IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.760 of 2007 Jayakumar .. Appellant Vs. State by Inspector of Police, R.2 Kodambakkam Police Station, Chennai .. Respondent The criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of the learned II Additional Sessions Judge, Chennai, made in S.C.No.348 of 1998 dated 28.6.2001 For Appellant : Mr.L.Mahendran For Respondent : Mr.N.Balasubramanian, A.P.P. J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgement of the II Additional Sessions Judge, Chennai, in S.C.No.348 of 1998 whereby the sole accused/appellant stood charged, tried and found guilty under section 376 and 302 I.P.C. and sentenced to undergo 10 years R.I. and to pay a fine of Rs.20,000/-, in default, to undergo 2 years R.I. for the offence under section 376 I.P.C and sentenced to undergo life imprisonment along with a fine of Rs.20,000/-, in default, to undergo 2 years R.I. The sentenced are ordered to run consecutively. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (i) P.W.1 along with his wife and their two children were living at No.13, Mosque Street, Vadapalani. The first child is Sai Ramya, aged 4 years and the second child is Sai Mohan, aged 3 years. At the time of occurrence, P.W.1 was running a tailoring shop in the same street. The accused was also a resident of the same street. Often he used to come to the house of P.W.1 and play with their daughter Sai Ramya. On the date of occurrence, i.e., on 19.10.1997 at about 4.30 p.m., P.W.4 saw the accused playing with P.W.1's daughter Sai Ramya near Door No.216, Arcot Road, Vadapalani. After some time when P.W.2 noticed that the child did not return home, she informed it to P.W.1 and both of them went in search of the child. While they were searching, P.W.4, family friend of P.W.1 informed them that he saw https://hcservices.ecourts.gov.in/hcservices/ the accused taking the child to the terrace at about 4.00 to 5.00 p.m. P.W.5, a resident of Mosque street, informed that he saw the accused coming down the stairs alone at about 5.30 p.m. They went to the terrace and found the child dead with blood injuries on her head, cheeks, forehead, chest, and genital organ. (ii) Immediately, P.W.1 rushed to the respondent police and gave Ex.P1 complaint to P.W.13 Inspector of Police who registered a case in Crime No.1846 of 1997 for suspicious death and the F.I.R., Ex.P17 was despatched to Court. (iii) P.W.13, Inspector of Police, on receipt of a copy of the F.I.R., proceeded to the spot, made an inspection and prepared the Observation Mahazar, Ex.P2 and drew a rough sketch Ex.P18. He conducted inquest on the dead body of the deceased Sai Ramya in the presence of witnesses and panchayatdars and prepared the inquest report Ex.P19. Thereafter, he sent the dead body for the purpose of post mortem. (iv) P.W.11 doctor attached to the Government Hospital conducted post mortem on the dead body of the deceased Sai Ramya and found the following injuries: "Abrasions: (1) 10 x 4 cms over the front of L side of forehead (2) 3 x 2 cms over outer half of R eye brow. (3) 2.5 2 cms involving the L Ala of nose and adjoining lip. (4) 2.5 x 1 cm involving lower lip. (5) 3 x 1 cm involving inner aspect of upper lip. (6) 2 x 1 cm over L side of neck 4 cm below the angle of mandible. (7) 4.5 x 1 cm on either side of the inner aspect of Lable Majorea. Laceration: An incised wound 3.5 x 1.5 cm over the R parietal prominence along the coronal plane with tagging of the deeper tissues and bruising of adjacent tissues. Bruising of scalp tissue over frontal region 11 x 6 cms and over back and R side of head 17 x 12 cms. Comminuted fracture of craniel vault involving R temporal R parietal occipital and R side of frontal bones made out with diastic fracture along R fronto temporal and R Temparo occipital sutures. Fracture base of skull seen involving anterior. R side of middle and posterior cranial fossae. Membranes, lacerated at their basal attachments. Brain appear pale. Haemorrhage seen in lateral ventricles." He gave his opinion in the post mortem certificate Ex.P.14 that the deceased child died out of shock and haemorrhage due to the injuries sustained by her. https://hcservices.ecourts.gov.in/hcservices/ (v) Pending investigation, the accused was arrested on 20.10.1997. He gave confessional statement voluntarily and the same was recorded in the presence of witnesses and the admissible part of the same was marked as Ex.P4, pursuant to which, he produced M.O.3 pant, M.O.4 shirt and M.O.5 jatty and the same were recovered under a cover of mahazar, (vi) P.W.12 doctor attached to the Government Hospital conducted potency test for the accused. He gave certificate that the accused was fit enough to have sexual intercourse. All the material objects were sent for chemical examination and the reports viz.,Ex.P.11 biological report and Ex.P12 Serological report were received. On completion of the investigation, the investigating officer filed a final report. (vii) 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 21 exhibits and 5 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. and he denied them as false. Only one witness, D.W.1 was examined on the side of the defence. No exhibits and material objects were marked on the side of the defence. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty under section 376 and 302 I.P.C. Hence, this appeal at the instance of the appellant. 3. Advancing the arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case. The prosecution had no direct evidence to offer. It relied only on the circumstantial evidence and the last seen theory. The only piece of evidence available for the prosecution is P.Ws.4 to 6. P.W.4 and P.W.5 were friends of P.W.1 and residents of that area. Both of them are closely connected with the family of P.W.1. Both of them have come forward to give false evidence stating as if P.W.4 saw the accused taking the child to the terrace at about 5.00 p.m. and P.W.5 saw the accused coming alone from the terrace at about 5.00 to 5.30 p.m. 4. Added further learned counsel, in the instant case, the defence plea was not appreciated by the trial Court. One Thirilok kumar, friend of the accused was examined According to him, he and the accused went to T.Nagar for shopping and they were at T.Nagar till 6 'O' Clock on the date of occurrence and thereafter, they returned home. Though evidence was available to the prosecution that the child was playing with the accused, it cannot be a reason to indicate that it was the accused who sexually assaulted the child and murdered the child. Since the defence was able to show that the accused was actually in the company of D.W.1 and was in shopping at T.Nagar during the relevant time, there is no possibility of the accused being present at the place of occurrence and have committed the offence. Under such circumstances, the prosecution has miserably failed to prove its case but the trial Court was carried away by the evidence of the prosecution witnesses and accepted the flimsy evidence putforth by the prosecution. Hence, the judgement of the https://hcservices.ecourts.gov.in/hcservices/ trial Court has got to be set aside and the accused/appellant is entitled for acquittal. 5. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 6. It is not in controversy that a girl child, aged 4 years by name Sai Ramya was done to death in the occurrence that had taken place 19.10.1997. Following the inquest made by the Investigating Officer, the dead body of the child was subjected to post mortem. P.W.11, doctor has given categoric opinion that the child died of shock and haemorrhage due to the injuries sustained by her and on sexual assualt These aspects which were brought forth by the prosecution through the evidence was never disputed by the appellant/accused before the trial Court or this Court. Hence, it could be safely recorded that the child died out of homicidal violence. 7. In order to substantiate that it was the accused who murdered the child after committing sexual assault, the prosecution examined P.ws.1, 4, 5 and 6. In so far as P.W.1, 5 and 6 are concerned, they have categorically stated the fact that immediately before the occurrence, they saw the accused playing with the child in front of Door No.216 Arcot Road, Vadapalani. According to P.W.6 the child actually did not return home. Then, she told her husband both of them went in search of the child. They went to Door No.216 Arcot Road but they could not find the child. At that time, P.W.4 who came in the opposite direction told them that he saw the accused taking the child upstairs. They entertained suspicion. All of them went upstairs and found the child dead with blood injuries on her head, cheeks, forehead, chest and genital organ near the parapet wall of the terrace. Immediately P.W.1 went to the Police Station and gave Ex.P1 report. On the strength of which a case came to be registered by the respondent police. 8. P.W.5 has actually seen the accused coming down from upstairs P.Ws.1 and 6 have spoken to the effect that the child was in the company of the accused at or about the time of occurrence. P.w.4 found the accused taking the child to the terrace and as per the evidence of P.W.5, he saw the accused coming down from the terrace alone. All would go to show that the child was actually in the company of the accused at the time and place of occurrence. 9. Added strong circumstance is the recovery of M.O.1 Frock worn by the deceased girl and M.O.3 pant M.O.4 shirt and M.O.5 jatty of the accused produced by the accused, pursuant to the confessional statement given by him. They were actually sent for analysis and the blood group found in M.O.3, M.O.4 and M.O.5 tallies with the blood group of the child found in M.O.1 frock. Therefore, the recovery of these material objects would be pointing to the nexus of the crime with the accused. All would clearly indicate that it was the accused who caused rape on a four years old child and murdered the child mercilessly. The trial Court has marshalled the evidence proper and considered the same and had come to a correct conclusion that it was the accused who has committed the offence. This Court is unable to https://hcservices.ecourts.gov.in/hcservices/ see any merits in the contentions putforth by the learned counsel for the appellant. 10. As the second line of argument, the learned counsel would submit that the trial Court has awarded punishment of life imprisonment for murder and 10 years rigorous imprisonment for rape along with fine and default sentences and the sentences are ordered to run consecutively. The learned counsel would submit that the sentence awarded by the trial court has to be considered sympathetically as the accused is a young man and the sentences may be ordered to run concurrently and the fine has to be set aside. 11. It is a case where a girl child aged 4 years was mercilessly put to sexual assault by the accused and not satisfied with the same, he had murdered her also. The accused has acted like a beast. The Court should not only look into the individual liberty but also answer the society as a whole. The trial Court has taken a correct view in imposing the sentences and this Court finds no reason to disturb the judgement of conviction and sentences passed by the trial Court. Hence, the contention of the learned counsel for the appellant has to be rejected. 12. Accordingly, the judgment of conviction and sentence imposed on the appellant by the trial Court is affirmed. The criminal appeal fails and the same is dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vsi To 1. The II Additional Sessions Judge, Chennai. 2. The Principal Sessions Judge, Chennai. 3. The District Collector, Chennai. 4. The Director General of Police, Chennai-4. 5. The Superintendent, Central Prison, Chennai. 6. The Inspector of Police, R.2 Kodambakkam Police Station, Chennai. 7. The Public Prosecutor, High Court, Chennai. CRL.A.No.760 of of 2007 TRM TP/23.3.2010. https://hcservices.ecourts.gov.in/hcservices/