IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07..04..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. Appeal No.301 of 2004 and Crl. R.C.No.414 of 2001 State By: The Inspector of Police, Alagapuram Police Station, Salem District. (Crime No.288 of 1997) Rep. by The Public Prosecutor, High Court, Madras. ... Appellant in Crl.A.No.301 of 2004 Vs. Elangovan ... Respondent in Crl.A.No.301 of 2004 Mrs.Kalaivani ... Petitioner in Crl.R.C.No.414 of 2001 Vs. 1.Elangovan 2.State Rep. by The Inspector of Police, Alagapuram Police Station, Salem District. (Crime No.288 of 1997) ... Respondents in Crl.R.C.No.414 of 2001 Crl.A.No.301 of 2004:- Memorandum of Grounds of Criminal Appeal under Section 374 (2) of the Criminal Procedure Code against the judgement dated 08.12.2000 passed by the learned Assistant Sessions Judge, Salem in S.C.No.376 of 1999. https://hcservices.ecourts.gov.in/hcservices/ Crl.R.C.No.414 of 2001:- For Appellant in Crl.A.No.301 of 2004 and 2nd respondent in Crl.R.C.No.414 of 2001 : Mr.N.R.Elango, APP For Petitioner in Crl.R.C.No.414 of 2001 : Mr.Shanmugasundaram,SC for Mr.P.Vajravelu For respondent in Crl.A.No.301 of 2004 and 1st respondent in Crl.R.C.No.414 of 2001 : Mr.S.Ashok Kumar, SC for Mr.R.Ashokan COMMON JUDGEMENT State is the appellant in Crl.A.No.301 of 2004 and the respondent is the accused. This appeal has been filed challenging the acquittal of the respondent/accused in S.C.No.376 of 1999 on the file of the learned Assistant Sessions Judge, Salem by judgment dated 08.12.2000. The defacto complainant in the said case has come up with Crl.R.C.No.414 of 2001 challenging the said acquittal of the accused. 2. The case of the prosecution in brief is as follows: i) P.W.1 is a resident of Salem. During the year 1997, she was residing at her own house at Azhapuram Kattur in Salem. She had two daughters by name Preethi (the deceased) and Madumitha (P.W.14). The deceased was then aged hardly 16 years and she was studying +2 course in a local school. P.W.14 was doing 10th standard in a different school. P.W.1 was working as a Junior Engineer in Salem Municipal Corporation. The accused is a registered contractor in the said Municipality and in that manner, he came to be introduced to P.W.1. The accused helped P.W.1 in so many ways. Thus, as days passed, he became very close to her. Slowly the accused started visiting P.W.1 at her house. P.W.11 is the father of P.W.1. He along with his other family members was residing in Achankuttapatti village. The frequent visits made by the accused to the house of P.W.1 was opposed to by P.W.11 and other family members. But the accused did not stop. P.W.1's husband died in the year 1986 and so, she was living alone with her children. The accused told P.W.1 that since his wife was mentally ill, he had lost peace in his life. So, he expressed his desire to marry P.W.1. But P.W.1 declined. Thereafter, P.W.1 started constructing a house. The accused helped her to construct the same. In due course, P.W.1 and the accused had developed illicit intimacy. The accused used to stay during night hours with P.W.1 at her house. The accused insisted that the children of P.W.1 should call him as “Daddy”. But the children declined. The newly https://hcservices.ecourts.gov.in/hcservices/ constructed house where P.W.1 and her children had started residing, had three keys. The first key would be with P.W.1; the second key with the accused and the third key with the deceased Preethi. ii) On 15.06.1997 in the morning, when P.W.1 was at home, the accused spoke to her over phone. He wanted P.W.1 to be ready to go to her parent’s home. P.W.1 told him that she had cancelled the idea of going to her parent’s home on that day, since she had planned to go on the next Monday. The accused told her that she could go on that day as well as on Monday. P.W.1 agreed. She was ready along with the deceased at her home. The accused came to her house in a car. On seeing the deceased getting ready to go over to her grand parent’s house, the accused told P.W.1 and the deceased that it was not good for the deceased to go to the house of P.W.1’s parents in view of the ensuing +2 examinations. He persuaded both P.W.1 and the deceased in this regard. So, the deceased stayed back in the house itself. P.W.1 and the accused alone went in his car. He left P.W.1 at her parents house - (P.W.11’s house). Madumitha- P.W.14 was already in the house of P.W.11. On seeing P.W.1, P.W.14 and the wife of P.W.11 enquired about the deceased. P.W.1 told them that the deceased had been left behind at her house alone. After leaving P.W.1 at the house of P.W.11, the accused left in the same car. iii) Around 2.00 p.m on that day, P.W.11 came to his house. He told P.W.1 that when he spoke over phone to the house of P.W.1, the accused attended the phone and then he handed over the same to the deceased. He also informed P.W.1 that the deceased was very dull while she spoke over phone. P.W.11 took exception to P.W.1 for having left the deceased alone. In the evening, P.W.1 was waiting for the arrival of the accused to take her back. At about 6.45 p.m, the accused came. The deceased Preethi also came in the same car along with the accused. Preethi got down from the car and stood on the road itself without going into the house. P.W.14 and the wife of P.W.11 went towards her and spoke to her. Even then, the deceased was very dull. When P.W.14 and her grand mother enquired the deceased as to why she was dull, she told them that he came to the house. When P.W.14 asked her as to whom she refered to as 'he', she replied that it was the accused – Elangovan. Thereafter, the deceased narrated the happenings to her at the hands of the accused on 15.06.1997. She further told that while she was at home alone, the accused came to the house and removed his banian. She objected to the same. The accused gave milk to her. Then, she went for sleep. At about 5.30 p.m. the accused woke her up. At that time, the accused was lying by her side. The blanket and the skirt were disorderly. Sensing something untoward, she slapped the accused. The accused prostrated before her apologetically and requested her not to disclose the same to anybody. He apologised before the portrait of her father as well as in the grave yard of her father. After disclosing the above, the deceased wanted both P.W.14 and her grand mother not to disclose it to anybody as it would not be in the interest of her mother. Then the accused took P.W.1 as well as Preethi in the https://hcservices.ecourts.gov.in/hcservices/ same car. At that time, P.W.1 found Preethi’s eyes reddish. Though P.W.1 enquired about the same, the deceased did not disclose anything. However, she told P.W.1 that she was experiencing pain over her neck and throat. When she enquired the deceased as to whether she had gone for tuition, she did not answer. But the accused told P.W.1 that the deceased had attended the tuition. iv) On reaching the house of P.W.1, she went straight to the bed room for the purpose of changing her dress. At that time, she found the lungi (M.O.1) belonging to the accused on the bed. It was wet. P.W.1 took the said lungi and saw it under the tube-light. To her shock, she found that there were blood stains on the same. P.W.1 had developed fear and suspicion that something untoward had happened. She instructed the deceased to go and sleep in a different room. She did so. v) Soon thereafter, P.W.1 enquired the accused as to why there were blood stains on his lungi. The accused told her that it was his blood. P.w.1 did not stop with that. She further enquired as to how blood had stained the lungi. The accused told her that at times blood bleeds from his penis and in such a way, the lungi was stained with blood. P.W.1 was not satisfied with that answer. Then she enquired the accused as to whether he had provided lunch for the deceased. The accused told P.W.1 that she had given the deceased bread and milk alone. After this dialogue, the accused remained at the house of P.W.1 till 10.00 p.m. and then left. vi) After the accused had left, P.W.1 went to the room where the deceased was staying. Unusually, the deceased was sitting on the floor resting her head on the bed. P.W.1 took Preethi to the bed room and enquired her as to what had happened in the morning. The deceased told her that since she was studying from the morning, she did not mind the passing of time. She further told P.W.1 that in the afternoon, the accused came and gave milk to her. After taking milk, in the bed room, the deceased started sleeping. It is alleged that at that time, the accused removed his pant and wore the lungi and baniyan. The deceased questioned the same. After some time,when the deceased was sleeping, the accused committed sexual assault on her. In the evening, the deceased realised the same. The deceased told all these facts to P.W.1. She further told that out of anger, she slapped the accused. The accused apologetically prostrated before her and requested her not to disclose the happenings to anyone. He further told that if she discloses the same to her mother (P.W.1) she would also commit suicide. Then, he wanted the deceased to take bath. The undergarments were also washed. Then the accused took the deceased to the Pooja room and in front of the portrait of the father of Preethi, the accused apologised to her. But, the deceased was not convinced. Then he took the deceased to the graveyard of the father of the deceased. There, he again prostrated before the deceased and requested her not to disclose it to anybody. From the above disclosure made, P.W.1 realised that the deceased had been raped by the accused. When P.W.1 enquired as to whether she had any https://hcservices.ecourts.gov.in/hcservices/ different feelings, she told P.W.1 that she had pain on her external female genetalia as well as on her neck and throat. The deceased told P.W.1 that she would not live anymore. P.W.1 consoled her. vii) On the next day, i.e. on 16.06.1997, at the house of P.W.1, the telephone rang. The deceased took the phone. When P.W.1 enquired the deceased as to who spoke over phone, the deceased told "he only spoke". According to P.W.1, ‘he’ means the accused. P.W.1 told the deceased not to mind about the accused. She wanted the deceased to get ready to go to school. P.W.1 was under the impression that if the deceased goes to school, she would become normal. Accordingly, the deceased went to the school and P.W.1 went to her office. While P.W.1 was in her office, the accused attempted to speak to her over phone. P.W.1 expressed that she was not willing to speak to him. In the evening, when P.W.1 came out of her office, the accused was waiting outside for her. He wanted P.W.1 to get into the car. Though, initially she refused, on being persuaded, she got into the car with the hope to speak about the incident relating to the deceased. While in the car, she questioned the accused as to why he had spoiled her daughter, who was hardly 16 years old whereas he was a 42 years old man. The accused, though initially hesitated, later on confessed about the rape committed on the deceased. Then he warned her not to disclose it to others as the marriage prospectus of both the children would be spoiled. He also intimidated P.w.1 that even if P.W.1 discloses the same to anybody, using his muscle power and influence he would change the entire story. viii) When they reached the house of P.W.1, at 6.15 p.m. it was found locked. The accused got down and opened the doors using the key in his possession. But the next door of the house could not be opened as the same was bolted from inside. P.W.1 went to the side of the house and peeped through the window. The deceased was not in the bed room. Then she went to the next window and peeped through a small gap in the window. To her shock, she found the deceased hanging by neck. P.W.1 cried for help. Then P.W.1 broke open the window pans and found that the deceased was dead. The deceased was in her uniform (M.O.3 and 4) at that time. Then she preferred a complaint to the police Station under Ex.P.1. (ix) P.W.17 was the then Sub Inspector of Police, Alagapuram Police Station. On receiving Ex.P.1- Complaint from P.W.1 on 16.06.1997 at 7.00 p.m. he registered a case in Cr.No.288 of 1997 under Section 174 of Cr.P.C. Ex.P.24 is the FIR. He forwarded the FIR and the Complaint to the Revenue Divisional Officer, Salem. Taking up the case for investigation, at 7.30 p.m. he visited the place of occurrence. He found the house bolted from inside. He broke-open the doors in the presence of witnesses P.W.9-Thangaraj and one Balu. He prepared Ex.P.11- Observation Mahazar. He also prepared Ex.P.25-Rough Sketch. He removed the body of the deceased to the drawing hall of the house. Between 8.30 p.m. and 11.00 p.m. he conducted inquest on the body of the deceased. He examined P.W.1, P.W.13 and one Sekar and https://hcservices.ecourts.gov.in/hcservices/ recorded their statements. He prepared an Inquest Report. Then, he forwarded the body for post-mortem. (x) P.W.12 Dr.Vallinayagam at Government Hospital, Salem, conducted autopsy on the body of the deceased at 10.15 a.m. on 17.06.1997. He found the following ante-mortem injuries:- (i) An incomplete oblique ligature mark on the front and sides of neck, 16 cms x 2 cms, it lies above the thyroid cartilage, situated 6 cms below the left mastoid process, and 4 cms below the right mastoid process. (ii) Base of the ligature mark was pale, dry and parchument like. Ex.P.16 is the Post-mortem Certificate. He opined that the death was due to hanging. In respect of the possibility of rape on the deceased, he has not given any positive opinion and therefore, he was treated as hostile and cross examined by the prosecution. (xi) At about 11.30 a.m. on 16.06.1997, P.W.17 recovered M.O.2 – Saree, which was used as ligature for committing suicide and M.O.13 Broken glass pieces under Ex.P.12-Seizure Mahazar. At 5.00 p.m., M.O.3 -Skirt, M.O.4-Shirt, M.O.5-Petticoat, and M.O.12- Panties of the deceased removed from the dead body by the Doctor during post-mortem were handed over to P.W.17. (xii) After the body was taken, on 17.06.1997, P.W.1 told P.W.11 about what happened on 15.06.1997 and 16.06.1997 and also as to what the deceased told her. P.W.14 and the wife of P.W.1 also told as to what the deceased told them on 15.06.1997. So, P.w.1 came to know that the deceased was raped by the accused and that was why she committed suicide. Immediately, he gave telegrams to the Deputy Inspector General of Police, Vellore, North Arcot and to the Chief Minister's Cell [Exs.P.13 & 14]. But, no action was taken on the said telegrams. After cremation was over, P.W.11 took P.W.1 and P.W.14 to his house and the house of P.W.1 was locked. (xiii) On 23.06.1997, P.W.1, P.W.11 and P.W.14 returned to the house of P.W.1. When they cleaned the house, they found the books and note books of the deceased scattered in the room. When they put them in order, a letter written by the deceased [Death Note-Ex.P.2] was found. Then, they were sure that the deceased was rapped by the accused. (xiv) Thereafter, at 10.00 p.m., on the same day, P.W.11 gave yet another complaint under Ex.P.15 to the police along with that he produced copies of two Telegrams sent to the Deputy Inspector General of Police, Vellore, North Arcot District and the Chief Minister's Cell, Secretariat, Chennai. (xv) In the said complaint, P.W.11 had alleged that the deceased was raped by the accused and that was the cause for her to commit suicide. He also narrated that the deceased told P.W.1 & P.W.14 about all the happenings. In the telegrams sent to the Chief Minister's Cell and the Deputy Inspector General of Police, he had alleged that the accused committed rape on the deceased and unable to bear with the same, she committed suicide. https://hcservices.ecourts.gov.in/hcservices/ (xiv) Apart from that, P.W.11 also produced the Death Note of the deceased [Ex.P.2]. In Ex.P.2, the deceased had stated that she believed that person (name not mentioned) as a well-wisher, but, he had caused harm to her. She had also indicated, that was the reason for her to commit suicide. Based on the same, P.W.17, altered the case into one under Section 306 and 376 of IPC. Ex.P.26 is the alteration report. Thereafter, he handed over the case diary to P.W.18 for further investigation. (xv) P.W.11 in his evidence has narrated about the marital life of P.W.1 and the illicit relationship between P.W.1 and the accused He has also stated about the telephonic call made by him on 15.06.1997 at about 11.30 a.m. to the deceased. He has further stated about the fact that the phone call was initially attended to by the accused and then it was handed over to the deceased. He has further stated that the deceased was so dull at that time when he spoke to her over phone. He has further stated that on 16.06.1997 at about 11.00 p.m. he heard about the death of the deceased and he proceeded to the house of P.W.1. At that time since P.W.1 was in grief and since she fainted very often, he did not enquire her further anything more about the cause for the suicide. Thereafter, on 17.06.1997 when he enquired P.W.1, she narrated all the happenings including the disclosure made by the deceased to her. Immediately thereafter at 10.30 a.m. on 17.06.1997, he gave Ex.P.13 and P.14 Telegrams to the authorities for necessary action. In both the telegrams, as we have already noticed, P.W.1 has stated that the deceased was raped by the accused and that was the cause for her suicide. He has further stated that fearing for the accused, he did not go to the police station immediately to prefer complaint. (xvi) Coming back to the investigation, on 23.06.1997 at 10.30 p.m. P.W.18 took up the investigation. He visited the place of occurrence. He examined P.W.12 Dr.Vallinayagam and recorded his statement. Then, he examined P.W.1 and P.W.11 and recorded their further statements. At 2.00 p.m on 26.06.1997 he arrested the accused in front of Mariamman Temple at Reddiyur and brought him to the police station at 2.30 p.m. Soon thereafter, he sent the accused for judicial remand. On 27.06.1997, he proceeded to Aachankuttapatti Village, examined P.W.14, P.W.11, one Saroja and one Rajamma and recorded their statements. At 6.30 p.m. he visited the house of P.W.1. At that time, P.W.1 produced a blood stained frock of the deceased (M.O.5), a blood stained bed-sheet (M.O.7), a full hand shirt (M.O.6) and a lungi stained with blood (M.O.1), a bed cover (M.O.8), a Gown (M.O.11) and stainless steel tumbler (M.O.10) in the presence of P.W.13 and another witness. P.W.18 recovered the same under Ex.P.27-Mahazar. He examined P.W.13 and other witnesses and recorded their statements also. On 29.06.1997, he gave a requisition (Ex.P.28) to the learned Judicial Magistrate concerned to send the accused for medical examination. (xvii) P.W.12 Dr.Vallinayagam examined the accused and gave a report under Ex.P.19. According to his opinion, the accused is capable of performing sex. According to his certificate [Ex.P.20], the age of the accused would have been around 40 years. https://hcservices.ecourts.gov.in/hcservices/ (xviii) Then, P.W.18 examined P.W.2, the Principal of Vidhya Mandir Higher Secondary School, where the deceased was studying, from whom, he obtained Ex.P.3 – an examination answer sheet of the deceased in Tamil subject for the purpose of comparison of the hand writing. Then, he examined P.W.3 who was the then Mathematics Teacher at Holy Angels Matriculation Higher Secondary School and obtained Ex.P.5 – an examination answer sheet of the deceased in Computer Science subject, Ex.P.4 - leave letter of the deceased, Ex.P.6 – an examination answer sheet of the deceased in Mathematics subject and Ex.P.7-Admission Application of the deceased. P.W.3 identified the hand writings of the deceased in the above documents. P.W.18 examined P.Ws.2 and 3 and recorded their statements. Once again, he examined P.Ws.1, 11 and 14 and recorded their statements. At the request of P.W.18, the material objects were sent for chemical examination. Then, at his request, the hand writings of the death note (Ex.P.2) and the hand writings contained in Ex.P.4, P5, P.6 and P.7 were sent for comparison by a hand writing expert. (xix) P.W.5, the hand writing expert working at Forensic Science Laboratory, Government of Tamil Nadu, Chennai has got 15 years of experience in the field. He compared the hand writings and gave opinion to the effect that the hand writings found in the documents containing admitted hand writings and the hand writings in Ex.P.2 - Death Note, were made by one and the same person. In other words, according to him, the writings in the death note should have been made by the deceased in her own hand writing. (xx) P.W.16 Mrs.Radhamani, a Scientific Assistant working at Forensic Science Laboratory, Government of Tamil Nadu, Chennai, examined two Bed-sheets, one Lungi and one frock. She found that there were blood stains on both the bed-sheets and lungi. In the frock and one bed-sheet, she found seminal stains. Ex.P.23 is her Certificate (xxi) P.W.6, during the relevant point of time, was working in the Gem Cutting Company of P.W.13. The said company is situated just opposite to the house of P.W.1 where the occurrence had taken place. She knew the deceased, the accused as well as P.W.1. According to her, she used to see the accused frequently visiting the house of P.W.1. One day prior to the death of the deceased, when she was in the company, she heard some noise from out side (i.e.) from the house of P.W.1. It was in the evening. She went out of the company and found that the deceased was standing at the entrance of the house of P.W.1 and the accused was standing in front of her. They were shouting at each other. (xxii) P.W.7 was the cultivating tenant of the lands belonging to P.W.1. In connection with payment of rent, prior to the death of the deceased, on one occasion, he came to the house of P.W.1. At about 4.00 to 4.30 p.m. on that day, he found the house of P.W.1 closed. He rang the calling bell. The accused came out of the house. When he enquired the accused whether P.W.1 was available, the accused told him that she had gone to Aachankuttapatti Village . At that time, he found the accused wearing a lungi. He has identified M.O.1 -Lungi as the one which was worn at that time by the accused. Thereafter, the accused https://hcservices.ecourts.gov.in/hcservices/ closed the door. Therefore, P.W.7 returned to his village. Subsequently, he came to know that the deceased had committed suicide. (xxiii) Reverting back to the investigation done by P.W.18, he examined Dr.Vallinayagam on 27.10.1997 and recorded his further statement. Then, he handed over the investigation to P.W.19. P.W.19 on completion of investigation, laid the final report against the accused. 3. Based on the above materials placed by the prosecution, the trial Court, framed as many as three charges. The 1st charge is under Section 376 of IPC for having committed rape on the deceased by the accused on 15.06.1997; the 2nd charge is under Section 306 of IPC for having driven the deceased to commit suicide on 16.06.1997 by hanging and; the 3rd charge is under Section 328 of