Kerala High Court
State vs Rajesh Kumar @ Rajesh on 8 January, 2019
Equivalent citations: AIRONLINE 2019 KER 635
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 08TH DAY OF JANUARY 2019/18TH POUSHA, 1940
Death Sentence Ref..No. 1 of 2013
AGAINST THE JUDGMENT IN SC 682/2012 of SESSIONS
COURT,THIRUVANANTHAPURAM DATED 01-01-2013
AGAINST THE ORDER/JUDGMENT IN CP 72/2012 of J.F.C.M.-
I,NEDUMANGAD
APPELLANT/COMPLAINANT:
STATE
BY ADVS.
SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR FOR
ATROCITIES AGAINST WOMEN AND CHILDREN
RESPONDENT/ACCUSED:
RAJESH KUMAR @ RAJESH
CONVICT NO.7668, CENTRAL PRISON,
POOJAPPURA.
BY ADVS.
SMT.RESHMA ABDUL RASHEED
SRI.SHABU SREEDHARAN
SRI.TONY THOMAS (INCHIPARAMBIL)
THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD
ON 15.10.2018, ALONG WITH CRL.A.88/2014, THE COURT ON
08.01.2019 DELIVERED THE FOLLOWING:
DSR No.1/13 &
Crl.Appeal No.88/14
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 08TH DAY OF JANUARY 2019/18TH POUSHA, 1940
CRL.A.No. 88 of 2014
AGAINST THE JUDGMENT IN SC 682/2012 of SESSIONS
COURT,THIRUVANANTHAPURAM DATED 01-01-2013
AGAINST THE ORDER/JUDGMENT IN CP 72/2012 of J.F.C.M.-
I,NEDUMANGAD
APPELLANT/ACCUSED:
RAJESH KUMAR @ RAJESH
S/O MOHANAN,AGED 34 YEARS, CHRIST
BHAVAN,CHANDRAMOOZHI,MOTTAMOOLA,MAILOTTUMOOZHY,
VEERANAKAVU,VEERANAKAVU DESOM AND
VILLAGE,THIRUVANANTHAPURAM-695572.
BY ADVS.
SRI.SHABU SREEDHARAN
SMT.RESHMA ABDUL RASHEED
SRI.TONY THOMAS (INCHIPARAMBIL)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT
OF KERALA,ERNAKULAM.
BY ADV. SMT.AMBIKA DEVI S, SPL.PUBLIC
PROSECUTOR FOR ATROCITIES AGAINST WOMEN AND
CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15.10.2018, ALONG WITH Death Sentence Ref.1/2013, THE COURT
ON 08.01.2019 THE FOLLOWING:
DSR No.1/13 &
Crl.Appeal No.88/14
-:3:-
"C.R."
JUDGMENT
Shaffique, J.
Crl.Appeal No.88/2014 is filed by the accused in SC No.682/2012 of the Sessions Court, Thiruvananthapuram by which he was convicted and sentenced to be hanged by the neck till his death for the offence u/s 302 I.P.C., imprisonment for life for offence u/s 376 I.P.C., rigorous imprisonment for 10 years for offence u/s 449 I.P.C., rigorous imprisonment for 10 years for offence u/s 392 of I.P.C. and rigorous imprisonment for 3 years for offence u/s 419 I.P.C. The sentences were to run concurrently and the sentence of death imposed on the accused was subject to confirmation of this Court. DSR No.1/13 has been placed before us for confirmation regarding the death sentence imposed on the accused.
2. Before considering the Death Sentence Reference (DSR), it would be appropriate to consider the appeal filed by the accused.
3. The victim in the case is a girl aged 15 years. According to the prosecution, the accused trespassed into her DSR No.1/13 & Crl.Appeal No.88/14 -:4:- house with an intention to commit rape and theft, committed murder by throttling her and thereafter tied a towel tightly around her neck to ensure her death. He committed theft of a gold necklace and a gold ring from her body. The incident came to be known when the victim's mother came back to her house at about 5.30 pm on 6/3/2012. She found the victim lying dead on the floor of her room. On hearing her loud cry, people in the locality came. PW1 went to the police station and gave Ext.P1 FI statement which was recorded by PW30, the Sub Inspector of Police, Vattappara Police Station, who registered Ext.P1(a) FIR .
4. PW31 conducted investigation and inquest on the body of the deceased at the place of occurrence itself and Ext.P7 is the inquest report. Postmortem conducted on the deceased revealed offence u/s 302, 450 and 392 of I.P.C. Initially the FIR was registered u/s 174 of Cr.P.C and after postmortem, S.174 of Cr.P.C was deleted incorporating Sections 302, 450 and 392 of I.P.C. The investigation was taken over by PW34, Circle Inspector of Police, Venjaramoodu on 8/3/2012. He prepared Ext.P10 scene mahazar on 9/3/2012 at 10.30 am. The material objects were forwarded to the Court and he filed a report incorporating offence u/s 511 of DSR No.1/13 & Crl.Appeal No.88/14 -:5:- 376 I.P.C. The accused was arrested on 13/3/2012 at 3 p.m. On the basis of his disclosure statement Ext.P11(a), MO6 gold chain and MO7 gold ring pledged by him were recovered from Kailath Financiers, Vattappara. Ext.P11 is the mahazar prepared for the same. After completing the investigation, PW34 submitted final report before the Judicial First Class Magistrate-I, Nedumangad which in turn was committed to the Sessions Court. The accused denied the charges levelled against him.
5. To prove the prosecution case, PW1 to PW35 were examined, Exts.P1 to P38 were marked and MO1 to MO13 were produced and identified. The Sessions Court after completing the procedural formalities convicted the accused as stated above.
6. From the evidence of PW27, the Assistant Professor of Forensic Medicine and Deputy Surgeon who conducted autopsy of the deceased, it is rather clear that the deceased died on account of throttling. Ext.P20 is the post-mortem certificate and following were the ante-mortem injuries noticed by PW27:-
"1. Cresentic abrasion 0.7x0.2cm, obliquely placed on the right side of front of neck, (convexity to the right side), with its upper inner end 7.5cm above inner end of right collar bone.
DSR No.1/13 & Crl.Appeal No.88/14 -:6:-
2. Abrasion 2x0.3cm, obliquely placed on the right side of front of neck, its upper outer end being 4.5cm outer to midline and 2.5cm below lower jaw border.
3. Abrasion 0.5x0.5cm on right side of front of neck 0.5cm inner to injury number (2).
4. Abrasion 1.5x0.3cm, vertically placed on middle of front of neck 5.5cm below the chin.
5. Two cresentic linear abrasions 0.6cm long, obliquely paced parallel to one another, side by side and 1cm apart, on the middle of front of neck (their convexities directed to the left), the lower inner end of the outer one being 3 cm above the inner end of left collar bone.
6. Abrasion 0.3x0.3cm on left side of front of neck 8.5cm above inner end of left collar bone.
7. Contusion 1.4x1x0.2cm on left side of front of neck 6cm below angle of jaw.
8. Linear abrasion 0.7cm long, obliquely placed on left side of front of neck, lower outer end being 6cm above inner end of left collar bone.
9. Cresentic linear abrasion 0.3cm long, obliquely placed, (convexity directed downwards) on left side of front of neck, its upper outer end being 8cm below left ear lobule.
10. Contusion 0.7x0.6x0.3cm on left side of front of neck, 4.5cm outer to midline and overlying the lower jaw border.
Flap dissection of neck was done in a bloodless field. Contusion 0.5x0.5x0.3cm involving substance of right submandibular gland. Contusion 2x1x0.5cm involving the upper attachment of left sterno hyoid muscle and the adjacent left submandibular gland. Contusion 1x1x0.5cm involving upper attachment of left sterno thyroid DSR No.1/13 & Crl.Appeal No.88/14 -:7:- muscle underlying which the left cricothyroid muscle was also found contused over an area of 0.5x0.5x0.4cm. The superior horn of thyroid cartilage on left side was found fractured with infiltration in and around it. The mucosal surface larynx showed multiple petechial hemorrhages and congestion.
11. Multiple small abrasions over an area of 1x1cm on front of right thigh 8cm below top of hip bone.
The scalp showed a shower of petechial hemorrhages (seen on dissection). The brain was congested and oedematous. Air passages congested and contained froth. Lungs were congested and oedematous with multiple subpleural petechial hemorrhages over their surfaces. Numerous sub epicardial petechial hemorrhages seen on the heart; valves and chambers were normal, coronaries patent. Adrenals were hemorrhagic. Stomach contained 15ml of brown fluid and whitish unidentifiable food particles having no unusual smell, its mucosa was congested. Uterus was 7x4x1.5cm, its cavity was empty, endometrium was hemorrhagic, appendages normal. Urinary bladder was empty. All other internal organs congested, otherwise appeared normal.
Samples of blood, viscera, vaginal swabs and smear sent for chemical analysis. Samples of scalp and pubic hair, finger nail clippings and vaginal swabs and smears (for DNA analysis) were handed over to the investigating officer in sealed DSR No.1/13 & Crl.Appeal No.88/14 -:8:- packets through WCPO 2119.
Blood grouping of the deceased was
determined at Blood Bank, Medical College
Hospital, Thiruvananthapuram and found to be 'A' Rh positive."
7. The autopsy was conducted in the presence of Dr.Thankamma P. George who is also a qualified and experienced Doctor in Forensic Medicine. PW27 also collected vaginal swab and vaginal smear and it was handed over to the investigating officer for conducting chemical examination. The vaginal swab and vaginal smear were examined by PW24 at the Assistant Chemical Examiner's Lab, Thiruvananthapuram. He issued Ext.P18 certificate. PW24 deposed that, on examining the vaginal swab and vaginal smear, he detected human semen and spermatozoa.
8. PW28 who was also a signatory to Ext.P20 deposed that the victim was subjected to forcible sexual intercourse. One of the contentions urged by the defence was that in Ext.P20 postmortem certificate, it was noticed that the hymen was intact and the orifice of the vagina admits one finger loosely which according to the defence is suggestive that the deceased was not DSR No.1/13 & Crl.Appeal No.88/14 -:9:- a virgin. PW27 who conducted autopsy, during cross-examination, when he was asked whether the hymen will be ruptured in the intercourse, he answered that normally the hymen will be torn in the first intercourse if the hymen is not having a peculiar consistency like elastic, thick and fleshy etc. In further cross- examination he stated that he had taken note of the internal aspect of labia which was reddish and congested which is consistent with the local vaginal penetration. PW28 also stated that the injuries in Ext.P20 were indicative that there was penetration which is not consensual. PW29 had conducted the potency test of the accused. He issued Ext.P21 certificate. In his evidence, he deposed that there was nothing to suggest that the accused was incapable of performing sexual acts. He had also collected the sample of hair, saliva and nail clippings from the accused. The blood samples were also taken and it was found to be B+ve. His pubic hair was taken and handed over to the police officer in a sealed cover. Ext.P22 is the certificate regarding the same.
9. PW32 was the Scientific Assistant (Biology), Forensic Science Lab, Thiruvananthapuram. The material objects were DSR No.1/13 & Crl.Appeal No.88/14 -:10:- examined by her and she had issued Ext.P26 report. She deposed that item Nos.3, 6 and 19 sent to her contained human spermatozoa and semen. Item No.3 is the towel, 6 is the midi- skirt and 19 are the pants. Human spermatozoa was detected in item Nos. 13(a) and 13(b) which are the vaginal smear and vaginal swab of the deceased. Item Nos 3, 4 and 6 contained human blood. Item No.4 is the midi-top which is marked as MO2, item NO.6 is the midi-skirt which is marked as MO1 and Item No.3 is the towel which is marked as MO9. MO8 shimmi also contained blood. It is reported that the blood in item No.5(MO8) was not sufficient for determining the origin. PW33, the Joint Director (Research) Forensic Science Laboratory, Thiruvananthapuram examined the material objects received from the Scientific Assistant and he had issued Ext.P27 report. He conducted DNA typing and found that the spermatozoa found in the vaginal smear and vaginal swab in item Nos.13(a) and 13(b) belonged to the accused to whom blood sample in item No.16 belonged as per Ext.P27 report. He also deposed that the seminal stains in 3, 6 and 19 were found to be insufficient for the extraction and typing of DNA.
DSR No.1/13 & Crl.Appeal No.88/14 -:11:-
10. From the medical evidence thus made available by the prosecution, the following facts stand proved:
(i) That the deceased died due to throttling.
(ii) That the assailant had committed rape on the victim.
(iii) That the DNA typing of the spermatozoa in the vaginal smear and vaginal swab of the deceased belonged to the accused when compared to the blood sample of the accused.
11. This is a case in which, even according to the prosecution, there is no eye-witness to the incident. The case rests purely on circumstantial evidence. It is settled law that all the circumstances that form the chain should be proved beyond reasonable doubt and the Court has to come to the only hypothesis regarding the guilt of the accused. Accused apparently is not a person who was a resident in the said locality. He is an autorickshaw driver.
12. PW1 is the uncle of deceased. He deposed that at 6 p.m on 6/3/2012, while he was doing carpentry work in his house, his son called in his mobile and he was informed that there was some problem in the house of deceased. He contacted father of the deceased who was not in station. He asked him to proceed to DSR No.1/13 & Crl.Appeal No.88/14 -:12:- his house. PW1 proceeded to the house of the deceased in the bike of his colleague. He saw several persons gathered in front of the house of the deceased. When he went inside the house, he found the deceased lying on the floor. The gold chain belonging to her was missing at that time. He thereafter went to the Police Station along with his son and gave Ext.P1 FIS.
13. PW2 is a friend and relative of the deceased. At the relevant time, PW2 was studying for Plus One and the deceased was in the 10th standard, in different schools. They reside 50 metres away. On the said day, she had special class till 1.15 pm and she came down in a tempo van and was walking to her house. On the way, she saw an autorickshaw in front of the house of the deceased. The autorickshaw could not be moved as it fell into a ditch. On seeing PW2, the deceased came out from her house. While they were having a talk, deceased was asking for Suresh so that he could help the autorickshaw driver. The accused, who was the driver of the said autorickshaw, was standing by the side of the autorickshaw. He requested PW2 and the deceased to push the autorickshaw. They pushed it and the autorickshaw was brought back from the ditch. Accused told DSR No.1/13 & Crl.Appeal No.88/14 -:13:- them that the auto was having starting trouble. He asked for a screw-driver. The deceased gave the screw-driver to the accused. She saw the accused doing some work after opening the engine door. She went inside the house of the deceased to take the bag of the deceased as her bag was torn. There was no one in the house of the deceased at that time. Then she left to her house. At that time, a relative boy Nandu who was studying in 8th standard came there in a bicycle. The accused asked the deceased whether there was any workshop in the locality. She answered that there was a workshop in Vembayam. Nandu's house was just in front of the house of PW2. By about 5.30 pm, when she came out, she saw the mother of the deceased entering into her house. They also had a conversation as to whether her mother was going for Attukal Pongala, which was on the next day. After some time, she heard a cry from the house of the deceased. She saw PW6 running to the house of the deceased. She along with her mother ran to the house of the deceased. They saw the deceased lying on the floor in the front left side room of the house. She also identified MO1 and MO2, the dress the deceased was wearing at that time. She further DSR No.1/13 & Crl.Appeal No.88/14 -:14:- identified MO3 shirt and MO4 pants, which the accused was wearing at the relevant time. She also identified MO5 screw- driver. Though PW2 was cross-examined at length, no contradiction was brought out in her evidence.
14. PW3 is Pranav, a student who was in the Xth standard during the relevant time. He also deposed regarding the death of the deceased. On the fateful day, he had study leave. On that day, he visited his aunt along with his parents and they were coming back. He deposed that when he reached 10 feet away from the house of the deceased, he heard the cry of a girl and a groaning sound when he reached in front of her house. He also noticed an autorickshaw in front of the house. The name Rajamma was written on the auto. A sticker of Mother Mary holding Infant Jesus was pasted on the autorickshaw. The number of auto was KL-01 AF and he does not remember whether it started from 7 or ended with 7. On hearing the sound, he was frightened. He immediately went to his house. He told his mother that he heard some sound from the house of the deceased and there was something wrong. His mother told him that it would be either from the television or her mother would have beaten her. DSR No.1/13 & Crl.Appeal No.88/14 -:15:- But he was sure that it was something weird. Next day was Attukal Pongala and his mother and father had gone to purchase materials for the same. At 6.15 p.m. on the said day, he heard that a girl was murdered. When his parents came back, he told them about what he heard. His father went to that place, came back and informed that the deceased was seen murdered. In cross-examination he stated that he heard the noise at around 2.30 p.m. But he did not see the auto driver.
15. PW4 is the father of PW3. He also supported the version given by the PW3. But he has only the information given by his son.
16. PW5 is the mother of the deceased. She deposed that when she came to her house on the said day by about 5.30 p.m, she saw her daughter lying on the floor murdered. She cried and people came. She further deposed that a chain worn by the deceased was missing. She also narrated the fashion of the chain and identified it as MO6 and ring which the deceased was wearing is identified as MO7. She deposed that deceased used to wear MO6 and MO7 at all time. She also identified the dress of the deceased, the studs and other materials. DSR No.1/13 & Crl.Appeal No.88/14 -:16:-
17. PW6 is a neighbour who had gone to PW5's house on hearing her cry. He deposed that when he reached the house of deceased, driver Suresh came. He asked Suresh to take her to hospital. He checked her pulse it was found that there was no pulse and the body was feeling cold. He knew that she was already dead. When they removed the towel, they did not find the chain which she normally wears. He is a relative of the deceased.
18. PW31, Circle Inspector of Police conducted the inquest on the body of deceased and prepared Ext.P7 inquest report. The evidence was collected from the scene of occurrence with the assistance of scientific expert and finger-print expert even before conducting the inquest. The materials collected by the scientific expert and the finger-print expert were sealed and handed over to PW31 and the same was forwarded to the Court. Further investigation was conducted by another Circle Inspector PW34. He prepared the scene mahazar and the sealed packet containing scalp hair, pubic hair, finger nail clippings, vaginal smear and vaginal swab collected from the Doctors at the time of autopsy were sent to the Court. On 13/3/2012, he got information about DSR No.1/13 & Crl.Appeal No.88/14 -:17:- the autorickshaw driven by the accused. He brought the autorickshaw and the accused to the Police Station. After identification, the accused was arrested at 3 p.m on 13/3/2012. The autorickshaw was seized as per Ext.P30 mahazar. Based on the disclosure statement Ext.P11(a) of the accused, MO6 gold chain and MO7 gold ring were recovered from Kailath Financiers, Vattappara. Ext.P6 card which was found along with MO6 and MO7 was seized from the Kailath Financiers along with Ext.P2 the pledge book. Ext.P4, the attested copy of the pledge register was recovered. Exts.P4(a) and P4(b) were the entries relating to the pledge of MO6 and MO7.
19. PW8 is an employee of Kailath Financiers, Vattappara. He identified the accused and deposed that the accused came there at 3 p.m. on 6/3/2012 to pledge one gold chain and a gold ring. He identified the same as MO6 and MO7. The ornaments weighed 10.8 grams. `22,000/- was given to the accused though he asked for `25,000/-. He identified Ext.P2 application submitted by the accused for pledging the gold ornaments. The name and address was written as Rahul M., Abhiram Nivas, Mottamoodu, Kunnumpara, Vettinad. The form was filled by their staff Smt.Lilly DSR No.1/13 & Crl.Appeal No.88/14 -:18:- He also proved the relevant page of the pledge register attested by the partner of the concern which is marked as Ext.P4. The original was produced before Court and taken back on kaichit. The relevant page of the register was again taken and attested by the Sheristadar and the copy is marked as Ext.P4(a). Ext.P4(b) is the relevant entry in Ext.P4(a) relating to the loan transaction. PW8 also identified MO3 shirt and MO4 pants which the accused was wearing at the time when he came to the concern for pledging the gold ornaments. He also deposed that when the police party had come, he had handed over the material objects to the Circle Inspector of Police along with Ext.P6 card which was kept along with the pledged ornaments.
20. PW9 is another staff of Kailath Financiers. She also identified the accused and deposed that MO6 gold chain and MO7 gold ring were brought by the accused on 6/3/2012 at about 3 p.m. to pledge the same and that `22,000/- was given, but he had given his name as Rahul M. She also identified MO3 shirt and MO4 pants which the accused was wearing at the relevant time.
21. PW10 is the first wife of the accused. She deposed that they had a son by name Rahul and the accused had deserted her DSR No.1/13 & Crl.Appeal No.88/14 -:19:- seven years back. The son is aged 8 years.
22. PW11 is the present wife of the accused. She had married the accused on 22/10/2008. They have two children in the wedlock. The second child died after three months of delivery. She deposed that the accused used to drive an autorickshaw and its number was KL-01 AF 5067. The auto belongs to a person in Karamana. Name of auto is 'Rajamma'. She also deposed that autorickshaw is having the sticker of Mother Mary holding Infant Jesus.
23. PW13 is the owner of the autorickshaw which was driven by the accused. The name of the autorickshaw is 'Rajamma'. The number of the vehicle was KL-01 AF 5067. He deposed that accused started driving the auto 3½ half months prior to the incident. He deposed that on 6/3/2012, at 4.45 p.m., the accused had given him the arrears for hiring the auto. Thereafter, he did not receive any amount from the accused.
24. PW14 has been examined to prove that the deceased was a Xth standard student and leave was granted from the school from 1st March onwards and that the deceased was studious.
DSR No.1/13 & Crl.Appeal No.88/14 -:20:-
25. PW23 is the Registrar of Births and Deaths of Thiruvananthapuram Corporation. He issued Ext.P17, extract of birth register of the deceased showing that she was born on 26/3/1996. At the time of death, she had not crossed 16 years of age.
26. Learned counsel for the appellant argued that the evidence produced by the prosecution was not sufficient enough to prove the guilt of the accused. It is argued that the presence of accused in the scene of occurrence prior to the incident will not prove that he was involved in the crime. Evidence of witnesses only indicate his presence prior to the incident and that too on the road. No one has seen the accused entering the house of the deceased. PW5, mother of the deceased comes only at 5.30 p.m. and what she sees is the dead body of the deceased. Therefore, there is no evidence to prove that the accused had entered into the said house. That apart, no one has stated the number of the autorickshaw. PW3 only says that the number ends or starts with 7 which by itself is not sufficient enough to identify the autorickshaw. It is also argued that the recovery has not been effected in the proper manner and the scientific evidence had DSR No.1/13 & Crl.Appeal No.88/14 -:21:- been manipulated to suit the prosecution case. The DNA typing has been done with blood sample which by itself is not proper.
27. But, on a consideration of the evidence as a whole, the prosecution witnesses had clearly proved the presence of the accused in the locality and that he had come in an autorickshaw by name 'Rajamma'. The vehicle had a sticker of Mother Mary holding Infant Jesus. The auto actually belonged to PW13, who had permitted the accused to drive the auto on payment of daily rent. Therefore, when PW2 had identified the accused having seen him in front of the house of the deceased in the autorickshaw, there is nothing to disbelieve the said version. Even the wife of accused, PW11 had deposed that he was driving the autorickshaw with the name 'Rajamma'. The number of the auto also had 7 as the last digit as spoken to by PW3. Further, PW3 while he was coming back to his house heard some sound from the house of the deceased, which according to him, was a groaning sound like somebody getting suffocated. He also noticed an autorickshaw with the name 'Rajamma' in front of the house of the deceased. He also noticed a sticker of Mother Mary holding Infant Jesus affixed in front of the auto. He got frightened DSR No.1/13 & Crl.Appeal No.88/14 -:22:- and informed the matter to his parents. Subsequently he had identified the auto at the Police Station. The evidence of PW3 indicates that the autorickshaw was very much there while the deceased was being attacked by the assailant.
28. The most important evidence is the scientific material that is available before Court viz., the report of DNA typing which was conducted by Scientific Experts. The DNA found in the spermatozoa which was taken from the vagina matched with the DNA profile of the accused. This evidence clearly proves that the accused committed rape on the victim.
29. That apart, the missing chain and ring (MO6 and MO7) were recovered on the basis of the disclosure statement of accused from a nearby financier where the accused had pledged the same in a different name. Recovery is proved by the staff of Kailath Financiers, PW8 and PW9 and also PW17 attestor to Ext.P11 recovery mahazar on the basis of which MO6 and MO7 were recovered from Kailath Financiers. The chain and gold ring of the deceased were identified by her mother and other witnesses. The accused had no explanation as to how the gold chain and ring belonging to and worn by the deceased happened DSR No.1/13 & Crl.Appeal No.88/14 -:23:- to have pledged by him. The shirt and pant which the accused was wearing at the relevant time was recovered from the house of accused and PW18 is an attestor to the said recovery on the basis of Ext.P12 recovery mahazar. The contention that the DNA typing was not proper cannot be accepted as PW33, the Joint Director (Research), Forensic Science Laboratory had clearly given evidence regarding the same. Therefore, this is a case in which prosecution had proved the presence of the accused in the locality just before the incident and he came in an autorickshaw which was identified by witnesses. The autorickshaw was very much there at the time when PW3 heard a groaning sound from the house of the deceased. The gold chain and gold ring worn by the deceased were stolen and it was recovered from Kailath Financiers on the basis of disclosure statement of the accused. The forensic evidence proved that the spermatozoa collected from the vagina of the deceased matched the DNA profile of the accused. There is also proof through PW11 and PW13 that the accused was driving an auto with the name 'Rajamma' at the relevant time. All these circumstances have been proved by the prosecution beyond reasonable doubt and therefore the only DSR No.1/13 & Crl.Appeal No.88/14 -:24:- hypothesis that could be arrived at is that the accused was involved in the crime. Of course, learned counsel for the appellant has a contention that since none of the witnesses had any acquaintance with the accused, in the absence of conducting Test Identification Parade (TIP), the Court below ought to have found that the identification of the accused by the witnesses was not proper. It is true that TIP was not conducted by the investigating officer. But, in this case, there is evidence to prove that the autorickshaw which was identified by the witnesses and which was driven by the accused at the relevant time was proved to be given by the owner of the auto to the accused. PW13 had categorically given evidence stating that the accused was driving the auto at the relevant time. His wife PW11 also has stated that the accused used to drive the autorickshaw bearing No.KL-01 AF 5067. That apart, the accused was seen by PW2 in broad day light and when she had identified the accused before Court, there is nothing to disbelieve the said identification. Absence of conducting TIP is not fatal to the prosecution. Further, the scientific evidence viz., the DNA analyzis of the spermatozoa of the accused found in the vaginal swab and smear of the DSR No.1/13 & Crl.Appeal No.88/14 -:25:- deceased categorically proves his involvement in the crime which is again corroborated by the recovery of the chain and ring on the basis of his disclosure statement. Therefore, we fully concur with the Court below in finding the accused guilty of the offences charged against him.
30. Having found so, the only question to be considered is regarding the sentence. The Sessions Court had given death penalty to the accused. It is settled law that death penalty can be given only in cases which are termed as "rarest of the rare" as held in Bachan Singh v. State of Punjab [(1980) 2 SCC 684]. In Machhi Singh v. State of Punjab [(1983) 3 SCC 470], the Apex Court had categorized certain type of murders which demands death sentence. Subsequently, in Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767] it was held that the life imprisonment strictly means imprisonment for the whole of a man's life, but in practice it amounts to incarceration for a period between 10 and 14 years. It was further observed that in exceptional cases, it shall be open for Courts to direct that the sentence of imprisonment shall last as long as life lasts.
DSR No.1/13 & Crl.Appeal No.88/14 -:26:-
31. In Union of India v. V.Sriharan and Others [(2016) 7 SCC 1], the Constitution Bench of the Apex Court had occasion to consider the sentence issued relating to death penalty and it was held that the principles laid down in Swamy Shraddananda (supra), can be applied without anything more. It was held at para 78 as under:-
"78. Though we are not attempting to belittle the scope and ambit of executive action of the State in exercise of its power of statutory remission, when it comes to the question of equation with a judicial pronouncement, it must be held that such executive action should give due weight and respect to the latter in order to achieve the goals set in the Constitution. It is not to be said that such distinctive role to be played by the Executive of the State would be in the nature of a subordinate role to the judiciary. In this context, it can be said without any scope of controversy that when by way of a judicial decision, after a detailed analysis, having regard to the proportionality of the crime committed, it is decided that the offender deserves to be punished with the sentence of life imprisonment i.e. for the end of his life or for a specific period of 20 years, or 30 years or 40 years, such a conclusion should survive without any interruption. Therefore, in order to ensure that such punishment imposed, which is legally provided for in the Penal Code, 1860 read along with the Criminal Procedure Code to operate without any interruption, the inherent power of the court concerned should empower the court in public interest as well as in the interest of the society DSR No.1/13 & Crl.Appeal No.88/14 -:27:- at large to make it certain that such punishment imposed will operate as imposed by stating that no remission or other such liberal approach should not come into effect to nullify such imposition."
32. The judgment was slightly modified by an order dated 23/7/2015 and paragraph 5 reads as under:-
"5. After hearing the arguments advanced by the learned counsel for the respective State Governments for some time, we are of the considered view that our order dated 9-7-2014 requires to be modified. Accordingly, we modify our order dated 9-7-2014, whereby we had restrained the State Governments from exercising their power of remission or commutation to life convicts. The said order dated 9-7-2014 shall only apply to cases:
(i) where life sentence has been awarded specifying that:
(a) the convict shall undergo life sentence till the end of his life without remission or commutation;
(b) the convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years or the like;
(ii) where no application for remission or commutation was preferred, or considered suo motu by the State Governments/authorities concerned;
(iii) where the investigation was not conducted by any central investigating agency like the Central Bureau of Investigation;
(iv) where the life sentence is under any Central law or under Section 376 of the Penal Code, 1860 or any other similar offence."
33. Learned Public Prosecutor also placed before us the DSR No.1/13 & Crl.Appeal No.88/14 -:28:- following judgments in order to emphasise the point that in cases where minor girls are being raped and murdered, the maximum sentence is to be given.
(i) Dhananjoy Chatterjee v. State of W.B [(1994) 2 SCC 220].
(ii) Molai and Another v. State of M.P. [(1999) 9 SCC 581]
(iii) B.A. Umesh v. High Court of Karnataka [(2011) 3 SCC 85]
(iv) Mohd. Mannan @ Abdul Mannan v. State of Bihar [(2011) 5 SCC 317]
(v) State of U.P v. Satish [(2005) 3 SCC 114]
(vi) Rajendra Pralhadrao Wasnik v. State of Maharashtra [(2012) 4 SCC 37].
34. Learned counsel for the accused placed before us the following judgments to substantiate that, in cases similar to the one at hand, the Apex Court as well as this Court had set aside the death penalty taking into account the fact that the accused did not have any criminal antecedents. The fact that the accused can be reformed and rehabilitated also were taken into DSR No.1/13 & Crl.Appeal No.88/14 -:29:- consideration while awarding sentence.
(i) Bishnu Prasad Sinha v. State of Assam [(2007) 11 SCC 467]
(ii) Sunil v. State of Madhya Pradesh (2017) 4 SCC 393]
(iii) Kalu Khan v. State of Rajasthan [(2015) 16 SCC 492]
(iv) State of Bihar v. Hemlal Sah (2014 KHC 2722).
35. There cannot be any dispute regarding the proposition laid down in the judgments cited by both side. Needless to state that each case has to be considered on its own facts. We are concerned with an instance where a minor girl has been murdered by throttling her while committing rape. The accused also committed theft of the gold articles which the victim was wearing at the relevant time. The accused was a stranger in the locality. He had come to the place near the house of deceased for dropping someone in his autorickshaw. His auto had fell into a ditch and it was the deceased along with PW2 who helped him to push the auto from the ditch. The vehicle had a starting trouble and he asked for a screw-driver which the deceased had given him. Thereafter, PW5, the victim's mother, sees her dead body. The case against the accused had been proved by circumstantial DSR No.1/13 & Crl.Appeal No.88/14 -:30:- evidence and forensic/scientific evidence proves that there was an attempt to rape. PW28, has clearly given evidence stating that the findings in Ext.P20 coupled with Ext.P18 would show that the victim was subjected to forcible sexual intercourse. Therefore, this is a case in which the lust and greed of the accused resulted in the rape and murder of a minor girl.
36. Of course, this is a case in which there was no premeditation and the intention to commit crime would have developed all of a sudden. The evidence at hand proves beyond doubt that the murder was committed by the accused/appellant while committing rape on the victim after trespassing into her dwelling house. Thereafter, he had stolen the gold articles belonging to the victim and pledged it in a false name. He is a person who has married twice and has children. He was aged 29 years at the time of incident. There is no evidence to prove that he had any criminal antecedents. The offence might have been committed in a sudden rush of blood i.e., to commit robbery and rape. The Apex Court in Shyam Singh v. State of M.P. [(2017) 11 SCC 265], held at paragraph 5 as under:-
"5. We need not burden this order by an exhaustive DSR No.1/13 & Crl.Appeal No.88/14 -:31:- consideration of the large number of precedents that would be available on the point laying down the principles on the basis of which the justification for death penalty awarded to an accused is required to be considered. Suffice it would be to notice that some of the principles which have emerged are:
(1) the age of the accused [Bachan Singh v. State of Punjab, para 206];
(2) the possibility of reform [Bachan Singh v. State of Punjab, para 206], [Rajesh Kumar v. State, para 74]; (3) the socio-economic background of the accused [Mulla v. State of U.P., paras 80 and 81];
(4) the circumstances in which the crime has been committed [Dharmendrasinh v. State of Gujarat, para 20]; (5) the quality of the evidence which had prevailed with the Court in upholding the conviction [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, para 56 and (6) lack of criminal antecedents [Gudda v. State of M.P., para 31];
The above enumeration, we must hasten to add, is certainly not exhaustive but is merely illustrative."
37. Taking into account all these facts, we are of the view that instead of death penalty, the punishment of life imprisonment would meet the ends of justice. But as already noticed and held in Swamy Shraddananda (supra), taking into account the gravity of the offence, it would only be appropriate that no remission shall be granted to the accused for a period of DSR No.1/13 & Crl.Appeal No.88/14 -:32:- 25 years.
In the result, DSR No.1/2013 and Crl.Appeal No.88/2014 are disposed of as under:-
(i) The conviction and sentence of the accused under Sections 376, 449, 392 and 419 of I.P.C. are confirmed.
(ii) The conviction of the accused u/s 302 I.P.C. is also confirmed.
(iii) The sentence for the offence u/s 302 of I.P.C. is converted to imprisonment for life instead of death penalty and it is made clear that the accused shall not be entitled for any remission for a period of 25 years. The period of detention, if any, undergone by the appellant in connection with this case, shall be given set off under Section 428 of Cr.P.C. All sentences shall run concurrently.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
P.SOMARAJAN
Rp //True Copy// JUDGE
PS to Judge