IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL No.332 of 2009 State rep. by Inspector of Police, T-3, Korattur Police Station, Chennai. (Crime No.332/2008) .. Appellant(Complainant) Vs. K.Rajendran .. Respondent(Accused) This criminal appeal is preferred under Section 378 Cr.P.C against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.1, Poonamallee made in S.C.No.197 of 2008 dated 1.12.2008. For Appellant : Mr.Babu Muthu Meeran, A.P.P. For Respondent : Mr.M.Devaraj JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) The State appeals. Challenge is made to the judgment of the Additional Sessions Division, Fast Track Court, Poonamallee, made in S.C.No.197 of 2008 whereby the sole accused/respondent herein stood charged and tried under sections 377 and 302 I.P.C. and on trial, he was not found guilty of the above said charges and was ordered to be acquitted. 2. The short facts necessary for the disposal of this appeal can be stated thus: (a) P.W.1 is the wife of P.W.2. P.W.3 is the daughter of P.Ws.1 and 2. The deceased child, Jayabharathi, aged 3 years was also the daughter of P.Ws. 1 and 2. P.W.4 is running a petty shop. P.W.5 was residing nearby the house of P.Ws. 1 and 2. On the date of occurrence, that was on 20.4.2008, during evening hours, P.W.3 and https://hcservices.ecourts.gov.in/hcservices/ Jayabharathi were playing in the street. At that time the respondent who came there gave chocolates and also Rs.2/- to Jayabharathi. On seeing the same, P.W.3 questioned the respondent why he was giving those things to her sister, since her mother would scold her. The accused replied that he has given only chocolates and a small amount and there was nothing wrong in it. At about 4.00 p.m., P.W.3 went to house. when P.W.4 was in the shop, she saw the accused giving money to Jayabharathi and Jayabharathi came to the shop and purchased chocolates with the money she had and left the shop. P.W.5 noticed, accused and Jayabharathi going through his street. But at about 6.15p.m, he found the accused alone returning back. P.Ws.1 and 2 made thorough search of Jayabharathi on the whole day and since they could not find her, P.W.1 went to the respondent Police Station and gave a report on 21.4.2008 at 10.00 p.m., on the strength of which, a case came to be registered in Crime No.332/2008 for 'girl missing' and the F.I.R. Ex.P11 was dispatched to Court. P.W.12 was enquiring about the same. On 22.4.2008 at about 8.00 a.m. P.W.1 was informed that the body of the child was found nearby the pond. Immediately, P.Ws. 1 and 2 rushed to the pond and found the dead body of their child Jayabharathi. Thereafter, they informed the same to the Police. (b) P.W.12 Sub Inspector of Police, went to the spot and verified the said fact and amended the case to section 174 Cr.P.C. for suspicious death and the amended F.I.R. Ex.P13 was dispatched to Court. P.W.12 took up investigation, made inspection of the place of occurrence and prepared the observation mahazar Ex.P.10 in the presence of witnesses and panchayatdars. Thereafter, P.W.12 conducted inquest on the dad body of the deceased in the presence of witnesses and prepared Ex.P14 inquest report and the dead body was sent to the hospital for the purpose of postmortem. (c) P.W.7 doctor attached to the Kilpauk Medical College Hospital, on receipt of the requisition, conducted autopsy on the dead body of the child Jayabharathi. He found the body in a decomposed state and gave opinion in Ex.P.3 post mortem certificate that the deceased would appear to have died of asphyxia due to drowning. (d) Pending investigation on 29.4.2008, when P.W.11 village Administrative Officer, Korattur was in his office, the accused appeared before him and gave the confessional statement and the same was recorded by P.W.11 which was marked as Ex.P8. The accused was produced by P.W.11 before the respondent police along with Ex.P8 confessional statement. The accused was arrested by the investigating officer. Then the accused came forward to give confessional statement voluntarily and the admissible part of the same was marked as Ex.P9. The accused took the investigator and the other witnesses to the backside of Durgaiammal temple and he produced M.O.1 blue colour banian The same was recovered under a cover of mahazar,Ex.P10. https://hcservices.ecourts.gov.in/hcservices/ (e) On requisition by the investigating officer, necessary orders were issued for conduct of identification parade. Accordingly, Judicial Magistrate No.1, Ponneri conducted identification parade on 7.5.2008 and P.Ws. 3, 4 and 5 identified the accused properly. The identification parade proceedings were marked as Ex.P2. The accused was medically examined in respect of potency and he was found to be potent. Ex.P3 is the certificate in that regard. Further, M.O.1 was recovered at the instance of the accused and it was sent for analysis and found to contain semen stains. Further all the material objects was sent to Court. Following the same, the investigating officer recorded the statement of other witnesses and the accused were sent for judicial remand. After completion of the investigation, the investigating officer filed a final report. (f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and relied on 16 exhibits and 4 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. No defence witness was examined. The Court heard the arguments advanced on either side and on scrutiny of the materials has found that the prosecution has not proved the case beyond reasonable and rendered the order of acquittal. Hence, this appeal at the instance of the State. 3. Advancing the arguments on behalf of the State, the learned Additional Public Prosecutor would submit that the trial Judge has not considered and appreciated the evidence putforth by the prosecution. The prosecution mainly relied on the last scene theory which was clearly spoken to by P.W.3, 4 and 5 P.W.3have categorically stated that on the evening of 20.4.2008 She was playing with the deceased Jayabharathi it was the accused who gave chocolate and also Rs.2/- to Jayabharathi and the same was questioned by her but the accused replied that there is nothing wrong in it. Thereafter, P.W.3 left the place. P.W.4 petty shop vendor has categorically stated that the accused gave money to the child and the child purchased chocolate from her shop out of the money, she had. Insofar as P.W.5 is concerned, he has seen the deceased in the company of the accused and they were going near his street and after some time he saw the accused alone coming back. Accordingly, the last seen theory was spoken to by all these three witnesses viz., P.W.3, P.W.4 and P.W.5. 4. The learned counsel for the State would further submit that originally, a complaint has been given for 'girl missing', thereafter, when the body of the child was found in the pond, on information, the case was amended to section 174 Cr.P.C. and the investigating officer conducted inquest on the dead body of the child and examined the witnesses in that regard. It is pertinent to point https://hcservices.ecourts.gov.in/hcservices/ out, in the instant case, the prosecution had the benefit of the confessional statement given by the accused/appellant before P.W.11 Village Administrative officer, pursuant to which M.O.1 banian was identified which was worn by the child when she was playing on the date of occurrence. The same was recovered from the accused which would clearly point the nexus between the accused and the crime. 5. The learned counsel for the State would further submit that the accused was found to be potent and the semen stains were actually found in M.O.1 banian worn by the child. The child was found in the company of the accused when she was playing on date of occurrence, thereafter, she did not return home but only the dead body of the child was found in the nearby pond and the accused had no explanation to offer. It is quite clear that it was accused who had carnal intercourse and committed rape on the child and cause her death. The trial Judge without considered any one of the above aspects has rendered the judgment of acquittal. Under such circumstances, the judgment of the trial Court has got to be set aside and it has got to be dealt with in accordance with law. 6. In answer to the above, the learned counsel appearing for the respondent/accused would submit that the prosecution has miserably failed to prove the case either through direct evidence or through circumstantial evidence. It is an admitted position that the prosecution had no direct evidence to prove about the carnal intercourse or the charge of murder. P.W.3 was a child witness. Therefore, without proper corroboration, the evidence of P.W.3 cannot be taken into account. Insofar as P.W.4 is concerned, she was a petty shop owner and according to her, during evening hours on 20.4.2008, she saw the accused giving money to the child Jayabharathi and the child purchased chocolate from her shop and from this, it cannot be inferred that it was the accused who committed the crime. So far as P.W.5 is concerned, he was the neighbour of P.Ws.1 and 2. If P.W.5 had really seen the child in the company of the accused and when the child was actually missing from the evening of 20.4.2008, he would have informed the same to P.Ws.1 and 2 immediately, but he did not do so. Even at the time of inquest P.W.5 did not whisper anything about the same. Therefore, it is clear that it was falsely introduced to suit the prosecution case. 7. Learned counsel for the respondent would further submit that in the instant case, it was noticed that the child was actually found in the company of the accused on the evening hours of 20.4.2008 but the dead body of the child was found only on 22.4.2008, after a long interval. The last seen theory can be applied only when there is a short gap between the two incidents i.e., the time on which the deceased last found in the company of the accused and time on which the dead body was found. In the instant case, the gap is wide between the two incidents. The last seen theory could not be accepted. Added further learned counsel, the alleged extra judicial confession https://hcservices.ecourts.gov.in/hcservices/ before P.W.11, Village Administrative and the recovery of the M.O.1 banian, pursuant to the confessional statement of the accused given to the police were all cooked up for the purpose of the prosecution case. There was no reason for the accused to appear before P.W.11 Village Administrative officer, who is a stranger to him, that too, after a week, that was on 29.4.2008 and give confessional statement. 8. Learned counsel for the respondent would further submit that insofar as the recovery of M.O.1 was concerned, much reliance was placed by the prosecution before the trial Court and equally here also but this evidence cannot be relied upon for the reasons that according to P.W.1, M.O.1 blue colour banian was worn by the child at the time when the child was playing outside the house on the date of her missing. At the time of cross examination, P.W.1 has categorically stated that the dead body of the child was identified by the banian the child worn on the said day. As per the inquest report, at the time when P.W.1 identified the dead body of her daughter in the pond, the child was wearing jatti. Hence, the recovery of banian is a false story. There was major discrepancy in the place of recovery of M.O.1 spoken to by the recovery witness and the investigating officer. Thus the recovery of M.O.1 cannot be believed. Added further learned counsel, so far as the semen stain found in M.O.1 banian is concerned, it cannot be accepted for the reason that, when semen stains were found in M.O.1 banian and when potency test was made on the accused, the semen of the accused should have been sent for analysis for comparison with that of the semen stains in M.O.1 banian but the same was not done. Under such circumstances, there is neither any proof nor any circumstances pointing to the guilty of the accused. Therefore, the prosecution has miserably failed to prove the case beyond reasonable doubt and the trial Judge has marshalled the evidence proper and has rejected the case of the prosecution. Hence, the judgment of the trial Court has got to be affirmed. 9. The Court paid its anxious consideration on the submissions made and made a thorough scrutiny of the entire materials available. 10. At the outset, it remains to be stated that the Court is mindful of the caution made by the Apex Court and the settled principles of law that in a given case where the trial Court, on appreciation of the evidence has rendered the judgment of acquittal of the accused, the said judgment should not be reverted unless and until the trial Court is perverse or the trial Judge has rendered acquittal without any reasons. On application of the above test, the Court is afraid whether this Court could sustain the judgment of acquittal passed by the trial Judge. 11. As could be seen above, the charges leveled against the accused is that he has committed carnal intercourse on the three years old Jayabharathi and murdered her and thrown her dead body in https://hcservices.ecourts.gov.in/hcservices/ the pond. It is true that the prosecution had no direct evidence to offer in this regard but the prosecution had the following circumstances in its favour. Firstly, according to P.W.3, sister of the deceased Jayabharathi, they were playing on the street during evening hours on 20.4.2008. At that time, the accused came there and gave chocolates to Jayabharathi and also two rupees coin. When the same was questioned by P.W.3, the accused reply that there is nothing wrong in it. Secondly, P.W.4 petty shop owner has categorically deposed that she saw the accused who gave money to the child Jayabharathi and the child purchased chocolate from her shop. Despite cross examination, the evidence of P.W.4 was clear. Thereafter P.W.5 who was residing nearby the house of P.Ws 1 and 2 saw the accused taking the deceased Jayabharathi through the street and some time later, P.W.5 noticed the accused alone returning without the child Jayabharathi. It is pertinent to point out that P.Ws. 3, 4 and 5 did not to entertain suspicion against the accused. Thus, the last seen theory i.e., the deceased was found in the company of the accused was actually spoken to by all the three witnesses. 12. According to the prosecution, the occurrence had taken place during the evening hours of 20.4.2008. The child, who was found in the company of the accused, did not come back. Therefore, it was the accused to explain what had happened to the child. At this juncture, it has to be pointed out that the dead body of the child was found in the morning hours on 22.4.2008 and there is an interval of about 36 hours from the time when the child was found in the company of the accused. It is well settled proposition of law that in a case like this, even though there was a long gap between the two incidents namely, last seen theory and the recovery of the dead body of the deceased, the last seen theory, cannot be rejected. In the instant case, even though there was a gap of 36 hours from the time when the child was found in the company of the accused and till the time the dead body of the child was found, there is no material noticed by this Court that there could have been any intervention circumstances. The dead body was found in a decomposed state and the doctor has given opinion to that effect which would indicate the fact that the child died during the night hours on 20.4.2008. Further, the child who went along with the accused did not return back. Therefore, it was the accused who could give proper explanation but the accused had no explanation to offer. 13. When the prosecution rests its case on circumstantial evidence, it must place and prove necessary circumstances which must constitute a chain without a snap and if a particular circumstance is missing and when it is within the knowledge of the accused, the Court can come to a conclusion that the particular circumstance can be filled up by the Court that it was the accused who had involved in the crime. In the instant case, once the child was last seen in the company of the accused in the evening hours and the occurrence had https://hcservices.ecourts.gov.in/hcservices/ taken place on the same day at night hours and when the accused had no explanation to offer as to the missing of the child, in the considered opinion of the Court, it is pointing to the guilt of the accused. 14. Added circumstances are, on 29.4.2009, when P.W.11 Village Administrative officer was in his office, the accused appeared before him and narrated the entire incident and the same was recorded by the Village Administrative Officer which was marked as Ex.P11. It is true that it is the extra judicial confession. It is well settled proposition of law, merely on the extra judicial confession the accused cannot be convicted unless it inspires the confidence of the Court on the following two reasons. (1) To whom and under what circumstances the extra judicial confession was given (2) Whether the evidence of the person to whom the extra judicial confession given inspires the confidence of the Court. 15. It is an admitted fact that P.W.11 Village Administrative officer is of the same place and the accused also belongs to the same place. The accused has given extra judicial confession on 29.4.2008 and P.W.11 has recorded the same. It was produced before the Investigator and the Court is unable to notice any reason to reject the same or to cast any doubt on the evidence of P.W.11 or the extra judicial confession so recorded by P.W.11. On production before the investigating officer, the accused was actually arrested and on arrest, he came forward to give confessional statement voluntarily. The admissible part of the confession statement is marked as Ex.P9. Following the confession statement, he took the police officials along with the witnesses and produced M.O.1 banian which was kept behind the Durgaiamman temple. It has to be pointed out at this juncture that when the child was found missing, she was wearing M.O.1 banian and M.O.2 jatti. When the dead body of the child was found in the pond, only M.O.2 jatti was worn by the child and the same was produced before the Court. It is pertinent to point out that after a long period, the evidence was taken before the Court and merely because of minor discrepancy found in the evidence of P.W.1 as stated above, it cannot be taken that the prosecution has come with a false story. In the instant case, the recovery of M.O.1 Blue colour banian which was worn by the deceased was produced by the accused pursuant to the confessional statement which stands as a strong circumstance against the accused/respondent herein. Further, the accused was taken for potency test and P.W.7, doctor who examined him, gave Ex.P4 certificate wherein it is found that the accused is potent. M.O.1 banian was sent for analysis and it was found that there was semen stains in it. The child was three years old and there was no occasion for any semen stains that could be found in M.O.1 banian. This would indicate that unless and until there was rape by way of carnal intercourse, there is no possibility of semen stains to be noticed in M.O.1 banian, which points to the guilt of the accused . All the evidence that was placed before the trial Court https://hcservices.ecourts.gov.in/hcservices/ would point that it was the accused and none else who took the child from the place she was playing; had carnal intercourse; caused her death; thrown into the pond and fled away from the place of occurrence. The trial Court has not considered any one of the above factual position or the evidence adduced, but has given the judgment erroneously finding that the prosecution has not proved the case beyond any reasonable doubt. 16. Therefore the judgment of the lower Court has got to be made undone by upsetting the same. The contention of the learned counsel for the respondent do not carry any merit whatsoever. It is the case where the Court notices heinous crime committed by the accused. He had committed carnal intercourse on a three years old child, caused her death and thrown her into the pond. 17. Under such circumstances, this Court is of the considered view, the prosecution has established its case beyond reasonable doubt against the respondent/accused for the offence under Sections 377 and 302 I.P.C. Hence, he stands convicted for the above said offences. Therefore, issue non-bailable warrant to the respondent/ accused for his appearance before this Court on 30.10.2009 at 10.30 a.m. as to the question of sentence to be imposed on him. 28.10.2009 vsi The Criminal Appeal No.332/09 having been posted on Friday the 30th day of October 2009, for questioning of sentence, pursuant to the order of this Court dated.28.10.2009 and made herein and in the presence of the aforesaid Advocate, the Court made the following order: (Judgment of the Court was made by M.CHOCKALINGAM,J) Pursuant to the direction of this Court, the accused/respondent is produced before the Court, this day. He is found guilty under Section 377 IPC for carnal intercourse and also under Section 302 I.P.C. for murder. He is questioned as to what he wanted to say about the sentence. He replied as follows: "ehd; xd;Wk; Fw;wk; bra;atpy;iy/" This Court has found him guilty of the above said offences, reversing the judgment of the trial Court. The accused has done barbarous act and heinous crime of carnal rape on a three years old child and murdered her mercilessly and in order to screen the entire crime, he has thrown away the dead body of the child in the pond. Therefore, the accused/respondent is convicted under Sections 377 and 302 I.P.C. and sentenced to undergo life imprisonment for each https://hcservices.ecourts.gov.in/hcservices/ offence. The sentences are ordered to run concurrently. Accordingly, the appeal filed by the State is allowed. 30.10.2009 vsi Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The Additional District and Sessions Judge, Fast Track Court No.1, Poonamallee 2. -do- Thro' The Principal Sessions Judge, Chengalpattu at Kancheepuram. 3. The Inspector of Police, T-3, Korattur Police Station, Chennai. 4. The Superintendent, Central Prison, Puzhal, Chennai. 5. The Public Prosecutor, High Court, Chennai. Crl.A.No.332 of 2009 JRG(CO) EM/30.10.09 https://hcservices.ecourts.gov.in/hcservices/