IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH REFERRED TRIAL NO.3 OF 2008 AND CRIMINAL APPEAL NO.128 OF 2009 Moorthy ..Appellant/Accused ..vs.. State by The Inspector of Police, Kovilpalayam Police Station, Coimbatore District. (Crime No.124 of 2005) ..Respondent Criminal Appeal filed under Section 374(2) of Criminal Procedure Code against the judgment of the learned District Sessions Judge, Mahalir Neethimandram, Coimbatore, made in S.C.No.258 of 2005, dated 25.11.2008. For Appellant : Mr.P.Venkatasubramanian For Respondent : Mr.Babu Muthu Meeran, A.P.P., COMMON JUDGMENT (Judgment of the court was delivered by M.CHOCKALINGAM, J.) This Referred Trial case has arisen from the judgment of the Court of Session, Coimbatore Division, seeking confirmation of the death sentence awarded in S.C.No.258 of 2005, whereby the accused/appellant in Crl.Appeal No.128 of 2009 stood charged, tried and found guilty as follows: https://hcservices.ecourts.gov.in/hcservices/ Accused Charges Findings Sentence Sole accused S.376 r/w 511 IPC Guilty Ten years R.I. Sole accused S.366 IPC Guilty Ten years R.I. Sole accused S.302 IPC Guilty Death Sentence The sentences imposed on the accused were ordered to run concurrently and in case of death sentence being confirmed, the sentence of imprisonment would get terminated. Aggrieved over the said judgment of the trial court, the accused/appellant has preferred Criminal Appeal No.128 of 2009. 2. Both the referred trial case and the appeal at the instance of the accused in S.C.No.258 of 2005 are taken up for consideration together. 3. The necessary facts for the disposal of the Referred Trial and the appeal can be stated as follows: (a) P.W.1 is the father and P.W.5 is the mother of the victim girl Anitha @ Pattammal, aged about 13 at the time of occurrence. They were the residents of M.G.R.Colony, Kovilpalayam, within the jurisdiction of the respondent Police Station. P.W.18, Kuppammal is the mother of P.W.5 and the grandmother of the child. She was also residing in the said Colony. The accused was the distant relative, namely, uncle to Anitha @ Pattammal. On 02.06.2005, at about 8.00 PM, at M.G.R.Colony, Kovilpalayam, the victim girl was playing in front of the house of P.W.18. At that time, the accused came there. On seeing him, due to love and affection, she ran to him and asked to provide an artificial ornament to her. The accused, on assurance, took her in the bicycle, M.O.1 and proceeded to Mottankuttai with an intention of having a sexual assault. When the accused took the deceased, it was witnessed by P.W.2 Ramasamy. (b) The accused took the child behind the hospital of Dr.Pappannan situate in a nearby forest area, where he got down from the cycle and Anitha also got down. Then, he forcibly attempted to have an intercourse. Being shocked, she raised a distressing cry. The accused was in an intoxicated mood. Then, immediately, he gagged her mouth and also pressed her nose and she fell down swooned. Following the same, he caused her death and in order to escape from the liability, he carried the dead body and threw into the well belonging to one Dhanraj, situate 1/2 km away from the spot of the occurrence and proceeded to Mettupalayam in a hired M.O.1 Hero cycle, which belonged to P.W.9. On the way, there was a mechanical defect in the cycle and hence he parked there itself and he proceeded to https://hcservices.ecourts.gov.in/hcservices/ Mettupalayam in a bus and from there to Ooty in a lorry and went to the house of P.W.24 Sakthivel and stayed over there for few days. (c) On 02.06.2005 at about 8.00 PM, when P.W.1 returned home, he did not find his daughter and P.W.5 also did not see his daughter after returning from work. P.Ws.1 and 5 were of the impression that the deceased was in the house of P.W.18. On 03.06.2005, when P.W.1 went to the house of P.W.18 and after enquiry, he got a reply that the child did not come there. Immediately, P.Ws.1 and 5 made a search. At that time, P.W.2 informed P.W.1 that he found the accused in the company of the child, taking in a bicycle. Then he immediately went to the house of the accused and made a search for few days. P.W.1 informed the same to P.W.3, the Village Panchayat President. Despite the search, they could not get the child. (d) On 05.06.2005, P.W.1 was advised to give a complaint to the police. Accordingly, he went to Kovilpalayam Police Station and gave Ex.P-1 complaint. On the strength of which, P.W.22, the Sub Inspector of Police registered a case in Crime No.124 of 2006 under Section 363 of IPC and he took up the investigation, enquired the witnesses and recorded their statements. In the meantime, P.W.3 came to know about the availability of the accused through P.W.24. (e) Then, P.W.3 accompanied P.Ws.1, 6 and 15 went to Ooty on 08.06.2005 and at the house of P.W.24, the accused was present. They took him in a car and proceeded to Kovilpalayam and on the way, the accused narrated the incident to P.W.3 and the same was recorded. P.W.3, along with other persons, went to the police station and he produced Ex.P-2 report. Based on which, P.W.22 altered the case into under Sections 376 read with 511 and 302 IPC. Express FIR Ex.P-22 was despatched to the Court. (f) P.W.23, the Inspector of Police, on receipt of Ex.P-22, took up investigation. During the course of investigation, the accused took the police personnel to the place of occurrence, where the incident had taken place and the investigator prepared the observation mahazar Ex.P-3. Thereafter, he took the police party to the well where the dead body was thrown. (g) Immediately, P.W.23 sent an intimation to P.W.13, the Executive Magistrate and P.W.13 came over there and in the presence of witnesses, an inquest was conducted and the inquest report is marked as Ex.P-9. Thereafter, the dead body was subjected to post mortem by P.W.12, who gave an opinion that she died of injuries sustained by her and the post mortem certificate is marked as Ex.P-6. P.W.23 caused the photographs to be taken through P.W.17 Photographer and the photos and negatives are marked as M.Os.2 and 3 series. P.W.23 arrested the accused and recovered M.Os.5 to 9 under the cover of mahazar Ex.P-24. The material objects were subjected to chemical analysis which resulted in Ex.P-25, the chemical analyst's report. https://hcservices.ecourts.gov.in/hcservices/ (h) Pursuant to the confessional statement, P.W.13 sent Ex.P-9 inquest report along with the statements of Pws.1 and 2 to the Judicial Magistrate No.II, Coimbatore. He also sent Ex.P-11 confessional statement of the accused to the said Magistrate. Pursuant to the order, P.W.21, Judicial Magistrate No.V, Coimbatore, after following the procedural formalities, as envisaged under Section 164 Cr.P.C.recorded the confessional statement of the accused, which was marked as Ex.P-20. (i) Pursuant to statement, P.W.23 recovered M.O.1 Hero Cycle, which was also recovered under a cover of the mahazar Ex.P-5 in the presence of witnesses. P.W.23 examined P.Ws.1 to 3, 5, 6, 8, 15, 17 and others and recorded their statements under section 161 Cr.P.C. On completion of the investigation, the investigator filed a final report under sections 366, 376 read with 511 and 302 IPC. (j) The case was committed to the Court of Session, Coimbatore and necessary charges were framed and the trial court, after enquiry, acquitted the accused since the charges were not proved. Aggrieved over the same, P.W.1 filed Crl.R.C.No.812 of 2006 before this Court and a learned single Judge took up the case for enquiry and came to the conclusion that the judgment of the trial court was to be set aside and it was a fit case where retrial had to be ordered and accordingly, remitted the matter to the trial court for re-trial. (k) Thereafter, the matter was taken on file as S.C.No.258 of 2005 by the learned Sessions Judge, Coimbatore and charges were framed and in order to substantiate the charges, the prosecution examined 24 witnesses and also relied on 27 exhibits and material objects M.Os.1 to 9. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond the reasonable doubt and that it is one of the rarest of rare cases, which requires the capital punishment of death sentence and accordingly, the same was awarded along with the other punishments, as referred to above, which is the subject matter of challenge before this court in the above appeal. 4. This court perused the entire materials, since the matter has been referred to for confirmation of the death sentence. The Court heard the learned Additional Pubic Prosecutor, who made his sincere and honest attempt in assailing the judgment of the trial court. https://hcservices.ecourts.gov.in/hcservices/ 5. Advancing arguments on behalf of the appellant/accused, the learned counsel would submit that in the instant case, the case of the prosecution was that on 02.06.2005 at about 8.00 PM, the child, aged 13 years, was taken from the place where she was playing in front of the house of P.W.18, and she was sexually assaulted and on that spot, he gagged her mouth and pressed her nose and thereafter, he threw the child in a well situate at about 1/2 km from there; that in order to substantiate of the charges, the prosecution had no direct evidence to offer; that it relied on the evidence of P.Ws.2, 19 and 20 for the purpose of speaking the last seen theory; that in so far as the those witnesses are concerned, their evidence got to be rejected; that according to P.W.2, he saw the accused having the child at about 8.00 PM from the place where she was playing in the night hours and if P.W.2 has seen the child being taken by the accused, naturally one would expect immediately to question the accused or at least inform the same to her parents; hence the evidence of P.W.2 is highly doubtful; that in so far as the evidence of P.W.19 is concerned, according to him, he saw both together; that had it been true, his evidence would have got to be rejected, for the same reason which could be attributable to P.W.2; hence the evidence of P.W.19 cannot be accepted; that according to P.W.20, he has seen the accused alone and even assuming that P.Ws.2 and 19 have seen the accused with the company of the child, it cannot be presumed that he who committed either the rape or he murdered the child. 6. Added further the learned counsel that in the instant case, the body was found only on 09.06.205, after a week; thus, the prosecution mainly relied on the extra-judicial confessional statement alleged to have been made by the accused; that according to the prosecution story, in order to escape, the accused went over to Ooty and stayed in the house of P.W.24 Sakthivel, who informed P.W.3 about his presence and P.W.3 accompanied by P.Ws.1, 2 and 6 went over there and took him from the place of Ooty; that it is pertinent to point out that the said Sakthivel was not examined when the case was taken up by trial for the first time and after remand was made, Sakthivel was examined; that even from the evidence of Sakthivel, it is clear that he has not whispered or informed to P.W.3 about the availability of the accused and only on coming to know about the presence of the accused with P.W.24, P.W.3 went to Ooty along with others; that apart from this, the evidence of P.Ws.3 and 24 are inconsistent and hence, it will be quite clear that after securing the accused, all these confessional statements were brought into. 7. Added further the learned counsel for the appellant that the accused was not questioned under Section 313 Cr.P.C. as to the evidence of P.W.2, namely, he also went to Ooty along with others and all those people took him from there and the accused made a confessional statement; thus, the evidence of P.W.2 has not only https://hcservices.ecourts.gov.in/hcservices/ become doubtful but also the confessional statement alleged to have been made by the accused could not be believed; that in the instant case, the dead body was found only on 09.06.2005; that it is highly unnatural that they gave the complaint only on 05.06.2005; that had it been really true that on the next morning P.W.2 told P.W.1 that he saw the accused along with the child on the previous night, naturally they would have gone over to the police station and given a complaint, but not done so and that it casts a doubt on the evidence of P.W.2 that could not have seen the accused with the company of the child; that in so far as the charge relating to attempt to commit rape is concerned, no material is available either though direct evidence or circumstantial evidence and further in the instant case, originally the trial court has given an order of acquittal and now the same reasons are equally applicable. Learned counsel further added that on mere addition of the further evidence, namely, the examination of P.W.24, it cannot be said that the prosecution has proved its case; that in the instant case, the trial court has given capital punishment of death penalty, but it is not a case of the rarest of rare nature when the prosecution has not even proved that he has got any intention to murder the child, even attempted to commit rape and that the prosecution case was lacking on flimsy grounds. Under these circumstances, the judgment of the trial court has got to be set aside in entirety since the prosecution has miserably failed to prove the charges. The learned counsel relied on the decisions of the Supreme Court reported in (2009) 3 SCC (Cri) 92 (RANVIR YADAV ..vs.. STATE OF BIHAR) and 2009 (3) SCALE 589 (INSPECTOR OF CUSTOMS, AKHNOOR J & K ..vs.. YASH PAL AND ANOTHER). 8. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9. It is not in controversy that one Anitha @ Pattammal, aged 13, was found dead in an occurrence that had taken place on 02.06.2005 and following the inquest made by P.W.13, and also the preparation of the inquest report Ex.P-9, the dead body was subjected to post-mortem and the doctor, P.W.12 gave a categorical opinion before the Court and also through the contents of the post-mortem certificate marked as Ex.P-6 that she died out of multiple injuries. The injuries narrated in the post mortem certificate Ex.P-6 would clearly indicate that Anitha died out of homicidal violence. The cause of death put forth by the prosecution was never disputed by the appellant at any stage of the proceedings. Hence no impediment is felt in recording so. 10. In order to substantiate that it was the accused, who kidnapped the child and attempted to commit rape on her and caused the death, the prosecution had no direct evidence to offer; but, fortunately, the prosecution had sufficient materials and necessary circumstances to place and also to prove the guilt of the accused. https://hcservices.ecourts.gov.in/hcservices/ The Court in mindful of caution by the settled principles of law and the decisions rendered by the Apex Court that in a given case, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence. In the instant case, on the application of the above principle, the Court is thoroughly satisfied that the prosecution has brought home the guilt of the accused. It is an admitted position that the girl Anitha, aged 13, was actually staying with her parents P.Ws.1 and 5. On the date of occurrence i.e.on 02.06.2005 at about 8.00 PM, she was playing in front of the house of her grandmother P.W.18, whose house situate in the same colony. P.Ws.1 and 5 categorically deposed that the child did not return to the house and that there was no suspicion since they thought that the child would be in the house of P.W.18. P.W.2 had categorically deposed that at about 8.00 PM, he found the accused taking the child in M.O.1 bicycle and P.W.2 had further deposed that since he happened to be the relative, he did not entertain any suspicion. The evidence of P.W.19 also to the effect that he saw the accused along with the child at about 8.30 PM and all these would clearly indicate that the child, who was playing in front of the house of P.W.18, was taken by the accused in M.O.1 bicycle. P.W.20 had deposed to the effect that at about 10.00 PM, he found the accused returning alone and not with the child. Apart from this, the child Anitha, who was found missing at about 8.30 PM on the date of occurrence did not return at all, but her dead body was found. The first circumstance in favour of the prosecution was the evidence of P.Ws.2 and 19, who deposed that the accused took the child and the evidence of P.W.20 to the effect that the accused alone returned thereafter. It is pertinent to point out that when the deceased was found in the company of the accused and thereafter the accused alone was returning, it is for the accused to explain as to what was happened to Anitha; but no explanation was forthcoming before the trial court as well as before this Court. Further, the dead body was actually found thereafter only i.e.on 09.06.2005. Immediately after the occurrence was over, the accused escaped from the place by taking M.O.1 which belonged to P.W.9 and he stayed in the house of P.W.24 Sakthivel. 11. Much comment was made by the learned counsel for the appellant about the evidence of P.W.24, in whose house he took asylum and that the evidence of P.W.3 was inconsistent as to the information passed on. In the considered opinion of the Court, it was thoroughly immaterial for the simple reason that P.W.24 has categorically deposed that it was he who handed over the accused to P.Ws.1, 3 and others on that particular date and further, P.W.3 and others taken him to the police station and on the way, he made a confessional statement. Even barring this, much attack was made on the confessional statement. Even assuming that the confessional statement was alleged to have been made by the accused to P.W.3 on the way to https://hcservices.ecourts.gov.in/hcservices/ the respondent Police Station, the Court is of the opinion that the other circumstances are in favour of the prosecution, namely, when the accused was produced before the investigator P.W.23, he came forward to give a confessional statement, which was recorded in the presence of P.W.10, Village Administrative Officer. P.W.10 cannot have an axe to grind and his evidence remained unshaken despite he was fully cross examined. According to P.W.10, when the accused was produced before the investigator, he gave a confessional statement and it was recorded and it was the accused who took the police officials along with him, went to the place of occurrence, and pointed out the place and identified the dead body, which was found inside the well. Therefore, it is quite clear that the confessional statement given by the accused to the police officer led the police to find out the dead body and without which, the dead body could not have been taken note of. This is the strong circumstance, in the considered opinion of the court, to indicate the nexus of the crime of the accused. Thereafter, the accused also produced M.O.1 bicycle which is also recovered under the cover of mahazar Ex.P-5, with which he had actually made an attempt to escape. Apart from this, the evidence of P.Ws.2, 19 and 20, namely, last seen theory; the confessional statement given by the accused; the identification of the place of occurrence; the place where the body was thrown into the well; the recovery of the dead body and also the recovery of M.O.1, all these would be indicative of the nexus of the crime with the occurrence. 12. Added circumstance is the confessional statement Ex.P-20 that is recorded by the Judicial Magistrate under section 164 of Cr.P.C. and the said Magistrate has been examined as P.W.21 and from his evidence, it is clear that he had recorded the confessional statement after following the procedural formalities and ensured that all the requirements as envisaged under Section 164 Cr.P.C. It also serves as the corroborative piece of evidence. 13. In so far as the charge under section 376 r/w.511 I.P.C. attempt to commit rape is concerned, the materials placed before the Court and the medical opinion adduced are not sufficient to prove the charge. Hence the charges of kidnapping and murder are proved. But, at the same time, as regards the charge under Sec.376 r/w 511 IPC, this court is able to notice that the act of the accused was actually outraging the modesty and hence, he has got to be found guilty under Sec.354 of IPC. 14. Accordingly, the conviction of the appellant under Sec.302 IPC by the trial Court is confirmed. In so far as the awarding of death penalty, in the instant case, the court is of the considered opinion that it is not a fit case where it has got to be affirmed. The case of the prosecution was that he took the child only for the purpose of sexual intercourse and not with an intention to cause death and because of her distressing cry, he gagged her mouth and https://hcservices.ecourts.gov.in/hcservices/ nose and caused her death. Further, he was in a drunken mood, even as per the case of the prosecution. 15. The Apex Court has laid down the principles to be followed in awarding capital punishment of death penalty reported in in 2008 (3) CRIMES 264 (SC) (BANTU V. THE STATE OF U.P.) wherein the earlier judgments of the Apex Court in BACHAN SINGH V. STATE OF PUNJAB (1980 (2) SCC 684), MACHHI SINGH V. STATE OF PUNJAB (1983 (3) SCC 470) and DEVENDER PAL SINGH V. STATE OF NCT OF DELHI (2002 (5) SCC 234) are referred to. It would be more apt and appropriate to reproduce the relevant passages of the said judgment which are hereunder. "32.In Bachan Singh v. State of Punjab, (1980 (2) SCC 684) a Constitution Bench of this Court at para 132 summed up the position as follows: (SCC p.729) "132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and