IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.4.2008 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.792 of 2007 Kumar .. Appellant Vs. State rep. by Superintendent of Police Salem District Salem. .. Respondent ----- Appeal against the judgment dated 30.7.2007 made in S.C.No.56 of 2004 on the file of learned I Additional Sessions Judge, Salem. ----- For Appellant : Mr.K.V.Sridharan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- J U D G M E N T P.D.DINAKARAN,J. I – PROLOGUE Seldom, criminal trials bring before us persons, who are accused of acts of quivering barbarity. One such act is the offence of rape, which was more in tune with tribal society, and is in existence even now and calls for stringent punishment. This case is even more dreadful as the offence of rape was committed by the accused on his own sister-in-law, and the situation became much more worse, as the sister-in-law of the accused as well as her tiny tot, a thirteen months old girl baby were charred. II – CHARGE 2. The above-said ghastly incident was said to have taken place on https://hcservices.ecourts.gov.in/hcservices/ 15.8.2003 within the jurisdiction of Yercaud Police Station. This horrifying issue, stimulated the Superintendent of Police, Salem District, P.W.31 to undertake investigation by himself and to register an FIR in Crime No.350 of 2003, initially for an offence punishable under Section 304-B, IPC, which was subsequently altered, pursuant to which the appellant was tried and thereafter, convicted and sentenced to undergo (i) seven years rigorous imprisonment with fine of Rs.5,000/-, in default, on year rigorous imprisonment for having committed the offence of rape on the deceased mother under Section 376, IPC; (ii) life imprisonment with fine of Rs.10,000/-, in default, one year rigorous imprisonment for having murdered the deceased mother and 13 months old girl baby under Section 302 (2 counts) IPC; (iii) two years imprisonment with fine of Rs.1,000/-, in default, one month rigorous imprisonment for having poured kerosene on the mother and 13 months old baby and set them on fire in order to screen the offence under Section 302 read with 201 (2 counts), IPC; and (iv) seven years rigorous imprisonment with fine of Rs.2,000/- in default, one year rigorous imprisonment for having caused criminal intimidation to P.W.2 under Section 506(2), IPC. III – THE CASE OF THE PROSECUTION 3. The prosecution case, as unfolded from the evidence, runs thus: 3.1. P.W.1, Chandrabose is the brother of the deceased. He deposed that the deceased was married to one Thiruselvam and she was living with her in-laws and brother-in-law as a joint family; after one year, the deceased gave birth to a female child; she was tortured to bring money from her parents to take care of her baby; after five/six months, she was tortured to bring money to redeem her jewels which were kept by them for the house expenses and therefore, she went to another brother's house at Yercaud and stayed there for 15 days; the father-in-law took her back assuring that it would not happen in future; two months prior to the date of occurrence, she called him over phone and stated that she was asked by her husband to bring Rs.10,000/- to live separately; she was repeatedly asking for the money since he could not arrange it immediately; on the date of occurrence, at about 2 pm, she called him over phone and enquired about him and asked him to bring money immediately; since she disconnected the phone immediately, he tried to contact her, but he could not; at once, he tried his elder brother and spoke to his sister-in-law P.W.3; he informed P.W.3 about the call by the deceased and asked P.W.3 to visit the place of the deceased and to inform him; at about 3.30 pm, his elder brother called him and informed that the deceased and her baby died due to burn injuries; he went to Yercaud at about 7 pm; he went and lodged a complaint Ex.P1 at Yercaud Police Station; after one week, it was published in the newspaper that the deceased had not committed suicide, but it was a murder; at that time, he was informed by P.W.3 that the deceased had stated to P.W.3 that the conduct of the accused towards her was not good and asked her not to inform her brothers to avoid consequences; his elder brother https://hcservices.ecourts.gov.in/hcservices/ slapped P.W.3 for not informing him about the accused; on seeing the news article, he got a doubt as to why the deceased disconnected the call immediately on the date of occurrence; he informed the same to P.Ws.30 and 31 and also gave a copy of the telephone bill issued in the name of his owner, Ex.P2. 3.2. P.W.2, Selvi, Noon Meal Assistant, is a neighbour of the deceased. According to her, on the date of occurrence, she returned from the school at about 1.15 pm and was having lunch; around 1.30 pm, the accused called her and asked for little kerosene to clean the machine; since she was having lunch, she gave a 10 litres can containing 6/7 litres of kerosene; after ten minutes, the accused, who was standing at the back side of his house, called her; thinking that he would be returning the kerosene can, she went to his house; she was called inside the house where she noticed the deceased and her child were lying unconscious in the kitchen; when she asked the accused, he informed her that when he embraced the deceased, she did not accept and therefore, he hit on her head with conventional roti roller (for brevity, "poori kattai"), M.O.11 and hence, she fell unconscious and thereafter, he quenched his thirst by having intercourse with her; he wanted to create a scene as if the deceased committed suicide; then, he fisted the child, who was playing, on her face; he laid down the child near her mother; he caught hold of her neck and threatened her not to reveal to anybody, otherwise he would do away with her; he asked her to make call to P.W.1 and to talk like the deceased; he dialled the number and asked her to put her saree pallu on the mouth piece of the receiver; as tutored by the accused, she spoke to P.W.1 like the deceased and enquired him; she stated that she had been tortured for money and asked him to come within one hour, otherwise she would die; thereafter, she immediately disconnected the call; she was again threatened by the accused not to reveal the occurrence to anybody or otherwise, she would be done away in the same manner and her children would become orphans and asked her to leave the place; later, she left the place and returned to the house of the accused around 4pm, when she noticed the deceased and her child burnt and lying in the hall; she was shocked on seeing the deceased and the child burnt by the accused using the kerosene given by her; she was fearing that she may also be done to death in the same manner, she did not reveal anything about the occurrence to Revenue Divisional Officer, P.W.17; however, on 17.8.2003, when P.W.30 enquired, she informed everything; she also informed P.W.31 about the occurrence on 19.8.2003; she gave a statement, Ex.P14 under Section 164, Cr.P.C. before the Magistrate, P.W.15 on 25.8.2003. 3.3. As per the deposition of Mariyayee, P.W.3, sister-in-law of the deceased, there was a dowry demand by the family members of the deceased; after the deceased gave birth to a female child, she was tortured to bring money from her parents to take care of her baby; after five/six months, she was tortured to bring money to redeem her jewels which were kept by them for the house expenses and therefore, she went https://hcservices.ecourts.gov.in/hcservices/ to another brother's house at Yercaud and stayed there for 15 days; the father-in-law took her back assuring that it would not happen in future; three months thereafter, she came to her house and stated that she was asked by her husband to bring Rs.10,000/- to live separately; the deceased was sent stating that they would arrange money after sometime; 15 days prior to the date of occurrence, the deceased came to her house and informed about the ill-behaviour of the accused towards her and asked her not to reveal the same to her brother; on the date of occurrence, at about 2.30 pm, P.W.1 called from Mettupalayam and informed her that the deceased called him and her family members were torturing her to bring money and asked him to bring money within one hour, otherwise, she would die along with her child; P.W.1 asked her to go to the place of the deceased and to bring her; when she tried the telephone number of the deceased, she was informed that the deceased and her child were dead; immediately on arrival of her husband, she informed him, who, in turn informed P.W.1; P.W.1 informed his brother not to take any action till his arrival; P.W.1 arrived at about 7 pm and thereafter, a complaint was lodged on the file of Yercaud Police Station; two weeks after the date of occurrence, she came to know from the newspaper that the deceased had not committed suicide, but it was a murder; two months thereafter, when she was enquired, she had stated all the details, including the ill-behaviour of the accused with the deceased; at that time only, she informed about the conduct of the accused towards the deceased to the members of the family; she was slapped by her husband for not telling the same earlier, who stated that he would have saved the deceased; that time, P.W.1 raised a doubt as to the voice of the deceased when she called on the date of occurrence. 3.4. The Councillor of Yercaud Town Panchayat, John Jakku, was examined as P.W.4. He deposed that he went to the house of the accused at about 1/1.15 pm and asked him to lay the pipeline, which the accused refused stating he had some other work. He then went to Block Development Office and on his return on the next day, he heard the death news of the deceased and her child. 3.5. Jayaprakash, a building contractor, examined as P.W.5, deposed that on 15.8.2003, at about 2/2.10 pm, when he went along with his brother Dhanapal for ordering Jalli, he saw the accused opening the gate and coming out of his house. 3.6. P.W.6, Sathish, who was running Coffee Works at Yercaud, stated that on the date of occurrence, at about 2.10 pm, the accused came to his shop and asked him to drop him at Electrical shop to purchase electrical goods. Accordingly, he dropped the accused at Krishna Electricals. After purchasing some goods, the accused asked him to drop him at Sister Convent. While going, the accused asked him to drive fast. When he enquired as to the urgency, the accused told him that he committed a small mistake and he would tell the same later and he got down at Sister Convent. https://hcservices.ecourts.gov.in/hcservices/ 3.7. Shanmugam was examined as P.W.7. He was working at Krishna Electricals. He stated that on the date of occurrence, the accused, along with another person, came in a motor cycle between 1.15 and 2.30 pm and purchased three electrical goods for Rs.608/- on credit and left immediately. The carbon copy of the bill with regard to the electrical goods purchased by the accused is marked as Ex.P3. Later he came to know that the accused had murdered his sister-in-law and her child. 3.8. P.W.8, Vigneshwaran, was working as Supervisor in St. Annis Convent. On the date of occurrence, at about 9.30 am, both the accused and Thiruselvam came to work. At about 12.45 pm, he asked another Supervisor that he required some electrical goods and left the School. Later, the accused came around 2.45/3.00 pm with electrical goods. After some time, four people came in two wheeler and asked him to send the accused and Thiruselvam. 3.9. P.W.9, Banumathi, Scientific Officer, Forensic Science Department, Chennai deposed that as per the requisition made by the Court, Ex.P4, she examined M.Os.1 and 4 to 9 and it was detected that the said M.Os. contained Kerosene. The report of the Scientific Officer is Ex.P5. 3.10. P.W.10, Sivakumar, Scientific Officer issued a report Ex.P6, stating that M.O.10, Kerosene Pump Stove, was not in usable condition. 3.11. As per Ex.P7, requisition sent by the Court, P.W.11, Kamalatchi Krishnamoorthy, Scientific Officer, examined M.O.15, brief, and detected semen in it as per Ex.P8, Chemical Report and sent the sample blood and salavai to Serological Department. Ex.P9 is the Serologist's Report stating that the sample sent was of human origin. 3.12. P.W.12, Ravi, an LIC Agent, deposed that when he returned home on 15.8.2003, the wife of one Sekar asked him to inform about the death of the deceased and her child to Thiruselvam. As he does not know as to where Thiruselvam was working, he enquired P.W.6 and thereafter went to Annis Convent and brought Thiruselvam and the accused, around 3/3.30 pm. 3.13. P.W.13 Selvam, a resident of North Street, Periyapudhur, deposed that he, along with one Palanisamy, was present at the time when the accused was giving confession statement to P.W.31, Superintendent of Police to the effect that he would hand over the poori kattai, brief and telephone note book to the police and the admissible portion of his confession statement is Ex.P10. 3.14. As requested by the Judicial Magistrate V, Salem, in Ex.P.11, to give a computer print-out relating to telephone No.222612 of Yercaud https://hcservices.ecourts.gov.in/hcservices/ Telephone Exchange for the month of August 2003, P.W.15, Selladurai, an employee of Yercaud Telephone Exchange, had issued Ex.P.12 report stating that the said telephone belongs to Thiruselvam and the same was working in a good condition between 5.8.2003 and 31.8.2003. Ex.P13 is the computerised bill for the telephone No.222612 of Yercaud Telephone Exchange. 3.15. As directed by the Chief Judicial Magistrate, Salem, P.W.15, Judicial Magistrate II, Salem, recorded a statement under Section 164 Cr.P.C. as deposed by P.W.2 on 25.8.2003. The said statement is marked as Ex.P.14. 3.16. P.W.16, Ettiyappan, Scientific Officer, has deposed that he inspected the scene of occurrence on 16.8.2003 at 7 am. He saw the burnt bodies of the deceased and her child in the hall. 3.17. P.W.17, Revenue Divisional Officer, on receipt of FIR, conducted inquest over the dead bodies and submitted his report Ex.P17. He sent the body for post mortem through P.W.25, Head Constable. He also sent a report, Ex.P16 to the Judicial Magistrate stating that the death of the deceased and her child was not due to dowry harassment and for further action. 3.18. The Village Administrative Officer, P.W.18, on hearing that the house of Krishnan caught fire, at about 2.15 pm, went along with one Duraisamy, Village Assistant to the place of occurrence. He peeped inside through the glass window, which seems to be broken due to the heat, and saw the room with full smoke. When he touched the front side door to go inside the house, it opened immediately since it was not latched inside. In the middle portion of the house, he saw two dead bodies in burnt condition and he smelt kerosene odour through out the house. He informed about the occurrence to his higher officials. In his presence, P.W.30, Deputy Superintendent of Police, prepared observation mahazar, rough sketch and recovery mahazar and he had attested his signature in those documents. He also issued Ex.P21 Nativity Certificate with regard to the deceased family. 3.19. P.W.19, Dr.Ravi Shankar, attached to Mohan Kumaramangalam Medical College, Salem deposed that he examined the hyoid bone of the deceased and found no fracture. Ex.P.22 is the report given by him. 3.20. As per requisition Ex.P23 made by P.W.31, P.W.20, Dr.Vallinayagam, attached to Government Mohan Kumaramangalam Medical College, examined the accused, found a lacerated injury on the left collar bone 0.5 cm and issued Ex.P25, wound certificate. In his evidence, he deposed that the said injury might be caused due to finger nail scratch. As per requisition Ex.P24 made by the Judicial Magistrate V, Salem, he examined the accused and opined that there is nothing to https://hcservices.ecourts.gov.in/hcservices/ suggest that he is impotent and issued Ex.P26. 3.21. P.W.21, Magisterial Clerk, speaks about the receipt of material objects and sending the same for chemical analysis. Ex.P27 is the covering letter of the Court and Ex.P28 is the chemical analysis report. 3.22. P.W.22 is the Judicial Magistrate V, Salem, who remanded the accused to judicial custody on the requisition made by P.W.31. 3.23. As per the requisition Ex.P30 made by P.W.31 through the Chief Judicial Magistrate, Salem, P.W.23, Judicial Magistrate VI, Salem recorded statements of P.Ws.3, 5, 6, 7 and 8 and others under Section 164 Cr.P.C. Exs.P31 to P43 are the said statements. 3.24. The Doctor, P.W.24, on receipt of requisitions, Exs.P44 and P45, by P.W.17 for post mortem of the bodies of the deceased and her child, conducted post mortem and issued certificates Exs.P46 and P47 opining that the deceased appears to have died of shock following head injury and shock following burns and her child appears to have died of burns shock. 3.25. P.W.25, Head Constable, deposed that he took the bodies for post mortem to Government Hospital, Yercaud and entrusted the bodies to their relatives after autopsy. 3.26. As directed by P.W.31, P.W.26, Photographer, took photos at the scene of occurrence. Exs.P48 series are photos and Ex.P49 series are their negatives. 3.27. P.W.27, Sub Inspector of Police, on receipt of information, went to the place of occurrence at 3 pm. He saw the burnt bodies of the deceased and her child, surrounded by lot of people. Around 8 pm, P.W.1 gave a written complaint, Ex.P1 and registered the FIR, Ex.P50, in Crime No.350 of 2003 for the offence under Sections 304-B and 498-A, IPC. F.I.R. was sent to the Revenue Divisional Officer, P.W.17, as well as to the Deputy Superintendent of Police, P.W.30, for further action, since the occurrence took place within two years from the date of marriage of the deceased. 3.28. As per Ex.P51, requisition made by P.W.31, P.W.28, District Revenue Officer, examined the accused and recorded Ex.P52 confession statement in video through P.W.29 Police Videographer. Ex.P57 is the video cassette. 3.29. The Videographer, who was examined as P.W.29, deposed that on instructions from P.W.31, he took video at the time of enquiry and took photo of the accused, before recording the video. Ex.P55 is the photo of the accused. Ex.P56 is the negative. Ex.P57 is the video cassette. https://hcservices.ecourts.gov.in/hcservices/ Print of Ex.P57 is Ex.P58. 3.30. P.W.30, the Deputy Superintendent of Police, deposed that on receipt of Ex.P50, F.I.R, he went to the place of occurrence, along with Scientific Officer, P.W.16 and obtained his opinion. He prepared an Observation Mahazar, Ex.P18 and a Rough Sketch, Ex.P59. He caused photographs of the dead bodies, Ex.P55 series, through P.W.26, photographer. He recovered M.Os.1, 4 to 10 under Mahazar, Ex.P19, in the presence of P.W.18, Village Administrative Officer and his menial. He also examined the witnesses and recorded their statements. After getting opinion from the doctors who conducted autopsy, he altered the charges under Section 302 and 376, IPC and sent the altered FIR, Ex.P60, to the Judicial Magistrate. 3.31. P.W.31, the Superintendent of Police, Salem, in his evidence, narrated the investigation undertook by him. According to him, he went to the scene of occurrence and examined P.Ws.2 and 4 and the relatives of the deceased orally. On 20.8.2003 at about 12.30 p.m. the Inspector of Police arrested the accused and produced him before P.W.31 at 1.30 p.m. P.W.31 examined the accused and found a finger nail scratch on the left side of his collar-bone, for which, he got medico legal opinion through P.W.20. He recorded the confession statement given by the accused in the presence of Sellam and Palanisamy in writing and through P.W.29, Police Videographer. On 21.8.2003, at 7.00 a.m. he recovered the wood used for preparing rotis along with poori kattai, M.O.11, full hand white colour shirt, pant and brief on being produced by the accused from kitchen in the presence of witnesses. He also seized indane gas cylinder, regulator, gas tube and double door in the presence of Selvam and Palanisamy. He remanded the accused to police custody. On 22.8.2003, he examined Sukumar, Inspector and recorded his statement. On 23.8.2003, he examined P.W.3 and recorded her statement. On 24.8.2003, he examined P.Ws.6,7, 8 and 12 and others and recorded their statements. On 25.8.2003, he examined the prisoners viz., Krishnan @ Venkatachalam, Sellammal and Thiruselvam, who are father, mother and brother of the accused respectively, and recorded their confession statements. He examined P.W.18 and got residential proof of the deceased family. He examined father, mother and brother of P.W.3 Selvi and recorded their statements. He also examined P.W.2 and recorded her statement through video. On 1.9.2003, he sent the accused to judicial custody. On 2.9.2003, he examined P.W.22, Judicial Magistrate and recorded his statement. On 10.9.2003, he examined P.W.20, Dr.Vallinayagam and recorded his statement. He sent M.O.15 brief to the Court for chemical examination through Ex.P.61 requisition. Thereafter, he sent Ex.P30 requisition for recording statements of the witnesses under Section 164 Cr.P.C. On 18.9.2003, he sent the material objects to the Court for subjecting the same to chemical analysis. On 16.10.2003, he examined post-mortem doctors and recorded their statements. He also enquired P.W.14, Telephone Subdivisional Engineer with regard to the working condition of the telephone No.222612. He also examined P.W.1, https://hcservices.ecourts.gov.in/hcservices/ Thangavel, brother of P.W.1 and P.W.3 and recorded their statements. He also examined P.W.7 Shanmugam in respect of the electrical goods sold to the accused and seized the credit bill and recorded his statement. He also recovered the telephone bill for the month of September for Telephone No.222032. After completing the investigation, he filed a charge sheet against the accused under Sections 506(i), 376 and 302 read with 201 (2 counts) IPC and also filed a separate charge sheet against Thiruselvam, accused, Krishnan @ Venkatachalam and Selvam under Section 498(A) I.P.C. 3.32. The case was committed to the Court of Sessions and charges were framed and since the accused denied his complicity in the offence, the case was taken up for trial. In order to substantiate the charges levelled against the accused, the prosecution examined P.Ws.1 to 31, filed exhibits P1 to P66 and marked material objects M.Os.1 to 20. 3.33. On completion of the examination of the prosecution witnesses, the accused was questioned under Section 313, Cr.P.C. on the incriminating materials for which the accused denied any complicity in the offence committed and claimed innocence. On the side of defence, D.Ws.1 to 4 were examined and Exs.D1 to D11 were filed. 3.34. D.W.1 is a Court Clerk who stated that the F.I.R. in the case was received by the court on 18.08.2003. 3.35. D.W.2, sister of the accused, deposed that the deceased called her on 13.3.2008 and stated that when she went to her brother's house for asking Rs.10,000/-, her brother and her sister-in-law refused to give money and sent her out of their house forcibly. She further stated that at about 9 am on the date of occurrence, the deceased called her over phone and stated that she does not like to live due to the distress caused by the scolding of her brother and sister-in-law. 3.35. D.W.3, Manger of Indian Bank, Mechery Branch, deposed that the accused came to the bank on 20.8.2003, the accused came to the Bank between 10 am to 2pm and redeemed the jewels pledged in the Bank. 3.36. D.W.4, who was working as the Sub Divisional Engineer (Legal), BSNL, deposed that no outgoing STD call was made from telephone No.222032 in August, 2003, as per the magnetic tape maintained by the Exchange for registering all the STD outgoing. 3.37. The Court examined one Francis as C.W.1, who deposed that on hearing noise from