IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 CRL.A.No. 1786 of 2007(C) ------------------------- SC.705/2002 of PRINCIPAL SESSIONS COURT, TRIVANDRUM CP.96/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... APPELLANT : APPELLANT ----------------------- SEBASTIAN @ CHEVATHIYAN, S/O.ZACHARIA, C.NO.1322, CENTRAL PRISON, TRIVANDRUM. BY ADV. M. DINESH[STATE BRIEF] RESPONDENTS: --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR OF THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** Crl.Appeal No.1786 of 2007 ***************************** Dated this the 28th day of November, 2011 JUDGMENT BASANT, J. Is the chain of circumstances complete? Do the circumstances point unerringly to the guilt of the appellant/accused? Does any alternative theory emerge creating any reasonable doubt in the mind of the court? These are the questions that arise for consideration in this appeal, where the appellant challenges the verdict of guilty, conviction and sentence imposed on him by the learned Sessions Judge under Sections 363, 376, 379 and 302 I.P.C. 2. The prosecution alleged that on 25.12.2001 after about 10 a.m, the appellant kidnapped a 7 year old minor girl by name Shalini, out of the keeping of her lawful guardian; committed rape on her; committed theft of M.O3 gold ornaments worn by her and in the course of such attempt strangulated her Crl.Appeal No.1786 of 2007 2 by ligature application with M.O4 thorthu in a church. It was further alleged that he had caused evidence to disappear and thereby had committed the offence punishable under Section 201 I.P.C also. 3. Investigation into the crime commenced with registration of Ext.P1(a) F.I.R on the basis of Ext.P1 complaint lodged by PW1, the father of the child. In Ext.P1 he had alleged that his 7 year old daughter was missing and that earlier on that morning she was found in the company of the appellant. In the course of investigation into that crime, the accused/appellant was arrested by about 7 a.m on the morning of 26.12.2001. He allegedly made a confession statement. Details of the crime were revealed and investigation continued for the offence of murder and other offences revealed. PW18 completed the investigation and filed final report/charge sheet before the learned Magistrate having jurisdiction. The learned Magistrate following the requirements under the Code of Criminal Procedure, committed the case to the Court of Session. The Crl.Appeal No.1786 of 2007 3 learned Sessions Judge took cognizance of the offences alleged against the appellant. The appellant denied the charges framed against him. Thereupon the prosecution was directed to adduce evidence in support of its case. 4. The prosecution examined PWs 1 to 18 and proved Exts.P1 to P19. M.Os 1 to 10 were also marked. 5. The accused denied all circumstances which appeared in evidence and which were put to him. He did not adduce any defence evidence - oral or documentary. 6. The learned Sessions Judge, who conducted the trial by judgment dated 14.02.2003, found the accused not guilty of the offences alleged against him. He was accordingly acquitted of all the charges levelled against him. 7. The State took up the matter in appeal and a Division Bench of this Court by judgment dated 26.09.2006 in Crl.Appeal No.1405 of 2003 set aside the judgment of acquittal and directed the learned Sessions Judge to dispose of the matter afresh. The learned Sessions Judge was directed to continue the proceedings Crl.Appeal No.1786 of 2007 4 from the stage of Section 313 examination of the accused. The learned Sessions Judge was directed to question the accused afresh under Section 313 Cr.P.C. 8. After remand, before the learned Sessions Judge the accused was examined under Section 313 Cr.P.C. On the application of the prosecution, Ext.P20 series were marked. No other evidence was adduced by either side after remand. 9. The learned Sessions Judge by the impugned judgment found the appellant/accused guilty of the offences punishable under Section 363, 376, 379 and 302 I.P.C. It is the said verdict of guilty, conviction and sentence, which is assailed before us in this appeal. He was acquitted of the offence alleged under Section 201 I.P.C. The said acquittal has now become final without challenge. 10. We have heard the learned counsel for the appellant Sri.M.Dinesh, whose services has been made available to the appellant as legal aid counsel. We have heard the learned Public Prosecutor also. Crl.Appeal No.1786 of 2007 5 11. An appellate judgment is and ought to be read as a continuation of the judgment of the trial court. We deem it unnecessary in these circumstances to re-narrate the oral and documentary evidence relied on by the parties before the learned Sessions Judge. Suffice it to say that the oral evidence of PWs 1 to 18 and the contents of Exts.P1 to P20(d) have been read over to us in detail by the counsel. Our attention has also been drawn to the charge framed by the court, the earlier judgment of acquittal, the appellate judgment passed earlier by another Bench of this Court and the impugned judgment rendered by the learned Sessions Judge. We shall advert specifically to the relevant oral and documentary evidence if necessary at the appropriate stage while discussing the contentions raised. 12. The case rests entirely on circumstantial evidence. PW1, the father of the child, works elsewhere and when he came to his house on 25.12.2001 came to know that his child, deceased Shalini, was missing. He is a widower, who had Crl.Appeal No.1786 of 2007 6 remarried PW6. He had two children in the earlier marriage. Two children were born in his marriage with PW6. His enquiries revealed that PWs 2and 3, two young men of the locality, had seen the deceased child in the company of the appellant on the morning of 25.12.2001 at about 10 a.m. The child was found in an awkward compromising position with the accused. PWs 2 and 3 had allegedly chased the accused away and the child had left PWs 2 and 3. PWs 2 and 3 allegedly downplayed that incident and did not pursue matters. According to PW18, the Investigating Officer, he commenced investigation on the basis of Ext.P1(a) F.I.R. The needle of suspicion was pointed against the appellant. He was questioned. He allegedly made a confession statement. Thereupon on information furnished by him the dead body of the child was recovered. The gold ornament (ear rings -M.O3) worn by the deceased child, which were sold to PW4 by the accused was seized as per information furnished by the appellant under Ext.P4 recovery mahazar. M.O4 thorthu allegedly used by the appellant for ligature Crl.Appeal No.1786 of 2007 7 strangulation was also allegedly seized under Ext.P6 seizure mahazar by the Investigating Officer. It is thereafter that the final report was filed by PW18. 13. As stated earlier, the case rests entirely on circumstantial evidence. The prosecution relied on certain circumstances to drive home the guilt of the accused. According to the prosecution, these circumstances have been proved satisfactorily and the various circumstances proved unerringly and clinchingly point to the guilt of the appellant. The learned counsel for the appellant on the contrary argues that the circumstances relied on by the prosecution have not been established satisfactorily and the circumstances even if proved do not lead to a safe inference of guilt against the appellant/accused. The learned counsel Sri.Dinesh contends that there are too many loose ends in the case of the prosecution that it is impossible for a prudent mind to come to a safe and sure conclusion that the appellant has committed the offences alleged against him. Crl.Appeal No.1786 of 2007 8 14. The circumstances relied on by the prosecution are enumerated below: 1) Deceased Shalini was found missing from the afternoon of 25.12.2001. 2) Her dead body was found on the bell tower of the local church. 3) It was a case of homicidal death, rape and theft of gold ornament(M.O3) worn by her. 4) The deceased was seen in the company of the accused when PWs 2 and 3 allegedly saw her at about 10 a.m in the morning. 5) The accused who was arrested at 7 a.m on 26.12.2001 had injuries on his person for which he offered no explanation. 6) The dead body of the accused was traced by PW18 on the basis of information furnished by the appellant/accused to him in his confession statement. Crl.Appeal No.1786 of 2007 9 7) M.O3 gold ear ring worn by the deceased at the time when she was found missing was sold by the appellant to PW4 on the same date and the same was recovered by PW18 from the possession of PW4 on the basis of information furnished by the accused in his confession statement after his arrest. 8) M.O4 thorthu allegedly used for ligature strangulation of the deceased was recovered by PW18 on the basis of the confession statement given by the appellant when he was interrogated after his arrest. 9) There were blood stains on the clothes worn by the accused at the time of his arrest and he offered no explanation for the same. 10) On examination by the scientific expert, fibres of M.O4 thorthu were found to be similar to fibres present on the neck of the deceased. 11) The scientific expert found that some Crl.Appeal No.1786 of 2007 10 fibres which were present on the hands of the deceased were similar to the fibres on the clothes of the accused. 15. We shall now proceed to consider the various circumstances relied upon. First of all we shall try to ascertain whether those circumstances have been proved. Later we shall advert to the question whether the cumulative effect of all these circumstances is sufficient to sail to a safe inference of guilt against the appellant. Circumstance Nos.1 to 3 16. We are taking up these circumstances together as we find that there is virtually no serious dispute on the existence of these circumstances. Deceased was a child aged 7 years. She was the daughter of PW1. PW1 was employed elsewhere and he had come to his house as it was Christmas on 25.12.2001. His first wife had expired. There were two children in the said wedlock. The deceased was one of them. His present wife (PW6) was residing in a makeshift house adjacent to the house of Crl.Appeal No.1786 of 2007 11 his mother. His children by the earlier marriage were residing with his mother. His children in PW6 were residing along with her in the adjacent makeshift house. The deceased child used to go to her paternal grandmother and stepmother (PW6) frequently. The child allegedly was found missing when PW1 on reaching his house made enquiries about her. He continued with the enquiries and it was in these circumstances that he lodged the F.I statement Ext.P1 at 11 p.m on 25.12.2001. F.I.R Ext.P1 (a) was promptly registered and the same was sent to the court by the police. It had reached the learned Magistrate at 10.30 a.m on 26.12.2001 as can be seen from the endorsement on Ext.P1(a). Not a trace of doubt is left in the mind of the court that as a matter of fact the deceased child was missing and her missing was perceived by her father PW1 and others by the afternoon of 25.12.2001. On that aspect of the matter, there is no iota of doubt left in the mind of the Court. 17. The next circumstance relied on is that the child was found dead on the morning of 26.12.2001 and the dead body was Crl.Appeal No.1786 of 2007 12 found available on the bell tower of the local church. We have satisfactory evidence coming forth from PW18 and others on this aspect. Ext.P7 inquest report as also Ext.P8 scene mahazar clearly indicate the presence of the dead body of the deceased child in the church at that spot on 26.12.2001. We have been taken through the oral evidence of all the witnesses. There is no contention even raised that the body of the child was not found there on the morning of 26.12.2001. We shall later advert to conflicting theories as to how the body could have reached that spot. The fact remains that it is clearly established that after Ext.P1(a) crime was registered on the night of 25.12.2001, the dead body of the child was found in the church early on the morning of 26.12.2001. In our mind there is not a trace of doubt on this circumstance proved by the prosecution. 18. As the third circumstance, the prosecution relied on the fact that it was a case of homicidal death after she was raped and her ornaments were thieved. On this aspect - about the injuries found on the deceased and the cause of death of the Crl.Appeal No.1786 of 2007 13 deceased we have the oral evidence of PW12 doctor and Ext.P13 postmortem certificate prepared by him. It is unnecessary for us to extract all the injuries described in Ext.P13. We are satisfied from the nature of injuries described in Ext.P13 and the oral evidence of PW12 that it was a clear case of death by ligature strangulation around the neck. As many as 26 injuries are recorded in Ext.P13. It includes the fatal injury on the neck as also injuries which leave behind tell tale indications that she was raped. She had suffered injuries on her private parts. Injury No.16 in Ext.P13 clearly shows the nature of the sexual assault on her and the commission of the offence of rape against her. There were injuries on her ear and M.O3 gold ornament worn by her was found missing. Here also, there is no semblance of a dispute raised about the validity and efficacy of the conclusion that it was a case of homicidal death after rape was committed on her and theft of the gold ornaments (ear rings) worn by her. These 3 circumstances are thus clearly established beyond dispute. Crl.Appeal No.1786 of 2007 14 Circumstance No.4 19. The prosecution relies on the circumstance that PWs 2 and 3 had seen the deceased in the company of the appellant on the morning of 25.12.2001. The precise time at which they found the accused and the deceased together is of course open to doubt. PWs 2 and 3 do not evidently swear by the clock. Indications galore to suggest that PWs 2 and 3 had seen the deceased in the company of the accused on the morning of 25.12.2001 before it dawned on everyone that she was missing from her house. 20. This circumstance is certainly important. This circumstance is not pressed into service by the prosecution to rely on the theory of “last seen together”. According to the prosecution, PWs 2 and 3, who were sleeping in the school building after Christmas celebrations on the previous night had got up in the morning and they found suspicious up and down movement of a person who appeared to lie down on another. Their suspicions were aroused. They took the appellant to task. Crl.Appeal No.1786 of 2007 15 They found that the deceased, a child aged about 7 years, was the victim of that attempt of the appellant. The appellant was driven away. The deceased did not appear to raise any objections. It is crystal clear that none of the injuries that were found on the dead body ultimately were suffered by her when she was so seen by PWs 2 and 3. She did not raise a grievance to them against the appellant. She did not make any complaint against him. The evidence of PWs 2 and 3 suggest that she was lured by the appellant. The deceased did not reveal her details to PWs 2 and 3 and PWs 2 and 3 found her walking towards the church cemetery after they separated the accused and the deceased and the accused was driven away. 21. The learned counsel for the appellant argues that no reliance should have been placed on the oral evidence of PWs 2 and 3. Their evidence is artificial, it is contended. We have gone through the cross examination of PWs 2 and 3. Except a vague and omnibus suggestion that they may have committed rape on the deceased child, no circumstances are brought out in Crl.Appeal No.1786 of 2007 16 evidence which should prompt this court to approach the testimony of PWs 2 and 3 with any suspicion. In fact, though the names of PWs 2 and 3 are not specifically mentioned in Ext.P1, we note that there is a statement in Ext.P1 that the deceased was found in the company of the accused on that morning before she was found missing. This statement in Ext.P1 affords considerable assurance for the version of PWs 2 and 3 before court. We have the oral evidence of PW1, the father of the child that it was PWs 2 and 3 who passed on the information to him that the deceased was found on that morning in the company of the appellant, which information he incorporated in Ext.P1 without narrating in detail the source of the information and the details of the information. We find absolutely no reason to approach the oral evidence of PW1 on this aspect with any doubt or reservation. We will assume that PWs 2 and 3 must have conveyed the entire information that they had to PW1. Even then the conduct of PW1 not revealing the dirty behaviour of the appellant to the deceased in detail in Ext.P1 does not generate Crl.Appeal No.1786 of 2007 17 any dissatisfaction in our mind against the version of the prosecution that PWs 2 and 3 had seen the deceased in the company of the appellant and that he was behaving improperly to her when they happened to come across the appellant and the deceased. That there was some interaction between the deceased and the appellant and that the deceased, even after PWs 2 and 3 separated the deceased from the appellant, did not raise any complaint or grievance against the appellant, is thus clearly established. This broadly supports the version of the prosecution that the appellant had lured the deceased child to comply with his commands/directions on that morning. This fourth circumstance is thus clearly established. Circumstance No.5 22. The prosecution has a case that the accused had injuries on his person. This is denied by the accused. His denial notwithstanding, we have the evidence of PW14 doctor and Ext.P17 wound certificate issued by him to confirm that the accused had injuries on his person when he was arrested by Crl.Appeal No.1786 of 2007 18 PW18 on the morning of 26.12.2001. The valiant denial of injuries by the accused notwithstanding, not a semblance of doubt is raised in our mind against the oral evidence of PW14 duly supported by Ext.P17 wound certificate issued by him. Ext.P17 shows that the accused was examined by PW14 at 11.30 a.m after his alleged arrest earlier on that morning at 7 a.m. 23. A theory is advanced that these injuries could have been inflicted on the accused by the police while in their custody after his arrest before PW14 examined him and issued Ext.P17 wound certificate. We have Ext.P7 inquest report, which shows that from 8 a.m till 10.30 a.m inquest on the dead body was being conducted by the Investigating Officer in the presence of the accused who had allegedly shown the dead body to the police. We do not, in these circumstances, entertain the slightest doubt about the existence of the injuries on the appellant. We are not in the least impressed by the theory that these injuries could have been inflicted on the appellant by the police after he was taken into custody. Crl.Appeal No.1786 of 2007 19 24. This obviously is a formidable circumstance against the appellant. Sri.Dinesh, Advocate for the appellant, contends that the evidence of PW18 shows that PW18 did not perceive the injuries on the deceased when he arrested him. No body note has been prepared describing the injuries. PW18 explains this with his version that it was the doctor who was the most competent person to make note of the injuries and describe the same. In the facts and circumstances of this case, the mere fact that PW18 did not make record of the injuries found on the person of the accused at the time of his arrest does not in any way generate any reasonable doubt on us about the existence of these injuries on the person of the accused at the time of arrest. As the appellant/accused was produced before PW14 for personal examination, the omission to prepare a body note describing the injuries does not at all weigh with us as a sufficient reason to doubt the evidence of PW14 or to even remotely suspect that those injuries could have been inflicted on the appellant by the police before PW14 examined him after his Crl.Appeal No.1786 of 2007 20 arrest. We hold that this circumstance, that the accused had unexplained injuries on his person, is well established as circumstance No.5. Circumstance No.6 25. It is the case of the prosecution that the appellant, when he was interrogated after his arrest by PW18, furnished information to PW18 that the dead body was available inside the church on the bell tower. Ext.P7(a), which is extracted in Ext.P7 inquest report, is the relevant portion of the confession statement. Going by Ext.P7(a), the appellant had furnished information to the police that the dead body was available in the bell tower of the church. According to PW18 it is on the basis of this statement Ext.P7(a), that he proceeded to the church and recovered the dead body of the deceased which was available there. 26. On this aspect, we primarily have the oral evidence of PW18. His evidence is supported by the almost contemporaneous Ext.P7(a) statement incorporated in Ext.P7 Crl.Appeal No.1786 of 2007 21 inquest report prepared by PW18. Ext.P7 inquest report is attested by PW8. Inherently and on broad probabilities, we find no reason to doubt or suspect the oral evidence of PW18 and PW8 on this aspect. Their evidence is supported eminently by Ext.P7 inquest report which contains Ext.P7(a) statement and which inquest report, it is seen, had reached the court on 26.12.2001 as per the endorsement thereon. 27. The learned counsel for the appellant argues that it is not essential that this information was furnished by the appellant. He points out the evidence of PW9 chief priest as also the evidence of PW15 scientific assistant to contend that both of them had received information even prior to the recovery of the dead body that the dead body was available in the church. How then could it be contended that the recovery of the dead body was in pursuance of Ext.P7(a) information furnished by the appellant/accused, queries the learned counsel for the appellant. 28. PW9 has stated clearly that the police had informed him that his presence was required at the church and the police Crl.Appeal No.1786 of 2007 22 was going over to the church on the basis of the statement given by the appellant. Similar is the evidence of PW16, who was informed by the Investigating Police officer that he must be available at the church on that morning. Both PWs 9 and 16, going by their statements, had received this information prior to 8 a.m when the body was allegedly recovered on the basis of Ext.P7(a) statement. The learned counsel advances an argument that the bottom is knocked out of the theory that the body was recovered on the basis of information furnished by the appellant in Ext.P7(a) inasmuch as PWs 19 and 16 admittedly had information prior to 8 a.m on 26.12.2001 that the body is available to be traced at the church building. The learned counsel