 6.5 cm below chin (2.2 cm broad) 5 c.m below right ear (4.5 cm broad and showed oblique grazing upwards at the lower most margin and 9 cm below occiput in the midline (3.5 cm broad). Subcutaneous tissue underneath showed contusion involving the whole length for a thickness of 0.6 cm. Clavicular ends of sternomastoid muscle on either side showed infiltration. Thyroid muscle on either side showed infiltration over an area of 1.5x0.8x0.3 cm. The other neck structures including muscles, vessels, hyoid bone and cartilages appeared intact and normal (see on flap dissection of neck under a bloodless field).
2. Abraded contusion 0.6x0.4 cm on the left side of neck, 0.8 cm behind the lobule of ear.
3. Abraded contusion 0.8x0.2 cm horizontal on the left side of neck, the inner end 2.5 cm below the lobule of ear and 5.5 cm outer to midline.
4. Curved abrasion 0.5x0.2 cm was seen on the back of left ear lobe 2.5 cm above lobule.
5. Contusion 4.5x0.5x0.2 cm involving the outer aspect of upper lip across the midline and 0.5 cm below to the lip margins (upper lip oedematous).
6. Healing abrasion with hypopigmented area with loosely adherent brown scab at places over an area of 4.5x2.5 cm on the back of right elbow.
7. Multiple superficial lacerated wounds over an area of 1.5x0.6 cm on the inner aspect, upper lip across the midline and 0.5 cm below to the lip margin (upper lip oedematous).
8. Healing abrasion with hypopigmented area with loosely adherent brown scab at places over an area of 4.5x2.5 cm on the back of right elbow.
9. Abrasion 0.3x0.3 cm on the right side of hip 1.5 cm outer to 1.5 cm below anterior superior iliac spine.
10. Abrasion 3 cm long, linear obliquely placed on the outer aspect of right thigh the upper front end 12.5 cm below anterior superior iliac spine.
11. Abrasion 1.5 cm long, linear, oblique, on the outer aspect of right thigh 2.5 cm below and parallel to injury No.9
12. Abrasion 4.5 cm long linear on the outer aspect of right thigh 0.3 cm below and parallel to injury No.10.
13. Abraded contusion 2x0.5x0.5 cm obliquely placed on the outer aspect of right thigh the upper outer end 1 cm behind the lower outer end of injury No.9.
14. Abrasion 2 cm long linear on the front of right thigh 14 cm above knee.
15. Abrasion 1.8 cm long linear, vertical on the front of right thigh the lower end 7 cm above knee.
16. Contusion 2.5x2.5x0.5 cm on the back of outer aspect of right knee.
17. Three abrasions 0.3 cm in length each vertical and parallel 0.4 cm, 0.5 cm and 90.4 cm apart on the inner aspect right leg, 6 cm below knee.
18. Abrasion 0.5 cm long, linear with convexity facing upwards on the inner aspect of right leg, 2.5 cm above the upper end of injury No.16.
19. Abrasion 1.8 cm long linear, obliquely placed on the inner aspect of right leg, the lower outer end 11 cm above ankle.
20. Abrasion 1.8 cm long linear almost horizontal on the inner aspect of right leg 10 cm above ankle.
21. Abrasion 0.8 cm long linear on the inner aspect of right leg 12.5 cm above ankle. Injury Nos.18 to 20 were covered with adherent brown scab.
22. Contusion 1.5x1x0.3 cm on the front of outer aspect of right leg 3 cm above ankle (brown in colour).
23. Contusion 1.5x1x0.5 cm on the outer aspect of left leg, 8 cm above ankle.
24. Abrasion 1.8 cm long, linear on the front of left leg 10 cm above ankle.
25. Contusion 0.8x0.3x0.3 cm on the outer aspect of left thigh 10 cm above knee.
26. Multiple small abrasions over an area of 5x0.8 cm on the back of left thigh 8 cm above knee.
27. Contusion 4.5x4x1 cm involving the mesentery 5.5 cm below the upper end.
28. Contusion of whole or hymen 3.1x1.1x0.3 to 9.5 cm with irregular multiple lacerations.
29. Laceration 1.5x0.3 cm superficial, vertically placed on the outer aspect of labia minora 0.5 cm, outer to the inner margin and 1 cm below the ciltoral end.
30. Superficial lacerated wound 2x0.3 cm superficial and vertical on the outer aspect of right labia minora, 1 cm outer to inner margin and 0.8 cm below the elitoralend.
31. Contusion of whole of labia minora on either side.
32. Contusion 1x0.5x0.3 cm involving the fourchette.
33. Contusion 3.5x2.5x0.3 cm on the tip of tongue."
28. According to PW13, injury no.1 with internal effect caused the death and the said injury was sufficient in the ordinary course of nature to cause death. It is her opinion that all the injuries found on the body of the child taken together, except the healing one, are suggestive of the child being physically and sexually abused and then murdered. She identified MO3 as the pieces of ligature and deposed that injury no.1 is possible by using MO3 as a ligature. She further deposed that injury nos. 32 and 33 are suggestive of partial penetration in an attempt of rape. She also stated that she had noted anal patulous margin showed scaring and denudation of epidermis and it would have been due to recent overt acts.
29. The materials collected from the body of the child at the time of inquest, materials recovered at the instance of the accused and the materials collected during post-mortem examination were sent for expert opinion to the Forensic Science Laboratory and Chemical Examiner to the Government.
30. Ext.P20 report from the FSL shows that human spermatozoa were found on MO1 frock of the victim (Item No.14 in report) and semen was found on MO1(b) underwear (Item No.27) of the child. The above circumstances when read together with Ext.P20 report and Ext.P8 post-mortem report would establish beyond doubt that the death of the little girl was a murder after subjecting her to rape and carnal intercourse against the order of nature.
31. The main contentions raised by the learned counsel for the appellant, in brief, are that the versions of the prosecution witnesses are not believable and they improved their versions in the Court. Their versions are full of material omissions and contradictions. Also, the recoveries alleged to be effected by the Investigating Officer are planted recoveries and are fabricated. The report prepared based on the said recoveries should also be rejected as it is unworthy of credit. According to him, there is no scientific evidence to prove that the semen and spermatozoa found on the body of the child and on her dress was that of the appellant. It is also not proved that the semen and spermatozoa found on item no. 32 underwear in MO6 series is of the appellant. The materials collected at the time of inquest were not sealed properly. Moreover there is undue delay in producing the material objects before the Court. Blood grouping is not done. No DNA test was conducted. Learned counsel for the appellant contended that the best scientific evidence is unavailable in this case. Prosecution failed to prove their case beyond reasonable doubt. The trial Court erred in appreciating the evidence and grave injustice was caused to the appellant as he was convicted based on surmises and conjectures.
32. The scientific evidence produced by the prosecution inter alia are as follows:
(i) PW8, the Scientific Assistant deposed that he collected MO4 series materials from the place of occurrence at the time of inquest and entrusted it to the Investigating officer.
(ii) It is the version of the Investigating officer that the appellant had given the information leading to the recovery of MO1 series of dress of the victim child and MO6 series of dress worn by the accused at the time of committing crime.
(iii) Under Ext.P2 recovery mahazar, the I.O. had seized MO2 glass bangle pieces and in the FSL report, those pieces were found similar to pieces of bangles which were seized under Ext.P3 inquest report and are identified by PW8. In Ext.P21, these items are mentioned as 18 and 25.
(iv) During inquest, a blood-stained leaf was also collected as item no.9. The report says that in item no. 30, which is the [ENTITY] of the accused also fragments of leaves similar to those found in item no. 9 is detected.
(v) Item nos. 5 and 6 in the report are the cellophane tape used by PW8 to collect materials from the foot and hands of the child at the time of inquest. The report says that item nos. 5 and 6 contained fibres similar to those in item no. 31 shirt of the accused.
(vi) Item no. 7 in the report is the bark particles collected from the branch of paalamaram on which the child was found hanging. The report concludes that item no. 30 and 31 belonging to the accused contained bark cells similar to those in item no. 7.
(vii) Ext. P21 report of Scientific Assistant (Physics) shows that the item nos. 30 to 32 contained soil particles similar to item nos. 12, 25 and 26 which are samples collected from the scene of crime. The same particles are found in item nos. 1 to 6 which are soil and dust particles collected from the body of the child.
(viii) As per Ext.P22 report of Assistant Director (serology), blood was detected on item nos. 30 to 32 belonging to the accused but origin was not traceable.
(ix) In Ext. P24 series report dated 27/10/2011 prepared by Joint Chemical Examiner to Government, it is shown that human semen spermatozoa was detected in the vaginal swabs, vaginal smears, anal swab, anal smears, cervical swab and cervical smears of the child.
(x) The FSL report shows that there is presence of semen and human spermatozoa on MO1 and MO6 series of dress materials which were recovered on the information and at the instance of the appellant and that information was within the special knowledge of the appellant. Ext.P20 report of Joint Director (Research) of FSL shows that item no. 30 [ENTITY] and item no. 32 underwear of the accused contained human spermatozoa and semen.
33. The above reports when read along with Ext.P3 Inquest Report, Ext.P8 post-mortem certificate and depositions of witnesses conclude the place of occurrence beyond ambiguity as places at or near the two trees i.e., vettimaram and paalamaram in Pangalukadu Reserve Forest within Anchal Forest Range.
34. Defence has no case that the Investigating Officer has any grudge against the appellant. Neither do they have such a contention about prosecution witnesses generally nor PWs 3, 4 and 12 particularly. All these witnesses deposed that the appellant and the juvenile were not available for searching the missing child. Discarding the minor omissions and contradictions, PWs 3, 4 and 12 who were in the search party deposed that the front room of the house of the appellant/accused was found not locked and a mat was spread on the floor with a pillow over it. A match box and beedi were also found near the pillow. A pair of chappal too was found outside the door. These evidence point to the fact that the appellant and the juvenile were not available for the search of the missing child and at the relevant time, the appellant was not found in his house. The depositions of PW1, PW3, PW4 and PW12 show that the next day morning i.e., on 26/02/07, they saw appellant/accused. Regarding time of meeting him, there are different versions. The only thing that can be drawn from these depositions is that the appellant was found by the witnesses in the morning and he was detained by the local people in his house owing to suspicion and he was handed over to police. Their depositions further show that the people of the locality including the above witnesses questioned the appellant/accused and the juvenile on the incident and they replied that they had gone for a second show movie. It is the version of the prosecution that this statement strengthened the suspicion of the local people as both of them were seen together by PW12 at around 09.30 p.m. and by PW1 at around 10.00 p.m. in front of the courtyard of the appellant's house.
35. The statement of the appellant/accused under [SECTION] of the [ACT], when the above evidence was put to him, assumes relevance here. He deposed that he, a married man with children, was at his parental house. As rightly found by the trial Court, it is an admission that he was not in his house which was situated near to the house of the deceased at the relevant period of time. The minor discrepancies in the depositions of these rustic witnesses as to the time of seeing the appellant etc especially after many years of the incident is of no effect on the credibility of their version. It shows that the deposition is rather natural and points to the absence of tutoring. It is true that the suspicion of any number of people however strong it may be, cannot take the place of evidence. But in the light of the facts and circumstance of the case at hand, it is difficult to take a view that the people of the locality would agree together to falsely implicate accused who themselves are inhabitants of their colony and let go the real culprits or purposefully mislead the investigating agency from booking the offender, especially when an innocent girl in their locality was devilishly ravished and murdered and hanged.
36. Ext.P16 series arrest memo, remand application and custody memo shows that formal arrest of the accused was recorded on 27/02/07 at 07.00 p.m. It is the version of the Investigating Officer that the accused had given the information leading to the recovery of (1) MO1 series of dresses belonging to the child for which Ext.P2(a) is the disclosure statement and Ext.P2 is the recovery mahazar to which PW4 is an attester and (2) MO6 series of dresses belonging to the appellant for which Ext.P4(a) is the disclosure statement and Ext.P4 is the recovery mahazar to which PW9 is an attester. PW2 identified MO1 series and PW9 identified MO6 series as the items recovered. MO1 (a) and (b) were identified by PW1 as that of the child. Admittedly, the locality is a forest area. It cannot be treated at par with other places where there is more inhabitation. Unlike the argument of the learned counsel for the appellant, the place from where the recovery was affected cannot be considered as a place to which the public had easy access. The fact that the accused was the person who pointed out MO6 series from the bushes of cane is clearly established by the prosecution. Considering the peculiar surrounding of the locality, it is not improbable that the appellant left the place naked after commission of the crime.
37. PW13 Dr. [ENTITY] opined that the child might have become unconscious due to the overt act and thereafter hung using MO3 ligature. The injuries 22 to 25 noted in Ext.P8 are possible during an act of forcible taking hold of the victim. It is her version that injury no. 7 is possible only by a deep pressure on the abdomen. As per Ext.P9 certificate proved through PW14 Dr. [ENTITY] of Taluk Hospital, Punalur, the appellant, on examination by her on 28/02/07 at 03.45 p.m, was found to be capable of performing sexual act.
38. Learned counsel for the appellant also contended that there is lapse on the part of the investigators in making sure that the samples were properly collected and sealed. They reached the Court after much delay and hence it is fabricated and should not be accepted in evidence. We don't agree with this argument. PW19, the Investigating Officer deposed that he carried out the inquest and a report was prepared (Ext.P3). PW8, Dr. [ENTITY] stated that on 26.02.07 while he was working as Scientific Assistant attached to District Crime Records Bureau, Pathanamthitta, assisted PW19 to collect materials from the scene of occurrence. PW8 identified MO4 series as the items he had collected from the scene of occurrence and entrusted with the I.O Ext.P12 is the property list. The MOs were sent for examination to FSL by Ext.P19 copy of the forwarding note. Exts.P20 to P22 are the reports from FSL. The above-mentioned discrepancies would show that they are more probable to be the result of handicap in the investigation, not necessarily the result of an attempt for fabrication. It is evident from the available records that the accused was in custody. If attempt was made for fabrication, it would naturally be to close all the possibility of the exit doors of the accused. At any rate, it is difficult to take a view in this case that the Investigating Officer herein caused the fibres of the MO6 shirt of the accused lifted on the cellophane tape subsequently and manipulated evidence so that it may be matched with the thread found and collected from the hands of the victim girl. The evidence adduced in this case proves beyond reasonable doubt that the unfortunate minor girl was kidnapped from the lawful guardianship of her foster parents by the accused, and the intention of which was proved by the subsequent brutal rape and unnatural intercourse on the person of the deceased girl and she was ultimately strangulated to death without mercy. The evidences discussed above unerringly point to the guilt of the accused and they negate the hypothesis that he is innocent. Any imagination beyond this is wild enough to bury justice and further injustice. Courts of law are supposed to entertain only reasonable doubt, not scepticism or incredulity.
39. According to the Prosecutor, this is a fit case for awarding capital punishment as the attending circumstances and the brutality of the culprits rightly brings it to the 'rarest of the rare' category as declared by the Supreme Court in [PRECEDENT]. According to the learned Prosecutor, though there is no State appeal for enhancement of punishment, this Court has ample powers to enhance the punishment and award sentence to the offender in the interest of justice. Life imprisonment means imprisonment for the remainder of the life of the person so convicted. Remission is by way of Government decision and as per the provisions of [ACT] and [ACT] in appropriate cases, punishment can be enhanced so as to do complete justice. She relied on the decision of the Apex Court in State of Bihar v. [ENTITY] and Ors. (2018 (58) BLJR 767) to show such an instance where the Apex Court enhanced the punishment awarded to the accused to 20 yrs from 14 years.
40. It is settled law that when the Court directs that the accused shall be imprisoned for life, it means imprisonment for the full span of life ([PRECEDENT] and [PRECEDENT]). However, every accused has a right to seek remission after a period of 14 years and the said right is statutorily recognised. The Apex Court however observed that in instances where extreme penalty of law should be imposed in respect of offences involving cruel acts, to give lesser punishment would be to render the justice system of the country with suspicion, the common man will lose faith in the courts. The issue had been dealt with by the Apex Court in Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka [(2008) 13 SCC 767]. That was a case in which a death sentence was granted and the Apex Court observed that in the nature of the crime, a sentence of 14 years may be grossly disproportionate or inadequate calling for sentence beyond 14 years or imprisonment for the full life. As rightly pointed out by the learned Public Prosecutor, in [ENTITY] (supra) also, in an instance where life imprisonment had been granted, the Apex Court observed that 14 years imprisonment would be insufficient and it ought to be enhanced to 20 years. In this case, the Court below having taken note of the fact that a minor girl had been brutally raped, murdered and hanged felt that the accused should not be let free for a period of 30 years. No doubt, we also feel that taking into account the gruesome nature of the crime, the Court below was justified in taking such an approach. Apparently, jurisdiction is not vested with the Sessions Court to direct that the Government shall not consider the remission application of the accused for a period of 30 years. But it is well within the power of this Court to direct the Government not to consider remission for a considerable period. Though there is no appeal by the Government, in so far as the Court below had issued sans power, a direction that he should suffer imprisonment for 30 years, there is no difficulty for us to modify the said sentence and issue appropriate directions to ensure that he is not released from the prison for a specified period.
41. In the result, we sustain the conviction and sentence imposed on the accused and direct that no remission shall be given to the accused/appellant for a period of 30 years.
Appeal is dismissed.
[ENTITY] JUDGE Sd/-
[ENTITY] True Copy JUDGE PS to Judge