IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2-8-2011 CORAM THE HONOURABLE MR.JUSTICE C.NAGAPPAN AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN R.T.No.4 of 2010 and CRL.A.No.161 of 2011 B.Kumar @ Jeyakumar @ Left Kumar @ Stephen Kumar .. Appellant in CA 161/2011 and Accused in RT 4/2010 vs Inspector of Police C.B.C.I.D., Pudukkottai Vaitheeswaran Koil Police Station Crime No.886/2002 .. Respondent in CA 161/2011 and Complainant in RT 4/2010 Referred trial registered for confirmation of death sentence imposed on the appellant/accused in S.C.No.82/2009 on the file of the Sessions Judge, Nagapattinam by a judgment dated 8.12.2010. Criminal appeal preferred under Section 374(2) of the Code of Criminal Procedure against the judgment of the Sessions Judge, Nagapattinam made in S.C.No.82/2009 dated 8.12.2010. For Appellant/ Accused : Mr.V.Perarasu For Respondent/ Complainant : Mr.I.Subramaniam Senior Counsel and Public Prosecutor Assisted by Mr.V.M.R.Rajendiran Additional Public Prosecutor and Mr.K.P.Ananthakrishnan Government Advocate (Criminal Side) COMMON JUDGMENT C.NAGAPPAN, J. This judgment shall govern the disposal of Referred Trial Case No.4/2010 and Criminal Appeal No.161/2011. https://hcservices.ecourts.gov.in/hcservices/ 2.The referred trial has been preferred seeking confirmation of the death sentence passed by the Sessions Judge, Nagapattinam in S.C.No.82 of 2009 dated 8.12.2010, whereby the sole accused therein stood charged under Sections 449, 342, 376(1), 302, 307 (2 counts) and 394 r/w 397 IPC, tried and found guilty of the charges and awarded Life Imprisonment and a fine of Rs.10,000/- in default to undergo Simple Imprisonment for three years, for the charge under Section 449 IPC; Rigorous Imprisonment for one year and a fine of Rs.1,000/- in default to undergo Simple Imprisonment for three months, for the charge under Section 342 IPC; Life Imprisonment and a fine of Rs.10,000/- in default to undergo Simple Imprisonment for three years, for the charge under Section 376(1) IPC; Death Sentence subject to confirmation by the High Court, and a fine of Rs.20,000/- in default to undergo Simple Imprisonment for five years, for the charge under Section 302 IPC; Life Imprisonment for each count and a fine of Rs.5,000/- in default to undergo Simple Imprisonment for three years for each count, for the charge under Section 307 (2 counts) IPC and Life Imprisonment and a fine of Rs.5,000/- for the charge under Section 394 r/w 397 IPC and the sentences to run concurrently. 3.The said judgment is challenged by the accused in Crl.A.No.161/2011. Both the referred trial seeking confirmation of death sentence made by the Sessions Court, and also the criminal appeal filed by the appellant/accused, are taken up together for consideration. For the sake of convenience, in this judgment, the appellant will be referred to as the accused. 4.To prove its case, the prosecution examined P.Ws.1 to 35 and marked Exs.P1 to P41 and M.Os.1 to 34. 5.The case of the prosecution as could be discerned from the oral and documentary evidence, can be briefly summarised as follows: (a) P.W.12 Maragatham is the wife of P.W.11 Ramalingam. P.W.1 Prosecutrix and deceased Manikandan are their daughter and son respectively. P.W.2 Sangeetha is the daughter of elder brother of P.W.11 Ramalingam. He was employed as Assistant in Poombuhar College and his wife P.W.12 Maragatham was employed as Village Health Worker and on working days, both of them would leave for work in the morning at 8.00 A.M. and return in the evening at 6.00 P.M. They were living in their house situated at Sattanathapuram, Sirkali and started constructing first floor of their house prior to occurrence. P.W.16 Maistry Selvam, a month prior to occurrence, inducted accused B.Kumar @ Jeyakumar @ Left Kumar @ Stephen Kumar as one of the masons in the said civil work at the house of P.W.11 Ramalingam. But, however, after 20 days, he stopped the accused from the said work. On 3.10.2002, P.W.2 Sangeetha came to the house of P.W.11 Ramalingam for holiday. (b) On 4.10.2002, P.W.11 Ramalingam and his wife P.W.12 Maragatham left the house in the morning for work and P.W.1 Prosecutrix, P.W.2 Sangeetha and Manikandan were alone in the house by locking it inside. P.W.15 Santhanakumar residing in the opposite https://hcservices.ecourts.gov.in/hcservices/ house, while leaving his home at 9.00 A.M. on 4.10.2002, noticed accused Kumar standing inside the fence of the house of P.W.11 Ramalingam. At 9.30 A.M., accused Kumar pressed the calling bell of the house of P.W.11 Ramalingam and without opening the door, Manikandan enquired him and the accused told them that he has left his iron bowl used for masonry work, inside the house and he wanted to take it back. Though Manikandan replied that the accused could take it after the return of his father, P.W.1 Prosecutrix told that the accused was working in their house as mason and hence he can be allowed to take it and by so saying, she opened the door. Thereafter, the accused gained entry into the house and immediately bolted the door from inside and when all of them screamed, he took M.O.1 aruval from his waist and threatened the inmates not to shout by keeping the aruval on the neck of Manikandan. Thereafter, the accused Kumar gagged and tied the hands of P.W.2 Sangeetha and Manikandan and dragged them to pooja room and tied them to the window with saree. Returning to the hall, the accused Kumar raised the volume of television and went to the bedroom where P.W.1 Prosecutrix was hiding, and pulled the mattress from the cot to the ground and tied her hands and legs and gagged her. Accused Kumar removed her dresses and put her on the mattress and and committed rape on her. By that time, Manikandan managed to loosen the knot made by the saree, and came to the bedroom and saw the accused committing rape on P.W.1 Prosecutrix, and ran to the hall to make phone call. On seeing this, the accused Kumar angrily took the aruval and dragged Manikandan by hand to the toilet and cut his neck with aruval. In the meantime, P.W.2 Sangeetha who also managed to untie the knot, came and saw the accused cutting the neck of Manikandan with aruval in the toilet and out of fear, she went inside the pooja room and was hiding. P.W.1 Prosecutrix also heard the screaming of her brother Manikandan and cutting sound coming from the toilet. The accused Kumar having noticed that P.W.2 Sangeetha saw him cutting Manikandan, in fury, went to the pooja room, and cut her neck with aruval and she swooned. Thereafter, accused Kumar went to the bedroom and by then, P.W.1 Prosecutrix had put her clothes and accused demanded the jewels worn by her, and she gave her ear-stud and chain and on further demand, she gave the bureau key and the accused Kumar took away the other jewels from the bureau. M.Os.2 to 6 are the jewels. Then the accused Kumar cut the neck of P.W.1 Prosecutrix also with aruval and left the place. (c) P.W.1 Prosecutrix managed to come out of the house and the other injured P.W.2 Sangeetha also came out and at that time, P.W.13 Kannan and Raja were proceeding in the scooter and P.W.1 Prosecutrix showed hand signal and they stopped and found P.Ws.1 and 2 with bleeding injuries and they took them to Sirkali Government Hospital in the auto driven by P.W.28 Muthukumarasamy. (d) P.W.5 Dr. C.Elangovan examined P.W.1 Prosecutrix in Sirkali Government Hospital at 10.45 A.M. on 4.10.2002, and found a cut injury on the throat measuring 10 x 4 cms in the anterior aspect of neck exposing underlying thyroid cartilage and blood vessels. He referred her to RMMCH, Chidambaram, for further treatment. He expressed opinion that the said injury is grievous in nature and issued Ex.P7 wound certificate. Ex.P10 is the accident register extract. https://hcservices.ecourts.gov.in/hcservices/ (e) P.W.5 Dr. C.Elangovan also examined P.W.2 Sangeetha at 11.00 A.M. on 4.10.2002 at Government Hospital, Sirkali and found a cut injury measuring 7 x 3 cms in the front of neck on the throat exposing underlying thyroid cartilage and blood vessels. He referred her to RMMCH, Chidambaram for further treatment. He expressed opinion that the said injury is grievous and issued Ex.P8 wound certificate. Ex.P11 is the accident register extract. He also sent Ex.P9 intimation to the police. In the meantime, the parents of P.W.1 Prosecutrix on hearing the occurrence, rushed to the Government Hospital at Sirkali. (f) On receipt of telephonic information from Sirkali Government Hospital, P.W.22 Sub Inspector Murugavelu went there and saw the injured persons. At that time, P.W.1 Prosecutrix though not in a position to speak, managed to write in a shaky handwriting Ex.P1 complaint duly attested by her mother P.W.12 Maragatham, and handed over the same to P.W.22 Sub Inspector Murugavelu and he returned to the station and registered a case in Crime No.886/2002 under Sections 452, 342, 376, 307, 302 and 379 IPC and prepared Ex.P30 First Information Report and despatched the same to the Court through P.W.29 Head Constable Parasuraman and to the Higher Officers. (g) P.W.32 Inspector Venkatesan took up investigation, went to the occurrence place at 11.45 A.M. and prepared Ex.P19 observation mahazar in the presence of P.W.17 Azhagar and another and seized M.Os.25 to 34 under Ex.P20 mahazar in the presence of the said witnesses. Then he conducted inquest on the body of the deceased Manikandan from 2.45 P.M. to 4.45 P.M. and prepared Ex.P37 inquest report and sent the body for postmortem with requisition. He also gave a requisition to the Doctor to examine P.W.1 Prosecutrix for the symptoms of rape and also the Finger Print Expert to find out any chance print available in the place of occurrence. P.W.35 Inspector (Finger Print) Ramaiah visited the place of occurrence at 12.30 P.M. on 4.10.2002 and lifted two chance prints from the bureau in the house and marked them as R1 and R2. He also took photographs. Then he compared the chance prints with the finger prints of the inmates of the house and found the finger print marked as R2, tallying with the finger print of P.W.11 Ramalingam. He preserved chance print R1 in the lab. Ex.P29 is the report given by him on 5.10.2002. (h) P.W.5 Dr. C.Elangovan conducted postmortem on the body of Manikandan at the Government Hospital, Sirkali at 5.15 P.M. on 4.10.2002, and found the following: "INJURIES An incised wound in front of the middle of the neck 4 cm above Jugular notch, extending from right Sterno cleidomastoid region to left sternoclediomastoid muscle region 10 cms in length, 3 cm breadth and Depth 2 cm. Left Sternoclediomastoid muscle was cut partially. Trachea was cut completely at the level 2 cm below cricoid cartilage. Right side internal Jugular vein and right common carotid artery cut completely. Oesophagus intact and exposed. https://hcservices.ecourts.gov.in/hcservices/ On opening Thorax – No fracture ribs. Hyoid bone intact. No foreign body in Larynx or trachea. Heart chambers empty. Heart C/S pale. Great vessels empty. Lungs C/S pale. On opening of Abdomen – Peritoneum intact. Stomach contained approximately 200 ml of partially digested food material. Stomach mucosa pale. Small intestine empty, mucosa pale. Liver, Kidney, Spleen C/S pale. No lacerations. Urinary bladder empty. On opening head – No fracture of skull bones. Brain membranes intact. No haemorrhage. Brain matter pale. Spinal column no fractures." He expressed opinion that the deceased would appear to have died of haemorrhage and shock due to injury to great vessels of the neck 6 to 12 hours prior to postmortem. Ex.P12 is the postmortem certificate issued by him. (i) P.W.3 Dr. S.Viswanathan examined P.W.1 Prosecutrix at Raja Muthiah Medical College and Hospital, Chidambaram on 4.10.2002 and found aberrations in the inner aspect of the labia minera near the hymenal opening and her hymen was not intact and he collected dry smear, pubic hair and vaginal swab for analysis. Ex.P2 is the medical report given by him. P.W.4 G.Valli, Scientific Assistant, Regional Forensic Sciences Laboratory, Thanjavur examined the pubic hair, vaginal swab and gauze cloth and issued Ex.P5 report, stating that semen was not detected in items 1 to 4 mentioned therein, and item No.5 pubic hair, was retained for future examination. (j) P.W.9 Dr. T.A.Chandralathan attached to Raja Muthiah Medical College & Hospital, Chidambaram, conducted surgery on the neck injuries sustained by P.W.1 Prosecutrix and P.W.2 Sangeetha, and treated them in the hospital. (k) P.W.32 Inspector Venkatesan, examined P.W.12 Maragatham, P.W.13 Kannan, P.W.28 Muthukumarasamy and some other witnesses and recorded their statements. On 6.10.2002, he gave a requisition to the Court to send the material objects for chemical examination. On 3.11.2002, he examined P.W.1 Prosecutrix and P.W.2 Sangeetha and recorded their statements. On 21.11.2002, he examined P.W.15 Santhanakumar and another and recorded their statements. On 22.11.2002, P.W.11 Ramalingam while cleaning the occurrence house, noticed M.O.1 aruval, concealed under the staircase and on his information, P.W.32 Inspector Venkatesan seized the same under Ex.P38 mahazar in the presence of witnesses and sent it to Court. On the very day, he further examined P.W.1 Prosecutrix, P.W.2 Sangeetha, P.W.11 Ramalingam and P.W.12 Maragatham and recorded their statements. On 4.11.2002, he examined P.W.16 Selvam and some other witnesses and recorded their statements. He was transferred. (l) P.W.26 Devan, resident of Aminjikarai, Chennai, one day in the year 2002, found the accused Kumar lying in front of Albert Theatre and he enquired him and the accused informed him that he is an orphan and wanted a job and he put him in a granite factory. Thereafter, P.W.26 Devan arranged the marriage of the accused Kumar with one Susila, the daughter of P.W.27 Jesuraj, and the said marriage took place on 5.9.2007, and after the birth of a https://hcservices.ecourts.gov.in/hcservices/ female child, the accused in the pretext of going to Salem, abandoned her. (m) Aggrieved over the investigating agency in not arresting the accused Kumar, P.W.11 Ramalingam filed petition before the High Court and the investigation in the said case was transferred to the file of C.B. C.I.D. Thereafter, P.W.33 Inspector Sugumar took up the further investigation on 5.11.2008, and examined P.W.1 Prosecutrix, P.W.2 Sangeetha, P.W.11 Ramalingam and P.W.12 Maragatham and on information, arrested the accused Kumar at 4.50 P.M. on 11.12.2008, at Sirkali Bus Stand and enquired him in the presence of P.W.23 Village Administrative Officer, Periyasamy and another and recorded the confession statement given by him, of which Ex.P31 is the admissible portion. The accused Kumar took them to M.Valliammai Aachi Pawn Shop run by P.W.24 Meyyappan and P.W.33 Inspector Sugumar, recovered M.Os.2, 4 and 5 jewels, and Ex.P24 pawn receipt, under Ex.P32 mahazar in the presence of the said witnesses. Thereafter, the accused Kumar took them to another pawn shop under the name of Sri Vinayaka Finance run by P.W.25 Chandran, and he recovered M.Os.3 and 6 silver anklets, and Ex.P25 pawn receipt, under Ex.P33 mahazar in the presence of same witnesses. He sent the accused for judicial remand. On 5.1.2009, he gave Ex.P39 requisition to the Judicial Magistrate's Court, Sirkali to find out the potentiality of the accused Kumar by conducting medical examination and as per Ex.P17 request of the Court, P.W.10 Dr. S.Gurunathan, examined the accused Kumar and issued Ex.P18 certificate, stating that he is potent. (n) P.W.33 Inspector Sugumar, filed Ex.P21 petition in the Court of Judicial Magistrate, Sirkali, directing the accused Kumar to give specimen writing and signature for the purpose of investigation and as per the order of the Court, they were obtained from the accused Kumar on 21.1.2009, and were sent for comparison to the Forensic Sciences Laboratory at Chennai by Ex.P22 letter of the Court. P.W.19 Thilagavathi, Head Clerk of Judicial Magistrate's Court, Sirkali after receiving Ex.P23 request of the Investigation Officer, forwarded the material objects to the Laboratory. P.W.20 Karpagam, Scientific Officer (Document Division) of the Forensic Sciences Laboratory, Chennai, compared the signatures and issued Ex.P27 report. P.W.21 Finger Print Inspector Kasinathan, on 15.12.2008, compared the chance print R1 with the finger print of the accused Kumar and issued Ex.P28 report. P.W.6 Scientific Assistant Karpagam Badrinath issued Ex.P14 chemical examiner's report and P.W.7 Scientific Officer Jaganathan issued Ex.P15 serologist's report. (o) P.W.33 Inspector Sugumar, examined P.W.3 Dr. S.Viswanathan, P.W.9 Dr. T.A.Chandralathan, P.W.10 Dr. S.Gurunathan, P.W.18 Suresh, P.W.29 Parasuraman, P.W.30 Saminathan, P.W.32 Venkatesan and some other witnesses on 14.2.2009, and recorded their statements. He was transferred on 19.2.2009, and P.W.34 Inspector Thangavelu continued the investigation and on 22.2.2009, he examined P.W.6 Karpagam Badrinath, P.W.8 Visalakshi, P.W.20 Karpagam and some other witnesses and recorded their statements. He completed the investigation on 24.2.2009, and filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 6.The accused was examined under Section 313 Cr.P.C., and he denied complicity. No witness was examined and no document was marked on his side. The trial Court found that the charges are proved and sentenced him as stated earlier, and has sought for confirmation of death sentence. The accused has also preferred independent appeal challenging the conviction and sentence. 7.The learned Counsel for the appellant/accused submits that the occurrence in the case, took place on 4.10.2002 and during investigation, the accused was not apprehended and the case came to be transferred to CB CID after six years and only on 11.12.2008, the accused is said to have been arrested and no identification parade was conducted and P.W.1 Prosecutrix and P.W.2 Sangeetha could not have identified the accused and it is not known as to how the CB CID police after such a longtime, fixed and arrested the accused and Ex.P1 complaint itself is doubtful since as per the medical evidence, P.W.1 Prosecutrix was not conscious and unable to speak and it is also doubtful as to whether P.W.12 Maragatham attested the complaint since her signature found therein, varies from the one put by her in the testimony before the Court and the recovery of jewels from the pawn shops is also unbelievable and the prosecution has not proved the guilt of the accused beyond reasonable doubt. 8.Per contra, Mr.I.Subramaniam, the learned Public Prosecutor, submits that prior to occurrence, accused Kumar was working as a mason in the first floor construction of the occurrence house and P.W.1 Prosecutrix had seen him on those occasions and the accused knew the movements of P.W.11 Ramalingam and P.W.12 Maragatham and he had chosen the time when the children were alone at home and on the occurrence day, in the pretext of taking iron bowl, he gained entry into the house and by wielding aruval, he tied and gagged the inmates and ravished P.W.1 Prosecutrix and infuriated by the act of Manikandan in trying to inform the parents by telephone about the commission of rape, he dragged him to the toilet and cut his neck resulting in his death and annoyed over the seeing of the same by P.W.2 Sangeetha, he cut her throat and thereafter, he also inflicted cut injury in the throat of P.W.1 Prosecutrix and also robbed the jewels from the person of P.W.1 and house and P.W.1 in her complaint itself, has mentioned the name of the accused, namely Kumar, with identification mark on his cheek and in those circumstances, conducting identification parade is immaterial and there is no delay in lodging the complaint and it lends credence to the testimonies of P.Ws.1 and 2 who are injured witnesses, and the delay in arresting the accused does not affect the prosecution case and the scientific investigation corroborates the presence and participation of the accused in the crime and the conviction and sentence imposed by the trial Court on the accused, is well founded. 9.The prosecution case is that the accused Kumar committed house trespass by gaining entry into the house of P.W.11 Ramalingam and confined the inmates therein and committed rape of P.W.1 Prosecutrix and cut the neck of Manikandan resulting in his death, and he attempted to murder by inflicting cut injuries on the necks of P.W.1 Prosecutrix and P.W.2 Sangeetha and he also robbed the jewels from P.W.1 Prosecutrix and the bureau. The prosecution https://hcservices.ecourts.gov.in/hcservices/ examined P.W.1 Prosecutrix and P.W.2 Sangeetha to prove the occurrence. P.W.1 Prosecutrix aged 12 years, and the deceased Manikandan aged 10 years, are the children of P.W.11 Ramalingam and P.W.12 Maragatham and they were living in their house at Sattanathapuram, Sirkali. P.W.11 Ramalingam was employed as Assistant in Poombuhar College and his wife P.W.12 Maragatham was employed as Village Health Worker and both of them used to leave for work in the morning at 8.00 A.M. and would return in the evening at 6.00 P.M. They started constructing first floor of their house prior to occurrence and they employed P.W.16 Maistry Selvam. According to P.W.16 Selvam, a month prior to occurrence, he inducted accused B.Kumar as one of the masons in the said civil work at the house of P.W.11 Ramalingam; but, however, after 20 days, he stopped the accused from the said work. P.W.2 Sangeetha is the niece of P.W.11 Ramalingam and she came to their house a day prior to occurrence, for holiday. 10.P.W.1 Prosecutrix and P.W.2 Sangeetha have testified that on 4.10.2002, P.W.11 Ramalingam and P.W.12 Maragatham left the house in the morning for work and they along with Manikandan were alone in the house by locking it inside and at 9.30 A.M., accused Kumar pressed the calling bell and without opening the door, Manikandan enquired him and the accused told them that he has left his iron bowl used for masonry work, inside the house and he wanted to take it back and Manikandan told him that he could take it after the return of his father; but, P.W.1 Prosecutrix told that the accused was working in their house as mason and he can be allowed to take the iron bowl and she opened the door and the accused entered the house and bolted the door from inside and when they screamed, he took the aruval from his waist and threatened them and he gagged and tied the hands of P.W.2 Sangeetha and Manikandan and dragged them to pooja room and tied them to the window with saree and the accused on return to the hall, raised the volume of television and went to the bedroom. P.W.1 Prosecutrix has further testified that she was hiding in the bedroom and the accused Kumar came there and pulled the mattress from the cot to the ground and tied her hands and legs and gagged her and he removed her dresses and put her on the mattress and committed rape on her and by that time, Manikandan who managed to loosen the knot made by the saree, came there and saw the accused committing rape on her and he ran to the hall to make phone call and on seeing this, accused Kumar who was lying on her, angrily took the aruval and dragged Manikandan by hand to the toilet and she heard the screaming of her brother Manikandan and the cutting sound coming from the toilet. P.W.2 Sangeetha in her testimony, has stated that she also managed to untie the knot and came and saw the accused cutting Manikandan with aruval in the toilet and out of fear, she went inside the pooja room and was hiding and the accused came there and cut her neck also with aruval in fury, by saying that she had witnessed the cutting of Manikandan and she swooned. 11.It is the further testimony of P.W.1 Prosecutrix that the accused Kumar returned to the bedroom and by then, she had put her clothes and he demanded the jewels worn by her, and she gave her ear stud and chain and on further demand, she gave the bureau key and the accused Kumar took away the other jewels from the bureau and he cut her neck also with aruval and left the place and she managed https://hcservices.ecourts.gov.in/hcservices/ to come out of the house and by then, P.W.2 Sangeetha also came out and they were not able to speak on account of the cut injuries on the throat and P.W.1 Prosecutrix showed hand signal to P.W.13 Kannan and Raja who were going in the scooter, and on noticing the bleeding injuries, they took them to Sirkali Government Hospital in the auto driven by P.W.28 Muthukumarasamy. 12.According to P.W.5 Dr. C.Elangovan, he