IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 CRL.A.No. 1710 of 2005() ------------------------ (SC.403/04 of ADDL.DISTRICT & SESSIONS FAST TRACK COURT (ADHOC)PATHANAMTHITTA CP.1/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR) .................... APPELLANT: -------------- AJAYAN @ RAJAN, S/O. RAVEENDRAN, C. 9164, CENTRAL PRISON, TRIVANDRUM-12. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SHRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Criminal Appeal No.1710 of 2005 ------------------------------------------------------------------ Dated 5th October 2009 Judgment Balakrishnan Nair, J. The appellant is the accused in Sessions Case No.403/04, on the file of the Additional District and Sessions Judge (Ad hoc), Fast Track Court-I, Pathanamthitta. He challenges, in this Criminal Appeal, the conviction and sentence imposed on him for the offences punishable under S.376 and S.302 IPC by the trial court in the said case. The case of the prosecution is as follows : 2. The victim Ms.Soorya, the daughter of PW1, was a student of 6th standard of Government High School, Kadampanadu. On 08.10.2002, while she was returning home after the classes, at about 4 pm., the appellant, who was waiting for her under a bridge, seized her by force, overpowered her and committed rape. The victim resisted. So, he applied blunt force on her neck. Thereafter, he threw her body into the nearby stream. So, she died of strangulation and drowning. The prosecution, to prove its case, examined PW1 to PW19, marked Exts.P1 to P26 and also produced material objects MO1 to MO5 series. The trial court, after hearing both sides and CRA 1710/05 2 taking into account the materials on record, found the appellant guilty of the offences punishable under S.376 and S.302 IPC and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.50,000/- and in default, to suffer rigorous imprisonment for four years for the offence punishable under S.376 IPC. He was also sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- and in default, to suffer rigorous imprisonment for 4 years, for the offence punishable under S.302 IPC. The fine amount, if realised, was directed to be paid to the mother of the victim, by way of compensation. Feeling aggrieved by the conviction and sentence, this appeal is preferred. 3. The learned counsel for the appellant Shri.Grashious Kuriakose took us through the deposition of the witnesses and the documents produced by the prosecution and submitted that except the recovery of the blouse of the victim, there is nothing on record, to connect the accused with the crime. The recovery of the blouse is also clouded by the circumstance that the accused revealed hiding of the same at the time of the second round of questioning, after the first round of questioning and recoveries were over. So, noticing the absence of evidence, planting the blouse by the police and causing it CRA 1710/05 3 to be recovered through the appellant, cannot be ruled out. Even assuming that the recovery is found to be genuine, that by itself, is not sufficient to prove the guilt of the accused beyond reasonable doubt. A mere suspicion is not sufficient to sustain the conviction. The learned counsel also submitted that the trial court relied on six circumstances, enumerated in paragraph 14 of the judgment under appeal. The learned counsel submitted that circumstance (b) that there was an earlier alleged attempt from the part of the appellant to ravish a school going girl, cannot be pressed into service as a link in the circumstances proved against him. It is also submitted that the extra-judicial confession, stated to be given to the doctor, mentioned as circumstance (f) in paragraph 14 of the judgment, being one made while in police custody, has to be eschewed from consideration. If those two circumstances are excluded, the chain of incriminating circumstances is not complete and therefore, the appellant is entitled to get the benefit of doubt. 4. The learned counsel for the appellant pointed out that the second husband of PW1, Shaji was the real culprit. The victim was staying in a neighbouring house as a domestic help because of the ill-treatment of her by Shaji, her stepfather. The police did not CRA 1710/05 4 question him or make him a witness. The chances of the girl, being raped and killed by him, cannot be ruled out, it is pointed out. 5. The learned Public Prosecutor, on the other hand, submitted that there is no reason to doubt the genuineness of Ext.P14 mahazar, under which the blouse of the victim, which was hidden under the wild grown grass was recovered. The injuries on the body of the appellant, including those on his private parts, remained unexplained. He was found near the scene of occurrence, by an independent witness. There is also evidence on record that the victim reached near the place of occurrence at the relevant time. The recovery of the blouse, at the instance of the accused and the medical evidence regarding the injuries on him alone are sufficient to sustain the conviction. They unerringly point to the guilt of the accused. The trial court has rightly found him guilty. Even if the extra- judicial confession made by him, while in police custody, is also excluded from consideration, the remaining circumstances are sufficient to complete the chain and to prove the guilt of the accused beyond reasonable doubt. It is also pointed out that regarding the injuries sustained by him, the appellant has given a false explanation under S.313 IPC, stating that the injuries suffered on his body were CRA 1710/05 5 those caused by a motor-bike accident. When the medical evidence regarding the injury on his penis was put to him, he simply denied that he sustained any injury there. The omission to explain the injury on his private parts and the false explanation given to the injuries, are circumstances against the accused. The learned Public Prosecutor pointed out that the doctor, in his deposition, has stated that the injuries found on the body of the appellant cannot, normally, be caused on a fall from a motor-bike. Therefore, the learned Public Prosecutor prayed for dismissing the appeal. 6. Before dealing with the rival contentions, we will refer to the evidence on record. PW1 is the mother of Soorya, the victim. Her daughter did not reach the house of PW3, where she was staying, in time on 08.10.2002. When she did not reach the house of PW3 even by 6 pm. on the said date, Sony, the brother of PW3 went to the house of PW1 and told her about the same. Therefore, she, along with her husband Shaji went to the house of PW3 and enquired about the matter. On the next day morning, PW1 went to the Police Station and gave Ext.P1 F.I. statement regarding the missing of her daughter. She identified MO1 blouse as that of Soorya. She also identified MO2 bag and the contents of the bag like books, tiffin box, CRA 1710/05 6 water bottle etc. The learned Sessions Judge has recorded that on seeing them, the witness wept loudly from the box. The body of her daughter was recovered from the nearby river on 10.02.2002 and she was told of her death, only at the time of burial of the body. 7. In the cross examination, an attempt was made to show that Shaji, the second husband of PW1 was ill-treating her daughter and therefore, she was sent to the house of PW3. She has also deposed that on 8.10.2002 at 6 pm, Shaji was also in the house and they together went to the house of PW3 to enquire about Soorya. We notice that nothing has been brought out in the cross examination, which makes her version unreliable. 8. PW2 is a person, residing in the neighbourhood of PW1. She knew Soorya and also the appellant. While she was sitting in her house, which is by the side of the road, at about 4 pm., on 8.10.2002, she saw Soorya going home from the school. She stated that Soorya was carrying a school bag and an umbrella. She was wearing a blue coloured blouse and skirt. She identified MO1 blouse as the one worn by Soorya, at the relevant time. She also identified the school bag MO2. She was also cross-examined by the defence, but nothing was brought out to discredit her version. CRA 1710/05 7 9. PW3 was residing at a distance of about one km. from the house of PW1. Soorya was residing with her for about ten days before 8.10.2002. She has seen her last at 9 am. on 8.10.2002, when she went to the school. At that time, she was wearing a blue skirt and blouse with golden lace on its hands. She was studying in Kadambanad Government High School. Normally, Soorya returned from school at about 4.30 pm. On the aforementioned day, she did not reach home even after 5 pm.. So, she sent her brother, Sony to the house of PW1, to inform her about the same. She identified MO1 blouse worn by Soorya and also MO2, which is her school bag. The attempt of the defence in her cross-examination was to show that Shaji, the second husband of PW1, was harassing Soorya and therefore, Soorya was sent to the house of PW3, by PW1. But her version remained unshaken, notwithstanding the cross-examination by the defence. 10. PW4 is a friend of the deceased. They were studying in the same school. On 8.10.2002, they came together in the same bus. They got down at Nellimughal Junction. It was raining and they walked together upto the house of PW4. Since Soorya was not having any umbrella, she gave her umbrella to Soorya. She saw CRA 1710/05 8 Soorya, going home with her umbrella. At that time, she was wearing a blue coloured silk skirt and blouse. She identified MO1 blouse as the one worn by Soorya. She also identified MO2 series school bag and its contents. Nothing was brought out to discredit her version in her cross examination by the defence. 11. PW5 is a person, residing in the neighbourhood of the appellant. He is a rubber tapper. The witness and the appellant reside in the same colony. The house of the appellant is at a distance of 100 yards from his house. On 8.10.2002, he went to the shop of one Mr.Thankachan in the afternoon. Since it was raining, he waited there for some time. Later, after purchasing milk, he returned home at about 3.45 pm. On the way, when he reached Kurumakkad bridge, he found the accused standing under the bridge. He was peeping out from under the bridge. He thought, the accused was fishing from the stream. Later, on coming to know that the school bag of Soorya was recovered from a place near to the bridge, he told Thankachan and others on 9.10.2002 that he had seen the appellant under the bridge on the previous day. He has also deposed that the appellant entered the house of one Ravindran, PW6, by removing the roof tiles and tried to outrage the modesty of Ravindran's daughter, two years CRA 1710/05 9 back. Thereafter, the appellant had gone underground and has returned only about 5 months back. That was the reason, why he doubted the accused and told about sighting him near the bridge at the relevant time, to others. He was also extensively cross-examined by the defence, but nothing was elicited to discredit his version. 12. PW6 was examined to prove that the accused, about two years back with reference to the date of the incident in this case, had attempted to rape his daughter by entering his house, after removing the roof tiles. He stated that because of his concern for the future of his daughter, he did not complain about the incident before the police. The defence cross-examined him, suggesting that it was a false story cooked up by him, but he denied the same. 13. PW7 was the witness to Ext.P2 mahazar, as per which MO2 school bag was recovered from the bushes on the bank of the stream called “Pallickal Aar”. He was not cross-examined by the defence. PW8 was a witness to Ext.P3 inquest report, prepared by the Sub Inspector of Police on 10.10.2002. PW9 was the witness to Ext.P4 scene mahazar, prepared by the Investigating Officer. PW10 was the doctor, who examined the appellant on 12.10.2002 at about 2 pm. At the relevant time, he was the Medical Officer in the Department of CRA 1710/05 10 Forensic Medicine of Thiruvananthapuram Medical College. He examined the accused produced by the police and issued Ext.P5 wound certificate. The said certificate recorded the following injuries found on the body of the appellant : “1. Contusion 2x1.2 cm on the right side of neck, 5 cm below the ear. 2. Abrasion 1x0.3 cm, oblique, on the top of right shoulder 8 cm outer to root of neck and overlying the collarbone. 3. Abrasion 1.5x0.3 cm. on the right shoulder, 1 cm above the collarbone and 4 cm inner to the former injury. 4. Abrasion 3x0.2 cm oblique, on the left shoulder, across the collarbone, the upper inner end 2 cm above the collarbone and 5 cm. outer to root of neck. 5. Three abrasions 1.5x0.1 cm, 1.8x0.1 cm. and 2x0.1 cm, all being oblique and parallel to each other, over an area of 3x2 cm, on the back of right elbow. 6. Healing superficial wound 0.4x0.3 cm, oblique, on the back of right ring finger, across the nail base, it was covered with brown adherent scab. 7. Abrasion 0.4x0.3 cm. on the back of right ring finger 3.5 cm. below its root. 8. Multiple small abrasions, varying in size from 0.2x0.2 cm to 0.6x0.6 over an area of 4x3.5 cm on the front and inner aspect of right knee. 9. Abrasion 0.5x0.2 cm on the front of right leg 6 cm below injury No.8. 10. Multiple small abrasions of sizes varying from 0.2x0.2 cm to 0.5x0.3 cm over an area of 2.5x2 cm, on the top of root of right big toe. CRA 1710/05 11 11. Abrasion of 0.6x0.2 cm on the inner aspect of right big toe, 1.5 cm in front of its root. 12. Abrasion 0.6x0.2 cm on the inner aspect of root of left big toe. 13. Abrasion 1.5x1 cm on the front of left leg 4 cm below the knee. 14. Abrasion 0.4x0.3 cm on the front of left leg 15 cm below injury No.13. 15. Abrasion 2x0.1 cm oblique on the back of left forearm, the lower inner end 16 cm above root of middle finger. 16. Abrasion 0.5x0.3 cm on the back of chest 4 cm to the left of midline and 11.5 cm below the level of top of shoulder. 17. Two abrasions 0.5x0.1 cm and 0.6x0.1 cm, 0.5 cm apart, one below other and horizontal on the back of chest 1.5 cm to the right of midline and 7 cm below the level of root of neck. 18. Abrasion of 0.8.0.5 cm on the back of hip 4.5 cm to the right of midline and 2 cm below the rim of hip bone. 19. Abrasion 0.2x0.2 cm covered with reddish brown adherent scab on the right side of inner aspect of foreskin, its edges were swollen. All the abrasions were covered with reddish brown adherent scab, the contusion was reddish brown in colour.” The history and alleged cause of injury recorded in Ext.P5 wound certificate is that the appellant sustained them while attempting to overpower the girl. The doctor has deposed that the history and alleged cause of injury was noted as alleged by the appellant. He opined that the injuries found on his body could be caused by the struggling victim, at the time of rape and strangulation. The injuries found on his private parts may also be caused by the victim, at the CRA 1710/05 12 time of rape. The doctor denied the suggestion that the injuries found on the appellant could be caused in a motor-bike accident. The witness added that the injuries would have been more severe, if they were caused in a bike accident. He was extensively cross examined by the defence. But, we find that nothing has been elicited to discredit his version. The doctor also examined the appellant and gave Ext.P6 potency certificate, in which he has certified that nothing is found to take the view that the appellant was incapable of sexual act. 14. PW11 is the doctor, who conducted autopsy on the body of the victim and gave Ext.P7 postmortem certificate. She noted the following injuries on the body of the deceased : “1. On flap dissection of neck under bloodless field, the following antemortem injuries were noted. a. Contusion 5x1.5x0.4 cm of the front portion of right sterno- mastoid muscle, 4.3 cm above its lower attachment. b. Contusion 2x0.5x0.2 cm of the front portion of left sternohyoid muscle at a point 4.6 cm above its lower attachment. c. Contusion of back wall of pharynx 1.5x0.8 cm involving its whole thickness. Hyoid bone, cartilages and other neck structures appeared normal except for decomposition changes. 2. On examination of the external genitalia, the following CRA 1710/05 13 antemortem injuries were noted. a. Laceration 3x2x0.5 cm involving the lower meeting point of labia majora and adjoining part of posterior vaginal wall. b. Contusion 3.2x1.5x0.3 cm of the left lateral wall of vagina 2cm above its outlet.” Ext.P8 is the final opinion given by PW11 regarding the cause of death, after receipt of Exts.P11 and P12 FSL reports. As per the final opinion, death was caused by the blunt force applied to the neck and drowning. PW11 has also stated that rape has been committed on the victim. The doctor has deposed that injury Nos.2(a) and (b) in Ext.P7 could be caused on account of the possible penetration of penis. 15. PW12 is the Assistant Director, Biology in the Forensic Science Laboratory, Thiruvananthapuram. Exts.P11 and P12 FSL reports were proved by the said witness. As per the FSL reports, blood was found on Item Nos.3 and 4, which were MOs 3 and 4. They were the dothi and the shirt of the appellant, recovered as per Ext.P15 mahazar, from the house of the accused. Though there was human blood on those items, it was not possible to do grouping for want of sufficient quantity of blood. PW13 is the Village Officer, who prepared Ext.P13 site plan. PW14 is an independent witness, CRA 1710/05 14 who witnessed the recovery of MO1 blouse of the victim under Ext.P14 mahazar. He stated that on a Sunday at about 8.30 am, while he was coming back from the market, he saw Police and the accused, standing on Kurumakkad Bridge. He also stood there, on seeing the police. The police, along with the appellant, moved towards the north. Out of curiosity to know what was happening, he also followed them. He found that in the nearby land, wild grass was growing. The accused from under the grass, took the dress of a child. He watched the same. It was a blue coloured blouse. Its hands had golden lace. He identified MO1 blouse as the one recovered on the said day. Though he was cross examined suggesting that he is speaking falsehood, we think, nothing has been brought out to disbelieve the witness. 16. PW15 was the person, who witnessed the recovery of MO3 dothi and MO4 shirt from the house of the accused under Ext.P15 mahazar. PW16 was the Police Constable, who received the deadbody after inquest and took it to the Medical College, Thiruvananthapuram for postmortem examination. After the autopsy, he released the body to the relatives. PW17 was the Sub Inspector of Police, who recorded Ext.P1 F.I. statement, for the missing of Soorya CRA 1710/05 15 and also registered a crime for man-missing as per Ext.P16 FIR. PW18 was the Circle Inspector of Police, at the relevant time, who conducted major part of the investigation. He caused the conduct of preparation of the inquest report and sent the body for postmortem examination. He questioned the witnesses and recovered MOs 1 to 4. MO1 blouse was recovered, based on Ext.P14(a) confession statement. The relevant portion of the said confession statement, on translation, would read as follows : “While returning home, I placed the blouse under the grass in the land belonging to Kunhikrishnan, Kizhakke Chakkur House. If I am taken there, I will take out the blouse from there.” 17. Based on Ext.P15(a) information, MO3 dhoti and MO4 shirt were recovered from the house of the accused under Ext.P15 mahazar. Based on the materials disclosed, PW18 filed Ext.P17 report before the learned Magistrate, incorporating the offences punishable under Sections 376 and 302 IPC. PW19, the successor Circle Inspector of Police, completed the investigation, verified the charge and laid the final report before the Judicial First Class Magistrate's Court, Adoor. The learned Magistrate committed the case for trial by the Sessions Judge, as the offences disclosed were exclusively triable by the Court of Sessions. CRA 1710/05 16 18. Going by the deposition of the above witnesses, we do not find any vitiating circumstance to disbelieve any of the witnesses. The contention of the learned counsel for the appellant is that MO1 was recovered under Ext.P14, at the time of the second round of questioning and therefore, the same is not reliable. The doubt raised by him regarding the recovery of MO1 cannot be accepted. We find no reason for the police to falsely implicate the appellant in this case by sparing the real culprit. But, the point to be considered is whether the facts unfolded before the Court were sufficient to sustain the conviction against the appellant. According to the learned counsel for the appellant, the chain of events proved, are not sufficient to say that it was the accused, who committed the crime. We notice that MO1 was recovered under Ext.P14, from a “purayidom”(dry land), which is not frequented by people. Wild grass was growing there. MO1 blouse was hidden under the grass. The deadbody recovered was naked. PW2, the lady in the neighbourhood, PW3, with whom the victim was staying and PW4, the schoolmate of the victim have identified MO1 as the blouse worn by the victim on the fateful day. PW1 has stated that MO1 was the blouse belonging to the victim. CRA 1710/05 17 When the deadbody of the victim was found naked and it was proved that she was raped, strangulated and later thrown into the river, which caused her death and the accused produced MO1 from a hidden place, it can be safely inferred that it was the appellant, who committed the crime. Otherwise, he should come up with a proper explanation as to how MO1 blouse came to his hand and why he hid it under the grass. We find that he has not given any explanation whatsoever, for hiding MO1 blouse under the grass in a “purayidom” near the scene of occurrence. The medical evidence, concerning the injuries on the body of the appellant including those on his penis, would further corroborate the case of the prosecution. He sustained the injuries, which could be caused by the victim, while struggling to save herself. Going by the medical evidence, he has given a false explanation for the injuries sustained by him. So, the presence of injuries on the body of the appellant, for which a false explanation has been given by him, is a very strong circumstance against him. Further, the presence of the victim and the appellant, at the scene of occurrence at the relevant time on the fateful day, is also spoken to by independent and reliable witnesses. We