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

2. Brief facts of the present case are as follows:

Page 1 ‘X’, a ten-year-old girl and ‘Y’, her 7-year-old brother were enrolled in Classes V and II respectively in a private school at Coimbatore and would commute around 7:45 a.m. in a pickup vehicle owned by one Kartikeyan (PW-2). On 29.10.2010 the children left as usual with their school bags and lunch boxes and stood about two-hundred feet away from their home, in front of the Vinayakar Temple. Around 8:00 a.m., PW-2 came to the designated pick-up spot but did not find the children there. He contacted the children’s father, Ranjith Kumar Jain (PW-5), over mobile to enquire about their absence. Being in Hyderabad, PW-5 was unable to provide an immediate reply to the query of PW-2 and hence called his wife, the children’s mother - Sangeetha (PW-8), who informed him that both X and Y had already left home. Since the father of the children (PW-5) was already on his way back to Coimbatore, he entrusted his wife to look out for the children and co-ordinate with the van driver. Sangeetha informed Karthikeyan that the children had already left the house, whereafter she along with her relatives Vijay Kumar (PW-1) and Sanjai (PW-6) started searching for the children.

3. Kamala Bai (PW-9), the paternal grandmother of the children had gone to a Jain Temple around 8:00 a.m. in the morning. Upon returning home at 10:30 a.m. and finding Sangeetha in panic, Kamala Bai informed her that the children had been picked up by a former van driver and it was conjectured that the children must be in school. Vijay Kumar (PW-1) then went to the school and found that the children had however not reached. After a frantic but futile search, PW-1 lodged a police complaint (Ex. P1) with Vasuki (Sub-Inspector of Page 2 Police, PW-42) at around 11AM under Section 363 of the Indian Penal Code (in short “IPC”).

4. The Investigating Officer (“IO”, PW-47), thereafter, took over investigation and recorded statements of the informant (PW-1), the school’s principal - Anthony Raj (PW-10), as well as of the grandmother (PW-9) and the just returned father of the children (PW-5). First trace of the missing children was received at 6PM when Anthony Raj (PW-10) informed the IO (PW-47) that one Chinnasamy (PW-22) had called to inform that two school bags with identity cards bearing names of X and Y were found floating in and later fished out from the Parambikulam-Axhiyar Project (“PAP”) Canal. A second lead came to the Police from Karthikeyan (PW-2) who received a call from his erstwhile employee – Anbu @ Gandhiraj (PW-7) who conveyed that one Mohanakrishnan had borrowed a Maruti Omni Van from him that morning. This aroused Karthikeyan’s suspicion since Mohanakrishnan was his former employee whose services were terminated after it had been discovered that he was borrowing money from the parents whose children were being transported to school by PW-2’s agency. The IO (PW-47) accordingly advised both Anbu (PW-7) and Karthikeyan (PW-2) to immediately alert the police whenever Mohanakrishnan came to return the Omni Van. At around 9:45PM, Anbu alerted the police that Mohanakrishnan had come to return the Van and he had also confessed to the kidnapping, rape and murder of the two missing children along with his friend Manoharan. Pursuant to the information received by Anbu, Mohanakrishnan was arrested and a confessional statement was Page 3 recorded in the presence of Anbu (PW-7) and one Santosh Kumar (not examined as a witness). The Maruti Omni Van along with one Nokia Cellphone and the driving license of Mohanakrishnan were also seized. The IO consequently sent a report (Ex. P-30) for alteration of charge from under Section 363, IPC to Sections 364(A), 376, 302 read with Section 201, IPC which was received by the Magistrate at 11:45PM.

5. Having observed certain saliva and yellow-coloured stains on the seized van, the IO requisitioned forensic assistance of Sarvanan (PW-43), Deputy Director of Mobile Unit of Tamil Nadu Forensic Sciences Department. In the presence Sarvanan (PW-43), Anbu (PW-7) and one Santosh Kumar (unexamined), the van was thoroughly searched wherein a lady’s underwear bearing the inscription “SBT Kidswear 75 c.m.” with hair strands was recovered. Sarvanan (PW-43) further collected the betel nut saliva stains on the left door of the van with a cotton swab for chemical examination, as well as dried yellow-colour stains found on the seat and floormat, and the clothes (namely pant, half shirt and underwear) worn by Mohanakrishnan (Mahazar Exs. P-5 & P-6). Mohanakrishnan subsequently led a police team to the place where he claimed to have raped X as well as to Deepalapatti, the place from where the children had allegedly been pushed into the running waters of the PAP canal.

On dissection of Thorax and Abdomen: Contusion 4 x 2 cm noted over anterior aspect of lower end of uterus.”

9. The present review-petitioner, Manoharan (hereinafter “petitioner”) who was stated to have perpetrated the crime along with Mohanakrishnan, was arrested on 31.10.2010 at 7AM, as recorded in Ex. D-4. Manoharan made a disclosure statement to the police (Ex. P-21) on the basis of which the IO (PW-47) recovered lunch box of Y from his house. Further, after being produced before the Magistrate the same day, the petitioner was sent to judicial custody.

10. A Test Identification Parade was conducted on request of the IO whereby Kamala Bai (PW-9) identified Mohanakrishnan as the driver of the van in which the children had been kidnapped. Subsequently, both the petitioner and Mohanakrishnan were medically examined on 04.11.2010 whereby samples of their blood and saliva were sent to the Tamil Nadu Forensic Science Laboratory for DNA Analysis. A potency test of the petitioner was conducted by Dr. J.R. Singh (PW-46), who in his medical report (Ex. P-

56) found him potent and further noticed signs of injury around his private parts.

11. During recovery proceedings under Section 27 of the Indian Evidence Act (in short “IEA”), whilst in police custody, Mohanakrishnan shot and wounded two police officers and was consequently shot dead by the Police on 09.11.2010. Thus, the trial against Mohanakrishnan was abated and the petitioner alone was left to be tried as an accused.

12. Succinctly, the prosecution’s version of events is that Mohanakrishnan using a borrowed school van, picked up two children (X and Y) who were waiting to go to school at about 7:50 a.m. He further picked up his friend, Manoharan from his house at 9:30 a.m. and subsequently, they took the children to a remote location where after the girl child was raped and sodomised. Subsequently, Manoharan and Mohanakrishnan purchased cow dung powder (a poisonous substance) which was mixed in milk and then administered to the children to end their life. However, both the children spat out the substance and only ingested a small portion. Since poisoning did not work, Mohanakrishnan and the petitioner threw both the children into the turbulent waters of a nearby Canal, hence drowning them. CASE HISTORY

13. Over the course of the trial, the prosecution examined forty-nine witnesses in all including persons who witnessed abduction, purchase of milk and cow dung powder and those having seen children in the custody of Page 7 accused persons at various places. Further, various medical and forensic evidence were produced, proving drowning and rape as well as injuries on Petitioner’s body. A ‘last seen theory’ was built by the prosecution, in addition to use of a confessional statement made by the petitioner under Section 164, CrPC. The Trial Court ultimately held the Petitioner guilty under Section 120- B, 364-A, 376, 302 r/w 34 and 201 IPC. Under Section 376, the Petitioner was awarded life sentence and for offence under Section 302 IPC he was given death sentence.

15. Thereafter the Petitioner filed a Special Leave Petition under Article 136 whereby this Court dismissed his appeal and confirmed the death sentence by majority, observing that the case fell in the category of the ‘rarest of rare’ cases. After considering all evidence on record and contentions of the counsels, the majority opinion of this Court read as follows:

Page 21 present case and the legal representation accorded to the petitioner was not inadequate.

ERRONEOUS CONVICTION UNDER SECTION 376 IPC

ERRONEOUS RELIANCE ON POCSO

SENTENCING

17 (1999) 9 SCC 323.

19 (2003) 2 SCC 501.

66. Even if the cases involving confession merit some leniency and compassion, however, as was earlier noted in our majority opinion, the attempted retraction of the statement shows how the petitioner was in fact remorseless. Such belated retractions further lay rise to the fear that any remorse or repentance being shown by the petitioner now may be temporary and that he can relapse to his old ways. Irrespective of the underlying reasons behind such retraction, whether it be the fear of death or feeling that he was not getting any benefit of his earlier confession, but the possibility of recidivism 21 1969 SCC (1) 347.

Page 35 has only been heightened and we can no longer look at the initial confession in a vacuum.

68. Hence, we find that there exist no grounds to review our judgment upholding conviction and death penalty. The review petitions are accordingly dismissed.

I entirely agree and concur with the reasons given by my brother Surya Kant, J in dismissing the review petitions upholding the conviction of Manoharan under Sections 302, 376(2)(f) and (g) and 201 of the Indian Penal Code. On the question of sentence, I do not see any good ground and reasons to review my observations and findings in the minority judgment. Accordingly, the review petitions are dismissed.

NOVEMBER 07, 2019.

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