Madras High Court
Eswaran vs State Rep. By
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, N.Anand Venkatesh
Crl.A.(MD) No.161 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Pronounced on
11.11.2019 22.11.2019
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Criminal Appeal (MD) No.161 of 2018
Eswaran ... Appellant/Accused
-vs-
State Rep. by
The Deputy Superintendent of Police,
Nagapattinam Sub-Division,
Keelvelur Police Station.
[Crime No.276 of 2012] ... Respondent / Complainant
Prayer: Appeal filed under Section 374(2) of the Code of Criminal Procedure to set
aside the judgment dated 13.06.2015 in S.S.C.No.45 of 2013 on the file of the 1st
Additional District and Sessions Judge (PCR), Thanjavur and acquit the appellant.
For Appellant : Mr.M.Ramasubramanian
For Respondent : Mr.M.Chandrasekaran
Addl. Public Prosecutor
*****
JUDGMENT
S.VAIDYANATHAN,J.
AND N.ANAND VENKATESH,J.
“Rape is much worse than murder. With murder, the victim is gone, and not forced to deal with what happened to her. The family must deal with it, but not the victim. But rape is much worse. The victim has a lifetime of coping, of trying to understand, of asking questions and the worst part of knowing the rapist is still alive and may someday escape or be released. Every hour of every day, the http://www.judis.nic.in 1/30 Crl.A.(MD) No.161 of 2018 victim thinks of the rape and asks herself a thousand questions. She relives it, step by step, minute by minute and it hurts just as bad.
As far as the victim in this case is concerned, such emotions do not arise, as the victim was stated to be raped and murdered by the Appellant. Even if she is alive, she cannot express her feelings, because she is reported to be mentally retarded and the worst part of it is that the Rapist is still alive.” – The Appellant herein, who is the Sole Accused in S.S.C.No.45 of 2013 on the file of the 1st Additional District and Sessions Judge (PCR), Thanjavur, was charged with offences punishable under Sections 302 and 376 IPC and Section 3(2)
(v) of the SC/ST Act and while he was acquitted of the charge under Section 3(2)(v) of the SC/ST Act, he was convicted by the Trial Court for offences under Sections 302 and 376 IPC, as follows:
Sl.No. Conviction Sentence
1. Section 302 IPC To undergo Life Imprisonment with fine of Rs.10,000/- in default to pay fine, to undergo Imprisonment for One Year.
2. Section 376 IPC To undergo Life Imprisonment with fine of Rs.10,000/- in default to pay fine, to undergo Imprisonment for One Year.
Both the sentences were directed to run concurrently. Aggrieved by the order of the learned 1st Additional District and Sessions Judge (PCR), Thanjavur, the Appellant has preferred the present Criminal Appeal before this Court http://www.judis.nic.in 2/30 Crl.A.(MD) No.161 of 2018
2. The case of the prosecution is that P.W.1 / mother of the deceased had two daughters, out of whom, the deceased is the youngest one, suffering from mental illness. The deceased was left with the care and custody of P.W.2 / elder sister of the deceased. While so, on 03.07.2012 at about 21.00 hrs, the deceased had gone out of the house and was subsequently found missing and when P.Ws.2 and 3 (the neighbour of P.W.2) went in search of the deceased, they noticed the accused coming out of a quarry and on seeing P.Ws.2 and 3, he got frightened. Upon enquiry, the accused confessed himself that he had raped the deceased and murdered her and the body of the deceased was brought out from the quarry to the house of P.W.2.
3. On hearing the occurrence from P.W.4 / son-in-law of P.W.1, regarding the rape and murder of her daughter, P.W.1 went to Orkudi and lodged a complaint (Ex.P1) before the Sub-Inspector of Police (P.W.13), Keelvelur Police Station at 5.30am on 04.07.2012. Based on the complaint received from P.W.1, an FIR was initially registered (Ex.P.7) in Crime No.276 of 2012 for offences under Sections 302 and 376 IPC. Thereafter, the Inspector of Police (P.W.14) took up the investigation and prepared Observation Mahazar (Ex.P3), Rough Sketch (Ex.P8) in the presence of witnesses (P.Ws.6 & 7) and conducted inquest on the body of the deceased and prepared the inquest report (Ex.P9).
http://www.judis.nic.in 3/30 Crl.A.(MD) No.161 of 2018
4. After investigation, the Inspector of Police (P.W.14) had altered the offences into Sections 302 and 376 IPC r/w Section 3(2)(v) of the SC/ST Act and sent the alteration report (Ex.P.10) to the Judicial Magistrate No.I, Nagapattinam and thereafter, sent the body for conducting postmortem to the Government Hospital, Nagapattinam through a Head Constable (P.W.14). Since there is an inclusion of the offence under Section 3(2)(v) of the SC/ST Act and the case involving SC/ST Act has to be necessarily dealt with an Officer not below the rank of Deputy Superintendent of Police, P.W.14 had handed over the entire case diary to the Deputy Superintendent of Police (P.W.17), Nagapattinam, who, once again visited the place of occurrence and prepared an observation mahazar (Ex.A13) and a rough sketch (Ex.A12).
5. On completion of the investigation, a charge sheet was laid before the Judicial Magistrate No.1, Nagapattinam in P.R.C.No.28 of 2013 and was subsequently, committed to the Court of Sessions as per Section 209 Cr.P.C. for trial, which was taken on file in S.S.C.No.45 of 2013. The prosecution, in order to substantiate the offences against the accused, had examined 18 witnesses, marked 13 documents and no Material Object was exhibited and on the side of the accused, neither witness was examined nor documents relied upon. The accused was questioned under Section 313(1)(b) Cr.P.C. and he denied the charges levelled against him. The Trial Court, after analyzing the evidence let in by the http://www.judis.nic.in 4/30 Crl.A.(MD) No.161 of 2018 prosecution, found the accused guilty of the offences under Sections 302 and 376 IPC and convicted him as stated supra and acquitted him for the charge under Section 3(2)(v) of the SC/ST Act.
6. The main plea taken by the learned counsel appearing on behalf of the appellant was that the Trial Court had erred in convicting and sentencing the accused based on the circumstantial evidence and the extra judicial confession, which was stated to be given by the accused to P.W.3 was a fabricated and concocted one, as P.W.3 previously had a grudge with the accused and in order to take revenge upon him, he had falsely deposed against the accused.
6.1. It was the case put forth by the learned counsel for the appellant that though the occurrence had happened on 03.07.2012 at 21:00 to 22:00hrs, the complaint was preferred by P.W.1 only at 05:30 hrs on 04.07.2012 and the said delay in reporting and reaching the Court, is fatal to the case of the prosecution. In support of his submission, he has strongly relied upon a judgment of the Hon'ble Supreme Court in the case of State of A.P vs. M.Madhusudhan Rao, reported in (2008) 15 SCC 582, wherein it has been held as follows:
“18.Having gone through the depositions of PW-1 and PW-3, to which our attention was invited by learned counsel for the State, we are convinced that in the light of the overall evidence, analysed by the High Court, the order of acquittal of the respondent is well merited and does not call for interference, particularly when the First Information Report was lodged by the complainant more than one month after the alleged incident of forcible poisoning. Time and http://www.judis.nic.in 5/30 Crl.A.(MD) No.161 of 2018 again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained.” 6.2. It was further argued that in the complaint, apart from the Tamil signature of P.W.1, one more signature is found therein and the prosecution had not attempted to explain as to whom the signature belongs to. In addition to the above, there was no corroboration between the medical and scientific evidences, as it was opined that no semen was found on the body of the deceased.
7. Per contra, the learned Additional Public Prosecutor appearing on behalf of the respondent Police submitted that the prosecution had clearly established through circumstantial, oral and documentary evidence that it was the Appellant, who had raped the deceased and thereafter, out of fear, had murdered her by whelming her into a pooled water stagnated inside the quarry. He further submitted that the evidence of the postmortem Doctor (P.W.16) and the Postmortem Report marked as (Ex.P.11) clearly indicate that the deceased had died on account of drowning asphyxia and it was revealed by P.W.3 that the dead body of the deceased was taken out from water, on the basis of the confession given by the accused. It was the submission of the learned Additional Public Prosecutor that http://www.judis.nic.in 6/30 Crl.A.(MD) No.161 of 2018 the defense taken by the accused that due to previous enmity between the accused and P.W.3, the accused had been wrongly roped into the occurrence of rape is meaningless and much attention need not be attributed to the said argument. The prosecution is well aware of the settled law regarding acceptance of circumstantial evidence and proved that all the circumstances were complete, leaving no gap in the chain of evidence.
7.1. In sum and substance, it was the contention of the learned Additional Public Prosecutor appearing for the State that the prosecution was able to prove the guilt on the part of the appellant/accused beyond any reasonable doubts; that the Court below has also considered all the oral and documentary evidence and has come to the correct conclusion that the appellant has committed the offence of rape and murder and therefore, there is no need to interfere with the finding given by the Trial Court.
8. This Court has carefully considered the submissions made on either side and perused the materials available on record.
9. The primary contention of the accused was that in this case, the circumstantial evidence, which forms basis for the entire case, cannot be solely relied upon so as to infer that the Appellant would have committed such offence of rape and murder. Before going into the veracity of the submission, it is absolutely http://www.judis.nic.in 7/30 Crl.A.(MD) No.161 of 2018 necessary for this Court as to what the law says with regard to relying upon a circumstantial evidence in order to draw a definite conclusion. In a recent judgment, the Hon'ble Supreme Court in the case of Sudru vs. The State of Chhattisgarh, reported in (2019) 8 SCC 333, by referring to its various judgments, categorically held that when a circumstantial evidence is put against an accused, it is for the accused to rebut the said evidence, failing which, the conviction imposed upon him cannot be faulted with. The relevant portion of the judgment is extracted hereunder:
“7. In this respect reference can be made to the following observation of this Court in the case of Trimukh Maroti Kirkan v. State of Maharashtra, reported in MANU/SC/8543/2006 : (2006) 10 SCC 681:
In a case based on circumstantial evidence where no eye- witness account is available there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the Accused and the said Accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.
8. The Appellant has utterly failed to discharge such burden.
The Appellant has taken defence in his statement Under Section 313 of Code of Criminal Procedure, that the deceased has died due to ailment. However, this is falsified by the medical evidence of PW-2 Dr. B.K. Tirki. In his evidence he has stated that, there was a fracture on the head of the deceased and the death of the deceased might have occurred due to strangulation. There were marks of fingers on the neck of the deceased. No doubt, that non-explanation or false explanation by Appellant cannot be taken as a circumstance to complete the chain of circumstances to establish the guilt of the Appellant. However, the false explanation can always be taken into consideration to fortify the finding of guilt already recorded on the basis of other circumstances.
9. In this respect apart from referring to the observations of http://www.judis.nic.in 8/30 Crl.A.(MD) No.161 of 2018 this Court in the case of Trimukh Maroti Kirkan (supra), it will be apposite to refer to the following observation of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, MANU/SC/0111/1984 :
(1984) 4 SCC 116, which reads thus:
151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court.
10. Taking into consideration these aspects of the matter, we do not find that the learned Trial Court and the High Court have erred in recording the finding of guilt and order of conviction. The appeal is found to be without merit and as such is dismissed.
10. In this regard, we feel it appropriate to go through the 313 statement of the accused to ascertain as to whether the accused had offered any explanation to discharge the burden, in which except stating that all the evidences are false, he had not endeavoured to produce any witness or evidence to counterfeit the circumstantial evidence. The Hon'ble Supreme Court in yet another in Trimukh Maroti Kirkan vs. State of Maharashtra (MANU/SC/8543/2006) had observed that it is no doubt true that the prosecution has to prove the guilt of an accused beyond doubt in respect of a murder case and merely because the offence had taken place in a private area and there is no eyewitnesses available, the case of the prosecution cannot be blindly thrown out, as it is equally important that a guilty man should not be let scot-free. For the sake of convenience, the relevant passage of the said judgment is extracted as under:
“9. In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial http://www.judis.nic.in 9/30 Crl.A.(MD) No.161 of 2018 evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.
10. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met.
These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.
11. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh MANU/SC/0585/2003 : 2003CriLJ3892 ). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be http://www.judis.nic.in 10/30 Crl.A.(MD) No.161 of 2018 led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.
Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”
11. Bearing in mind the above judgments, the foremost thing to be looked into in this case is, whether there is any lacuna in the chain of evidence so as to discard the case of the prosecution. A perfunctory reading of the deposition of P.Ws.2 and 3 discloses the fact that when they were in search of the deceased, they witnessed the accused coming out of a quarry with frightened face and when he was asked about the deceased, he had touched the feet of P.W.3 and sought for an apology. The said fact has been spoken to by P.W.2, which is extracted hereunder:
“/////3/7/12e; njjp ,ut[ 9 kzpf;F vdJ j';if ftpjh btspapy; brd;wth; jpUk;gtutpy;iy/ ehDk; gf;fj;JtPl;L uh$ht[k; vdJ j';ifia njo brd;nwhk;/ fl;lkjFgf;fk; nghndhk;/ v';fs; tPlL ; f;fhuh; Ch;fhu';fnshL http://www.judis.nic.in 11/30 Crl.A.(MD) No.161 of 2018 vdJ j';ifnjo khhpak;kd;nfhtpy; gf;fk; brd;whh;fs;/ fl;lkjFgf;fj;jpy; ehDk; uh$ht[k; brd;wnghJ M$h; vjphp Fthhpapy; ,Ue;J eide;J te;jhh;/ v';fisg;ghh;j;jt[ld; vjphp gae;Jbfhz;L gJ';fp epd;whh;/ eh';fs; M$h; vjphpia gpoj;Jnfl;lnghJ vd;j';if ftpjhit gyj;fhuk; gz;zp fw;gHpj;J bfhiybra;jjhf uh$hfhypy; tpGe;J kd;dpj;J bfhs;S';fs; vd;W brhd;dhh;/////” The same version has been reiterated and corroborated by P.W.3, who is an independent witness in this case, by deposing as follows:
“/////ehDk; FKjKk; Fthhpgf;fk; ftpjhit
njof;bfhz;L fl;lkjFf;F brd;nwhk;/ mg;nghJ lh';nf
ntWgf;fk; ftpjhit njodhh;fs;/ ehd; m';F ngha;
ghh;j;jnghJ fl;lkjF M$h; vjphp <uj;Jld; eide;Jngha;
te;Jbfhz;L ,Ue;jhh;/ eh';fs; ftpjhit fhnzhnk
eP ,';fpUe;J nghfpwhna vd;W nfl;ljw;F vd;fhiyi
gpoj;Jf;bfhz;L ehd; ftpjhit bfLj;J bfhd;Wtpl;nld;
vd;W ,ij Chpy; brhy;yptplhnj vd;W bf";rpdhh;////”
12. It is a settled law that to draw an inference to establish the guilt of an accused, the circumstantial evidence must be cogent and complete without any break-up. From the afore-stated depositions, it could be easily conjured up that on 03.07.2012 around 21.00hrs, the deceased was found missing and on coming to know of the same, the sister of the deceased / P.W.2 and her neighbour / P.W.3, in the midst of search, had gone near to a quarry, where they noticed the accused coming out from a quarry with tension on his face. As soon as he saw both P.Ws.2 and 3, he fell into the feet of P.W.3 and confessed his crime and based on the information given by him, the body of the deceased was dragged out from the http://www.judis.nic.in 12/30 Crl.A.(MD) No.161 of 2018 stagnated water and the cloth of the deceased was also recovered from the spot. Therefore, as held by the Hon'ble Supreme Court in the case of Padala Veera Reddy vs. State of A.P., reported in AIR 1990 SC, the circumstances, from which an inference of guilt was sought to be drawn in this case, were cogently and firmly established and those circumstances unerringly pointed out guilt of the accused and therefore the defense taken to that effects stand rejected.
13. The next argument advanced by the learned counsel for the accused was that on the basis of the extra judicial confession given by the accused to P.W. 3, the prosecution had booked the accused for the aforesaid offences, which amounts to hurting the eyes of the accused with his own hands. It is to be noted that as far as criminal jurisprudence is concerned, there is no bar to accept the extra judicial confession as an incriminating piece of evidence against an accused, provided it must be corroborated with other material records. The Hon'ble Supreme Court in the case of State of Rajasthan vs. Raja Ram, reported in AIR 2003 SC 3601 had clarified the position with regard to extra judicial confession, by observing as follows:
"....An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The Court further expressed the view that: 19.....Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be http://www.judis.nic.in 13/30 Crl.A.(MD) No.161 of 2018 unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused...."
14. In this case, it is not in dispute that P.W.3, to whom the extra judicial confession is given by the accused is the neighbour of the deceased and is known to the accused. Further no evidence has been adduced on the side of the accused to the effect that he was not in a fit state of mind at that time, when he gave such confession to P.W.3. Moreover, such extra judicial confession was given by the accused voluntarily and it was not obtained by means of threat, coercion etc., as is evident from the deposition of P.W.2. Above all, based on the information received from the accused, the body of the deceased was recovered from the stagnated water of the quarry and therefore, we find no reason whatsoever to disbelieve the extra judicial confession, as it has satisfied itself the requirement of credibility for reliance.
15. The next plea raised by the accused was that there was a delay in lodging complaint and reaching the same to Court. A glance at the deposition of P.W.1 unravels the fact that on coming to know about the death of her daughter, she immediately rushed to the spot and at that time, the villagers had already informed the Police about the murder and thereafter, Police visited the village and enquired the villagers including P.W.3. She further deposed in her cross that Police concluded the enquiry roughly between 5:00am to 6:00am. Thus, from the above http://www.judis.nic.in 14/30 Crl.A.(MD) No.161 of 2018 evidence, it is apparent that there is not much delay in registration of FIR and the same reaching the Court within 24 hrs of the occurrence. In a heinous offence of this nature, attracting the punishment of life imprisonment, there would be several formalities before preparation of FIR and it is the duty cast upon the Court to see whether all those formalities had been completed within a reasonable time and there is no procedural lapse or undue delay at any stage of the case.
16. The Hon'ble Supreme Court, while dealing with a motor accident case in Ravi vs Badrinarayan & Others, reported in (2011) 4 SCC 693, has held as follows:
“21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.”
17. It is the natural conduct of the witnesses to have taken the deceased first to the hospital and after he/she was declared to have been brought dead, they had gone to the police station for giving a complaint. In this case, P.Ws.2 and 3, on the information furnished by the accused, had found that the deceased was http://www.judis.nic.in 15/30 Crl.A.(MD) No.161 of 2018 found dead, by soaking her body in the pooled water and therefore, no necessity arose in this case to send the deceased to a hospital for obtaining such declaration from a Doctor.
18. The Hon'ble Supreme Court, in the case of State of Himachal Pradesh Vs. Prem Singh, reported in AIR 2009 SC 1010, had considered the issue of delay in respect of offences involving sexual assault at length and observed as under:-
"So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR."
19. This Court has its primary duty to ascertain whether the ocular testimony and evidence tally with the medical evidence. A cursory glance at the deposition of P.Ws.2 and 3, who are the prime witnesses to narrate the entire scenario, unearths the fact that during their search, they found the accused, wandering near to a quarry with a confused / wet body state and upon noticing them, he got startled and voluntarily confessed that he had raped and murdered the deceased and thereafter, threw her body in the water and in order to ascertain as to whether any symptom of rape and injuries are found on the body of the deceased on account of such sexual assault, it is proper in the circumstances to http://www.judis.nic.in 16/30 Crl.A.(MD) No.161 of 2018 peruse the Postmortem Certificate dated 14.09.2012, which is marked as Ex.P.11 in which it is stated as follows by P.W.16 / Dr.Mohamad Sirajudeen, who had commenced the post-mortem at 12.30 p.m. on 04.07.2012 and had noted the following features in his Post Mortem Certificate:
“IDENTIFICATION AND CASTE MARKS:
1) tyJ gf;f fd;dj;jpy; xU kr;rk;
2) fPH; jhilapy; xU kr;rk;
The body was first seen by the undersigned at 12.30pm on 4.7.12. Its condition then was Rigor mortis present in 4 limbs Post-mortem commenced at 12.30 pm on 4.7.12.
Appearances found at the post-mortem A female body lies on back, arms close to sides at post mortem shed, Nagapattinam, Eyelids closed, Nose – No discharge mouth and lips – no discharge, Tongue inside the mouth, teeth complete, Ears – No discharge.
External Injuries:-
Linear, multiple abrasions present over right and left thigh and right arm blood clots present in vagina. Hymen not intact.
Internal Appearances:-
Abdomen uniform, peritoneal cavity, n/o fluids ribs
- No fracture, Heart 300 gms C/s congested, lungs Right – 500 gms, Left-450 gms C/S congested, Hyoid bone intact, stomach - ½ litre of food particles present. Liver – 1500 gms C/S congested, Spleen – 180 gms C/S congested. Kidney each 120 gms C/S congested, Intestines and bladder – empty, Skull – NO fracture, Membranes – Intact, Brain – 130 gms C/S http://www.judis.nic.in 17/30 Crl.A.(MD) No.161 of 2018 congested Viscera preserved Stomach and its contents intestine and its contents, Liver, Kidney, preservatives, sample of water, Lungs, vaginal swab, Postmortem concluded on 1.30pm on 4.7.12.
Opinion pending chemical analysis of viscera.
Opinion as to cause of death
1) Evidence of violence like abrasions over right and left thigh seen. Blood clot seen in vagina so evidence violent intercourse is not excluded.
2) Since diatoma is seen in lings asphyxia happened antemortem is not excluded.
Opinion as to cause of death
(a) Reserved pending report of ------
(b) The deceased would appear to have died of Asphyxia due to drowning.”
20. In the chief examination, the Doctor (P.W.16) had deposed thus, “/////,lJ tyJ bjhil kw;wk; ifapy; gy rpuha;g;g[fs; ,Ue;jJ/ bgz;Fwpapy; ,uj;jk;
ciwe;jpUe;jJ/ fd;dp rt;t[ fpHe;jpUe;jJ/ cs;
cWg;g[ ghpnrhjid bra;jjpy;
khh;g[ vYk;g[ cilatpy;iy/....
///// EiuaPuy; ill;lk;!; vd;W brhy;yf;Toa
Ez;Qqaphp ,Ue;jijbfhz;L jz;zuP ;
K:H;fp ,we;jpUf;fyhk; vd;W fUj;JTwg;gl;Ls;sJ/ //// bgz;Fwpapy; ,uj;j ciwt[ kw;Wk;
bjhilapy; cs;s rpuha;g;g[ fha';fs; td;g[zh;r;rp Vw;gl http://www.judis.nic.in 18/30 Crl.A.(MD) No.161 of 2018 tha;g;g[z;L vd;why; rhpjhd;/”
20. In the Postmortem Certificate, it has been specifically stated that there was a symptom of abrasions over right and left thigh and the evidence of violent intercourse is not excluded, as there was an evidence of the blood clot seen in vagina and there was a diatom seen in lungs, resulting in the death of the deceased due to asphyxia. The Postmortem Doctor had explicitly indicated that such abrasions over thigh of the deceased would have been caused on account of violent intercourse and the deceased would appear to have died of asphyxia due to drowning. Therefore, it is clear that the deposition given by P.Ws.2 and 3 was duly proved / corroborated with the medical evidence.
21. The learned counsel for the accused drew the attention of this Court to the report of the Chemical Examiner dated 27.07.2012 (Ex.P.5) to strengthen his case that since semen was not detected in Item Nos.1, 2 and 3, namely, skirt, lungi and shirt, the theory of rape put forth by the prosecution is not made out as against the accused and in that event, it can be presumed that it is a false case, put up by the Police. A careful reading of the chief examination of the Postmortem Doctor shows that when a person indulges in the act of rape, there is no necessity that semen must be found on the private body of the victim. Moreover, P.Ws.8 to 10, who were agriculturists, had, in chorus voice, reiterated that they had seen the accused coming out of the quarry in naked body and thus, it is evident that it was the appellant, who had committed the offence of rape and murder. http://www.judis.nic.in 19/30 Crl.A.(MD) No.161 of 2018
22. Yet another submission made by the learned counsel for the accused was that there is a whisper on the part of the prosecution regarding the signature as found in the complaint, in addition to the Tamil signature of P.W.1. It could be seen from the cross examination of P.W.1 that one witness had written her complaint before the Police and therefore, the said signature might have been belonging to the said witness and from the deposition of P.W1., an inference can be drawn that the author of the signature had just witnessed the complaint and not the whole incident. Moreover, such minor discrepancy cannot be allowed to take away the entire case of the prosecution.
23. Though it is a fit case to impose death sentence on the accused, the Trial Court had rendered that the case in hand does not fall in the category of rarest of rare case, warranting death punishment on the principle that life imprisonment is the rule and death sentence is an exception. The reason for coming to this conclusion may be, that the entire case of the prosecution revolves around the circumstantial evidence and the extra judicial confession. It is worthwhile to refer to a judgment of the Hon'ble Supreme Court in the case of State of Karnataka vs. Krishnappa, reported in 2000 SCC (Cri) 755, wherein it was held that crimes of violence on women should be severely dealt with. For better understanding, the relevant portion of the said judgment is extracted hereunder:
http://www.judis.nic.in 20/30 Crl.A.(MD) No.161 of 2018 “14. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. Dealing with the offence of rape and its traumatic effect on a rape victim, this Court in State of Punjab v. Gurmit Singh , observed:
Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's right in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a greater responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.
15. A socially sensitized Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.
16. In the instant case, the Trial Court gave sufficient and cogent reasons for imposing the sentence of 10 years R.I. for the offence under Section 376 IPC on the respondent. Those reasons have impressed us. The Trial Court was rightly influenced by the fact that the respondent was a married man of 49 years of age having his own children and the victim of his sexual lust was an innocent helpless girl of 7/8 years of age. The medical evidence provided by PW-6, Dr.Shalini Devi exhibits the cruel nature of the act and the extent of pain and suffering which the victim might have undergone on her genitalia as a result of forcible coitus. The Trial Court had, therefore, opined that because of the cruel nature of the act, the accused was not entitled to any leniency.
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24. However, the Hon'ble Supreme Court in the subsequent case in Bishnu Prasad Sinha and Others vs. State of Assam (MANU/SC/7022/2007), while dealing with a case of death sentence, was pleased to hold as under:
“33. The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, the appellant No. 1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt.
34. In State of Rajasthan v. Kheraj Ram MANU/SC/0618/2003 : (2003)8SCC224 , this Court has stated the law thus:
In Machhi Singh v. State of Punjab MANU/SC/0211/1983 : 1983 Cri LJ 1457 it was observed:
The following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? (SCC p.489, para 39) The following guidelines which emerge from Bachan Singh case (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
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(ii) Before opting for the death penalty the circumstances of the "offender" also require to be taken into consideration along with the circumstances of the "crime".
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. (SCC p.489, para 38) In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. (SCC pp. 487-88, paras 32-33) (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland. (SCC p.488, para 34) (3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' http://www.judis.nic.in 23/30 Crl.A.(MD) No.161 of 2018 or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (SCC p.488, para 35) (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (SCC p.488, para 36) (5) When the victim of murder is an innocent child, or a helpless woman or an old or infirm person or a person vis-à-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community. (SCC pp.488-89, para 37) If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. (SCC p.489, para 40)
35. In State of M.P. v. Munna Choubey and Anr.
MANU/SC/0055/2005 : 2005CriLJ913 , it was observed as under:
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of Tamil Naidu MANU/SC/0338/1991 : 1991CriLJ1845.
36. In Sahdeo and Ors. v. State of U.P. MANU/SC/0423/2004:
AIR2004SC3508 , this Court opined:
As regards the sentence of death imposed on five accused persons by the sessions court, which was confirmed by the appellate court, the counsel for the appellants, Shri Sushil Kumar submitted that in the absence of clear and convincing evidence regarding the complicity of the accused, these appellants could not be visited with the death penalty, while the counsel for the State submitted that this is a ghastly incident in which eight persons were done to death and http://www.judis.nic.in 24/30 Crl.A.(MD) No.161 of 2018 the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly and the common object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is no clear evidence by the use of whose fire-arm all the six deceased persons died as a result of firing in the bus. It is also pertinent to note that the investigating agency failed to produce clear and distinct evidence to prove the actual overt acts of each of the accused. The failure to examine the driver and conductor of the bus, the failure to seize the bus and the absence of a proper 'mahzar', are all lapses on the part of investigating agency. Moreover, the doctor who gave evidence before the court was not properly cross- examined regarding the nature of the injuries. Some more details could have been collected as to how the incident might have happened inside the bus. These facts are pointed out to show that the firing may have been caused by the assailants even while they were still standing on the footboard of the bus and some of the appellants may not, in fact, have had an occasion to use the fire-arm, though they fully shared the common object of the unlawful assembly. Imposition of the death penalty on each of the five appellants may not be justified under such circumstances. We take this view in view of the peculiar circumstances of the case and it should not be understood to mean that the accused persons are not to be convicted under Section 302 read with Section 149 and the death penalty cannot be imposed in the absence of various overt acts by individual accused persons. In view of the nature and circumstances of the case, we commute the death sentence imposed on A-1 Sahdeo, A-4 Subhash, A-5 Chandraveer, A-7 Satyapal and A-10 Parvinder to imprisonment for life.
37. In Raju v. State of Haryana MANU/SC/0324/2001 :
2001CriLJ2580 , it has been opined by this Court:
However, the next question is whether this would be a rarest of rare cases where extreme punishment of death is required to be imposed. In the present case, from the confessional statement made by the accused, it would appear that there was no intention on the part of the accused to commit the murder of the deceased child. He caused injury to the deceased by giving two brick blows as she stated that she would disclose the incident at her house. It is true that learned Sessions Judge committed error in recording the evidence of SI Shakuntala, PW 15 with regard to the confessional statement made to her, but in any set of circumstances, the evidence on record discloses that the accused was not having an intention to commit the http://www.judis.nic.in 25/30 Crl.A.(MD) No.161 of 2018 murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty.
38. Yet, recently in Amrit Singh v. State of Punjab MANU/SC/8642/2006 : 2007CriLJ298 , this Court, in a case where the death was not found to have been intended to be caused, was of the opinion that no case under Section 302 of the Indian Penal Code was made out stating:
Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre- meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases.
{See also Sheikh Ishaque and Ors. v. State of Bihar MANU/SC/0681/1995 : 1995CriLJ2682 , Rony v. State of Maharashtra MANU/SC/0199/1998 : 1998CriLJ1638, Bachan Singh v. State of PunjabMANU/SC/0111/1980 : 1980CriLJ636 and Machhi Singh (supra).} This aspect of the matter has recently been considered at some length by this Court in Aloke Nath Dutta (supra).
39. There is another aspect of this matter which cannot be overlooked. Appellant No. 1 made a confession. He felt repentant not only while making the confessional statement before the Judicial Magistrate, but also before the learned Sessions Judge in his statement under Section 313 of the Code of Criminal Procedure.
40. It is, therefore, in our opinion, not a case where extreme death penalty should be imposed. We, therefore, are of the opinion that imposition of punishment of rigorous imprisonment for life shall meet the ends of justice. It is directed accordingly. Both the appellants, therefore, are, instead of being awarded death penalty, are sentenced to undergo rigorous imprisonment for life, but other part of sentence imposed by the learned Sessions Judge are http://www.judis.nic.in 26/30 Crl.A.(MD) No.161 of 2018 maintained. Subject to the modification in the sentence mentioned hereinbefore, this appeal is dismissed.”
25. It is apropos and is saddening to note that now-a-days, the commission of the offence of rape on mentally retarded women is mushrooming and stringent action should be taken against such culprits. It is painful to denote that the woman suffering from low intelligence quotient cannot be expected to distinguish between ill-intentioned physical contact and the good-intentioned one and she loses her virginity without even knowing as to what had happened to her, except realizing pain due to forcible penetration. The statistics are always scary, when it comes to the number of instances of sexual or physical violence against women in India and there are several organisations that work towards helping women combat this constant threat of violence, and work towards making our Country safer for women by initiating policy level changes and conducting awareness campaigns that aim to educate the public.
26. In Gulf countries, crimes against women, especially rape are viewed seriously and the punishment for such offences is also very severe and unimaginably harsh. Let us go through some of the punishment being imposed by certain Gulf countries for commission of the offence of rape as under:
1. AFGHANISTAN:
Afghanistan has a capital punishment for rapper and the rapists will be shot with a bullet in the head within the four days of commission of the offence.
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2. UNITED ARAB EMIRATES:
Capital punishment of death by hanging within 7 days and there is no compensation whatsoever.
3. EGYPT:
Death Penalty
4. IRAN:
Iran offers capital punishment for many crimes and among them 10 to 15% executions are of rape cases. The women sometimes settle down the cases by compensating; however the rappers are punished by 100 lashes and sometime of imprisonment in some cases.
5. SAUDIA ARABIA:
Throwing stones upon rapist till the moment he dies and technically this punishment is called as "execution through stones" which means that the stones will be showered upon him until the soul does not depart from his body. This is also a form a capital punishment because it means death but the death is not easy and quick. The criminal has to go through all the pain and torture; he has to suffer before he dies.
27. Mahatma Gandhi said, “the day a woman can walk freely on the roads at night, that day we can say that India has achieved independence.” It is a million dollar question as to whether women in India enjoy such independence?
28. Unless strict laws are enacted and high penalty imposed to deter people from committing crime like rape, victims of rape will not get justice at the earliest and the gap between laws and its quick execution should be bridged. Since there is no eyewitness to the occurrence and the conviction is based upon the circumstantial evidence, this case does not fall under the rarest of rare cases so as to impose the capital punishment of death sentence. In case the Trial Court would have awarded the death sentence to the appellant / accused herein, this Court, on http://www.judis.nic.in 28/30 Crl.A.(MD) No.161 of 2018 reference may have a choice either to confirm or modify the death sentence, in absence of which, we have no other option, but to confirm the order of the Trial Court.
29. In the result, this Criminal Appeal is dismissed, confirming the conviction and sentence awarded vide judgment dated 13.06.2015 made in S.S.C.No.45 of 2013 by the learned 1st Additional District and Sessions Judge (PCR), Thanjavur.
[S.V.N.,J.] [N.A.V.,J.]
22.11.2019
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Internet: Yes
ar
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Crl.A.(MD) No.161 of 2018
S.VAIDYANATHAN,J.
AND
N.ANAND VENKATESH,J.
ar
To:
1. The 1st Additional District and Sessions Judge (PCR), Thanjavur.
2. The Deputy Superintendent of Police, Nagapattinam Sub-Division, Keelvelur Police Station.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4. The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
PRE-DELIVERY ORDER IN Criminal Appeal (MD) No.161 of 2018 22.11.2019 http://www.judis.nic.in 30/30