Madras High Court
Ramesh vs State Rep. By on 19 February, 2008
Author: M.Chockalingam
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/02/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL APPEAL (MD)NO.3 OF 2007 Ramesh .. Appellant Vs. State rep. by the Inspector of Police, Pampan Police Station, Ramanathapuram District. (Crime No.146 of 2005) .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C. against the judgment of conviction and sentence made by the learned Additional Sessions Judge-cum-Fast Track Court, Ramanathapuram made in S.C.No.137 of 2006, dated 6.12.2006. !For Appellant ... Mr.P.Andiraj ^For Respondent ... Mr.P.N.Pandithurai, APP :JUDGMENT
(The judgment of the court was delivered by M.CHOCKALINGAM, J.) This appeal has arisen from the judgment of the Additional Sessions Division, Fast Track Court, Ramanathapuram made in S.C.No.137 of 2006, whereby the sole accused/appellant stood charged under Sections 376, 302 and 201 IPC and on trial, he was found guilty as per the charges and awarded punishments of life imprisonment and to pay a fine of Rs.5000/-, in default to undergo one year R.I. under Section 376 IPC, life imprisonment and to pay a fine of Rs.5000/-, in default to undergo one year R.I. under Section 302 IPC and 3 years R.I. and to pay a fine of Rs.1000/-, in default to undergo 6 months R.I. under Section 201 IPC and all the sentences were to run concurrently.
2.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the father of the deceased Seeni Nabra, aged about 8 years.
P.W.2 is the mother and P.W.3 is the grandmother of the said child. On 3.11.2005 at about 11.00 a.m., when P.W.3 proceeded to the rice mill of the accused/appellant, she took the child also. On seeing that the back portion of the mill was closed, she asked the child to go and ask the accused to open the back portion of the mill. Accordingly, the accused opened the same and P.W.3 handed over the flour to the accused. Then, P.W.3 came to the house of a neighbour. Some time later, the child asked Rs.2/- for taking juice. Accordingly, P.W.3 gave the same. Thereafter, the child went to the Mill and asked the accused whether the flour was grinded. At that time, she was taken to the backside of the Mill by the accused. P.W.3, who was waiting for some time, since the grandchild did not return, went home.
b)At the time when the accused took the child to the backyard, P.W.12, an employee of the mill, has seen the same. The accused has permitted him to go for lunch. Then, P.W.12 left the mill. Then, the accused has committed rape on the child and due to Neurogenic shock, the child died. Since the child did not come back, P.W.3 informed to P.W.1. P.Ws.1,3 and others searched for the child.
c)At about 10.00 p.m., P.W.6, the owner of the Textile shop situated just opposite to the mill of the accused and P.W.7, the night watchman, who was posted as Security in that area, have found the accused/appellant opening the mill unusually at that time. When they questioned, the accused told that since the next day is Ramzan, he opened the Mill for doing work. At about 10.15 p.m., P.W.8, whose house is situated exactly behind the mill, came to attend the call of nature and at that time, he heard a noise coming from the Well side and he found the accused and he has questioned him as to what he was doing during night hours. Then, the accused told that since the next day was Ramzan, he was throwing the garbage into the Well.
d)P.W.4 found the dead body of the deceased inside the Well and on seeing the same, it was informed to P.Ws. P.Ws.1 to 3 came and found the dead body of the deceased. P.W.1 went over to the respondent police station, where P.W.20, the Sub Inspector of Police was on duty. He gave Ex.P.1, the complaint to P.W.20, on the strength of which, a case came to be registered by the respondent police under Section 146/2005 under Section 174 Cr.P.C. Ex.P.23, the F.I.R. was despatched to the court. The dead body was taken out. The place of occurrence and the dead body were photographed by P.W.9, the photographer and they were marked as M.O.1 (series). Then, the dead body was sent to the Government Hospital, Rameswaram.
e)P.W.22, the Inspector of Police, on receipt of the copy of the F.I.R., proceeded to the Government Hospital, Rameswaram and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars. He prepared Ex.P.24, the inquest report. Then, he gave a requisition to the Doctor for conducting post-mortem on the dead body.
f)P.W.15, the Doctor, attached to the Government Hospital, Rameswaram, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased. He has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of 24 to 48 hours prior to the post-mortem and it was due to neurogenic shock.
g)P.W.21 further took up the investigation and recorded the statement of the witnesses. He went to the scene of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.25, the rough sketch. After getting the medical opinion, the case was altered to Sections 376 and 302 IPC. Ex.P.26, the amended FIR was despatched to the Court. On 9.11.2005, the accused was arrested by the Investigator in the presence of the witnesses. The accused made confessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.3. Following the same, the accused took the Investigator to the Mill and produced M.O.2, shawl, which was worn by the deceased at the time of occurrence and the same was recovered under a cover of mahazar.
h)The accused identified the place where he committed the offence. Then, the Investigating Officer has made an inspection and prepared Ex.P.5, the observation mahazar and Ex.P.27, the rough sketch. Following the same, the accused was sent for medical examination. P.W.14, the Doctor attached to the Government Hospital, Ramanadapuram, medically examined him and has issued Ex.P.7, the age certificate that the accused has completed 18 years. Then, the accused was medically examined by P.W.13, the Doctor attached to Ramanathapuram Government Hospital and he has issued Ex.P.6, the certificate that the accused is found to be potent. All the material objects recovered from the place of occurrence, from the dead body of the deceased and also the M.Os recovered from the accused were sent for chemical analysis by the Forensic Science Department. Ex.P.9, the Chemical Analyst's report and Ex.P.22, the Hyoid Bone report were received.
i)Further investigation was done by P.W.22, the Inspector of Police. He recorded the statement of the witnesses. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 22 witnesses and relied on 27 exhibits and 4 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, on hearing the submissions made and also looking into the materials available, was of the opinion that the prosecution has proved the case beyond reasonable doubt and has found the accused/appellant guilty as per the charges and awarded punishments as referred to above, which is the subject matter of challenge before this court.
4.Advancing arguments on behalf of the appellant, the learned counsel would submit that the prosecution has miserably failed to prove its case or to bring home the guilt of the accused on any one of the charges; that according to the prosecution, the occurrence has taken place on 3.11.2005 at noon hours; that a complaint was given only on the next day, i.e. on 4.11.2005 by P.W.1 to P.W.20, the Sub Inspector of Police, where P.W.1 has clearly stated that they suspected a person, who was the close relative; that only after the demonstration and procession, in the instant case, the accused was added; that further, the prosecution had no direct evidence to offer; that it rested its case on circumstantial evidence; that the prosecution relied on six circumstances, namely P.W.6, the Textile shop owner and P.W.7, the night watchman of that area, have found the accused/appellant opening the mill at about 10.00 p.m. and there was no occasion to open the mill; that P.W.8, the neighbour, heard a noise from the Well side when he came out and he asked the accused about the same; that the accused replied that since the next day was Ramzan, he threw the garbage into the Well; that P.W.5 also found the accused taking the girl through the backside of the mill at about 12.00 noon; that P.W.12, who was an employee, has also found the accused taking the girl at about 12.30 p.m. to the backyard and P.W.12 was also given permission to go for lunch and that the last circumstance was the recovery of shawl of the deceased pursuant to the confession made by the accused.
5.Added further the learned counsel that so far as all the six circumstances were concerned, it is true, the prosecution has placed the circumstances, but not proved the same; that so long as the circumstances were not pointing to the guilt of the accused, he could not be found guilty; that the statements of those witnesses have reached the court only on 28.4.2006; that the occurrence has taken place on 03.11.2005; that there was a long interval; that apart from that, merely because the Mill was opened at about 10.00 p.m. at night, as evidenced by P.Ws.6 and 7, it cannot be stated that it was the circumstance pointing to the guilt of the accused; that admittedly, the next day was Ramzan and therefore, it cannot be a ground; that so far as P.Ws.5 and 12 were concerned, according to them, they saw the accused taking the girl to the backyard; that had it been true, there was no impediment for those witnesses to come forward and tell about the facts on the very day; that the case was registered and the investigation was on, but they did not come forward to speak about the same; and that this would be indicative of the fact that those witnesses have been procured in order to fill up the lacuna and to strengthen the prosecution case, if possible.
6.The learned counsel for the appellant would further submit that the other circumstance was the evidence of P.W.8; that P.W.8 heard the noise from the Well and he asked the accused about the same; that the accused answered the same and hence this circumstance cannot be believed for the simple reason that so far as P.W.8 was concerned, there was no reason to go out at or about the time of occurrence and that this circumstance cannot be said to be the circumstance pointing to the guilt of the accused. The learned counsel would further add that P.W.6 has not even spoken about anything to anybody till 5.11.2005 when he was examined by the police; that all would go to show that they were only planted witnesses; that actually, P.Ws. have suspected a close relative, but the case was misdirected as if the accused was involving in the matter; that so far as the recovery of shawl was concerned, there was no one to indicate that the shawl was actually worn by the deceased at the time of occurrence and therefore, the recovery part cannot connect the accused with the crime and hence the circumstances placed before the court were thoroughly insufficient and those circumstances even were not proved and thus, the prosecution had no evidence at all and that the lower court should have acquitted him of all the charges, but has erroneously found him guilty. Therefore, the accused/appellant is entitled acquittal in the hands of this court.
7.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made and has also scrutinized the entire materials available.
8.It is not in controversy that the child, by name Seeni Nabra, aged about 8 years, was found dead inside the Well. Subsequently, the dead body was taken out and following the inquest, the dead body of the deceased was subjected to post-mortem by P.W.15, the Doctor, who has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased was raped and she died out of neurogenic shock. Thus, the fact that she was raped either, or she died out of neurogenic shock was not in controversy before the trial court. Hence, without any impediment, it has got to be factually recorded so.
9.In the instant case, the prosecution had no direct evidence to offer. The prosecution rested its case only on circumstantial evidence. The court, before accepting the case of prosecution on circumstantial evidence, has to necessarily look into whether necessary circumstances are placed and proved and whether they are actually making a complete chain without any snap, pointing to the hypotheses that except the accused no one could have committed the offence. In the instant case, after the scrutiny of the materials available, the court is of the considered opinion that the prosecution has satisfied the above test.
10.According to P.W.3, the grandmother of the child, she took the child along with her, when she went for grinding the flour in the mill of the accused. At the time when she went over there, the back portion of the mill was closed and that, she asked her grandchild to go and ask the accused to open the back portion. Accordingly, it was opened and the flour was handed over to the accused. Then, P.W.3 along with the child went to he neighbour's house. After some time, P.W.3 sent the child to see whether the flour was grinded. Accordingly, the child went to the Mill and asked the accused whether the flour was grinded. After that, the child did not come back. After waiting for some time, P.W.3 went to home. At this juncture, there is evidence through P.W.5 and P.W.12, who was an employee under the accused, to the effect that the accused took the child to the backyard. P.W.12, the employee, has categorically deposed before the court that before taking the child to backyard, the accused has permitted him to go for lunch unusually. Further, the appellant/accused had no business to take the 8 years old female child to the backyard, as noticed. Apart from that, on the date of occurrence at about 10.00 p.m., he has opened the mill unusually in the odd hours. The same was witnessed by P.W.6, the Textile Shop owner, whose shop is situated opposite to the mill of the accused, and also P.W.7, the night watchman. Both have questioned the appellant/accused as to why he has kept the mill opened. For that, he has answered that since the next day was Ramzan, he has come for grinding the flour. Thus, the accused was found inside the Mill at the odd hours.
11.The other strong circumstance was the evidence of P.W.8, whose house is situated exactly behind the Mill. When P.W.8 came out for attending the call of nature at about 10.15 p.m., he heard a noise from the Well, which is situated behind the Mill and on seeing the accused proceeding towards the Mill, he stopped him and asked as to what he was doing, for that the appellant/accused replied that since the next day was Ramzan, he was throwing the garbage into the Well. Thus, it would be quite clear that it was the accused who actually threw the dead body into the Well. The next day morning, P.W.4 found the dead body and informed the same to others and the dead body was taken out. All the circumstances put together would clearly indicate that the appellant/accused has committed the act inside the Mill, kept the dead body inside and he actually threw the dead body into the Well at about 10.15 p.m. All the witnesses have cogently spoken about the facts.
12.It is true, in Ex.P.1, initially there was suspicion and P.W.1 has suspected one of his relatives and the name of one of the close relatives was also mentioned. But, the investigation reveals that it was the accused who committed the act and the police has proceeded in the right path. Further, the shawl of the deceased was recovered from the accused on confession made by him in the presence of the witnesses. Now, the contention put forth before the court that there is no evidence that the shawl was worn by the deceased cannot be accepted, since it was recovered from the accused pursuant to his confessional statement.
13.Under these circumstances, the court is of the considered opinion that in the instant case, sufficient circumstances are placed. Further, sufficient evidence was available to prove the fact that the accused was last seen with the child and it was he who took the child and has committed the offence and threw the dead body into the Well. It is true, there is no direct evidence that it was the accused who has committed the offence. But the circumstances are there to show that the child was last seen with the accused and subsequently, the dead body was recovered. Therefore, inferable circumstances are there pointing to the guilt of the accused. The medical opinion is also to the effect that the 8 years old child died out of neurogenic shock due to rape. Further, the appellant/accused attempted to screen the evidence by throwing the dead body into the Well. All would go to show that all or any one of the contentions put forth by the learned counsel for the appellant do not carry any merit whatsoever. The court is unable to see any infirmity either factually or legally in the judgment of the court below, which has got to be sustained and accordingly, it is sustained.
14.This criminal appeal must fail and accordingly, it fails and the same is dismissed.
vvk To
1.The Inspector of Police, Pampan Police Station, Ramanathapuram District.
2.The Additional Sessions Judge, Fast Track Court, Ramanathapuram.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.