State Of Kerala vs Rajendran on 30 October, 2018

[Cites 17, Cited by 0]

Kerala High Court

State Of Kerala vs Rajendran on 30 October, 2018

The appellant was the first accused in Crime No.334 of 2007 of Vandiperiyar Police Station registered for commission of offences punishable under Sections 449, 376 & 302 read with Section 34 of the Indian Penal Code (IPC). After the investigation, final report was laid accusing the appellant and one Jomon (second accused) of commission of the aforesaid offences. The Judicial First Class Magistrate-II, Peermedu committed the case against both the accused to the Court of Sessions, Thodupuzha as mandated under Section 209 of the Code of Criminal Procedure (Cr.P.C.) The case was then made over to the Court of Second Additional Sessions Judge/Special Judge for NDPS cases, Thodupuzha for trial and disposal. However, owing to the abscondence of the second accused, the appellant alone was tried and the case against the second accused was split up. The appellant was found guilty, under all the aforesaid sections and consequently convicted and sentenced. Under Section 302 r/w 34 IPC, he was sentenced to be hanged by neck till his death. Under Section 376 r/w 34 IPC, he was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 4 rigorous imprisonment for six months. For the conviction under Section 449 r/w Section 34, IPC, he was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo rigorous imprisonment for six months. Under Section 366(1) of Cr.P.C. proceedings were submitted to this Court for confirmation of the death sentence and accordingly, D.S.R.No.4 of 2012 was registered. The captioned appeal has been filed by the convict against the judgment passed in the said sessions case.

2. The case of the prosecution is as follows:-

On 2.12.2007 at about 10 p.m., the appellant and the other accused Jomon, in furtherance of their common intention, trespassed into the house of deceased Neenu and Molly bearing Door No.XV/386 of Vandiperiyar Grama Panchayat at 57th Mile Kara in Peermedu and the appellant committed rape on Neenu after choking her by putting a bath towel around the neck and the second accused committed rape on Molly while she was lying on a cot in the same room. Both of them had ravished Neenu and Molly alternately and then they murdered Molly and Neenu by inflicting multiple injuries on their head with iron rod and chopper. The appellant had also bepeppered with his knee on their chest and caused internal injuries including fracture of sternum and D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 5 thereby, they committed the offences under Sections 449, 376, 302 r/w 34, IPC. PW1, Ponnamma lodged Ext.P1 F.I. Statement which was recorded by PW27 and based on the same, Ext.P36 F.I.R. was registered. PW23 conducted the investigation initially and then it was taken over by PW24 and on completion of the investigation, he laid charge sheet against both the appellant and the other accused for the offences mentioned hereinbefore. As noticed earlier, after the committal of the case, the other accused absconded and therefore, the case against him was split up and the appellant alone was tried. After preliminary hearing on charge under the aforesaid offences, it was read over and explained to the appellant. He pleaded not guilty and claimed to be tried. To prove the charge against the appellant herein, the prosecution had examined 27 witnesses and exhibited 36 documents besides identifying MO1 to MO56. After the closure of the evidence of prosecution, the appellant was examined under Section 313, Cr.P.C. He denied all the incriminating circumstances put to him. No defence evidence was adduced. It was after appreciating the evidence on record and the rival arguments advanced that the trial court found the appellant guilty and consequently, convicted and sentenced him as aforesaid.

D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 6

3. We have heard Adv.V.K.Hema, who was appointed from the Senior panel of State Briefs for the appellant and also Adv. Smt. Ambika Devi S, the learned Special Govt. Pleader.

4. Evidently, in this case, the prosecution had relied on oral evidence and medical evidence to establish the culpability of the appellant. PW1 is the first informant. She was having only hearsay information about the death of Molly and Neenu. Based on her F.I. Statement Ext.P36 F.I.R. was registered. PW2, the then President of Vandiperiyar Grama Panchayat is one of the attesting witnesses to Ext.P2 inquest report of Molly and Ext.P3 inquest report of Neenu. PW3 who is the husband of Neenu is an attesting witness to Ext.P4 scene mahazar. He would admit his signature thereon. He was doing cable work in Thiruppoor during the relevant period. He gave a statement at the time of preparation of inquest reports viz., Exts.P2 and P3 to the effect that Neenu and Molly were murdered. PW4 is an attesting witness to Ext.P5 mahazar whereunder MO1 garment and MO2 sweater worn by deceased Neenu's 7 months old child, at the material time, were seized. He is also an attesting witness to Ext.P6 mahazar whereunder MO3 chopper was seized. He supported the prosecution. He admitted his signature both in Exts.P5 and P6 mahazars and identified MOs 1 to 3. True that, according to him, it was the other D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 7 accused who had taken and handed over MO3 to police. PW5, who is the daughter of PW1, would depose that she heard the cry of Neenu's child while she was returning from the work place. She deposed that the child was seen crawling across the courtyard and she took the child and called Molly and Neenu. Since there was no response from them she brought the child to her house and that MO1 and MO2 were the dresses worn by the child at that time and she produced those objects before the police station. PW6 is the son of deceased Molly and brother of deceased Neenu. He was then working in Ernakulam and he would depose that on getting the information he rushed home and found their dead bodies. He would depose that MO4 underwear found at the site did not belong to any family members and that MO5 iron rod kept in the house to unfasten the fixed nails.

5. PW7 would depose that on 2.12.2007 at about 1.15 p.m., the appellant called him for a work and owing to his engagement in a tea shop, he refused the offer. At the same time, he would depose that the factum of his engagement in the tea shop is known to the appellant. PW8 who is the neighbour of the deceased Neenu and Molly deposed that on 2.12.2007 at about 11 a.m., the appellant came to her house. She has also deposed that the appellant enquired about her father and husband and then left the place on being told about their absence in the D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 8 house. PW9 who was conducting a tea shop at 57 th Mile deposed that he knew deceased Molly and Neenu as also the appellant. On 2.12.2007 at about 10-10.30 a.m., the appellant came to his shop and sat there. Jomon, the second accused arrived there in a bus and thereafter, both of them had consumed liquor. He would also depose that some time later Jomon's wife came there and asked Jomon to come to the house for lunch. Thereupon, Jomon invited the appellant and they went together for taking meals. He deposed further that PW14 Pushpavally @ Molamma reached there in a bus at about 8 p.m. After having a tea from his shop she went home. He would also depose that at that time, in Petrolmax' light he had seen Rajendran (appellant) and Jomon (second accused) sitting on the culvert near to his shop and then following Molamma. According to him, at about 9 p.m., Molamma rushed back to him and told that somebody had pelted stones on her house and prior to that she heard the sound of somebody kicking bottle, outside. He asked her to wait for her husband in his tea shop. He also deposed that he came to know about the death of Molly and Neenu only when he returned from Tamil Nadu on 4 th of that month after seeing his ailing father-in-law. He repudiated the suggestion of non-disclosure of having seen persons sitting on the culvert to the police. PW10 deposed that on 2.12.2007 at about 12 a.m., the D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 9 appellant came to her house and asked 'അമ മ തമമയമ ?' (Mother, whether you are alone). On being replied that she got children, he asked her where they had gone. She further replied that they had gone to come back soon. Then he asked about the place of work of her son- in-law Johny. On getting reply that he was working at Mundakkayam, the appellant asked whether he used to come daily. On getting a positive answer, he left the place. During cross-examined, she deposed that the appellant had not behaved indecently.

6. PW11 was then running a quarry at Erumeli. He would depose that the appellant was an employee in his quarry and he used to work there from Monday to Saturday in a week and in the evening of 1.12.2007 he received Rs.1,300/- towards his wages and thereafter, returned for work only on next Monday at about 9 a.m. According to PW11, the appellant was then complaining of pain on his hands and shown him lacerations on his hands. He was told that they had occurred when he fell down, on the way. The appellant was given Rs.100/- and then went away. After some time, he came back after having consultation with a doctor. He did not do any work on that day and on the next morning also he received Rs.100/- and then went to see a doctor, according to PW11. Thereafter, he did not come back D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 10 going by the version of PW11. PW12, who is the wife of the appellant deposed that her husband is working in a quarry and that they got three children. She would further depose that he became a bibber about two or three years back and there was no connubial relationship between them for the past six months and he used to sleep on a mat laid on the floor. She would also depose that at about 10 p.m. on 1.12.2007, the appellant came home and left there on the next day and he was then, wearing a rose colour shirt and white dhoti. During cross examination, she deposed that they were not in good terms and at the same time, repudiated the suggestion that she gave the lie to her statement that her husband was wearing rose colour shirt and white dhoti when he left the house on 1.12.2007. PW13 is the attesting witness to Ext.P7 mahazar whereunder MO6 shirt and MO7 dhoti worn by the appellant at the material time, were recovered. PW14, Pushpavally @ Molamma deposed that she is a resident near to the tea shop of PW9 and that on 2.12.2007 at about 8 p.m. she had tea from his shop, on her way back home. On her way, she heard a conversation between two persons, and according to her, the second accused Jomon was one among them. She also identified the appellant as the person found along with Jomon. She had also deposed that they had followed her. When she finished her dinner, she heard sound of footsteps in her D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 11 courtyard and also of pelting of stones on her house. There was no response to her query and thereupon, she rushed to the tea shop of PW9 and sat there till 11 p.m. Thereafter, she was taken to her home by the wife of PW9. According to her, the house of deceased Neenu and Molly situates half a kilometer away from her house. When she went to the house of the deceased, she found her own skirt (MO8 skirt) in front of the kitchen of their house. PW15 is an autorickshaw driver. He deposed that on 2.12.2007 between 7.30 and 8 O' Clock, he took two persons in his autorickshaw and they got down near to PW9's tea shop. According to him, they had hired the autorickshaw to go to Kolunthukkura and on reaching there they asked him to proceed further and then alighted at 57 th Mile about 30 feet away from the tea shop of PW9 Amalraj. He identified the appellant as one of the persons who travelled in his autorickshaw at that point of time and then deposed that the appellant was then wearing a rose colour shirt and white dhoti. He would also depose that he identified both the appellant and the other accused from the police station.

7. PW16 was a Civil Surgeon then attached to CHC, Vandiperiyar. He deposed that he examined the appellant at about 9.15 p.m. on 6.12.2007 and then issued Ext.P8 certificate showing the injuries sustained by him. He noted the following injuries on the body of D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 12 the appellant:-

"(1) Multiple linear healed abrasion over skin in over lumbar region on back. 4 number 1.5 x .5 cm.

(2) Healed abrasions of skin 1.5 x 1.5 cm. on the right scapular region.

(3) Healed abrasions of skin 2 x .5 cm. left forearm. (4) Healed abrasions of skin 4 x .5 cm. right shin of right leg.

(5) Healed linear abrasion of skin left shin 2 x .5 cm."

He would also depose that after testing the potency of the appellant, he issued Ext.P9 certificate to the effect that the appellant is potent and capable to perform sexual acts. On 7.2.2007, he examined the blood group of the appellant and found it as O+ve and issued Ext.P10 certificate to that effect. PW17 is the then Tahsildar of Peermedu who prepared Ext.P3 inquest in respect of deceased Neenu. MO9 to MO13 were seized after describing them in it. He would depose that it contains his signature as also that of the attesting witnesses. During the cross examination, he would depose that Ext.P3 was prepared in his presence by Police, based on his instructions and would also admit that it did not contain his office seal. PW18 was then functioning as Finger Print Expert in Idukki. He would depose that on the requisition of the then C.I. of Police, Kumali, he inspected the place of occurrence at D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 13 about 7 p.m. on 4.12.2007 and took two fingerprints noted on the empty liquor bottle found at the site. Ext.P11 is his opinion. Ext.P14 is the preliminary report submitted immediately after the inspection. Evidently, there is nothing in his report in relation to the appellant. PW19 is the then Village Officer, Peermedu who prepared Ext.P15 site plan. PW20 is an attesting witness to Ext.P16 mahazar whereunder MO5 iron rod was seized. He would admit his signature thereon. He deposed that on 7.12.2007, he was there in the house of deceased Molly and Neenu when the Circle Inspector and Police party along with the appellant and the other accused came there. He would also depose that MO5 was taken by the appellant from a spot which is about 10 metres on the eastern side of the house of deceased Molly and Neenu. According to him, there were forest trees and stones in that place. He repudiated the suggestion that he had not seen the recovery and asserted that he had seen the recovery. PW21 is an attesting witness to Ext.P17 mahazar whereunder MO31 and MO32 allegedly the dresses worn by the second accused at the material time were seized. PW22 is the Scientific Assistant then attached to the Forensic Department in Kottayam. He deposed that he was then holding additional charge of Idukki District and on the requisition of the then C.I. of Police, Kumali he inspected the place of occurrence on 4.12.2007 and collected 12 D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 14 items from the dead body of Molly and nearby premises. Ext.P18 is the report in that regard. He had also collected six items from the dead body of Neenu and the nearby premises and submitted Ext.P19 report. He further deposed that those items collected by him were duly packed and sealed and handed over to the investigating officer along with Exts.P18 and 19 reports. Ext.P20 is the FSL report regarding those items which were sent to FSL along with Forwarding Note. PW22 would further depose thus:-

Item No.16 listed as such in page No.3 of Ext.P20 FSL report pertains to the hairs seen and collected from the left hand of deceased Molly. Some of them were found similar to the sample hairs of the appellant as described in serial No.6 of page No.30 of Ext.P20, going by FSL report. Item No.26 in page No.6 therein pertains to the appellant and one of the hairs collected from the pubic area of Molly by him and included as an item in Ext.P18 report was found to be the scalp hair of the appellant as described in serial No.6 of page No.30 of Ext.P20. Certain hairs collected by him from the blue coloured underwear found at the cot where dead body of Molly was found, were the pubic hairs similar to the pubic hairs of the appellant as described in serial No.VIII in page No.25 of Ext.P20 and serial No.12 in page No.30 of Ext.P20. From DNA typing, it was found that the seminal stains and epithelial D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 15 cells seen at the aforesaid underwear mentioned in item No.5 in page No.2 of Ext.P20, the seminal stains found at the skirt described in serial No.14 in page No.3 of Ext.P20, the body hairs collected from the face of the dead body of Molly mentioned in item No.20 in page No.4 of Ext.P20 and pubic hairs collected from the underwear mentioned in serial No.32 in page No.7 of Ext.P20 belonged to the appellant and it matches with to whom item No.47(a) of Ext.P20 belongs. He categorically stated that DNA profile test is 100% sure test. During his re-examination he deposed that presently he holds the post of Assistant Director in FSL, Thiruvananthapuram and that he is conversant with the signature of the Director of FSL - Sri.James Philipose and also that it was he who signed in the covering letter to Ext.P20.

8. PW23 is the then Circle Inspector of Police, Kumali. He took up the investigation on 3.12.2007 and prepared Ext.P2 inquest report in respect of deceased Molly. It was on his request that PW17 prepared Ext.P3 inquest of deceased Neenu. According to him, at the time of preparation of both the inquest reports, the aid of Finger Print Expert and Scientific Assistant was obtained. Articles seized by him after describing them in Ext.P2 inquest report were described as item Nos.1 to 21 in Ext.P21 property list. He submitted Ext.P22 report incorporating Section 302, IPC and Ext.P23 report showing the correct D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 16 addresses of deceased Molly and Neenu and Ext.P24 report in respect of collection of records from the Sub Divisional Magistrate's Court, Devikulam. He would depose that MO8 skirt, MO53 and MO54 kerosene lamps were seized under Ext.P4 mahazar and further that PW22, the Scientific Assistant had handed over the articles collected by him along with Exts.P18 and P19 reports. He would also depose that at the time of autopsy of Molly and Neenu, vaginal swab, blood stained gause, pubic hair, nail clippings and ornaments were collected and they were produced before the Court as per Ext.P25(a) property list. It was he who arrested the appellant at about 3.45 p.m. on 6.12.2007. MO6 shirt and MO7 dhoti of the appellant were seized by him under Ext.P7 mahazar and were produced before the court as per Ext.P25(b) property list. He would depose that MO5 iron rod was recovered under Ext.P16 mahazar based on Ext.P16(a) information of the accused and MO3 chopper was recovered under Ext.P6 mahazar. The nail clippings, scalp hairs and pubic hairs collected on his request by the doctor were produced before the court as per Ext.P29(a) property list. He also deposed that based on the information gathered from the doctor during the course of investigation he arrived at the conclusion that both Molly and Neenu were subjected to rape and on its basis Ext.P31 report incorporating Sections 449 and 376 r/w 34 IPC, was given. Ext.P32 is D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 17 the copy of the forwarding note submitted by him for sending the articles to FSL for examination. PW24 is his successor in the office of Circle Inspector of Police, Kumali and he laid the charge against the accused.

9. PW25, the then Deputy Police Surgeon attached to Medical College Hospital, Kottayam conducted autopsy on the body of deceased Neenu and issued Ext.P34 postmortem certificate. PW26, the then Assistant Surgeon and Deputy Police Surgeon of Medical College Hospital, Kottayam conducted postmortem on the body of deceased Molly and issued Ext.P35 certificate. PW27 is the then Sub Inspector of Police, Vandiperiyar who recorded Ext.P1 F.I.Statement lodged by PW1 and registered Ext.P36 F.I.R on its basis.

10. After the closure of the prosecution evidence, the appellant was examined under Section 313, Cr.P.C. and he denied all the incriminating circumstances put to him. Finding that Section 232 Cr.P.C. is not to be invoked in the case on hand, the appellant was asked to enter on his defence. However, he did not adduce any defence evidence. It is based on the oral and documentary evidence as mentioned hereinbefore that the learned Sessions Judge found that the prosecution had succeeded in establishing the guilt of the appellant and consequently convicted and sentenced him.

D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 18

11. The evidence of the prosecution would go to show that to establish the presence of the appellant and another in the vicinity of the place of occurrence on that fateful day prosecution had relied on the oral testimonies of PW9, PW14 and PW15. To depict the appellant as a lustful man and also that he was seen in the vicinity of the place of occurrence during the day of occurrence, the prosecution had examined PWs 8 and 10. The evidence of PW9 as discussed above, would reveal that going by his oral testimony, which was not shattered in cross- examination, the appellant came to the tea shop in 57 th Mile on 2.12.2007 between 10 and 10.30 a.m. and another person joined him and both of them had consumed liquor from there. He had also spoken about their presence in the area after 8 p.m. on that day and going by his version in petrolmax' light he had seen them sitting on a culvert near to his tea shop and then following PW14. PW14 had also spoken about the presence of the appellant and another near to the shop of PW9 at about 8 p.m. on 2.12.2007. Going by her version, after alighting the bus she went to the shop of PW9 and had a tea from there. While she was proceeding to her house, the appellant and another followed her. As noticed earlier, going by her version, during the night she heard the sounds of foot steps outside her house and also pelting of stones on her house. On getting frightened, she rushed to D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 19 the shop of PW9 and he asked her to sit in his house situated near his shop and according to her, the distance between her house and the house of deceased Molly and Neenu is only about half a kilometre. PW15, an autorickshaw driver in Vandiperiyar- Pasumala stand, known as Ikkara stand, deposed that on 2.12.2007 at about 7.30-8 O' Clock two persons travelled in his autorickshaw and in fact, they procured his service to go to Kolunthukkura. As can be seen from his version, as discussed earlier, they did not alight at Kolunthukkura and when they reached there, they asked him to proceed further and thereafter got alighted only at 57th Mile. According to him, the tea shop of PW9 Amalraj situates about 30 feet away from the place where they got down. He identified the appellant as one of the persons who travelled on that day at that point of time in his autorickshaw and then alighted at 57th Mile. As stated earlier, the prosecution has brought in the oral evidence of PWs 8 & 10 only to establish the presence of the appellant along with another in the locality during day time between 11 and 12 O' Clock on that fateful day. As per PW8, the appellant came to her house at about 11 a.m. and enquired about her father and husband and on being told about their absence in the house he left the place. Going by the version of PW10, on 2.12.2007 at about 12 noon the appellant came to her house and enquired about inmates in the house. According D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 20 to her, she revealed to him that her children had gone to Church and would return soon and on being asked whether her son-in-law Johny would come daily to the house she answered in the affirmative.

12. A careful scrutiny of the evidence of the aforesaid witnesses would reveal that though they were cross examined, the defence could not elicit anything to discredit their version. True that there is element of embellishment and exaggeration in the versions of those witnesses. But, that cannot be a reason to discard the oral testimonies of the aforesaid witnesses in view of the decision of the Hon'ble Apex Court in State of U.P. v. Shanker reported in AIR 1981 SC 897. In this country it is rare to come across the testimony of a witness which does not have a fringe or embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest, it was held by the Apex Court. The Supreme Court went on to hold that only where the testimony of a witness is tainted to the core the Court should discard the evidence in toto. At any rate, in the case on hand no contradictions are marked in respect of any of the aforesaid witnesses.

13. Now, the question is whether any reliable evidence is available to strengthen their version regarding the presence of the D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 21 appellant in and around the place of occurrence, on the day of occurrence. True that corroboration is not a rule of law, but it is only a rule of prudence. In Rameshwar v. State of Rajasthan (AIR 1952 SC 54) the Apex Court held that there was no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. We may hasten to add that in the case on hand there is no eye witness to the incident and we have taken the evidence of the aforesaid witnesses as they, cumulatively, dispel any doubt regarding the presence of the appellant in the locality on the date of occurrence. In fact, Exts.P18 and P19 reports of PW22, the Scientific Assistant of Forensic Department, together with Ext.P20 FSL report would lend support to the oral testimonies of the aforesaid witnesses regarding the presence of the appellant in the vicinity during the day of occurrence. More importantly, they would go to establish the very presence of the appellant and another in the house where deceased Molly and Neenu were residing. We will discuss those aspects a little later.

14. We will now, consider the question whether the death of Molly and Neenu, was homicidal or not. PW25 who conducted the autopsy on the body of deceased Neenu on 5.12.2007 and issued Ext.P34 postmortem certificate dated 5.12.2007 deposed that he noted the following 15 antemortem injuries on her body:-

D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 22 "1. Incised wound 3.2cm x 0.5 x 0.5cm obliquely placed on the left side of top of head and forehead, with its lower inner end 3.2 cm outer to midline and 5 cm above eyebrow.

2. Incised wound 3 x 1 x 0.5 cm obliquely placed on the left side of head with its lower outer end 4 cm above top of ear. Underneath temporalis muscle was contused.

3. Contusion 14x9x0.8cm on the back of head and neck just behind the root of ear. The upper extend at the level of top of ear.

4. Incised wound 5x1x0.5cm obliquely placed on the back of head cross the midline the upper right end 3cm above occipit and 1 cm outer to midline.

5. Incised wound 3x0.5x0.5cm obliquely placed on the left side of head, its upper outer end 3cm outer to midline and 4cm above occipit.

6. Incised wound 3.5x1cm, bone deep, obliquely placed on the left side of forehead and eyebrow, with its upper inner end 2.5cm outer to midline and 0.5cm above eyebrow.

Underneath the frontal bone was seen fractured and fragmented. The fracture was seen extending backwards as fissured fracture for a length of 14cm through the anterior, middle and posterior cranial fossae on the left side. Brain showed flattening of gyri, narrowing of sulci, diffuse subdural, subarachnoid and intraventricular haemorrhages.

7. Multiple small abrasions over an area 5x3cm on the right side of the face 2cm outer and 1cm below right angle of mouth.

8. Multiple over an area 8x4cm on the front of neck in the middle 8.5cm behind him.

9. Pressure abrasion 19cm long, obliquely placed on the front and side of neck, being 5cm below mastoid process (0.3cm broad), 4cm below right ear (0.3cm broad), D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 23 5.5cm behind chin (0.3cm broad) and 9cm below left ear (0.3cm broad) Flap dissection of the neck was done in a bloodless field. Subcutaneous tissue was normal. The sternomastoid muscle, sternohyoid muscle and sternothyroid muscle of left side were contused. Haemorrhages seen inside the larynx. Other muscles, bones, cartilages and vessels of the neck were seen intact and noremal.

10. Contused abrasion 5.5x3cm on the right side of the chest 5cm outer to middle and just below collar bone.

11. Multiple contusion of size 0.5x0.3cm to 6x3cm muscle deep over an area 19x17cm on the front of chest, more towards left side, the right extent was 6cm outer to midline and 7.5cm below collar bone II to VI ribs on both side were fractured just outer to costochondral junction. The sternum was seen fractured between the III and IV pieces. Contusion 10x5x1cm seen on the front of pericardium. Heart showed contusions (1) 1x0.5x0.5cm on the front aspect of interventricular septum and (2) 2x1x1cm at the apex. Lungs showed contusion 7x2x1cm each at the back aspect near hilum. Chest cavities contained, 200ml fluid blood in each.

12. Contusion 5x3x1.5cm on the front of abdomen 13cm above pubic symphysis. Mesantry showed contusions (1) 5x3x0.3cm and (2) 5x4x0.3cm with superficial laceration at 50cm and 75cm away from ileocaecal junction respectively. Laceration 5x2x1.5cm seen on the under aspect of left lobe of liver. Abdominal cavity contained 500ml fluid blood.

13. Abrasion 0.8x0.5cm on the back of right knee at its lower part.

14. Contusions 3x2x0.5cm on the back of wrist.

15. Contusion 4x2x0.5cm on the back of left index finger just below its root."

D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 24

15. PW26 the doctor who conducted postmortem on the body of deceased Molly on 5.12.2007 and issued Ext.P35 postmortem dated 5.12.2007 certificate had deposed that he noted the following 6 antemortem injuries on the body of Molly:-

"1. Chop wound on front of head 7.5x2cm on transverse, 6cm above root of nose. The inner, right end, 2cm right to midline, bone deep.

2. Chop wound on top of head on right side 6.5cm transverse, 2.5cm back to right end of injury No.1 bone deep.

3. Chop wound on right parietal region 4x1.5cm bone deep.

4. Chop wound on top of head 5x1cm front to back direction, bone deep front end 2cm behind injury No.1.

5. Chop wound on left side of top of head 6x1cm bone deep, transverse, 4cm back to injury No.4. Scalp contusion on frontal region and right temporal region over an area of 15x15cm. Depressed comminuted fracture of frontal, parietal and right temporal bone, of skull over an area of 13x6cm, transverse. The under surface of left temporo occipital region showed a contusion 4.5x2.5x0.5cm. Subdural and subarachnoid haemorrhages seen on both cerebral and cerebellar hemispheres. The brain congested and moderate flattening of gyri noticed.

6. Contusion front of chest on mid region 15x10cm transverse with fracture of sternum at 4th rib region, with fracture of right 3rd, 4th, 5th and 6th ribs along mid clavicular line."

16. PW25 who conducted the postmortem of Neenu and noted the aforementioned 15 antemortem injuries on her body opined D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 25 that the cause of death of Neenu is the multiple injuries 1 to 6, 8, 9, 11 and 12 shown in Ext.P34. Injury Nos.1 to 6 except injury No.3 are all incised wounds. All of them had been inflicted on the head. Injury No.3 is a contusion having a size of 14x9x0.8 cm. on the back of head and neck just behind the root of the ear. Its upper end extend up to the level of top of ear. Injury No.9 is a pressure abrasion having a size of 19cm long, obliquely placed on the front and sides of neck. PW25 opined that it could be caused by means of strangulation. Injury No.11 in Ext.P34 is:-

"11.Multiple contusion of size 0.5x0.3cm to 6x3cm muscle deep over an area 19x17cm on the front of chest, more towards left side, the right extent was 6cm outer to midline and 7.5cm below collar bone II to VI ribs on both side were fractured just outer to costochondral junction. The sternum was seen fractured between the III and IV pieces. Contusion 10x5x1cm seen on the front of pericardium. Heart showed contusions (1) 1x0.5x0.5cm on the front aspect of interventricular septum and (2) 2x1x1cm at the apex. Lungs showed contusion 7x2x1cm each at the back aspect near hilum. Chest cavities contained, 200ml fluid blood in each."

It is to be noted that going by the noting of injury No.11 in Ext.P34 sternum was seen fractured between III and IV pieces. PW25 would depose that injury Nos.3, 7, 8, 10, 13, 14 and 15 could be caused by MO5, the iron-rod used for plucking fixed nails and that injury No.9, in Ext.P34 could be caused by means of strangulation. He would also D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 26 depose that injury Nos.11 and 12 could be caused while exerting heavy pressure upon that region. It is to be noted that during the cross examination only one question was put to PW25 as can be seen from his oral testimony. As answer to the said question PW25 deposed:-

"It is not mentioned in Ext.P34 certificate about the act of commission of rape."

From the nature of the injuries viz., injury Nos.1 to 6, 8,9,11 & 12 we do not find any reason to disagree with the opinion of PW25 that they caused the death of Neenu. In the said circumstances, it can only be held that death of Neenu was culpable homicide.

17. Now, we will consider the question whether the death of Molly was homicidal or not. We have already adverted to the evidence of PW26, the Assistant Surgeon and Deputy Surgeon who conducted the postmortem on the body of Molly and issued Ext.P35 postmortem certificate. Evidently, in Ext.P35 he had noted six antemortem injuries sustained by Molly. He would depose that injury Nos.1 to 5 could be caused by MO3 chopper and injury No.6 could be caused by stamping. His oral evidence would not reveal any opinion as to the cause of death. But, at the same time, that cannot and will not disable the court from looking into the nature of the antemortem injuries as noted in the postmortem certificate to form an opinion as to the cause of the death. D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 27 When the medical evidence does not indicate whether the injury was fatal or whether it was sufficient to cause death of the deceased, in the absence of clear opinion as to the cause of death the Court may have to form its own opinion on that issue with reference to the nature of the injuries. In this case, in Ext.P35 postmortem certificate PW26 had opined that death of Molly was due to chop wounds sustained on the head. Ext.P35 postmortem certificate would reveal that out of the six antemortem injuries sustained by Molly five were chop wounds. The first among them was on the front of head having a size of 7.5x2cms. on transverse and 6cms. above root of nose. The inner, right end of the said wound was 2cms. right to midline and bone deep. Injury Nos.2,3,4 & 5 noted in Ext.P35 postmortem certificate as extracted earlier would reveal that there also chop wounds inflicted on the head. The 6th injury noted thereunder is a contusion on the front of chest on the mid region having a size of 15x10cms. transverse with fracture of sternum at 4th rib region, with fracture of right 3 rd, 4th, 5th and 6th ribs along mid clavicular line. Taking into account the nature of the injuries and the particular parts of the body on which they were inflicted and more particularly, their nature and size we have no hesitation to hold that the death of Molly had occurred due to the combined effect of the injuries noted in Ext.P35 postmortem certificate. In such D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 28 circumstances, it can only be held that the death of Molly was culpable homicide.

18. When once it is found that the death of Molly and Neenu is culpable homicide in nature, the question is who is responsible for the same? In this context, it is to be noted that the appellant did not adduce any defence evidence and as relates him, it is a case of total denial. We have already taken into consideration the evidence of PWs 8, 9, 10, 14 and 15 and held that despite the element of embellishment and exaggerations to certain extent, they, cumulatively, go to establish the presence of the appellant along with another viz., the other accused, in the vicinity of the place of occurrence on the fateful day viz., on 2.12.2007. PW9 would depose that he knew the appellant and this fact is not at all challenged or even attempted to be shown as false. But then, it is a fact that there is no eye witness to the incident. Therefore, it has to be borne in mind that suspicion cannot take the place of proof. PW12, the wife of the accused deposed that on 2.12.2007 when he left the house, he was wearing rose colour shirt and white dhoti. PW15 deposed that on 2.12.2007, two persons hired his autorickshaw and he took them near to the shop of PW9 and he identified the appellant as one among them and also deposed that the appellant was then wearing rose colour shirt and white dhoti. PW13 is D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 29 the attesting witness to Ext.P9 mahazar whereunder MO6 shirt (rose colour shirt) and MO7 (white dhoti) were recovered. He supported the prosecution. PW23 is the investigating officer. He deposed to the effect that while in custody, the appellant gave Ext.P16(a) disclosure statement and it ultimately led to the discovery of MO5 iron rod under Ext.P16 mahazar. PW20 is the attesting witness to the said mahazar. He supported the prosecution and deposed that MO5 was taken by the appellant from a place near to the house of the deceased women where there are forest trees and stones and handed over the same to the police. MO5 which was item No.45 in the list forwarded to FSL was subjected to Gel Diffusion Test and then the blood stain found on it was subjected to ABO system of grouping by Absorption - Elution and Macroscopic Extraction Methods, as can be seen from Ext.P20 FSL report. Going by the same, it contained human blood belonging to the group 'O'. When it is found that it is the information furnished by the appellant that led to the discovery of MO5 it essentially has to be an incriminating material against him. The evidence of PW23 with Ext.P16(a) disclosure statement would thus make the discovery of MO5 an incriminating material against the appellant.

19. We will now consider the vital evidence available in this case. PW22, the then Scientific Assistant of Forensic Department D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 30 deposed that he inspected the place of occurrence on the requisition from the then C.I of Police, Kumali, on 4.12.2007 and collected 12 items from the body of Molly and submitted Ext.P18 report on 4.12.2007. He had also collected 6 items of property from the body of Neenu and nearby premises and submitted Ext.P19 report on 4.12.2007. Those items were specifically described in Exts.P18 and P19 reports and he deposed further that they were duly packed and sealed and along with the reports submitted to the investigating officer. At the time of his examination before the court he was working as Assistant Director of FSL, Thiruvananthapuram. PW23, the then C.I of police, Kumali would depose that PW22 Scientific Assistant handed over the items collected from the bodies of Molly and Neenu along with Exts.P18 and P19 reports. He would also depose that at the time of postmortem of the corpse of Molly and Neenu, vaginal swab, blood stained gause, pubic hair, nail clippings etc., were collected and they were produced before the court as per Ext.P25(a) property list. MO6 shirt and MO7 dhoti which were seized under Ext.P7 mahazar were produced before the court as per Ext.P25(b) property list. PW25 who conducted postmortem on the body of Neenu and PW26 who conducted postmortem on the body of Molly had deposed before the Court that they conducted postmortem on 4.12.2007. It is those items collected D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 31 from the bodies of Molly and Neenu by PW22, PW25 and PW26 that were sent for examination to FSL, which ultimately led to the preparation of Ext.P22 report. PW22 who by the time when he was examined before the court became the Assistant Director of FSL, Thiruvananthapuram gave evidence with respect to the results on the items collected by him contained in Ext.P20, as is noted hereinbefore. Ext.P20 FSL report was admitted in evidence without examining the Assistant Directors concerned. No illegality can be attributed on this count as the author of Ext.P20 is an officer mentioned in section 293(4) of Cr.P.C and therefore, in terms of section 293(1) of Cr.P.C Ext.P20 report can be used as valid evidence without examining the author thereof. From DNA typing, it can be seen from Ext.P20 FSL report, that the seminal stains and epithelial cells seen in the underwear mentioned as item No.5 in page No.2 of Ext.P20, the seminal stains found in the skirt described in serial No.14 in page No.3 of Ext.P20, the body hairs collected from the face of the body of Molly mentioned in item 20 in page No.4 of Ext.P20 and pubic hairs collected from the underwear mentioned in serial No.32 in page No.7 of Ext.P20 belonged to the appellant to whom item No.47(a) of Ext.P20 belongs. Evidently, all those items and material which were subjected to examination which led to Ext.P20 FSL report were collected before the arrest of the D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 32 appellant. They were collected on 4.12.2007 and the appellant was arrested only on 6.12.2007.

20. The FSL report would reveal that all the items for examination sent in sealed packets were intact. The report would reveal the following as the result of DNA Typing:-

"The DNA profiles of the seminal stains in items 20 and 32 were compared with the DNA profile of the deceased persons Molly (item No.2) and Neenu (item No.25) and the accused persons Rajendran (item No.47(a)) and Jomon (48(a)). It was found that the DNA profile of the epithelial cells and seminal stains in item 5, the seminal stains in item 14 and the hairs in items 20 and 32 were identical to the DNA profile of the accused person Shri.Rajendran to whom item No.47(a) belonged.

....................................................................... Therefore, seminal stains and epithelial cells in items 5, seminal stains in item 14 and the hairs in items 20 and 32 belonged to the accused person Shri. Rajendran."

Page No.11 of Ext.P20 report would reveal that item No.5 is the blue coloured elastic underwear with letters "RAMANA" on its elastic. It was kept in a polythene cover with label reading, " മമമോളളിയയടടെ ശവശരരീരര കളിടെന്ന കടളിലളില്‍ കളിടെന്ന ജടളി " (underwear found in the cot where the dead body of Molly was lying). Item No.14 is a light green coloured underskirt. Dark brown stains were found on it. Item No.20 were two small black hairs in a polythene cover with label reading, " മമമോളളി Face". Item No.32 were sixteen black hairs in a packet. Item No.47(a) is the D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 33 five nail clippings wrapped in a paper with writings "Rajendran 42 Y Puthuvalthadathil" in a packet labelled as, "(1) Rajendran 42 Nail Clippings Rt Hand". It was signed by Dr.N.Suresh Babu Bsc, MBBS DGO Assistant Surgeon (Gynecologist). The doctor was examined before the Court as PW16. He supported the case of the prosecution.

21. DNA would confirm the identity of a person. The key feature of DNA typing technique is that no matter what the biological sample is, viz., be it a bit of skin, blood, semen etc., the result is going to be the same. This is because all the cells in the body contain the same set of DNA and it is something unique for each individual.

22. We have already noted result of DNA typing from Ext.P20 FSL report and it could confirm the identity of the culprit as the appellant.

23. This perfect evidence along with the other evidence adverted to hereinbefore, would, unfailingly, point to the guilt of the accused. In such circumstances, we do not find any reason to hold that the trial court had erred in finding the appellant guilty.

24. Now, the question is what are the offences committed by the appellant. The vaginal swab and smear collected from the dead bodies of Neenu and Molly were seen subjected to forensic examination as per Ext.P20 FSL report and they were found to have contained D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 34 human spermatozoa. With the evidence as discussed above, it can only be held that the appellant had committed rape on Neenu and Molly punishable under Section 376 of the Indian Penal Code. Of course, the evidence on record would reveal the presence of another person with the accused and his complicity in the offences is not a matter to be dealt with in this case. PW18, the Finger Print Expert, found the finger print of another person on the empty liquor bottle seen at the scene of occurrence as described in Exts.P11 to P14. We do not propose to consider the other evidence regarding the complicity and identity of the other accused as he was absconding and was not tried along with the appellant. We point out this aspect to hold that the Court below cannot be held to have erred in convicting the appellant with the aid of Section 34 of the IPC. In fact, he is liable to be punished even without the aid of Section 34, IPC.

25. The evidence on record as discussed in detail would go to establish the innocent women who were subjected to rape were done to death with the intention to destroy the evidence. The nature of the weapon used and the parts of the body upon which the injuries noted in Exts.P34 and P35 are inflicted would reveal the intention of inflicting such bodily injuries. In such circumstances, none of the exceptions to Section 300, IPC would apply and hence, the appellant is guilty of the D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 35 offence under Section 300, IPC punishable under Section 302, IPC. Since the place of occurrence is the house where the deceased persons were residing it can only be found that the appellant along with another had committed house-trespass for the purpose of committing an offence punishable with death. Hence, he is guilty of the offence punishable under Section 449, IPC. In the contextual situation obtained in this case it is only relevant to refer to the decision of the Hon'ble Apex Court in Jamuna Singh v. State of Bihar reported in AIR 1967 SC 553. If more than one person combining both in intent and act, commit an offence jointly, each is guilty, as if he has done the whole act alone.

26. Now, the question is what should be the sentence to be imposed on the appellant for the commission of the aforesaid offences. He committed the heinous crime of rape followed by murder in an extremely brutal, diabolical manner so as to raise intense and extreme indignation on the community. The manner in which the heinous crime of rape was committed is also to be taken into account. The said offence was committed on the deceased women who were mother and daughter that too, from the same room in a most ruthless manner. It is also evident that deceased Neenu, the daughter of Molly was then having a child of the age of just seven months. The number of injuries D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 36 inflicted on the deceased persons, the part on which such injuries were inflicted besides bepeppering with knee causing fracture of their sternum that too, after committing rape in ruthless manner, in the said circumstances, can be described only by using the old expression that in the manner of cruelty he out Herod-the Herod. The horrendous features of the crime and the hapless situation of the victim and the other factors also have to be taken into consideration. The evidence on record, as discussed in detail, would reveal that the appellant along with another were loitering with intent to satisfy their lust and ultimately found out their prey. Even after satisfying lustfulness the appellant and the other did not stop the beatish behaviour. In a bid to see that the victims would reveal their identity they had decided to do away with the hapless women and evidently, that the appellant and his accomplice executed it diabolically, as detailed hereinbefore. All murders are inhuman. Once it is found that an accused is guilty of commission of murder life imprisonment is the rule and death sentence is an exception. In the case on hand, the trial court imposed death sentence on the appellant. For imposing capital sentence, the crime must be of an uncommon nature in which even after giving maximum weightage to the mitigating circumstances the court must be of the opinion that the sentence of imprisonment for life is inadequate and D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 37 there is no alternative but to impose death sentence. As noticed hereinbefore, the commission of murder was intentional, cold blooded and brutal and it was committed after ravishing two hapless women, mother and daughter, that too in a ruthless manner from the same room. True that, no litmus is provided for any test to discern precisely what is `rarest of rare cases' in which the alternative option is foreclosed. But certainly, the aforesaid factors would and should bring a case within the category of `rarest of rate cases'. In the decision in Bachan Singh v. State of Punjab (AIR 1980 SC 898) the Apex Court formulated the following propositions for application to the facts of each case for determination of the aforesaid question:

"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;

(ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with circumstances of the `crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words, 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.

D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 38 (4) 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 mitigating circumstances before the option is exercised."

Bearing in mind the above guidelines and the aforementioned diabolically executed heinous offences we have to consider whether there is anything uncommon in the crime rendering the sentence of imprisonment for life inadequate and call for a death sentence. We have elaborately discussed the ruthless manner in which rape and murder were committed that too, on a mother and daughter from the very same room. We have also taken note of the fact that the deceased Neenu, was then having a child of 7 months. The manner in which the offences were executed, in the circumstances explained hereinbefore, we are of the firm view that they are sufficient to make the commission of the crime uncommon and at the same time tend us to believe firmly that imposition of the sentence of imprisonment for life on the appellant would be inadequate.

27. Now, we will consider the mitigating circumstances, which according to the appellant should act as extenuating factor. The fact that the appellant got wife and children and execution of death sentence would draw his family orphaned cannot be taken as a D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 39 mitigating factor in the circumstances of the case. The age of the appellant also cannot be a mitigating factor in this case. He was aged 42 at the time of commission of the crime and presently he is around

53. No other circumstances which could be treated as mitigating circumstances are available. In the circumstances of the crime of rape and murder involved in this case we are of the considered view that there is no alternative but to impose death sentence even after considering the claimed mitigating circumstances. In short, having considered the rival submissions as well as the judgments referred (supra) the circumstances obtained in the case make us to put the case on hand in the category of `rarest of rare cases' so as to confirm the death sentence of the appellant imposed by the trial court for the commission of the offence under Section 300, IPC.

Hence, in D.S.R.No.4 of 2012 we confirm the sentence imposed under Section 302 r/w Section 34, IPC and order him to be hanged by neck till he is dead. The sentence imposed under Section 376 r/w 34 IPC to undergo RI for 10 years and to pay fine of Rs.25,000/- (Rupees Twenty Five Thousand only) and in default of payment of fine to undergo RI for six months and also the sentence imposed under Section 449 r/w 34, IPC to undergo RI for 10 years and to pay fine of Rs.25,000/- (Rupees Twenty Five Thousand only) and in D.S.R.NO.4 of 2012 & Crl.A.No.1592 of 2013 40 default of payment of fine to undergo RI for six months are also not to be interfered with and accordingly, they too, are confirmed. The sentence of imprisonment shall run concurrently. The period of detention already undergone by the appellant shall be set off against the sentence of imprisonment. Accordingly, Crl.A.No.1592 of 2013 is dismissed.

Sd/-

C.T.RAVIKUMAR Judge Sd/-

K.P.JYOTHINDRANATH Judge TKS

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