Manoharan vs State By Inspector Of Police, Variety ...

2. The present appeals raise the spectre of a ghastly rape and murder. The brief facts necessary for appreciation in these appeals are as follows.

3. One Mohanakrishnan (at 7.50 a.m. on 29.10.2010) who had Digitally signed by R NATARAJAN borrowed a vehicle from PW.7 its owner, picked up two children, a girl Date: 2019.08.01 16:06:19 IST Reason: aged 10 years old and her brother aged 7 years old from outside a 1 Hindu Temple as the children were preparing to go to school. This Mohanakrishnan was seen by PW.3, the priest of the particular Vinayakar Temple and by PW.9, the grandmother of the two children, taking the children away in the aforesaid vehicle. Mohanakrishnan then drove the children to a petrol pump at around 8.15 a.m. on the same day, and at 9.30 a.m. picked up the Appellant from his house in Angalakuruchi. The children were then taken to a remote area called the Gopalsamy Temple Hills at roughly 10.45 a.m. at which point rape was allegedly committed on the girl whose hands were tied by both Mohanakrishnan and the Appellant. Thereafter, considering that the girl had been brutally raped (her anus having ruptured), the two accused bought what is called cow dung powder which is nothing but a poisonous substance which is added to cow dung to keep insects away. This substance together with milk that was also purchased by the Appellant herein was allegedly administered by both Mohanakrishnan as well as the Appellant to the two children in an attempt to do away with both of them. Both children ingested only a small portion of the cow dung powder mixed with the milk and did not die. Mohanakrishnan and the Appellant thereafter to do away with 2 both the children threw them in Parambikulam-Axhiyar Project canal (“PAP Canal”) and it was alleged by the prosecution that the girl was tied up and pushed into the canal by the Appellant herein whereas the boy was pushed into the canal by Mohanakrishnan. At 5.00 p.m., PW.24 saw the school bags of the two children floating in the canal, which were then given to PW.22. Later on the same evening, PW.22 informed PW.10 the principal of the school who then informed the police between 6.15 p.m. and 6.30 p.m. the same evening. At 9.00 p.m. on the same day, Mohanakrishnan went to the house of PW.7 one Anbu @ Gandhiraj, who informed the police, as a result of which Mohanakrishnan was arrested at 9.45 p.m. on the same night at PW.7’s house. At 9.30 a.m. on the next day, the girl’s body was recovered from the canal. On 31.10.2010, the present Appellant was arrested at 7.15 a.m. and on the same day, the boy’s body was also recovered from the canal. To complete the narrative, Mohanakrishnan was shot dead by the police on 9.11.2010 in an encounter. That left only the Appellant to be tried as an accused. A confession was recorded before the Magistrate in a statement made under Section 164 of the Code of Criminal Procedure by the 3 Appellant on 20.11.2010 which was partially retracted only by a letter dated 25.7.2012, which the Appellant asked the trial court to treat as a statement under Section 313 of the Code of Criminal Procedure.

6. In order to make out the offence of kidnapping the two children for ransom, a number of witnesses were examined. Though the Appellant was acquitted for this offence, yet the High Court found that the last seen theory was made out in the facts of the present case after closely scrutinizing the evidence of the following witnesses:

On the basis of this evidence, the Court held:-

84. CRIME TEST: The victim in this case were 10 and 7 years old and they were defenceless. The victim 'X' was first raped by Mohanakrishnan; Manoharan committed rape and since she cried, he committed sodomy. Since that also did not satisfy him, he masturbated in order to release his excitement in the presence of the children. They were administered poison and then to be doubly sure that they die, they were pushed into the running waters.

15. The Appellant then argued that the panty was found later in the car thereby rendering its being found in the car suspect, and that the panty which is stated to be torn was never so stated in the earlier statements made to the police. What is clear from the forensic examination is that the panty was found in the car only after the car was searched at 2.00 a.m. on the night after the rape and the murder as is clear from a reading of exhibit P.5 marked on the side of the prosecution.

365. As we have narrated the incident that has been corroborated by the medical evidence, oral testimony and the dying declarations, it is absolutely obvious that the accused persons had found an object for enjoyment in her and, as is evident, they were obsessed with the singular purpose sans any feeling to ravish her as they liked, treat her as they felt and, if we allow ourselves to say, the gross sadistic and beastly instinctual pleasures came to the forefront when they, after ravishing her, thought it to be just a matter of routine to throw her along with her friend out of the bus and crush them. The casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable. It sounds like a story from a different world where humanity has been treated with irreverence. The appetite for sex, the hunger for violence, the position of the empowered and the attitude of perversity, to say the least, are bound to shock the collective conscience which knows not what to do. It is manifest that the wanton lust, the servility to absolutely unchained carnal desire and slavery to the loathsome bestiality of passion ruled the mindset of the appellants to commit a crime which can summon with immediacy a “tsunami” of shock in the mind of the collective and destroy the civilised marrows of the milieu in entirety.” xxx xxx xxx “512. We are here concerned with the award of an appropriate sentence in case of brutal gang rape and 40 murder of a young lady, involving most gruesome and barbaric act of inserting iron rods in the private parts of the victim. The act was committed in connivance and collusion of six who were on a notorious spree running a bus, showcasing as a public transport, with the intent of attracting passengers and committing crime with them. The victim and her friend were picked up from the Munirka Bus-stand with the mala fide intent of ravishing and torturing her. The accused not only abducted the victim, but gang-raped her, committed unnatural offence by compelling her for oral sex, bit her lips, cheeks, breast and caused horrifying injuries to her private parts by inserting iron rod which ruptured the vaginal rectum, jejunum and rectum. The diabolical manner in which crime was committed leaves one startled as to the pervert mental state of the inflictor. On top of it, after having failed to kill her on the spot, by running the bus over her, the victim was thrown half-naked in the wintery night, with grievous injuries.

insertion of iron rod in her private parts and causing fatal injuries to her private parts and other internal injuries; pulling out her internal organs which caused sepsis and ultimately led to her death; throwing the victim and the complainant (PW 1) naked in the cold wintery night and trying to run the bus over them.

There is so much in the comprehensive judgment of my esteemed brother Justice Rohinton Fali Nariman, with which I entirely agree. I would uphold the appellant’s conviction under Sections 302, 376 (2) (f) and (g) and 201 of the Indian Penal Code,1898 (“IPC” for short). However, for reasons stated below, I do not think this is a case wherein the appellant should be given death penalty and would commute it to imprisonment for life i.e. till 52 his natural life with a stipulation that the appellant would not be entitled to remission under Sections 432 and 433 of the Code of Criminal Procedure, 1973 (“Cr.P.C” for short).

The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

which are a matter of fact.

53. These are some of the larger issues that make us feel reluctant in confirming the death sentence of the appellant.” 71

Firstly, the case must clearly fall within the ambit of ‘rarest of rare’ and secondly, when the alternative option is unquestionably foreclosed. Bachan Singh suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose.”

18 (1974) 2 SCC 544 78

49), Deputy Director, DNA Division, Forensic Science Department, Chennai. These two hairs strands, as per the DNA report were of the Appellant-Manoharan.

27. Radhika Balachandran (PW-48) in her report (Exhibit-P

38. Appellant’s partial retraction has been rightly disbelieved for good reasons, including the statement of the appellant under Section 313 Cr.P.C. in the Court accepting and admitting that his confession was recorded by the Magistrate. The retraction by itself, I would observe, should not be treated as absence of remorse or repentance, albeit an afterthought or on advice propelled by fear that the appellant in view of his admission may face the gallows, and that the earlier confession made seeking forgiveness would be the cause of his death. A thought of doubt and attempt to retract had surfaced on account of belief that the sense of remorse, repentance and forgiveness would not be appreciated and given due regard, cannot be ruled out. Benefit in this regard must go to the appellant.

40. I would, therefore, uphold and maintain conviction of the appellant under Sections 302, 376(2)(f) and (g) and 201 IPC and the sentences awarded under Sections 376(2)(f) and (g) and 201 IPC. To this extent the appeal is dismissed. In view of the aforesaid discussion and on balancing aggravating and mitigating circumstances, in my opinion, the present case does 92 not fall under the category of ‘rarest of rare’ case i.e. there is no alternative but to impose death sentence. It would fall within the special category of cases, where the appellant should be directed to suffer sentence for life i.e. till his natural death, without remission/commutation under Sections 432 and 433 Cr.P.C. To this extent I would allow the appeal. NEW DELHI; ......................................J. AUGUST 01, 2019. (SANJIV KHANNA) 93