IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 Death Sentence Ref..No. 5 of 2009 ------------------------------------------------ [S.C.NO.96/2009 OF THE SESSIONS COURT, THRISSUR] .................... COMPLAINANT: ----------------------- STATE. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. RESPONDENT: ---------------------- HAMSU. BY ADV. SRI. PRAVEEN.K.JOY, (STATE BRIEF), THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 11/11/2010, ALONG WITH CRL.A NO. 1017 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = = = = D.S.R.No.5 OF 2009 & Crl.A.No.1017 OF 2010 = = = = = = = = = = = = DATED THIS THE 11TH DAY OF NOVEMBER, 2010 J U D G M E N T - P.S.Gopinathan, J. The Sessions Judge, Thrissur in Sessions Case No.96/2009 convicted the respondent in DSR for offence under Section 511 of 377 and 302 IPC and sentenced to rigorous imprisonment for five years for offence under Section 511 of Section 377 IPC. For offence under Section 302 IPC, the respondent was ordered to be hanged by neck till he is dead. The death sentence was submitted to this Court confirmation under Section 366 of the Code of Criminal Procedure on the basis of which the DSR was registered. Assailing the conviction and sentence, the convict has preferred the Criminal Appeal (hereinafter the convict is referred to as the appellant). 2. The appellant was prosecuted by the Circle Inspector of Police, Chavakkad, who was examined as PW22, alleging offences under Section 377 and 302 IPC. It was with an allegation that on 27.10.2008, deceased Nisamudeen, aged 12 years, son of PW10 went to Panchavdi Sankaranarayana Temple at Edakkazhiyoor Village where festival was celebrated. The appellant, a local man, consumed liquor from a local bar by DSR 5/2009 & CRL. A. 1017/2010 2 name Samudra Bar and went to the temple compound. Somehow or other, the appellant got acquainted with the deceased boy who was enticed by offering toys. By about 9 p.m., the deceased was taken to a Causuarina cluster, a little away from the temple compound and committed unnatural offence by having carnal intercourse against the order of nature and thereafter he murdered the deceased by throttling. On the next day at about 8 a.m, PW1, Hamsa, a neighbour, went to the Causuarina cluster to answer the calls of nature. He saw the child lying dead. He shouted aloud. People gathered and identified the deceased as the son of PW10. He rushed to the Chavakkad Police Station, wherein PW20 was the Sub Inspector of Police and gave Ext.P1 Fist Information Statement. PW20 recorded Ext.P1 statement and registered a case as crime No.851/2008 under Section 306(1) (c)(UN) by Ext.P1(a) First Information Report. Express message was conveyed to the Circle Inspector of Police Chavakkad. PW22 was on court duty at Thiruvananthapuram. PW21, the Circle Inspector of Police, Kunnamkulam was in charge of the Circle Inspector of Police, Chavakkad. PW21 rushed to the spot of occurrence and prepared Ext.P9 inquest report. MO1 shirt worn by the deceased, MO2 pants, which was lying near the dead body and MO3 underwear, which was found lying a little away from the dead body, were seized. The body was sent for postmortem examination. DSR 5/2009 & CRL. A. 1017/2010 3 Postmortem examination revealed that it is a case of unnatural offence and murder. Consequently, Ext.P13 report was filed to incorporate Sections 377 and 302 of the IPC and to proceed with investigation. The material objects seized were forwarded to the court along with Ext.P14 property list. On the next day, PW22 took over the investigation. The appellant was arrested and interrogated. He recovered the clothes worn by the appellant. He questioned the witnesses and recorded their statement. After completing the investigation, charge sheet was filed for the above offences before the Judicial Magistrate of the First Class, Chavakkad. Learned Magistrate took cognizance and proceeded as C.P. 116/2008. Having found that the offence alleged is exclusively triable by a court of session, by order dated 22.1.2009, the case was committed to the court of Sessions, Thrissur. 3. The learned Sessions Judge took cognizance and issued production warrant to cause the production of the appellant who was in judicial custody. The appellant was not defended by a lawyer. Advocate Sri.C.I.Edison was appointed to defend the appellant at State cost. After hearing the appellant and the prosecution, the learned Sessions Judge framed charge for the above said offences. When read over and explained, the appellant pleaded not guilty. Hence, he was sent for trial. Prosecution examined PWs1 to 22. Exts.P1 to 27 and MOs1 to 12 were marked. After DSR 5/2009 & CRL. A. 1017/2010 4 closing the evidence for the prosecution, the appellant was questioned under Section 313 (1)(b) of the Code of Criminal Procedure. The appellant denied the incriminating evidence. He took a plea of alibi also and further stated that the offence was committed by some criminal gang and he had to confess before the police because of torture by the police and that he is a fisherman seeking his bread by fishing. Thereafter, the prosecution and the appellant were heard. On finding that the appellant was not entitled to be acquitted under Section 232 of the Code of Criminal Procedure, he was called upon to enter his defence. No defence evidence was let in. The prosecution and the appellant were again heard. The learned Sessions Judge, on appraisal of the evidence, arrived at a conclusion of guilt. The appellant was again heard regarding sentence. He stated that he had to maintain parents, wife and two children and that though he had another case it was compromised and prayed for leniency. The learned Sessions Judge after referring to various decisions of the Apex Court including Bachan Singh v. State of Punjab [AIR 1980 SC 898] arrived at a finding that the case on hand would come within the rarest of rare category. Accordingly, the appellant was sentenced as above. 4. We heard Sri.Rajith, the learned counsel for the appellant and Sri.S.U.Nazar, the learned Public Prosecutor. DSR 5/2009 & CRL. A. 1017/2010 5 5. The evidence of PW1 would show that while he went to the Causuarina cluster at 8 a.m. on 28.10.2008 he saw the half naked dead body of a boy. He shouted aloud. People gathered and the dead body was identified as that of Nizamudeen, the son of PW10. The boy was wearing only a shirt, half of which was rolled upwards. The pants was lying near the legs. A little away, an underwear was lying. PW1 rushed to the Chavakad Police Station and lodged Ext.P1 First Information Statement. The shirt, pants and the underwear were identified as MOs 1 to 3. The First Information Statement was identified and marked as Ext.P1. 6. PW10 would depose that deceased Nizamudeen is her son and that on 27.10.2008 by about 6.p.m, Nizamudeen had gone for the festival at Panchavady temple. He didn't return even by night. Her husband made a search during the night. But the child was not found. The husband returned stating that Nizamudeen was not found out and would be watching TV in some of the neighbourhood. During the early hours of the day, she had a bereavement. Her brother-in- law was dead. PW10 along with her husband went to the bereaved family and returned by 8.30.a.m. By about 9.a.m., it was known that Nizamudeen was lying dead amidst the casurina cluster. PW10 identified MOs 1 and 2 as the shirt and pants worn by Nizamudeen while he went to the temple. DSR 5/2009 & CRL. A. 1017/2010 6 7. PW2 deposed that he was a fisherman and that he had gone to Panchavady temple for the festival along with one Kabeer. After the pooram performance, he along with Kabeer had been to the beach where certain rituals were performed in connection with the temple festival. By about 9. p.m. he saw the appellant going along with the deceased to the Causuarina cluster. PW2 had further deposed that he had seen the appellant passing over something to the child. He had also identified MO1 shirt and MO2 pants as that of the child. He had further deposed that a little more than one hour, the appellant was found returning alone. He identified the shirt and lunky worn by the appellant at the time. The clothes were marked as MOs 4 and 5. PW2 had further deposed that on the next morning, he knew that the child was lying dead amidst the Causuarina cluster. He went there and identified the dead body as that of the child who went to the Causuarina cluster along with the appellant. 8. PW20 deposed that while he was working as Sub Inspector of Police, Chavakkad Police Station, at 9.30 am. on 28.10.2008 PW1 arrived at the Police Station and gave Ext.P1 First Information Statement on the basis of which a case as Crime No.851/2008 was registered under Section 306(1) (c)(UN) for unnatural death and that Ext.P1(a) is the First Information Report and that express message was conveyed to superior officers. DSR 5/2009 & CRL. A. 1017/2010 7 9. PW21 would depose that on 28.10.2008 he was in charge of the Circle Inspector of Police, Chavakkad and that he took over the investigation, went to the spot of occurrence and prepared Ext. P9 Inquest Report. He had further deposed that at the time of inquest, he had seized a toy, pants, a blue coloured underwear, a match box and yet another toy from the pocket of the shirt worn by the deceased. Certain material objects found at the spot where the dead body was lying were seized with the help of a Scientific Assistant, who was examined as PW15. The dead body was sent for postmortem examination. Postmortem examination revealed a case of murder. Accordingly, he filed Ext.P13 report incorporating Section 377 and 302 of the IPC. The material objects seized were forwarded to the court along with Ext.P14 property list. 10. PW19 would depose that he was working as Assistant Professor in Forensic Medicine and Deputy Police Surgeon at Govt. Medical College, Thrissur and that on 28.10.2008 he conducted autopsy on the body of Nizamudeen aged 12 years involved in Crime No. 851/2008 of Chavakkad Police Station. He noted the following antemortem injuries. “1. Abrasion 0.9x0.8 cm. on right side of the front of neck, 5cm. outer to middle and 5.5cm. below lower jaw margin. 2. Abrasion 1.2x1cm. on right side of front of neck, 1cm. in front and 0.5cm below the DSR 5/2009 & CRL. A. 1017/2010 8 injury No.1. 3. Abrasion 0.4x0.3cm. on right side of front of neck, 0.5cm. in front of injury No.2. 4. Abrasion 0.3x0.2cm. on right side of front of neck, 1.5cm. below injury No.1. 5. Abrasion 0.7x0.3cm. on right side of front of neck, 0.8cm. above injury No.1. 6. Curved abrasion 1x0.2 cm. with convexity upwards and slightly inwards on left side of front of neck, with its lower, inner end 5 cm outer to midline and 4cm. below lower jaw margin. 7. Curved abrasion 1x0.2cm. on left side of front of neck, 1 cm. above and 0.5cm. inner to the injury No.6 (less prominent). 8. Abrasion 1.5x0.8cm. on left side of front of neck, 7 cm. outer to midline an 1cm. below the lower jaw margin. 9. Abraded contusion 0.8x0.4x0.2cm. on left side of front of neck, 1 cm. below injury No.8. 10. Curved abrasion 1x0.2 cm. convexity upwards on left side of front of neck, 10cm. outer to midline and 2cm below lower jaw margin. 11. Abrasion 1.8x1.cm. on under aspect of left side of shaft of penis just above coronal sulcus. 12. Abrasion 7.5x0.6cm. obliquely placed across the middle of front aspect of right leg with its lower inner end 14 cm. below knee. 13. Lacerated wound 1.3x0.8x0.3cm. on the tip of right second toe. The nail was found torn. 14. Lacerated wound 1x0.3x0.2 cm. on the back aspect of distal knuckle of left thumb. 15. Abrasion 1.2x0.5 cm. on right side of back of trunk 10 cm below top of shoulder and 4 DSR 5/2009 & CRL. A. 1017/2010 9 cm. outer to midline.” He had further deposed that he had taken swab and smears for detection of human semen and spermatozoa, if any. Swab from the skin surface (suspected site as a bite mark by the police) was also taken and preserved for detection of buccal epithelical cells, if any, and further opined that the death was due to throttling. Injury Nos.1 to 10 could be caused during attempted throttling. Injury Nos.11 to 14 could be caused on exertion of force or weight upon him on his back when the victim was prone on a rough surface and that the possibility of penetration or attempted penetration on the anal orifice could not be ruled out. It was further opined that the death could have occurred within the range of 18 to 24 hours prior to the commencement of the postmortem examination which commenced at 3.45 p.m. 11. PW15 would depose that she was working as Scientific Assistant at Regional Forensic Science Laboratory, Thrissur. On 28.10.2008, she examined the scene of occurrence in Crime No. 851/2008 of Chavakkad Police Station. The scene of occurrence was found well guarded and kept intact. The dead body was found lying in a partially naked condition. The deceased was wearing a shirt. A black coloured pants was found between the legs of the deceased. Disturbance indicative of a DSR 5/2009 & CRL. A. 1017/2010 10 scuffle having taken place, was found at about 3 metres from the dead body. One blue coloured brief bearing printed writings “MGR/Marsal/90cm.” was found at the scene. She collected Cellophane pressings lifted from around the neck of the deceased ; swabs taken from the injury appeared like bite marks found on the right hand of the deceased and its control; hair like material collected from the inner thigh of the deceased; withered grass wetted by biological fluids collected from near the body of the deceased and its control and hair like material collected from the blue coloured brief found at the scene of occurrence. 12. By the evidence of PWs 1, 2 and 21, it is revealed beyond doubt that the dead body of Nizamudheen was found amidst the Causuarina cluster as alleged by the prosecution. Evidence of PW10 would show that by about 6 p.m. on 27.10.2008 Nizamudheen had gone for the temple festival and he didn't return. Evidence of PWs1, 2, 20 and 21 coupled with Ext.P1 First Information Statement would show that the dead body was found at 8. a.m on the next day. The evidence of PW19 coupled with Ext.P12 would show that Nizamudheen had a homicidal death. It is very crucial to note that the above evidence of PWs 1, 2 and 21 that Nizamudheen was lying dead at the spot of occurrence was not at all challenged in cross examination. The cause of death deposed by PW19 DSR 5/2009 & CRL. A. 1017/2010 11 corroborated by Ext.P12 postmortem certificate also was not challenged in cross examination. Sri.Rajith, the learned counsel appearing for the appellant, submitted that he is not assailing the homicide alleged by the prosecution. According to the learned counsel, the appellant is not the assailant. As we mentioned earlier, the appellant himself had admitted homicidal death when questioned under Section 313 of the Code of Criminal Procedure and further stated that it might have been committed by a criminal gang and he was falsely implicated. With the above evidence, we concur with the finding of the Sessions Judge that the deceased was murdered. 13. The question then arising for consideration is whether the appellant was the assailant or not. Against the allegation of the prosecution that offence under Section 377 was committed by the appellant, the learned Sessions Judge found that the prosecution had not succeeded to establish the commission of offence under Section 377 of the IPC. Whereas the prosecution had succeeded to establish attempt to commit offence under Section 377. Though the prosecution had a case that there was carnal intercourse against the rule of the nature, the prosecution had not succeeded to adduce any evidence in support of the plea of carnal intercourse. We notice that though the prosecution had not succeeded to establish the DSR 5/2009 & CRL. A. 1017/2010 12 offence under Section 377 IPC, there is convincing evidence to come to a conclusion that there was sexual assault in attempt to commit carnal intercourse against the order of the nature. We had earlier mentioned that MO2 was identified as the pants of the deceased. PW10 had deposed that while the decease leaving home at 6.p.m on the previous day he was wearing MO2 pants. PW2 had deposed that while going along with the appellant, the deceased was wearing MO1 shirt and MO2 pants. The evidence of PW21 coupled with Ext.P9 Inquest Report also support the evidence of prosecution on that aspect. PW15, the Scientific Assistant, also would support the prosecution case that MO2 pants was lying amidst the legs of the dead body. She had also deposed that MO3 sheddy was lying a little away from the dead body. PW21 had seized MO2 and MO3 along with other material objects and later, through court, it was forwarded to the Forensic Science Laboratory along with Ext.P26 forwarding note. Ext.P27 was proved by PW22 as the report issued by the Assistant Director, Biology, attached to the Forensic Science Laboratory, Thiruvananthapuram. Ext.P27 would show that on examination of MO2 and MO3, human spermatozoa and semen were detected. The presence of spermatozoa and semen noted on MO2 and MO3 was also not disputed by the learned counsel appearing for the appellant. The presence of semen and DSR 5/2009 & CRL. A. 1017/2010 13 spermatozoa over MO2 pants is more than sufficient enough to come to a conclusion that the murder might have been in connection with the sexual assault. Sri.Rajith, learned counsel appearing for the appellant, advanced an argument that the semen and spermatozoa found on MO2 might be that of the deceased. As we stated earlier, the deceased was only 12 years old. It is crucial to note that no question was put to PW19 as to whether the deceased was grown enough to have the semen and spermatozoa. In the absence of oral evidence, we have no other option, but to search for authority. In Principles and Practice of Forensic Medicine by Dr.Umadethan, an experienced Forensic Expert, (First Edition 2008) at page 393, last but one para, it is opined - [I]n boys, pubic hair appears at 14 and darkens at 15. At this stage, penis and testicles enlarge and as a result, the scrotum become pendulous. Ejaculation also begins. Ext.P9 and P12 would show that the deceased had no pubic hairs. There is no suggestion to PW19 that the penis and testicles of the deceased were enlarged or the scrotum was pendulous indicating that the deceased was grown enough to ejaculate. In the above circumstance, in the light of the above authority, we find that the deceased was too young to ejaculate. There is no mention in the evidence of PW19 or in Ext.P12 that there was even DSR 5/2009 & CRL. A. 1017/2010 14 any trace of semen or spermatozoa at the genitals of the deceased or in the surrounding part of the body which might indicate the possibility of the deceased ejaculating. In this factual and physiological background, having due regard to the fact that the deceased was only 12 years, we rule out the possibility of having MO2 stained with the semen and spermatozoa of the deceased. Therefore, we find that the semen and spermatozoa detected as MO2 would in all probability be that of an adult person. 14. MO3 was produced by the prosecution as if it was the underwear worn by the appellant and he had abandoned the same after the offence alleged. PW6 was examined by prosecution to prove that MO3 was sold by him to the appellant. PW6 had deposed that he is a street vendor at Chavakkad and that two or three months before the incident the appellant, whom he knows earlier, had purchased two underwears from PW6 and he would remember the purchase by the appellant as there was some quarrel with regard to the value of the same. MO3 was identified as one of the underwear sold by PW6 to the appellant. 15. PW22 would depose that he arrested the appellant at 1.p.m on 29.10.2008. Ext.P15 is the arrest memo and Ext.P16 is the arrest intimation. He seized the underwear worn by the appellant at the time of arrest on the strength of Ext.P6 seizure mahazar, wherein PW13 is an attester. MO6 DSR 5/2009 & CRL. A. 1017/2010 15 underwear was identified as the one so seized. It was shown to PW6. PW6 had deposed that MO6 was the other underwear that PW6 sold to the appellant along with MO3. 16. In support of the case of the prosecution regarding offence under Section 377 IPC, the prosecution also would rely upon some pubic hairs found on the thigh of the deceased. PW15 had deposed that she had seized certain hairs found on the thigh of the deceased. The evidence of PW22 would show that the hairs so seized were forwarded to the Forensic Laboratory along with Ext.P26 forwarding note. Ext.P27 report would show that those hairs were found similar to that of the appellant. 17. The appellant has got a case that the hairs found on the thigh of the dead body are not that of the appellant. The learned counsel also submitted that for the reason that the hairs found on the thigh of the deceased were similar to that of the hairs of the appellant, is not at all a safe evidence to come to a conclusion that the hairs were that of the appellant. We shall deal with the above contention later. Now by the evidence of PW15 it is revealed that the hairs seized by her and sent for chemical examination by the Forensic Laboratory are not that of the deceased. The presence of hairs belonging to another on the thighs of the deceased would certainly amount to evidence that there was sexual assault. DSR 5/2009 & CRL. A. 1017/2010 16 18. Adding to the above, the description of the dead body noted in Ext.P9 and pictured in Ext.P2 series photographs would show that in fact, there was sexual assault. Ext.P9 would show that the shirt worn by the deceased was rolled upwards. The pants was removed. The body was in prone position. Even it was alleged by the prosecution that injury Nos.11 to 14 found on the body of the deceased could be caused on exertion of force or weight upon him on his back when the victim was in prone position on a rough surface. We notice that injury No.11 was on the shaft of the penis. The opinion of PW19 regarding the possibility of causing injuries on exertion of force was not at all challenged in cross examination. If it was a simple case of throttling, the shirt worn by the deceased need not have been rolled upwards. His pants need not have been removed. So in our opinion, the evidence on record is more than sufficient enough to come to a conclusion that there was sexual assault. Since the prosecution could not establish the plea that there was anal penetration, the learned Sessions Judge rightly rejected the prosecution case regarding the commission of the offence under Section 377. But the reasons stated earlier are sufficient enough to come to a conclusion that there was attempt to commit unnatural offence. We find no reason to interfere with the finding of the Sessions Judge that offence under