State By The Inspector Of Police vs Manoharan on 24 March, 2014

[Cites 58, Cited by 0]

Madras High Court

State By The Inspector Of Police vs Manoharan on 24 March, 2014

Author: S.Rajeswaran

Bench: S.Rajeswaran, P.N.Prakash

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24..03..2014

CORAM:

THE HONOURABLE MR.JUSTICE S.RAJESWARAN
AND
THE HONOURABLE MR.JUSTICE P.N.PRAKASH

REFERRED TRIAL No.1 of 2012
and
Criminal Appeal No.854 of 2012

REFERRED TRIAL No.1 of 2012:

State by the Inspector of Police
B8 Variety Hall Road Police Station
Coimbatore
Cr.No.1461/2010 .. Petitioner

vs.

Manoharan .. Respondent

CRIMINAL APPEAL No.854 of 2012:

Manoharan .. Appellant

vs.

State by the Inspector of Police
B8 Variety Hall Road Police Station
Coimbatore .. Respondent
Cr.No.1461/2010

REFERRED TRIAL filed under Section 366 of the Cr.P.C. on the judgment of the trial Court dated 01.11.2012 in S.C.No.44 of 2011 on the file of the learned Sessions Judge, Mahila Court, Coimbatore.

Criminal Appeal filed under Section 374 of the Cr.P.C against the Judgment 01.11.2012 in S.C.No.44 of 2011 on the file of the learned Sessions Judge, Mahila Court, Coimbatore.
IN REFERRED TRIAL NO.1/2012l

For petitioner : Mr.S.Shanmugavelayutham,
Public Prosecutor,
assisted by Mr.VMR.Rajendran, APP; and
Mr.V.Sankaranarayanan,Spl.P.P.
[Coimbatore]

For respondent : Mr.A.Raghunathan, Senior Counsel
Assisted by Mrs.K.R.Vairam

IN CRL.A.NO.854/2012:

For Appellant : Mr.A.Raghunathan, Senior Counsel
Assisted by Mrs.K.R.Vairam

For respondent : Mr.S.Shanmugavelayutham,
Public Prosecutor,
assisted by Mr.VMR.Rajendran, APP; AND
Mr.V.Sankaranarayanan,Spl.P.P.
[Coimbatore]

ORDER

(Order of the Court was made by P.N.PRAKASH, J) The death sentence awarded to Manoharan, the sole accused in S.C.No.44/2011 by the learned Sessions Judge [Mahila Court] Coimbatore, on 01.11.2012 is now before us for confirmation under Section 366 Cr.P.C. Manoharan has also filed Crl.A.No.854/2012 challenging the very conviction.

2. Why has he been condemned to the hangmans noose? For allegedly satiating his lust and sniffing out the life of two children.

3. 'X', a ten year old girl and her brother 'Y', a seven year old boy were the children of Ranjith Kumar Jain [P.W.5] and Sangeetha [P.W.8]. These children were studying in 5th and 2nd standard respectively in 'Suguna Rips School' in Coimbatore. It is their routine to leave for School around 7.45 in the morning and stand near a Vinayakar Temple, about 200 ft away from their house. They will be picked up by a vehicle of SUGUNA CABS owned by one Karthikeyan [P.W.2]. As usual, on 29.10.2010, the two children, with their school bags and lunch boxes, left their home around 7.45 in the morning and went to the usual place for the vehicle to pick them up. When Karthikeyan [P.W.2] came to the place around 8 oclock in the morning, he did not find the children there. So, he contacted the father of the children Ranjith Kumar Jain [P.W.5] in his mobile and asked him as to why the children were not there. Ranjith Kumar Jain [P.W.5] was in Hyderabad at that time and so, he was not in a position to give an immediate reply to Karthikeyans query and told him that he will check up with his wife and get back to him. Accordingly, Ranjith Kumar Jain [P.W.5] called his wife and enquired of this, for which, she told him that the children had already left the house. Ranjith Kumar Jain [P.W.5] was already on his way to the Hyderabad Airport for returning to Coimbatore and so, he instructed his wife to look out for the children and co-ordinate with the van driver. Sangeetha [P.W.8] went near the said Temple and spoke to Karthikeyan [P.W.2] and told him that the children had already left the house. Since Karthikeyan [P.W.2] had to pick up other children, he took leave of Sangeetha [P.W.8] and went about his work. Thereafter, Sangeetha [P.W.8] and her brothers-in-law Vijaya Kumar [P.W.1] and Sanjai [P.W.6] started searching for the children.

(a) Around 10.30 in the morning, Kamala Bai [P.W.9], the paternal grandmother of the children, who had gone to the Jain Temple around 8.00 in the morning, returned home around 10.30 in the morning and found panic at home and told Sangeetha [P.W.8] that the children were picked up by a former driver of the van and that the children must be in the School. In the meantime, Vijayakumar [P.W.1] went to the School and found out that the children had not reached the School. On their part, the family members frantically started making searches at probable places and around 10.45 a.m., it became clear that the children were missing. Therefore, Vijayakumar [P.W.1] went to B8 Variety Hall Police Station and lodged an oral complaint, which was taken down in writing [Ex.P1] by Vasuki, Sub Inspector of Police [P.W.42], who registered a case in B8 Variety Hall Police Station Cr.No.1461/2010 under Section 363 IPC and prepared the FIR [Ex.P37], which was received by the learned Magistrate at 1.00 p.m. on 29.10.2010 as could be seen from the endorsement thereon.

(b) The investigation was taken over by the Inspector of Police [P.W.47], B8 Variety Hall Police Station, who recorded the statement of Vijayakumar [P.W.1]. He went to 'Suguna Rips School' and enquired with Anthony Raj [P.W.10], the Principal of the School and learnt that the children did not come to the School on that day. He prepared an Observation Mahazar [Ex.P8] and a Rough Sketch [Ex.P57]. The father of the children Ranjith Kumar Jain [P.W.5] returned home from Hyderabad sometime in the afternoon and his statement was also recorded. The Investigating Officer [P.W.47] recorded the statement of Kamala Bai [P.W.9] and collected the photographs of the children from their mother.

(c) The first lead came around 6.00 in the evening from Anthony Raj [P.W.10], the Principal of the School. Anthony Raj [P.W.10] received a phone call from one Chinnasamy [P.W.22], who told him that two school bags with identity cards of two children by name 'X' and 'Y' were found floating near PAP Main Canal, which were fished out and he was having them with him. Chinnasamy [P.W.22] found the name and telephone number of the School on the bags, with which he was able to call the School Principal and give this information. This information was promptly conveyed by Anthony Raj [P.W.10] to the Investigating Officer [P.W.47].

(d) The second lead came soon thereafter from Karthikeyan [P.W.2] of SURYA CABS. Karthikeyan [P.W.2] received a call from his erstwhile employee by name Anbu @ Gandhiraj [P.W.7], who told him that one Mohanakrishnan had borrowed a Maruthi Omni Van from him around 7.45 in the morning on that day and did not return the vehicle to him. This information created suspicion in the mind of Karthikeyan [P.W.2], who pieced it up with the factum of the missing children, because, the said Mohanakrishnan was also an erstwhile employee of SURYA CABS' run by Karthikeyan [P.W.2], on account of which he had the occasion to pick up these two children for dropping them in the School and bringing them back home. Moreover, Mohanakrishnan, during his employment in SURYA CABS, was found to be untrustworthy by Karthikeyan [P.W.2] as it came to the knowledge of Karthikeyan [P.W.2] that, Mohanakrishnan had borrowed money from the parents of some children. Therefore, Karthikeyan [P.W.2] discontinued his services and engaged Anbu [P.W.7]. Anbu [P.W.7] also quit SURYA CABS and joined another Call Taxi Agency which had provided him with Maruthi Omni Van bearing Reg. No.TN 37 BF 2796 [M.O.15].

(e) Reverting to the sequence of events, Karthikeyan [P.W.2] called the Investigating Officer and told him about the talk he had with Anbu [P.W.7] and about the possible involvement of Mohanakrishnan in kidnapping of the children. Karthikeyan [P.W.2] appears to have told Anbu [P.W.7] about the missing children and his suspicion about the involvement of Mohanakrishnan in this. Therefore, he seems to have instructed Anbu [P.W.7] to immediately inform the Inspector of Police, Variety Hall Police Station if he gets any information in this regard. Accordingly, around 9.00 in the night, Mohanakrishnan had come to return the Omni Van to Anbu [P.W.7] and at that time, Mohanakrishnan appears to have confessed to Anbu [P.W.7] that he had kidnapped two children and had raped the girl child along with his friend Manoharan and thereafter, pushed the two children in the running waters of the PVP Canal. Anbu [P.W.7] called the Investigating Officer and asked the Inspector to come immediately to his place, as Mohanakrishnan was with him. The Investigating Officer [P.W.47] came to Anbus [P.W.7] house and arrested Mohanakrishnan around 9.45 in the night and recorded his confession statement in the presence of Anbu [P.W.7] and one Santhosh Kumar [not examined]. The involvement of Manoharan came to light at that point of time.

(f) Based on the statement of Mohanakrishnan, the Investigating Officer sent a report to the learned Magistrate for altering the case from one under Section 363 IPC to 364(A), 376, 302 r/w 201 IPC. The said report is Ex.P30, which reached the learned Magistrate on 29.10.2010 at 11.45 p.m. Based on the admissible portion of the confession statement of Mohanakrishnan, the Investigating Officer seized the Maruthi Omni Van TN 37 BF 2796 [M.O.15], one Nokia Cell phone [M.O.16] and driving licence of Mohanakrishnan [M.O.17] under the cover of Mahazar [Ex.P4].

(g) At this juncture, it may be relevant to state here that the Investigating Officer observed saliva with betel nut stain on the left door of the Maruthi Van and also yellow colour stains on the mat of the omni van behind the driver seat. These things are referred to in the Mahazar [Ex.P4]. The Investigating Officer requisitioned the services of Mr.Saravanan [P.W.43] Deputy Director of the Mobile Forensic Sciences unit attached to the Tamil Nadu Forensic Sciences Laboratory to come to Anbus [P.W.7] house for assisting the police investigation. In the presence of Saravanan [P.W.43], witness Anbu [P.W.7] and Santoshkumar [not examined], the Maruthi van was searched and from the place behind the driver seat, a ladys panties bearing the following inscription SBT Kids wear 75 cm with hair strands, was seized. Saravanan [P.W.43] also collected the betel nut saliva stain on the left door of the Maruthi van with a cotton swab for chemical examination. Similarly, the betel nut stain that was observed on the left door of the Omni Van was collected in a cotton swab [M.O.18]; the yellow colour dried stain found on the seat of the van was collected in a cotton swab [M.O.19]; the floor mat of the car with yellow stains on it [M.O.20] were all collected under the cover of Mahazar [Ex.P5]. The clothes worn by Mohanakrishnan, namely pant [M.O.21], half shirt [M.O.22] and underwear [M.O.23] were seized under cover of Mahazar [Ex.P6].

(h) Mohanakrishnan led the police team to the place where he allegedly raped 'X'. That place is a secluded place in the outskirts of the city about 64 km from B8 V-H Police Station. The Investigating Officer prepared an Observation Mahazar [Ex.P25] there in the presence of witnesses Subramanian [P.W.31] and Ganesan [not examined]. The place was also photographed. A Rough Sketch [Ex.P58] was drawn by the Investigating Officer. Thereafter, Mohanakrishnan took the police team to the place about 4 km to a place called Deepapalapatti, where PAP main canal bifurcates into two subsidiaries. He showed the Investigating Officer the place from where the children were pushed into the canal in the running waters. The Investigating Officer prepared another Observation Mahazar there [Ex.P16] in the presence of witnesses Sakthivadivel [P.W.21] and Ponnusamy [not examined]. He also prepared a Rough Sketch [Ex.P59] of the place. Photographs of the place were also taken.

(i) While the Investigating Officer was proceeding with these activities on 30.10.2010, one Soundararajan [P.W.24] and Chinnasamy [P.W.22] came to that place and Chinnasamy [P.W.22] handed over a school bag [M.O.2] and a lunch bag [M.O.7]. The school bag [M.O.2] contained the identity card bearing 'Y' Ostwal, Std. 3B," communication diary, English notebook, Hindi notebook, two Tamil notebooks, workbook, handwriting book, grammar book, etc. The lunch bag contained a yellow colour plastic snacks box and school identity card of 'X' with her photo and the school address with phone number. It may be recollected that Chinnasamy [P.W.22] had telephoned the Principal/Anthony Raj [P.W.10] the previous day evening itself and told him about the two bags collected by him from the canal.

(j) On information that the body of 'X' was found in the PAP canal bank near Palladam Taluk, the Police party went to the place at 9.30 a.m. on 30.10.2010 and found that the villagers had fastened the body with a rope and tied the other end of the rope to a fixture in the bank, so that the body does not get washed away further. The body was brought to the canal bank and after identification by the family members, inquest was conducted over the body by the Investigating Officer. The Inquest Report is Ex.P62. The body was, thereafter, sent for postmortem through the Special Sub Inspector of Police-David Manoharan [P.W.41] to the Coimbatore Medical College Hospital, where Dr.Jeyasingh [P.W.46] conducted autopsy over the body. The Doctor, in his evidence, as well in the Postmortem Report, stated thus:

"The body was first seen by the undersigned at 02.15 pm on 30.10.10. Its condition then was rigor mortis present all over the body. Post mortem commenced at 02.15 pm on 30.10.10. Appearances found at the postmortem: - Moderately nourished body of a female aged about 10 yrs. Finger and toenails bluish in colour. The body wearing blue colour "T" shirt with white colour sticker named as "Suguna Rips" noted left side, black colour track suit with white line border, white colour socks and white colour shoes and rose colour shimmis. White colour frothy secretions noted over both nostrils and mouth. Water soddening noted over both palms and soles.

The following ante mortem injuries noted over the body:

1 Liner vertical scratch marks 4 in numbers in varying size noted over lateral aspect right elbow joint.

2 Transverse scratch abrasions 3 in number in varying size noted over lateral aspsect of left upper forearm 3 A scratch mark 3 in number noted over lower part of left arm.

4 Contusion 2 x 1 cm x 0.5 cm depth noted over in the posterior fouchette and lateral wall of vagina. Hymen intact.

5 On examination of anus:- Anus found roomy measuring 3 cm in diameter and mucosal tear 1 x 0.5 cm x mucosal deep noted over left lateral aspect of the anus at the level of muco-cutaneous junction.

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

OTHER FINDINGS:

Peritoneal and pleural cavities empty.

Hyoid bone: Intact Larynx and Trachea: cut section shows frothy secretions with mud particles.

Heart: Right side chambers contain about few cc of fluid blood, left side chamber empty. Coronaries patent.

Lungs: Both lungs found voluminous. Ribs marks noted over anterior surface of both lungs. Cut section shows frothy secretions. Stomach contains about 100 ml watery fluid with fruit peels with pungent smell, mucosa congested and stained mild yellowish in colour. Small intestine: contains about 10 ml of bile stained fluid with pungent smell, mucosa congested and stained mild yellowish in colour Liver, Spleen, Brain and Kidneys: cut section congested.

Urinary bladder empty Uterus: Normal in size and cut section empty Viscera preserved and sent for chemical analysis Sternum preserved and sent for diatom test Vaginal and Anal swab preserved and sent for chemical analysis.

OPINION: Reserved pending for chemical examiner's and diatom test reports."

The postmortem doctor sent the viscera of stomach, intestine, other internal organs, also vaginal swab, vaginal smear and anus swab to the Forensic Sciences Department for analysis. By report dated 10.11.2010 [Ex.P50 series], the Forensic experts made the following observation:

"The results obtained on examination are noted against each viz.

1 Stomach and its contents Detected Auramine 2 Intestine and its contents Detected Auramine 3 Liver and Kidney Did not detect Auramine.

4 Preservative Did not detect Auramine.

Note: Auramine is a poisonous basic dye"

Similarly, by report dated 30.11.2010 [Ex.P50 series], the Forensic Experts have given the opinion that they did not detect semen or spermatozoa in any of the items. After receiving the reports from the Forensic Sciences Laboratory, Dr.Jeyasingh [P.W.47] gave the following final opinion [Ex.P50]:

"OPINION: The deceased would appear to have died of DROWNING. Injuries noted on the vagina and anus due to forcible sexual assault. The deceased has consumed auramine poison prior to death (detected in stomach & small intestine)."

(k) Dr.Jeyasingh [P.W.47] handed over the clothes worn by 'X', namely, T.Shirt with school emblem [M.O.8], pant [M.O.9], Shimmies [M.O.10], a pair of white shoes [M.O.11] and a pair of white socks [M.O.12]. It may be noted here that the Doctor did not handover the panties of 'X', about which we propose to deal a little later in this judgment. Mohanakrishnans face was masked and he was produced before the jurisdictional Magistrate for judicial custody. On 31.10.2010 at around 7.15 a.m. Manoharan [the accused herein] was arrested by the Investigating Officer in the presence of Ganesan [P.W.30] and Murugesan [not examined]. Manoharan gave a confession statement and based on the admissible portion of his confession statement [Ex.P21], the Investigating Officer recovered the lunch box of 'Y' from the house of Manoharan under the cover of Mahazar [Ex.P22] in the presence of witnesses Ganesan [P.W.30] and Murugesan [not examined]. Once again, on the information provided by Manoharan, the Investigating Officer went to the same place of occurrence, namely the place where the girl was raped and the place where the children were pushed in the water. On information that the body of 'Y' was found in the eastern side of the PAP canal near Pollachi, Udumalpet, the Police party went to the place on 31.10.2010 at 11.45 a.m. and the family members and Manoharan identified the body. An Observation Mahazar [Ex.P26] was prepared at the place of occurrence and a Rough Sketch [Ex.P63] was also prepared by the Investigating Officer. The body of "Y" was found 12 kms. from the Deepalapatti, the place where the children were pushed into the canal. Photographs were taken in the presence of witnesses. Inquest was done over the body of 'Y' and the Inquest Report is Ex.P64. The body was sent to the Coimbatore Medical College Hospital for postmortem, where Dr.Jeysingh [P.W.46] performed the autopsy over the body of 'Y'. Dr.Jeysingh [P.W.46], in his evidence, as well in the postmortem report [Ex.P52], found the following injuries:

"The body was first seen by the undersigned at 04.00 pm on 31.10.10. Its condition then was decomposition changes noted all over the body. Postmortem commenced at 04.00 pm on 31.10.10. Appearances found at the post-mortem: - Decomposed body of a male aged about 7 yrs. Finger and toenails bluish in colour. The body wearing yellow colour "T" shirt labelled as "Suguna Rips", black colour half pant, brown colour jetty, white colour socks and white shoes. Postmortem fish bite mark noted over around the mouth and left eye, both knees, both dorsum of hand and both ear lobes. Water soddening noted over both palms and soles. Face, chest and abdomen found bloated. Greenish discolouration noted over right ileac fossa.

The following ante mortem injuries noted over the body:

1. Bluish contusion 3 x 2 cm noted on middle of left side neck, 3cm left to midline.

2 Bluish contusion 3 x 2 cm noted over outer aspect of right forearm.

3 Bluish contusion noted over right side third inters costal space.

On dissection of scalp, skull and dura: sub scalpal contusion 20 x 10cm noted over bi frontal region and bi parietal region. Diffuse sub dural and sub arachnoid haemorrhages noted on both cerebral hemisphere.

On bloodless dissection of neck: Contusion 4 x 3 cm noted on left side middle of neck. Hyoid bone found in tact.

OTHER FINDINGS:

Peritoneal and pleural cavities empty.

Larynx and Trachea: cut section shows frothy secretions with mud particles, Mucosa decomposed.

Heart: Right side chambers contain about few cc of fluid blood, left side chamber empty.

Coronaries patent.

Lungs: Both lungs found voluminous. Rib marks noted over anterior surface of both lungs. Cut section shows frothy secretions.

Stomach contains about 50 ml watery fluid with fruit peels with smell of decomposed, mucosa decomposed.

Small intestine: contains about 10 ml of bile stained fluid with smell of decomposed, mucosa decomposed.

Liver, Spleen, Brain and Kidneys: cut section decomposed.

Urinary bladder empty Viscera preserved and sent for chemical analysis Sternum preserved and sent for diatoms OPINION: Reserved pending for chemical examiner's and diatom test reports."

The postmortem doctor sent the viscera of the internal organs to the Tamil Nadu Forensic Sciences Laboratory for chemical analysis. The viscera report dated 10.11.2010 states that:

"The results obtained on examination are noted against each viz.

1 Stomach and its contents Detected Auramine 2 Intestine and its contents Detected Auramine 3 Liver and Kidney Did not detect Auramine.

4 Preservative Did not detect Auramine.

Note: Auramine is a poisonous basic dye"

Based on the postmortem findings and chemical examination report, Dr.Jeyasingh [P.W.46] gave the following final opinion in Ex.P53:

"OPINION: The deceased would appear to have died of DROWNING and associated with HEAD INJURY. The deceased consumed auramine poison prior to death (detected in stomach & small intestine)."

(l) Meanwhile, Manoharan was produced before the concerned Magistrate for judicial custody on 31.10.2010. On 02.11.2010, the Investigating Officer made a requisition to the Chief Judicial Magistrate for arranging a Test Identification Parade for witness Kamala Bai [P.W.9] to identify Mohanakrishnan. The Judicial Magistrate-VII, Coimbatore was assigned the task by the learned Chief Judicial Magistrate. On 03.11.2010, the Investigating Officer gave a requisition to the remanding Magistrate for producing Mohanakrishnan and Manoharan for potency tests and other examinations before the Medical Officer. On the same day, Test Identification Parade was conducted in the Central Prison, Coimbatore by the learned Magistrate. On 04.11.2010, Mohanakrishnan and Manoharan were produced before the Coimbatore Medical College and Hospital for medical examination. There, Dr.Bhuvana [P.W.44] examined both of them and collected blood and saliva from them. During her examination, she observed nail marks over the body of Manoharan and the same is referred to in the Accident Report [Ex.P39]. Similar tests were performed for Mohanakrishnan also. The blood and saliva collected from Mohanakrishnan and Manoharan were sent to the Tamil Nadu Forensic Sciences Laboratory for DNA analysis. Dr.Bhuvana forwarded Mohanakrishnan and Manoharan to Dr.Jeyasingh [P.W.46] for the potency test and for noting any injuries in the private parts of his body. Accordingly, Dr.Jeyasingh [P.W.46] examined Manoharan on 04.11.2010 and in his evidence as well in Ex.P56 has given the following opinion:

"1.There is nothing to suggest that he is impotent.

2. A dark colour contusion noted over proximal part of glands penis around urethral orifice.

3. Semen collected by masturbation from the accused and sent for analysis."

(m) On 08.11.2010, the Investigating Officer gave a requisition to the jurisdictional Magistrate for taking both Mohanakrishnan and Manoharan into police custody for further investigation. The learned Magistrate granted three days police custody and accordingly, the Investigating Officer took them into police custody for further interrogation. During the further interrogation of Mohanakrishnan and Manoharan, they gave a confession statement, in which they spoke about the place where they had thrown the bottle which was used for mixing milk with cow dung powder for giving the children. It is the case of the Investigating Officer that there was so much of public ire and indignation that he had lodged both the accused in Saravananpatty Police Station for their safety. It is the further case of the Investigating officer that he wanted to effect the recoveries before sunrise so as not to attract public attention, as the public were very hostile towards the accused persons. Therefore, for security reasons, he handed over Mohanakrishnan to the Inspector of Police, Annadurai for taking him and kept Manoharan in his custody. The accused were taken in two different vehicles. Around 6.10 in the morning, Manoharan wanted to attend natures call and so, he was taken to Pollachi East Police Station. At that time, the Investigating Officer received information from the Inspector of Police, Annadurai that Mohanakrishnan grabbed the weapon from a police man and tried to hijack the vehicle. He opened fire at the police and in retaliation, the police had to open fire at him, resulting in Mohanakrishnan's death. A separate case in Pothanur Police Station Cr.No.1523/2010 [Ex.P69] under Sections 224 IPC r/w 5/1, 353, 332, 506(ii), 307 IPC r/w 25(1)(B)(a) of Arms Act r/w 176(1)(A) Cr.P.C. was registered. The Investigating Officer took Manoharan and recovered the bottle [M.O.27] under the cover of Mahazar [Ex.P24]. The said bottle was found to contain some liquid. Manoharan was sent back to judicial custody. The various material objects seized were produced before the jurisdictional Magistrate and on the request of the Investigating Officer, they were sent to the Tamil Nadu Forensic Sciences Laboratory for various tests.

(n) On 16.11.2010, the Investigating Officer made a requisition to the Chief Judicial Magistrate for recording the confession statement of Manoharan. On the orders of the Chief Judicial Magistrate, Mr.S.S.Sathyamurthy [P.W.28] Judicial Magistrate-I sent for Manoharan from the Central Prison, and questioned him on 19.11.2010. He was given time for reflection and again he was asked to be produced the next day i.e. 20.11.2010. Again, on 20.11.2010, the learned Magistrate, after preliminary examination of Manoharan and after satisfying himself that he was voluntarily giving the statement, recorded his confession statement which is Ex.P18. After examining various witnesses and collecting the various test reports, the investigation was completed and final report was filed against Manoharan on 10.12.2010.

4. The learned Judicial MagistrateV, Coimbatore took cognizance of the offence in PRC No.22/2010 and on appearance of Manoharan, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Sessions. Before the learned Sessions Judge, Mahila Court, Coimbatore, the following charges were framed against the accused Manoharan:

(i) That five days prior to 29.10.2010, Manoharan and the deceased Mohanakrishnan entered into a criminal conspiracy to kidnap the children and held them for ransom, punishable under Section 120B IPC.

(ii) For kidnapping the children on 29.10.2010 and holding them for ransom, thereby punishable under Section 364A IPC.

(iii) For committing gang rape on 'X', punishable under Sections 376(2)(f) and (g) IPC.

(iv) Against Manoharan for pushing 'Y' in the running waters of the canal with an intention of committing murder, punishable under Section 302 IPC.

(v) For sharing common intention with Mohanakrishnan who pushed 'X' into the running waters of the canal with an intention of committing murder punishable under Section 302 r/w 34 IPC.

(vi) For the purpose of concealing the offence of gang rape committed on 'X', the accused have pushed the two children in the river, punishable under Section 201 IPC

5. When questioned, Manoharan pleaded not guilty to the charge. The prosecution examined 47 witnesses and marked 69 exhibits and 38 material objects. When the accused was questioned under Section 313 Cr.P.C., he denied certain evidences against him and accepted certain materials against him about which we will discuss in the course of this judgment.

6.The examination of prosecution witnesses commenced on 23.06.2011 and while it was in progress, Manoharan sent a letter dated 25.07.2012 from the Central Prison, Coimbatore addressed to the trial Court Judge. This letter, written in Tamil running about 12 pages, was sent through the Superintendent of Central Prison, Coimbatore, as could be seen from the covering letter of the Superintendent of Central Prison, addressed to the learned trial Court Judge on 25.07.2012, enclosing the 12 page statement of Manoharan. The trial Court has received this letter on the very same day, namely, 25.07.2012 as could be seen from the endorsement thereon. The oral examination of Manoharan under Section 313 Cr.P.C. was done on 04.09.2012. To the last question as to whether he has got anything to say about the case, he stated that he has already sent a letter to the Court on 25.07.2012 and that letter may be treated as his written statement under Section 313 Cr.P.C. Therefore, the trial Court has annexed the letter dated 25.07.2012 as part of his statement under Section 313 Cr.P.C.

7. The accused examined 5 witnesses on his behalf and marked 3 documents. After analysing the evidence on record, the trial Court convicted and sentenced Manoharan as follows:

For the offence u/s 120 B IPC The accused is convicted and sentenced to LIFE imprisonment and imposed a fine of Rs.1000/- and in default the accused should undergo Rigorous Imprisonment for 3 months.

For the offence u/s 364(A) IPC The accused is convicted and sentenced to LIFE imprisonment and imposed a fine of Rs.1000/- and in default the accused should undergo Rigorous Imprisonment for 3 months For the offence u/s 376(2)(f) and (g) IPC The accused is convicted and sentenced to LIFE imprisonment and imposed a fine of Rs.1000/- and in default the accused should undergo Rigorous Imprisonment for 3 months.

For the offence u/s 302(2 counts) r/w 34 IPC The accused is convicted and sentenced to DEATH for each count (2) and he shall be hanged by neck till he is dead subject to confirmation of Honourable High Court, Madras as per the provision of section 366 Cr.P.C. and ordered to submit a copy of judgment to the Honourable High Court, Madras for confirmation.

For the offence u/s 201 IPC The accused is convicted and sentenced to undergo imprisonment for 3 years and imposed a fine of Rs.1000/- and in default the accused should undergo Rigorous Imprisonment for a period of 3 months. Total fine Rs.4000/-. The sentences are to run concurrently and the period of detention already undergone shall be set off u/s 428 Cr.P.C.

8. Since death sentence was awarded by the trial Court, the case is before us for confirmation as aforesaid. The accused is being defended in the Referred Trial and in the Appeal, by Smt.Vairam, learned counsel appointed by the Legal Aid Board.

9. We heard the learned counsel for the accused and the learned Public Prosecutor and in the course of the hearing, we observed that the prosecution had not examined the Scientific Experts who had performed the DNA test in this case and instead, the reports were marked directly under Section 293 Cr.P.C. Though this procedure cannot be faulted, for, the reports of these experts are squarely covered under Section 293 Cr.P.C. and there is no necessity for the prosecution to have examined them as a matter of course, but, we felt that the interest of justice would be better served, if these experts are examined as witness and so, we decided to take additional evidence in this case under Sections 367 and 391 Cr.P.C. We also felt that the accused should require the defence of a very competent senior lawyer in this Referred Trial, especially, in the light of the fact that we are intending to take additional evidence of experts. Therefore, we requested Mr.A.Raghunathan, learned Senior Counsel to defend the accused with the assistance of Smt.Vairam, who is the counsel on record. Mr.A.Raghunathan, learned Senior Counsel readily accepted our request and took upon the defence of the accused.

10. We issued summons to Smt.Radhika Balachandran and Smt.Lakshmi Balasubramanian, DNA Experts from the Tamil Nadu Forensic Sciences Laboratory, who had performed the Scientific tests in this case and had issued the certificates Exs.P48 and 50, which were already marked in the trial Court under Section 293 Cr.P.C. We also issued Prisoner Transfer Warrant for the production of the accused before us while taking this additional evidence. Accordingly, the accused was produced before us and we examined Smt.Radhika Balachandran as P.W.48 and Smt.Lakshmi Balasubramanian as P.W.49. These witnesses were cross examined by Mr.A.Raghunathan, learned Senior Counsel for the accused. The accused was questioned by us under Section 313 Cr.P.C. on 07.02.2014 about the incriminating materials against him from the evidences of Smt.Radhika Balachandran and Smt.Lakshmi Balasubramanian. Thereafter, Mr.A.Raghunathan, learned Senior Counsel filed an application under Section 391 Cr.P.C. for further cross examination of Dr.Bhuvana [P.W.44], Dr.Jeyasingh [P.W.46] and the Investigating Officer [P.W.47].

11. The learned Public Prosecutor filed his counter strongly objecting to the said request. It was contended by the learned Public Prosecutor that Dr.Bhuvana [P.W.44] is not available, as she is on a long leave.

12. At this juncture, the learned Senior Counsel Mr.A.Raghunathan, gave up his request for examining Dr.Bhuvana [P.W.44]. This Court, by order dated 28.01.2014, allowed the prayer and permitted the defence counsel to further cross examine Dr.Jeyasingh [P.W.46] and Kanagasabapathy, the Investigating Officer [P.W.47]. We also observed that the trial Court had failed to put certain incriminating questions to the accused when he was examined under Section 313 Cr.P.C. Time and again, the Supreme Court has held that the appellate Court can also exercise its power and question the accused with regard to any incriminating material that had been left out by the trial Court. [See: State (Delhi) vs. Dharampal [2001 Crl. LJ 4748]. Therefore, we again examined the accused on 27.02.2014 with regard to certain incriminating materials against him and recorded his answers.

13. We heard Mr.A.Raghunathan, learned Senior Counsel for the accused and Mr.Shanmugavelayutham, learned Public Prosecutor for the State.

14. In this case, since Mohanakrishnan died even before the filing of the final report, we do not propose to elaborately discuss the evidence of each witness concerning his involvement and instead, it would be in the fitness of things, if we discuss the essence of the evidence to find out whether the prosecution has placed satisfactory material to show the involvement of Mohanakrishnan in the offence.

15. Incidentally, a very seminal question arises as to whether a Court can rely upon evidence against a dead person, especially, when he has not had the opportunity to defend himself. In other words, Can a final report be filed at all against a dead person and does not the accusation against a dead person abate? Unlike Civil law where no plaint can be filed against a dead person nor a decree be passed against a dead person, the Code of Criminal Procedure nowhere postulates abatement of accusation against a dead person for the crime committed by him vis-a-vis the victim. The crime cannot abate on the death of the criminal and that is why, time and again, it is stated that the Court under Section 190 Cr.P.C, takes cognizance of the offence and only thereafter, it proceeds to search for the offender. Section 256(2) Cr.P.C. empowers a Magistrate in a summons case to acquit the accused on the death of the complainant. Section 394 Cr.P.C. is the only section in the Code which provides for abatement of appeal on the death of the accused. This principle can be explained by two small illustrations:

(a) A1 to A5 form an unlawful assembly and in prosecution of the common object of the assembly, A1 hacks 'B' to death. During the course of investigation A1 dies of heart attack. Cannot the Police file a final report against A2 to A5 for the offence under section 302 r/w 149 IPC showing A1 also in the array of accused? The answer is an emphatic 'Yes'! The Magistrate should take cognizance of the offence under Section 190 Cr.P.C. and conduct an inquiry and give a preliminary finding that A1 had died as reported by the Police. Thereafter evidence can be adduced in the Sessions Court to show that A1 was part of the unlawful assembly along with A2 to A5 and it was he who had hacked 'B' to death. Only then can A2 to A5 be convicted under Section 302 IPC with the aid of Section 149 IPC. If we are to hold that no evidence can be adduced against the deceased accused, then A2 to A5 will go scot free. It will lead to absurdity. However, the Court cannot convict 'A' in absentia on the principle actio personalis mortiur cum persona [See Gajapathi Rao vs. State of Andhra Pradesh (AIR 1964 SC 1645)]. But that will not efface the evidence against him.

(b) Yet another example is, 'A' steals 'B's' watch. 'A' is arrested and the watch is recovered from him. During investigation, 'A' dies of heart attack. The Police should complete the investigation and file a Final Report before the Magistrate. The Magistrate will not accept the ipsi dixit of Police that 'A' had died. He will conduct an inquiry and at the conclusion of the inquiry he may accept the report and after being satisfied that the watch belongs to 'B', he can pass orders under Section 452 Cr.P.C. returning the watch to 'B'.

16. Bearing in mind this seminal principle, we propose to analyse the evidence of the prosecution, so as to find whether there is material to show that Mohanakrishnan had taken away the children as projected by the prosecution. The prosecution has satisfactorily established that 'X' and 'Y' are the children of Ranjith Kumar Singh [P.W.5] and Sangeetha [P.W.8]; that they were studying in 'Suguna Rips School' in which Anthony Raj [P.W.10] was the Principal. 29.10.2010 was a Friday and was a working day and the children had school. From the evidence of Sangeetha [P.W.8] the mother of the children, we are satisfied that the children left for School in the morning at 7.45. The prosecution has also established that the children go by the School van of 'SURYA CABS' owned by Karthikeyan [P.W.2]. On the fateful day, the children did not reach School, which fact has been established through the evidence of the parents, relatives and the school Principal. Thereafter, their bodies are fished out from two different places of PAP canal. The Inquest and the Postmortem report conclusively establish that the two children had died of drowning. The cause of death has also not been seriously challenged by the defence in the cross examination of the prosecution witnesses.

17. From the evidence of Karthikeyan [P.W.2] owner of 'SURYA CABS', we find that Mohanakrishnan was working for him as 'School van driver' and when Mohanakrishnan joined duty in June 2010, he had taken him with him to show the places from where various children have to be picked up for dropping them in their Schools. Accordingly, Mohanakrishnan has picked up these two children also and had dropped them in their School while he was in the employment of Karthikeyan [P.W.2]. In order to show that Mohanakrishnan has picked up the children on the fateful day, the prosecution relied upon the evidence of one Sundararajan [P.W.3], Basheer [P.W.4] and Kamala Bai [P.W.9]. Sundararajan [P.W.3] is a Priest in the Vinayakar Temple, from where the children are normally picked up everyday. According to Sundararajan [P.W.3], on 29.10.2010, the children came to the Temple and at that time, an Omni Van came and he heard the children saying "Mohan uncle has come" and they got into the Omni Van. Sundararajan [P.W.3] also stated that Mohanakrishnan got down from the van, collected the school bags of the children, put them in the van and drove them away. Sundararajan [P.W.3] was subjected to cross examination by the defence in order to show that he was a planted witness. When he was asked in the cross examination as to how he knew Mohanakrishnan, Sundararajan [P.W.3] stated that even three months prior to the incident, he had seen Mohanakrishnan coming and picking up the children and at that time, he had got acquainted with him. In the cross examination, Sundararajan [P.W.3] also gave the correct colour of the dress which the children were wearing on that day. It was suggested to Sundararajan [P.W.3] that 29.10.2010 being a Friday, he could not have seen the children being picked up by Mohanakrishnan because he would have been busy with devotees coming to the temple. To the question specifically put by the Court, P.W.3 stated that his temple is a small roadside temple measuring about 16 x 20 feet and there are no other shrines except that of Lord Ganesha. The fact that, in Tamil Nadu, Ganesha idols are installed in road margins and soon they assume importance, cannot be ignored. It is a road side temple and the possibility of P.W.3 seeing the children being taken by Mohanakrishnan, cannot be ruled out. Therefore, we have no reasons to disbelieve the testimony of Sundararajan [P.W.3] in this regard.

18. Basheer [P.W.4] an auto driver in the area, in his evidence, stated that on the date of incident, he had seen the two children getting into a Maruthi Omni van near the Vinayaka Temple where he had also parked his auto in the nearby auto stand. He has not identified Mohanakrishnan. On the contrary, he has, in his evidence, stated that he saw Kamala Bai [P.W.9] the grandmother of the children going past the Maruthi van and the children waving to her. Kamala Bai [P.W.9] in her evidence stated that she went to the Jain Temple around 7.45 in the morning and while she was crossing the Vinayaka Temple, she saw the Maruthi Omni van driven by their earlier driver. It is in her evidence that the erstwhile driver got down from the driver seat, acknowledged her by smiling at her and collected the school bags from the children and helped them board the van. While leaving, the children waved to her and they left. She went to the Jain temple and returned at 10.30 in the morning and at that time, she found her daughter-in-law Sangeetha [P.W.8] weeping and learnt from her that the children had not gone to School. To a specific question in the cross examination, Kamala Bai [P.W.9] stated that in the last three months, she had not taken the children for boarding them in the pick up van. We are not very much convinced with the evidence of Kamala Bai [P.W.9]. According to P.W.9, she returned home at 10.30 in the morning and she told others that the children were picked up by their former driver. P.W.9 stated that she had never taken the children in the last three months and boarded them in the pick up van, while so, it is not known as to how she was able to identify Mohanakrishnan as former driver. 'Former driver' means that Mohanakrishnan was driver of the school pick up van for some time in the past and thereafter, he had ceased and now he has surfaced. Had P.W.9 really given this piece of information to others, it would have been very easy for the police to have zeroed in on Mohanakrishnan by getting information from P.W.2 as to who all were his drivers. In this case, the police got the first information about Mohanakrishnan only around 9.45 p.m. after Anbu [P.W.7] called. Therefore, the evidence of P.W.9 does not inspire confidence. However, the evidence of P.W.3, the Priest of the Vinayakar Temple is indeed satisfactory, as to the proof of the fact that Mohanakrishnan had picked up the two children around 7.45 a.m. on that day.

19. According to the prosecution, Mohanakrishnan and the two children were seen at a petrol bunk at 8.15 a.m. on 29.10.2010 by Vijayaranganathan [P.W.12] and Manikandan [P.W.13]. Vijayaranganathan [P.W.12] in his evidence stated that he is a cashier in 'NATRAJAN & SONS PETROL BUNK', dealers of Hindustan Petroleum. On 29.10.2010 around 8.15 in the morning, Mohanakrishnan came to the bunk and filled fuel for Rs.200/- and at that time, he saw two children in the van. It is also in his evidence that Mohanakrishnan was talking to another customer who had come to the bunk for filling petrol. That customer C.Manikandan [P.W.13], in his evidence stated that on 29.10.2010 around 8.15, in the morning, he went to the said petrol bunk for filling fuel and at that time, he saw Mohanakrishnan whom he knew earlier and was talking to him. He also saw the two children sitting in the Maruthi van. According to P.W.13, that he is a owner-cum-driver of a van and he would work on contract basis for 'SURYA CABS' also, on account of which he has had the occasion not only to know Mohanakrishnan, but also the two children sitting in the Maruthi van. He further stated in his evidence that on coming to know of this incident from the newspapers on 30.10.2010, he voluntarily went to the police and told them that he had seen Mohanakrishnan the previous day in the petrol bunk with the two children. We are totally unconvinced with the evidence of these two witnesses. Vijayaranganathan [P.W.12], the Cashier in the petrol bunk, does not say how he knew Mohanakrishnan. Hundreds of customers come to the petrol bunk for filling fuel and if a Cashier particularly knows one person, then it will be easier for him to say how he came to know him. What we are not able to fathom is, the act of a kidnapper kidnapping the victims and thereafter, going to the petrol bunk to fill fuel to his vehicle and publicly displaying the victims to his friends like P.W.13. This sounds unbelievable. Therefore, we are rejecting the evidence of both P.Ws.12 and 13.

20. Coming to the testimony of Jayakumar [P.W.14], it is in his evidence that he was an auto driver earlier and now, he is into printing business, that Mohanakrishnan was his friend and that about three weeks prior to 29.10.2010, he was having tea along with Mohanakrishnan, Suresh, Senthil and Afsal [P.W.16] and at that time, Mohanakrishnan suggested to them that they can make quick money by kidnapping children and holding them for ransom. He further stated that he and his other friends including Afsal [P.W.16] rejected such ideas and left it at that. He further stated in his evidence that on 29.10.2010, Mohanakrishnan came to his house at 6 o'clock in the morning and told him that he is going to kidnap the children, for which he has made ready a car and asked him to join the venture. P.W.14 rejected his offer outrightly and thereafter, left for Tiruppur. On coming to know about this incident from the newspaper reports, he contacted Afsal [P.W.16] and they together voluntarily came to the police and gave statement. A reading of the chief examination of Jayakumar [P.W.14] and Afsal [P.W.16] sounds like Aesop's fairy tale. Even according to the prosecution, Mohanakrishnan obtained the car from Anbu [P.W.7] only at 7.15 a.m. on 29.10.2010. Whereas, at 6 o'clock in the morning, he is supposed to have gone to the house of Jayakumar [P.W.14] saying that he has made ready a car and asked him to join the enterprise especially in the light of the fact that P.Ws.14 and 16 had rejected this plan outrightly three weeks back.

21. Now, let us come to the vital aspect of the case, namely, the evidence of Anbu @ Gandhiraj [P.W.7]. P.W.7 was an employee under Karthikeyan [P.W.2] in 'SURYA CABS' and he knew Mohanakrishnan well. He left the services of 'SURYA CABS' and joined 'SISJO CALL TAXI AGENCY', which had given him the white Maruthi Omni Van TN 37 BF 2796 [M.O.15] to operate; that two days prior to the incident, Mohanakrishnan had requested him to lend the Omni Van as he wanted to go with his family to worship in a temple at Pollachi.

22. Again on 28.10.2010, Mohanakrishnan phoned Anbu [P.W.7] and persuaded him to lend his van which was agreed to by P.W.7. Mohanakrishnan came to the house of P.W.7 at 7.15 a.m. on 29.10.2010 and collected the van. When P.W.7 started getting pick up calls from his owner and customers, he started frantically calling Mohanakrishnan and asking for getting back the van. Mohanakrishnan attended P.W.7's call around 11.00 a.m. and said that he would return the van in ten minutes. Since the van did not return, P.W.7 again called him around 2.30 in the afternoon and the call was attended by a person called 'Manoharan', who told them that they are returning home. Thereafter, the mobile phone of Mohanakrishnan was switched off. P.W.7 further stated that around 5.30 p.m., he called Karthikeyan [P.W.2] and told him that Mohanakrishnan had taken his vehicle and had not returned. At that time, P.W.2 has alerted P.W.7 that in all probability, Mohanakrishnan must have taken the children and asked P.W.7 to inform the Variety Hall Police Inspector if he gets any further information in this regard. P.W.2 has given the mobile number of the Inspector of Police, Variety Hall Police Station to P.W.7. At 9.00 on that night, Mohanakrishnan returned with the vehicle and when P.W.7 checked the meter it showed that the vehicle had travelled 250 km. Had Mohanakrishnan really gone to Pollachi, it would be only less than 100 km according to P.W.7. When P.W.7 questioned Mohanakrishnan as to where he had gone, Mohanakrishnan is supposed to have confessed to P.W.7 that he had kidnapped two children and thereafter, picked up his friend Manoharan from Angalankurichi village in order to hold the children to ransom for extracting money from their father. He also confessed that Manoharan and he had raped the girl child and had pushed both the children in the P.A.P. canal. P.W.7 alerted the Investigating Officer [P.W.47] who came to P.W.7's house and proceeded with the further investigation of the case, which we have narrated in detail above. Therefore, for the first time, the name of Manoharan surfaced only from the information provided by Anbu [P.W.7]. P.W.7 was subjected to grilling cross examination by the defence. The line of attack was that admittedly the Omni van [M.O.15] does not belong to him, but belongs to his owner Santhosh [P.W.19] and that, how he could have given the van to Mohanakrishnan without the knowledge of his owner? It has also been elicited from P.W.7 that he had not lent the said van earlier to anyone else, but, has done that for the first time to Mohanakrishnan. To a specific question as to why, instead of calling his owner Santhosh [P.W.19] and telling him that Mohanakrishnan had taken away the van, he had called Karthikeyan [P.W.2] and told him of this, the witness said that he feared that the owner would get angry with him if he says that he had lent the van to Mohanakrishnan and therefore, he thought that it would be better to inform Karthikeyan [P.W.2] and try to get at Mohanakrishnan with his help. In our considered opinion, this answer indeed sounds plausible and therefore, we have no reasons to doubt the testimony of P.W.7 in this regard.

23. As regards the extra judicial confession supposed to have been given by Mohanakrishnan to P.W.7, we are not placing much reliance on it, because such confessions are always treated as weak piece of evidence and that too, in this case when Mohanakrishnan is dead, we do not want to rely upon it at all. P.W.7, in his evidence, also spoke about the presence of stains on the door of the van and on the mat of the floor as he was a party to the Mahazars [Exs.P4 and P5].

24. As regards the recovery of the panties worn by 'X' [M.O.1] from beneath the back seat, much arguments were advanced by the learned counsel for the defence, which we propose to deal in the latter part of the judgment. Suffice to state here that P.W.7 in his evidence, has stated that beneath the back seat of the van, police recovered the panties [M.O.1] with clue materials under the cover of Mahazar [Ex.P5].

25. Though the involvement of Manoharan had come to light from the disclosure statement of Mohanakrishnan, yet, no attempts were made by the police to arrest him. This was very seriously commented by the learned counsel for the defence and it is their case that on 29th October 2010 itself, Manoharan was also arrested by the police but was kept in illegal detention. Except making suggestions, there is no tangible material for us to conclude that Manoharan came into police custody on 29.10.2010 as alleged by the defence.

26. To the specific question put to the Investigating Officer in this regard by the defence, he has explained that after arresting Mohanakrishnan, the police party was concentrating in trying to locate the bodies of the two children and therefore, they did not give immediate priority for arresting Manoharan. This explanation cannot be rejected for the simple reason that, we can understand the amount of pressure the police would have from the distraught family members of the children.

27. The next important lead which the police got was on 30.10.2010, when the body of 'X' was cited by Satheesh [P.W.32] around 7 o'clock in the morning. Satheesh [P.W.32] and his uncle saw a floating body and tied it with a nylon rope and secured the other end to a pole in the bank. The police came to the place of occurrence and they were proceeding with the investigation. At that time, Chinnasamy [P.W.22] and R.Soundararajan [P.W.24] came to that place and handed over to the police the school bag of 'Y', which they took out from the canal the previous day. Soundararajan [P.W.24], in his evidence, stated that on 29.10.2010 in the afternoon, his friend Balamurugan and he were proceeding in the Mahendra jeep of Balamurugan towards Udumalpet and at that time, they saw a white Maruthi omni van parked in the middle of the road. They got down from their vehicle and they went near the Maruthi van and they saw Manoharan and Mohanakrishnan, who were known to Soundararajan [P.W.24] earlier. They also saw the two children in the back seat. When they asked Mohanakrishnan as to where they were going, Mohanakrishnan told them that they were taking the children for picnic to Thirumurthy Falls. Thereafter, they proceeded with their work and on their return in the same route, they saw a school bag floating in the nearby canal. P.W.24 took the school bag and handed it over to Chinnasamy [P.W.22] of his village. It is in the evidence of Chinnasamy [P.W.22] that the bag was handed over to him by P.W.24 and he telephoned the school Principal [P.W.10] and told him about this. At that time, the Principal told them that the two children were missing. This fact is corroborated by Mr.Anthony Raj [P.W.10], the Principal. On the next day, when the Police came to the PAP canal at around 7.30 a.m., P.Ws.22 and 24 handed over the bag to the police and P.W.24 told the Police that he had seen Manoharan and Mohanakrishnan with the children the previous day. The bag that was handed over by them was marked as M.O.2 and the same was identified by P.W.24. This is a very important witness who has stated that he knows both Manoharan and Mohanakrishnan and that they both were with the children in the afternoon on 29.10.2010. The defence was not able to make any serious dent in the cross examination of P.Ws.22 and 24. It was suggested to P.W.24 that he does not know Manoharan at all and that he is deposing as if he knows him. The recovery of the bag M.O.2 was seriously challenged by the defence in the cross examination of P.W.24. On an over all reading of the evidence of P.Ws.22 and 24, we have no reasons to disbelieve their testimony and they appear to be natural witnesses. P.Ws.22 and 24 belong to the same village. P.W.24 stated that he knows Mohanakrishnan and Manoharan and when specifically questioned as to how he knew them, he stated that Manoharan would do building contract work, for which P.W.24's friend Balamurugan would supply sand and in that regard, he had occasions to go with Balamurugan to see Manoharan. As regards Mohanakrishnan, P.W.24 has stated that he has accompanied Manoharan several times when they came to purchase sand from his friend Balamurugan.

28. It is true that apart from the extra judicial confession of Mohanakrishnan to P.W.7 and the judicial confession of Manoharan, there is no independent material to show as to when exactly Manoharan joined Mohanakrishnan in this enterprise. However, the prosecution has satisfactorily established through the evidence of Soundararajan [P.W.24] that Mohanakrishnan and Manoharan were seen in the afternoon on 29.10.2010 with the two children on the way to Udumalpet. That PAP canal also flows besides Udumalpet road is a fact which has to be borne in mind in appreciating the evidence of P.W.24. Thus, from the analysis of the evidence discussed by us upto now, we have no hesitation in concluding that Mohanakrishnan had picked up the children and not dropped them in the School and he was joined by Manoharan and together they were with the children at a far off place in and around the Parambikulam Azhiyar Project [PAP] canal. Both the dead bodies were recovered at two different places of the canal.

29. R.Ravichandran [P.W.40] the Assistant Engineer, P.W.D. Incharge of Parambikulam - Azhiyar - Project [PAP], Division I, was examined to prove the extent of water and the depth of the water in the canal. He has given a Report [Ex.P34] which shows that on 29.10.2010, the water level from the Dam shutter was 9.90 ft and the speed of the water was 918.10 per second. This report clearly shows the depth and speed of the PAP canal water-way as on 29.10.2010 which is indeed alarming.

30. As stated above, Manoharan was arrested by the Investigating Officer on 31.10.2010 and based on his confession statement, the police recovered the lunch box and snacks box [M.O.3 series] from his residence under the cover of Mahazar [Ex.P22] in the presence of the independent witness Ganesan [P.W.30]. This is an incriminating piece of evidence as against this accused.

31. We hold that the prosecution has satisfactorily proved the recovery of the lunch box and snacks box [M.O.3 series] based on the disclosure statement of Manoharan. The independent witness Ganesan [P.W.30] who was a party to the seizure, has spoken about this fact and the defence was not able to impeach the credibility of his evidence. The school bags and lunch box were identified by Ranjith Kumar Singh [P.W.5], the father of the children.

32. Though it is not clear as to when exactly Manoharan joined Mohanakrishnan, some clue is available from the evidence of Senthil Kumar [P.W.20], who is a Tailor in Angalakurichi village from where both Mohanakrishnan and Manoharan hail. Senthil Kumar [P.W.20] is a tenant in the house belonging to the father of Mohanakrishnan. He lives in that house in Angalakurichi village and also has his tailoring unit in the same place. It is his evidence that the monthly rent for the house will be collected either by Radhakrishnan [Mohanakrishnan's father] or Mohanakrishnan or his mother. He stated that at about 10.00 a.m. on 29.10.2010, Mohanakrishnan came to his house and asked for the rent, for which, P.W.20 replied that his (Mohanakrishnan's) mother had already come and collected the rent and gone. As Mohanakrishnan left towards the main road, P.W.20 also left his shop to the town for purchasing some tailoring materials. In the main road, he saw a Maruthi van and also Manoharan with two children in it. In the cross examination by the defence, P.W.20 clearly stated that Manoharan is hailing from the same village and lives about half a kilometer from his house.

33. It may be relevant to point out that a specific question was put to Manoharan by the trial Court under Section 313 of Cr.P.C., with regard to the evidence of P.W.20, for which he admitted to the extent that on 29.10.2010, Mohanakrishnan has gone to the house of P.W. 20 for collecting the rent around 10.00 a.m. and returned without being able to get any money, as his mother had already collected the rent. Of course, Manoharan has denied the other piece of evidence viz., that P.W.20 saw Manoharan and the two children in the Maruthi van, that was parked on the main road. Unless Manoharan had gone with Mohanakrishnan to the house of P.W.20 on 29.10.2010 at 10.00 a.m., he would not have admitted this fact. To the question put by the Court, he would have said either I do not know or I was told by Mohanakrishnan that he went to P.W.20's house. On the contrary, his answer to the specific question put by the Court was, True.

34. It is from the evidence of the Investigating Officer P.W.47 that on 30.10.2010, he had gone to Angalakurichi village in search of Manoharan and there, he has recorded the statement of P.W.20 and this fact has also been corroborated by P.W.20. From the evidence of P.W.20, the prosecution has satisfactorily shown that around 10.00 a.m. on 29.10.2010, Mohanakrishnan, Manoharan and the children have gone to Angalakurichi village.

35. Now, we come to the evidence of N.Mani [P.W.25], who in his evidence stated that he knows both Mohanakrishnan and Manoharan and that he owns a brick kiln in the foot hills of Gopalasamy Hills. In his evidence, he stated that a year and a quarter back, around 10.45 in the morning, while he was working in his brick kiln, he saw both the accused walking down from the Gopalasamy Hillock. The two children were in school uniform and when he asked Manoharan as to why they were there, he replied that the children are from Coimbatore and they have been brought to the Hillock to be shown small animals like peacock and deer. They had parked their Maruthi van near his brick kiln and they got into it and left. He was examined by the police on the next day when Mohanakrishnan took the police to Gopalasamy Hills, about which fact he had disclosed in his police confession. In the cross examination of N.Mani [P.W.25], he has explained that Manoharan would come to his brick kiln to buy bricks and that Manoharan also knows to drive tractor. The evidence of P.W.25 that he had seen both of them with the children coming down from Gopalasamy Hills is worthy of acceptance by us.

36. The last piece of evidence to show the last seen theory is that of Saravanakumar [P.W.23]. Saravanakumar [P.W.23[ is running a Bakery in Angalakurichi village in the name of Winner Bakery. He stated in his evidence that he knew both Mohanakrishnan and Manoharan, as both of them are from his village. That on 29.10.2010 around 1 oclock, Mohanakrishnan came driving to his shop in a Maruthi van and Manoharan got down from the Maruthi van and came to the shop of P.W.23 for purchasing two cups of milk. P.W.23, in his evidence stated that Manoharan paid Rs.10/- and collected two cups of milk in a plastic cover from him. He also purchased two disposable paper cups from P.W.23. He further stated that at that time, he saw two children in the rear seat and he asked Manoharan as to who they were, for which, Manoharan replied that the children were being taken for a picnic. P.W.23 was initially cross-examined on 06.03.2012 and again he was re-cross examined on 02.08.2012 by the defence.

37. In the first round of cross examination on 06.03.2012, he was asked questions relating to the number of customers in the shop when the accused came to purchase milk and it was suggested to him that he could not have seen the Maruthi Omni van and the children in the van. It was also suggested to him that at 1 oclock he was not in the shop and therefore, his evidence that Manoharan came to purchase milk is not true. In the second round of cross examination on 02.08.2012, he was asked about the distance from the shop to the main road and also about the measurements of his shop. He stated that the shop measured about 10 x 11 feet. It was again suggested to him that he did not see Mohanakrishnan or Manoharan on that day as stated by him in the chief examination. When Manoharan was questioned by the Court under Section 313 of Cr.P.C., with regard to the evidence of Saravanakumar [P.W.23], he has accepted as true that portion of P.W.23's evidence relating to both the accused coming to Winner Bakery' and purchasing two cups of milk. He also did not deny the presence of the two children in the Maruthi Omni van. But, he stated that he did not tell P.W.23 that he was taking the children for a picnic. In other words, Manoharan has denied only that portion of P.W.23's evidence, wherein, P.W.23 stated that Manoharan told him that he was taking the children for picnic, when he was asked as to who the children were. Manoharan accepted the other portion of P.W.23's evidence.

38. After closely scrutinizing the evidences of (a)Sundararajan [P.W.3], the temple Priest, who saw Mohanakrishnan picking up the two children around 8.00 a.m. on 29.10.2010; (b)K.Senthil Kumar [Tailor, P.W.20], who saw both the accused with the children at 10.00 a.m. on 29.10.2010; (c) N.Mani [P.W.25] owner of the Brick kiln at the foothills of Gopalsamy Hills, who saw both the accused with the children at 10.45 a.m. on 29.10.2010, while they were coming down from the hills; (d) Saravanakumar [P.W.23] owner of Winner Bakery, who sold milk at 1.00 p.m. on 29.10.2010 to the accused and who saw the two children with them and (e) R.Soundararajan [P.W.24] who saw both the accused with the children in the Maruthi van around 3.00 p.m. on that day, we have no hesitation in our mind that the prosecution has proved beyond reasonable doubt that Mohanakrishnan picked up the two children and later Manoharan joined him and together both the accused were last seen with the two children and thus, the prosecution has proved the kidnapping and last seen theory without any iota of doubt.

39.Thereafter, the dead bodies of the two children are fished out from the canal, the next day. The tiffin box of 'Y' is recovered from the house of Manoharan. In our considered opinion, the evidence so far discussed would itself lead us to the inference, in the absence of any contra material or explanation from the accused, that it was the accused, who were responsible for the death of the two children. In fact, in Ram Gulam Chaudhary vs. State of Bihar [2001 Crl LJ 4632], the Supreme Court has said:

"Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death."

In State of West Bengal vs. Mir Mohammed Omar [2000 (8) SCC 382], the Supreme Court has said:

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty."

The Supreme Court in Sucha Singh vs. State of Punjab [2001 Crl LJ 1734] rejected the plea to re-consider the decision in Mir Mohammed Omar's case and said that in India such a principle is a must.

40. We have still not discussed the judicial confession and the 313 Cr.P.C. explanation given by the accused Manoharan, because, we are bearing in mind the golden rule laid down by the Supreme Court in Kashmira Singh vs. State of Madhya Pradesh [AIR 1952 SC 159] which states that no Court should begin the appreciation of evidence with the confession statement, but, should first marshal the other evidence on record and thereafter, look to the confession statement for drawing assurance. This line of argument was also vehemently advanced by Mr.A.Raghunathan, learned Senior Counsel for the accused and agreeing with him, we have adopted the course laid down by the Apex Court in the said judgment.

41.Evidence relating to Rape of 'X':

There is no direct evidence to prove this fact. The prosecution is relying upon the following pieces of evidence for inferring rape.

(a) Dr.Jeyasingh [P.W.46], who conducted the autopsy on the body of 'X', has stated that he found (4) Contusion 2x1 cm x 0.5 cm depth noted over in the posterior fouchette and lateral wall of vagina. Hymen Intact. (5)On examination of anus:- Anus found roomy measuring 3 cm in diameter and mucosal tear 1 x 0.5cm x mucosal deep noted over left lateral aspect of the anus at the level of muco-cutaneous junction. On dissection of Thorax and Abdomen: Contusion 4x2 cm noted over anterior aspect of lower end of uterus. In his final opinion, Ex.P.50, he has stated, The deceased would appear to have died of DROWNING. Injuries noted on the vagina and anus due to forcible sexual assault. The deceased has consumed auramine poison prior to death (detected in stomach & small intestine).

(b) Dr.Jeyasingh, examined Manoharan on the orders of the Magistrate on 04.11.2010 and observed the following injury on his penis in his report Ex.P.56.

A dark colour contusion noted over proximal part of glands penis around urethral orifice.

(c)The Police had recovered the panties [M.O.1] of 'X' with some hair strand from the Maruthi van as early as on 29.10.2010 and had sent the same to the Tamil Nadu Forensic Sciences Laboratory through the Court for D.N.A. Analysis. The blood samples and saliva that were collected from Mohanakrishnan and Manoharan by Dr.Bhuvana [P.W.44] were also sent to the Tamil Nadu Forensic Sciences Laboratory. The D.N.A. analysis was done by Mrs.Lakshmi Balasubramaniam [P.W.49]. She was examined by us in this Court, the reason for which we have already given in the earlier part of the judgment. In her evidence, she stated that she extracted D.N.A. from the blood samples of Mohanakrishnan and Manoharan and amplified them for amelogenin and for 15 Short Tandem Repeat markers using PCR amplified STR technique. The hair strands that were received by the Forensic Sciences Department from the Court with the panties [M.O.1] was also subjected to amplification for amelogenin. The DNA typing results of the blood samples of Mohanakrishnan and Manoharan were compared with the DNA profile of the hair in the panties [M.O.1]. On comparison, P.W.49 found that the DNA profile of the hair did not match with that of Mohanakrishnan, but, matched with that of Manoharan. Her report was marked as Ex.P48(A). The defence counsel did not seriously challenge the final opinion of the expert, but Mr.A.Raghunathan, learned Senior Counsel for the accused attacked the very seizure of the hair and contended that Manoharan was made to pluck 5 strands of his pubic hair on 04.11.2010, when he was examined by Dr.Jeyasingh [P.W.46] and this was substituted in the cover that was sent to the Forensic Sciences Department. Mr.A.Raghunathan, learned Senior Counsel, who cross examined Dr.Jeyasingh [P.W.46], Mrs.Radhika Balachandran [P.W.48] and the Investigating Officer [P.W.47] before us, shaped this defence and presented the following arguments attacking the seizure of the panties [M.O.1] and the pubic hairs from the Maruthi van on 29.10.2010.

42. ARGUMENTS OF MR.A.RAGHUNATHAN, LEARNED SENIOR COUNSEL CHALLENGING THE SEIZURE OF PANTIES [M.O.1] OF 'X' WITH HAIR STRANDS:

(i) If M.O.1 panties was available in the Maruthi van beneath the rear seat, how is it that it does not find place in Ex.P4 Mahazar, which was attested by A.Anbu @ Gandhiraj [P.W.7]?

(ii)P.W.7 has not spoken a word about the presence of pubic hair in M.O.1.

(iii) P.W.7 has not spoken anything about the arrival of Saravanan [P.W.43], the Forensic Expert attached to the Mobile Unit of the Tamil Nadu Forensic Sciences Laboratory, to the place near his house for inspecting the Maruthi van.

(iv) A.Anbu @ Gandhiraj [P.W.7] has not mentioned that he signed in Mahazar Ex.P5.

(v)Saravanan [P.W.43] has stated that he had found pubic hair in the panties and had put cellophane tapes to fix them and the presence of cellophane tapes was not spoken to by Radhika Balachandran, [P.W.48], who examined the undergarment [M.O.1] in the Laboratory.

(vi)Saravanan [P.W.43], has stated that starch and stain were found in M.O.1., but Radhika Balachandran, P.W.48 has stated nothing about the stains.

(vii)At the time of seizure of M.O.1, there is no reference that it was a torn panties, whereas, when it is observed by Radhika Balachandran, P.W.48, stated that she received a torn panties.

(viii)The seizure mahazar shows that M.O.1 had the description SBT Kids Wear 75 Cms., but, there is no reference to this wordings in the report of Mrs.Radhika Balachandran, [P.W.48].

(ix)According to the Police, M.O.1 panties was sent in a cardboard box containing the label Angel Form Brassiers, whereas, there is no reference to this container in the evidence of Radhika Balachandran [P.W.48].

(x) The defence counsel marked Ex.D4, the copy of the arrest memo relating to A1, wherein, some words have been struck off, which the defence counsel with magnifying glass would submit that the words are written in Tamil language and they read "panties worn by 'X'". Based on this, he contended that the Police had planted M.O.1 panties of 'X' first in the house of Manoharan and later, when they thought that it will lead to absurdity, they planted it in the omni van and made it look as if, it was available there. That is why they have made the corrections in the arrest memo of Manoharan.

(xi) He further submitted that when Manoharan was produced before Dr.Bhuvana [P.W.44] for examination on 04.11.2010, she has collected blood and saliva samples from him and had directed that he be further examined to find out if there was any injury in the private parts and also for taking his pubic hairs. Despite her suggestions, the pubic hair of Manoharan was not taken on record. The specific defence case is five pubic hairs were collected only on 04.11.2010 from Manoharan and the same was kept in M.O.1 and sent to the Forensic Sciences Laboratory.

(xii)His last submission was that how could five pubic hairs get into the under garments of the victim when no pubic hair was found on the floor of the Maruthi van, even according to Saravanan [P.W.43].

43. OUR REASONS FOR NOT ACCEPTING MR.A.RAGHUNATHAN'S ARGUMENTS Though the above arguments of the learned defence counsel appears formidable, the evidence on record militates against the conclusion which the defence wants us to draw viz., that the pubic hairs of Manoharan was collected on 04.11.2010 and were planted in M.O.1 by the Police.

(a)As stated earlier, the Police went to the house of A.Anbu @ Gandhiraj [P.W.7] on 29.10.2010, where they found Mohanakrishman at about 9.45 p.m. in the night. Thereafter, they inspected the Maruthi van in the presence of A.Anbu @ Gandhiraj [P.W.7] and one Santhoshkumar [not examined]. Ex.P.4 Mahazar was prepared for the seizure of the van and the presence of stains on the door and the floor mat of the van. The Investigating Officer requisitioned the services of Saravanan, [P.W.43], Director of Mobile Unit of Tamil Nadu Forensic Sciences Department and asked him to come to the spot. It was he would found the panties M.O.1 beneath the rear seat. In the cross examination, the Investigating Officer was asked as to how he observed stains in the mat for which he replied that he used search light to see the stains on the mat. Just because the Investigating Officer [P.W.47] did not see the Panties M.O.1 while preparing Ex.P4, we cannot conclude that M.O.1 was not recovered in the Maruthi van at all. After all, Saravanan, [P.W.43], Assistant Director of Mobile Unit of Tamil Nadu Forensic Sciences Laboratory, is an expert not attached to the Police Department and his testimony cannot be suspected in the absence of strong reasons. The fact that the Investigating Officer [P.W.47] has prepared two distinct mahazars viz., Ex.P4 and Ex.P5 in a gap of two hours would show that the Investigation was not unfair. The second mahazar Ex.P5 was prepared only after Saravanan [P.W.43] came to the place and helped the Investigating Officer in identifying the panties M.O.1.

(b)The Investigating Officer admitted that he examined Mahonakrishnan after the arrest and during the examination of the Maruthi van, the Investigating Officer stated in the cross examination before this Court that he did not observe the panties M.O.1 initially and he was waiting for the arrival of the Scientific Expert in order to look for evidence inside the Maruthi van. Saravanan [P.W.43] Scientific Expert came to the place around 12 0clock in the midnight and thereafter, the inside of the Maruthi van was examined by him. This explanation of the Investigating Officer is indeed satisfactory and deserves acceptance. It is the evidence of Saravanan, [P.W.43] that he thoroughly examined the floor of the Maruthi van and even swept and sieved for any evidence. Just because he did not get any pubic hair in the floor of the Maruthi van, we cannot say that the presence of pubic hairs in panties M.O.1 to be improbable.

(c)If at all the Police had wanted to foist the case with the active connivance of Saravanan [P.W.43], the Scientific Expert, they would have very easily said that the pubic hairs were found strewn on the floor of the van. The learned Senior Counsel's argument as to how five pubic hairs could be found inside the panties is a question for which no investigation officer can ever provide evidence. On our part we asked a particular question to Radhika Balachandran [P.W.48], which we are extracting.

	Court question	:Can  pubic hairs fall off with root during 					 rubbing?
	Answer		:Pubic hairs can fall off on rubbing if they are 				         in the stage of being shrunk and falling off 				         naturally.

To Mr.A.Raghunathan it may sound improbable, but, from the answer given by the expert, it is not impossible. Hence, we do not doubt the testimony of Saravanan [P.W.24], Scientific Expert that he found the panties M.O.1 with pubic hair strands.

(d)At this juncture, it may be relevant to state here that 'X''s body was recovered in the canal only on 30.10.2010 and after inquest, it was directly sent for postmortem. Dr.Jeyasingh [P.W.46], who performed the postmortem, returned the clothes viz., T-shirt (M.O.8), Pant (M.O.9) and shimmies (M.O.10) that were on the body of 'X'. No panties was there. The dictates of our common sense supported by Section 114 of the Indian Evidence Act permits us to draw the inference that a 10 year old city bred school girl from an upper middle class family would not go to school without wearing panties. It is not the defence case that at the time of the inquest the Police removed the panties from the dead body of 'X'.

(e)The other argument is that A.Anbu @ Gandhiraj [P.W.7] in his evidence did not speak about the presence of pubic hair in M.O.1 and that he did not speak about the presence of Saravanan [P.W.43] are too trivial for doubting the prosecution case.

(f)Mr.A.Raghunathan, learned senior counsel has built up a formidable defence of planting pubic hairs in M.O.1 based on tertiary deficiencies and by a process of deduction, he wants us to infer that the pubic hairs were planted on 04.11.2010 in M.O.1. On the contrary, we prefer to adopt the induction process of reasoning and go from specific to general rather than adopt the reverse engineering process. We find from the evidence of Saravanan [P.W.43] that he found the panties M.O.1 with hair stands in the midnight of 29/30.10.2010. He put cellophane tapes to keep the hair strands adhered to M.O.1 and put it in a cover and sealed it. It is not his evidence that he used wax seal to seal the cover. It is the case of the Investigating Officer, P.W.47 that he obtained the Angel Form Brassiers cardboard box from a nearby place and placed the cover inside the box and seized the same under the cover of mahazar Ex.P5. In Ex.P5 Mahazar, there is a clear description about this.

(g)Mahazar Ex.P5 has reached the Magistrate's hands on 30.10.2010. This can be seen from the initials in green ink made by the Magistrate on 30.10.2010. The cardboard box containing M.O.1 has also gone to the Judicial Magistrate on 30.10.2010 as could be seen from Form-95, Ex.P41 series. (Form-95 is a form, which is used by Tamil Nadu Police for sending case properties to the Court).

(h)Form 95 bearing running No.0241810 relating to the box containing M.O.1 has also reached the Judicial Magistrate on 30.10.2010. The Judicial Magistrate has written on it, 30.10.2010 Produce it on next working day. Sd/_. 30.10.2010 was a Saturday and since the learned Judicial Magistrate will not have the facility to keep the seized goods in his residence, he has made such an endorsement in Form 95 and has returned the box to the Police for producing the same again on the next working day. The next working day was 01.11.2010 and on that day, this item was again submitted to the Judicial Magistrate.

(i) Mrs.Sivakami, P.W.45, who was working as Head Clerk in the Court of Judicial Magistrate No.V, Coimbatore has stated in her evidence that on 01.11.2010, she received the articles under Form-95 and Form 95 were marked as Ex.P41 series. Thereafter, on the requisition made by the Police, those articles were sent by the Judicial Magistrate with his seal to the Tamil Nadu Forensic Sciences Department and the same was received by the Department on 18.11.2010. Thus it is clear that the panties (M.O.1) was in the custody of the Judicial Magistrate effectively from 01.11.2010. We are unable to agree with the argument of Mr.A.Raghunathan, learned senior counsel for the accused that the Police had planted the pubic hairs of Manoharan on 04.11.2010 in M.O.1. If we are to allow ourselves to be persuaded by this argument, it would lead to ludicrous results inasmuch as we will be holding that the Judicial Magistrate had also connived with the Police in this alleged concoction. In the cross examination of Mrs.Sivakami [P.W.45], the Magistrate Court Head Clerk, the defence has not suggested to her that the Court staff had connived with the Police in planting the pubic hairs of Manoharan in the box.

(j)With regard to the contention of the defence counsel that Radhika Balachandran (P.W.48), who received the panties M.O.1 has not stated anything about the cardboard box with the label viz., Angel Form Brassiers, we find from her evidence that all the articles that are sent for examination by the Court will be initially received by the Reception Division of the Forensic Sciences Department and after making necessary entries in the Reception registers, the articles will be sent to the concerned departments for analysis. In the teeth of the explanation given by Mrs.Radhika Balachandran (P.W.48), her failure to refer about the cardboard box in the report does not have any significance. The Forensic Sciences Department will only look for the seal of the authority, who sent the articles for examination and if the seal is intact, they will say so in the report. In this case, admittedly, the Police have not sent M.O.1 directly to the Forensic Sciences Department. It is the Judicial Magistrate No.V, Coimbatore, who has sent it with his seal on 16.11.2010 and the same has reached the Laboratory in Chennai on 18.11.2010. The seals were found to be intact.

(k)The other argument of the learned defence counsel is that Mrs.Radhika Balachandran (P.W.48) had stated that she had received a torn undergarment , whereas, the seizure mahazer does not say so. To satisfy ourselves, we had M.O.1 brought to the Court. The learned senior counsel cross examined P.W.48. The answer given by P.W.48 is extracted below:

I received M.O.1 in tact. I had made the cuttings for the sake of examination. Originally when I received it, M.O.1 had a tear on it. It is correct to state that in common parlance, it is called a 'panty' (When MO1 was opened in the court it was found to be torn).

(l)The failure of the Investigating Officer to mention about the tear in M.O.1 in mahazar Ex.P5 is not fatal to the prosecution case. P.W.48 Mrs.Radhika Balachandran in her report Ex.P48 has said that Item 8 : A torn pink jatti with a few pieces of dark hair adhering to it. The complaint by the learned defence counsel is that she has not said anything about Cellophane tape that was put by Saravanan, P.W.43. This in our opinion is not very material. The expression used in Ex.P.48 is dark hair adhering to it. The defence has not put any question with regard to the cellophane tapes to Mrs.Radhika Balachandran, P.W.48 and therefore, we cannot draw any inference beneficial to the accused in this regard.

(m)Mr.A.Raghunathan submitted that Mrs.Radhika Balachandran (P.W.48) has not stated anything about the presence of stains in M.O.1., whereas, P.W.43 Saravanan has mentioned that there was a stain in the panties M.O.1 and therefore what was seen by Saravanan was not the one that was examined by Radhika Balachandran (P.W.48). Mrs.Radhika Balachandran, P.W.48 had examined M.O.1 and has reported that she did not detect blood or semen in M.O.1. This finding of the expert is beneficial to the accused. When Manoharan was examined on 04.11.2010 by the Doctors, his spermatozoa was collected in order to find out whether he is potent. If at all the Police had wanted to foist the case on him, with the active connivance of the doctors and experts, it would have been easier for them to smear his spermatozoa in M.O.1 and make a fruitful case against the accused rather than search for correlation by planting hairs. We are definitely not basing our inference on negative conjectures viz., by saying that, had the Police wanted to foist a case, they would have done like this or like that and since, this or that has not been done, the Police case is true. We are using negative conjectures for primarily satisfying ourselves with the positive actions done by the Police.

(n)While appreciating the evidence of the prosecution with regard to the recovery of the panties [M.O.1] with hairs and sending it for Forensic Examination through Court, we are reminding ourselves of the following statement of law of the Supreme Court in Collector of Customs vs. D.Bhoormall [1974 (2) SCC 544]:

"30. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it all exactness is a fake. El Dorado of absolute proof being unattainable, the law accepts for it probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent mans estimate as to the probabilities of the case."

44. To sum up, we hold that the panties M.O.1 was recovered with hairs on 29.10.2010 in the Maruthi van with the help of Saravanan, P.W.43, the expert of Forensic Sciences Laboratory and the same was sent to the Court without delay and thereafter, the Court had sent it to the Forensic Sciences Department, where, after DNA comparison, the experts have opined that the DNA profiles in the pubic hairs tally with the DNA profile extracted from the blood of Manoharan.

45. Since we have left incomplete the discussion in Para No.9 supra about Evidence Relating to Rape of 'X', we are now concluding it after answering to the points raised by Mr.A.Raghunathan relating to the seizure of the panties (M.O.1).

46. From (a) the final opinion of Dr.Jeyasingh that 'X' was subjected to sexual assault; (b) injury on the penis of Manoharan; (c) the absence of panties in the dead body of 'X'; (d)the presence of panties (M.O.1) in the Maruthi van; (e)identification of the panties (M.O.1) by 'X''s father; (f)presence of hairs on it at the time of recovery and (g)matching of DNA profile extracted from the hair with that of Manoharan, we hold that Manoharan has subjected 'X' to sexual assault. To come to this finding also, we have still not used the judicial confession given by Manoharan.

47. Confession of Manoharan:

L.Sathyamoorthy, P.W.28, Judicial Magistrate No.1, Coimbatore examined Manoharan on 19.11.2010 and extensively questioned him and made a roving enquiry in order to find out if he was voluntarily giving confession statement. The questions were asked in Tamil and the answers were also recorded in Tamil by the learned Judicial Magistrate. 17 questions were put to him on 19.11.2010. Thereafter, he was sent back to the jail for reflection and was directed to be produced the next day again i.e. on 20.11.2010. On 20.11.2010, the learned Judicial Magistrate has put nine questions to him. He has even told Manoharan that he need not have to give any confession. We also went through the preliminary examination done by the Judicial Magistrate on 19.11.2010 and 20.11.2010 and we find that the Judicial Magistrate has not mechanically acted, but has sincerely endeavoured to make the accused be aware of his rights and also the fallout of giving a confession. Sufficient reflection time was also given by the learned Judicial Magistrate and thereafter, he has proceeded to record his confession.

48. The learned senior counsel appearing for the accused attacked the confession as not voluntarily made on the following grounds:

(i)That Mohanakrishnan died on 09.11.2010 and therefore in the spectre of fear, Manoharan has given the confession.

(ii)To the specific question put by the learned Judicial Magistrate, whether the Police had tortured him, he stated on 19.11.2010 that he was beaten, but he did not know which police had beaten him. Basing on this singular answer, the Senior Counsel would emphasise that the confession was not voluntary.

(iii)Neither on 19.11.2010 nor on 20.11.2010, the learned Judicial Magistrate had asked him as to why he wants to make a confession?

(iv)The learned Judicial Magistrate had not told him that he will be sent to police custody, if he does not make a confession. Reliance was placed by the learned senior counsel on the following judgments:

(a)AIR 1954 Supreme Court 4 (Muthuswami V. State of Madras)

(b)(2007) 12 SCC 230 (Aloke Nath Dutta and Others V. State of West Bengal)

(c)AIR 1995 SC 980 (Shivappa V. State of Karnataka)

(d)1982 Cri.L.J 216 (State of Assam V. Rabindra Nath Guha).

(e)2011 (2) SCC 490 (Dara Singh vs. Republic of India)

(f)2012 (9) SCC 1 (Kasab vs. State of Maharashtra)

49. We gave our anxious consideration to the arguments advanced by the learned senior counsel and therefore, we scrutinized carefully the questions put by the Judicial Magistrate on 19.11.2010 and 20.11.2010.

The learned Judicial Magistrate has put 17 questions on 19.11.2010. Some relevant questions run thus (English Translation):

Question No.5 :Do you know that I am a Judicial Magistrate No.1, Coimbatore?

Ans :Yes. I know that this is Judicial Magistrate Court, but only from you, I know the number.

Question No.9 :Do you know as to why you have come here?

Ans :I want to give a true statement to the Judicial Magistrate. That is why I have come here.

	Question No.10	:Did police torture to give statement in any 					manner?
	Ans			:No. Nothing like that has happened.


Question No.11	:Did the Police or anyone tell you that if 				you give confession statement, it will be 				beneficial to you and if you do not give 				confession 	statement, they will do 				something 	to you?
	Ans			:No one has said like that to me.



	Question No.12	: Are you aware that you have no duty to give 					 confession?
	Ans 			:I have understood it from what you told now.


	Question No.15	:I am asking you once again this question, 					Has anybody tortured you or induced you to give 				confession?
	Ans			:No. Nobody has tortured me.

50. Again on 20.11.2012, some questions were asked to Manoharan in order to find out whether he was voluntarily willing to give confession. Only thereafter, the learned Judicial Magistrate has recorded the confession.

51. We are aware of the legal proposition that the confession statement should pass the twin tests of voluntariness and truthfulness. Just because a confession statement contains wealth of details, the Court cannot conclude that it was voluntary. [AIR 1954 SC 4 Muthuswami vs. State of Madras].

52. The learned Senior Counsel for the accused relied upon the judgment of the Hon'ble Supreme Court in Shivappa's case (cited supra) and Dara singh's case (cited supra), wherein the Hon'ble Supreme Court has stated that the Magistrate should ask a question to the accused as to why he was making a confession. Similarly, the leaned Senior Counsel relied upon the judgment of the Gauhati High Court in Rabinra Nath Guha's case (1982 Criminal Law Journal 216) and Kasab's case (cited supra), to drive home the point that failure of the Magistrate to give legal assistance to the accused at the time of recording the confession would vitiate the confession.

53. We carefully studied all the four rulings relied upon by the learned defence counsel.

54. It is true that in Shivappa's case and in Dara Singh's case, the Hon'ble Supreme Court has stated that the Magistrate should ask the accused as to why he is giving the confession. On a complete reading of these two cases, it is clear to us that the Hon'ble Supreme Court has stated that this question should also be asked with a view to test whether the accused is voluntarily coming forward to give a confession. The legal proposition that can be deduced from these two cases is that the Magistrate must make a sincere endeavor in order to find out whether the accused is voluntarily making the confession. In aid of this enquiry, the Apex Court has stated that the Magistrate should ask a question as to why he was making a confession. In those two cases, apart from the failure of the Magistrate to ask such a question to the accused therein, the Hon'ble Apex Court found that there were infirmities galore. In that back ground, the Apex Court rejected the confession statements in those cases on the ground that they were not voluntarily made by the accused. The Hon'ble Apex Court has stated that the Magistrate should not merely follow the requirements laid down in Section 164 Cr.P.C. as a ritual but should understand the letter and spirit behind Section 164 of Cr.P.C. and put searching questions to the accused. In these two judgments the Hon'ble Supreme Court has not laid as a matter of rule that failure to ask the question as to why the accused wants to make the confession, would by itself vitiate the confession.

55. Similarly, though the Supreme court has stated in Kasab's case that the accused will have a right of legal assistance at the time of recording the confession, the Supreme Court has not stated that failure to give legal assistance will vitiate the confession. It may be relevant to state here that whenever the Supreme Court wanted to say that a particular legal protection is mandatory, it has, in no uncertain terms, laid down the consequences that will follow on the failure to give the said protection. For example, while dealing with section 50 of the NDPS Act, wherein before personal search of the accused, the accused has a right to be told whether the search should be done in the presence of a Magistrate or a Gazetted Officer, the Constitution Bench of the Hon'ble Supreme Court in State of Punjab vs. Baldev Singh [(1999) 6 SCC 172] held that failure of the Searching Officer to inform the right under Section 50 would vitiate the search.

56. Similarly in D.K.Basu v. State reported in (1997 (1) Supreme Court Cases 476, when the Supreme Court postulated the 11 Commandments that should be followed at the time of arrest, it also stated that failure would result in action being taken against the erring officer for contempt of Court. In Kasab's case also after saying that the accused will be entitled to legal assistance at the time of recording Section 164 Cr.P.C. statement, the Hon'ble Supreme Court in paragraph 478 has held as follows:

"478. But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent Magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case."

57. Similarly in Dara Singh's case in Paragraph 64(vii), the Hon'ble Supreme Court has stated that non-compliance with Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. On a conspectus of the aforesaid judgments it is clear to us that if there is infraction of Section 164 Cr.P.C, the confession statement would stand vitiated ipso facto. Where there is no infraction of Section 164 but failure on the part of Magistrate to ask the accused as to why he wants to give a confession or failure of the Magistrate to provide him with legal assistance, that will not vitiate the confession without anything more.

58. The Hon'ble Supreme Court has time and again said that Court judgments should not be read as Euclid's theorem nor as provisions of a statute [Haryana Financial Corporation and another vs. Jagadamba Oil Mills, 2002 AIR SCW 500]

59. It may be apposite to extract the recently added proviso to Section 164 Cr.P.C.

"Provided that any confession or statement made under this sub section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence."

This amendment was made by Cr.P.C. (Amendment) Act 2008 w.e.f. 31/12/2009. From this amendment it is clear that when the Magistrate decides to record the confession by audio-video electronic means then the presence of an advocate is a must. The legislature has consciously given the right to the accused to have his lawyer by his side if the confession is recorded by audio-video electronic means. If the legislature had wanted to give this right in all circumstances, even if the Magistrate proceeds to record the confession by hand, it would have said so and not limited to recording by electronic means. The Hon'ble Supreme Court was aware of this and that is why it has not included this aspect as a statutory right available to the accused.

60. Another argument advanced by the learned Senior Counsel is that the Magistrate had failed to tell the accused that, if he refuses to give a confession statement, he will not be sent to police custody. In this case, Manoharan was arrested on 31.10.2010 and was produced before the learned Judicial Magistrate for remand on the same day. He was remanded to 15 days judicial custody within which time he was given police custody for three days on 08.11.2010. The 15 days period expired on 14.11.2010. It is settled law that police custody can be given only within the first 15 days of remand and not beyond that. In this case Manoharan was produced only on 19.11.2010 before Mr.L.S.Sathyamoorthy, the Judicial Magistrate for recording his confession. Therefore, there is no possibility of handing him over to the police even if he refused to give a confession. If in a given case, where the Magistrate is recording the confession within the first 15 days of remand, then it is necessary that the accused should be told that if he does not give confession, he will not be sent to police custody. In this case, the situation is different. From a reading of the proceedings of Mr.L.S.Sathiyamoorthy, P.W.28, the learned Judicial Magistrate, who had recorded the confession statement, we are convinced that he has made a roving and searching enquiry and has satisfied himself that Manoharan is giving the confession voluntarily.

61. In this case confession was recorded on 20.11.2010 and it was retracted only on 13.08.2012 during the cross examination of Mr.L.S.Sathiyamoorthy (P.W.28). When Manoharan was put the following question under Section 313 Cr.P.C. viz. "That P.W.28 Mr.L.S.Sathiamoorthy in his evidence has stated that he was Judicial Magistrate in Coimbatore and that he examined Manoharan on 19.11.2010 in the Court for the purpose of recording the confession statement and for that he had taken appropriate steps and had also given 24 hours time to reflect and that on 20.11.2010, he recorded the confession statement running to 17 pages in the appropriate manner. That confession statement is Ex.P.18. What do you say?" The answer given by Manoharan is, "Correct". This singular answer of Manoharan demolishes the defence argument that the Magistrate had not followed the proper procedure for ascertaining whether the confession was voluntary.

62. The learned Senior Counsel further submitted that a retracted confession is a very weak piece of evidence. Reliance was placed on the judgment of the Hon'ble Supreme court in Aloke Nath Dutta and others v. State of West Bengal ((2007) 12 Supreme Court Cases 230). A three Judge Bench of the Supreme Court in Subramania Gounder vs. State of Madras [AIR 1958 SC 66] has held:

"14.......Not infrequently one is apt to fall in error in equating a retracted confession with the evidence of an accomplice and, therefore, it is advisable to clearly understand the distinction between the two. The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, general corroboration is sufficient while an accomplice's evidence should be corroborated in material particulars. In addition the court must feel that the reasons given for the retraction in the case of a confession are untrue."

63. We have already extracted the statement of Manoharan under Section 313 Cr.P.C. with regard to the evidence of Mr.L.S.Sathiamoorthy P.W.28. This statement under Section 313 Cr.P.C. was recorded on 04.09.2012, after the evidence, whereas Mr.L.S.Sathiamoorthy was cross-examined on 13.08.2012. In other words on 13.08.2012, when P.W.28 was cross examined by the counsel, the confession was retracted. But in the 313 examination recorded subsequently on 04.09.2012, Manoharan had admitted that the confession was properly recorded. Manoharan was examined by us u/s 313 Cr.P.C. on 27.02.2014 with regard to the inculpatory portion in his confession statements. At that time he stated that Police forced him to give the confession.

64. We may now mention about the letter dated 25.07.2012 written by Manoharan from jail addressed to the Sessions Judge which he wanted to be treated as his statement under Section 313 Cr.P.C.'73. In that letter he has stated that Police made him to confess to the crime and had it videographed in the Police Station. Thereafter they played the videograph to the Magistrate and the Magistrate merely wrote down the confession statement by seeing the videograph. In other words, the Magistrate did not record any statement from him directly but copied a statement from the videograph. This is given as a reason for retraction. Such a suggestion was not even put to Mr.Sathiamurthi, the Magistrate when he was cross examined. Applying the test in Subramania Goundan's case cited above, we cannot but simply reject the very retraction. In State of Tamil Nadu vs. Kutty Lakshmi Narasimhan [JT 2001 (6) SC 352] the Supreme Court has said:

"It is not the law that once a confession was retracted, the Court should presume that the confession is tainted. AS a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it."

65. The Supreme Court went one step ahead in K.I.Pavunny vs. Asst.Collector (HG) [1997 (3) SCC 721], where a three Judge Bench as held that :

"20. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab (I)."

On facts, we hold that the Magistrate had put searching questions and after giving sufficient reflection time, has recorded the confession after being satisfied that he is giving the confession voluntarily. As regards the legal aspects raised by the learned counsel, we have answered them above.

In the result, we hold that the judicial confession given by Manoharan was voluntarily made and his retraction was clearly an after thought.

The truth of the confession statement:

66. The English translation of the confession statement given by Manoharan that was given in Tamil is given below:

"I used to go for flower business along with my mother Amavasai Selvi on Fridays. I do not remember the date. About two weeks ago, on a Friday, I finished my flower business and had my breakfast at 9.15 in the morning. Afterwards, when I was about to attend to tractor work of my owner Thambu, my friend Mohanakrishnan, who studied with me till 7th standard in the same school at Angalakurichi, came to my home at 9.30 A.M. in the morning in a Maruti Omni Van. He knew my house. He called me to Azhiyaru dam. He asked for some rope, which was lying near my house, took that rope and kept it in the omni van. He asked me to get into the van and I sat next to the driver seat in the omni van. A boy and a girl in School uniform were seated at the back seat. When I asked about them, he told me that they had come to see Azhiyaru, and that a school bus had already gone ahead. When we went to the house of Mohanakrishnan, which was located near the Tank-mound, which was in Azhiyaru road, there was a tailor. He asked that tailor for two covers and obtained them. There was no possibility for the tailor to look at the persons, who were seated in the omni van. The vehicle was parked on the road. In the meantime, a telephone call came. When I asked, Mohanakrishnan he said that it was his mother, who spoke over the phone. Again, we went to my house in the vehicle. He told me to get fifty rupees. I got it from my mother. He asked me to buy two packets of cow dung powder for mopping up his house. I got two packets for Rs.12/- Rs.6/- each from Nayakam's shop, which is next to my house. I kept them in the omni van and we went straight to the hill of Gopalsamy temple. We parked the vehicle at the foothill and walked up the hill. Mohanakrishnan asked the children to climb up the hill so that they could see tiger, lion and deer. Both of them ie., the girl and the boy walked some distance and stopped. They sternly said that they would not come up. They started crying stating that they wanted to go to school. Immediately, Mohanakrishnan took the mobile phone and made a fake call, as if, he was talking to the Principal Sir, saying that they would come then, that the vehicle broke down and that they would come to the school immediately. He asked for apology from the Principal for being late to the school and made the children believe his words. But the small boy asked his elder sister in their language, not to go. Then both of them started crying. Hence, all of us came back without going up the hill. Immediately, we started from the Gopalsamy foothill and crossed Manjanaickanur, Kambalampatti, crossed the bridge and went to a place adjacent to the canal. That place looked like a big forest with groves all around. I do not know the name correctly. We parked the vehicle under the tree and I said I needed to answer nature's call urgently. So saying, I went by the side of the canal. The boy, who was in the vehicle was tied with a rope near the side of the driver seat, so that he could not go out. He put that female child alone in the back seat and tied her hands behind. When I asked him, he said that I was not aware that he and her father had a deal. Then Mohan stripped all his garments, removed the pant of the said girl, and laid himself upon her. When I asked him, he told me he would make the girl a prostitute. He had sex with that girl and raped her. I thought if the small boy was present there at that time, it would be embarassing and I slowly took him out. Later on, after some time, I returned with that small boy. Then I asked Mohan as to how he felt. He said that his male organ could not properly penetrate. I asked him to give me a chance. Immediately he asked me to have sexual intercourse with that girl. Mohan sat in the front seat and watched. I went and saw the said girl who did not wear the pant and who was in the back seat. When I placed my penis in the front, the girl cried stating that she felt pain She was also adamant. Then, I had intercourse with her on her back side, through her rectum. That also did not suit me. Immediately, I masturbated and ejected the seminal fluid ([tpe;J jz;zpia). Having thought that if the matter became public and revealed out, it would become a big problem for us, all the 4 of us went near our house by the vehicle. There, I bought milk in a plastic bag for ten rupees. Mohan asked me to buy milk saying that it was required for the children. Then in order to let the children believe that, we transferred the milk into a water bottle and mixed it with cow dung powder. When we made the children drink that, the girl and the boy swallowed half and spat out the remaining half on the seat. When I bought the said milk, I bought two disposable plastic tumblers. I asked them to drink only through that. She swallowed only half of that and spat the remaining milk. After giving the cow dung powder, we drove the omni vehicle again to Manjanayakanur. It would be noon time, when we went to Deepalipatti. We did not know the time exactly. He told me that in such a situation, one should always pass through the place, which is not frequented by people. He went near the canal, pushed the girl and returned. Then he was sweating a lot. Thereafter, I pushed the boy and he was washed away by the flow of the water in the canal, in which water had been flowing fully. Then, after travelling some distance Mohan halted the vehicle, and when he saw me, it looked that he would push me too. But, we took the school bag and threw it in the canal. Then he dropped me at Angalakurichi tollgate. Then, he told me that he had thought that he would get Rupees Twenty lakhs, and that the event had resulted in that manner. He told that he would abscond thereafter. He told me that he would sport " "Lion-moustache" and asked me not to disclose to anyone and to come with him. Since, Mohan told me that he would buy an autorickshaw for me, I went with Mohan and it happened like this. Then, the same day, at 7.30 p.m. Mohan called me up in my mobile number 9790299953 from his mobile number and talked to me. I don't know the number. He threatened me asking not to disclose the matter to anyone. This only had happened I don't wish to say anything else."

MAGISTRATE'S NOTE [ENGLISH VERSION] "I recorded the statement given by Manoharan, the person who was charged as above, in my own handwriting as stated by him. After recording completely, it was read over to him clearly. I asked him to read it and after he had acknowledged it as correct, his signature was obtained in my presence. Till the completion of the recording of the statement, the doors of the court were bolted, closed and the entire proceedings were held in camera. Then, no one else other than me, my court assistant Thiru.T.Raja and Office Assistant M.M.Vijayakumar were present."

67. In order to ascertain the truth in it, we looked for corroboration. Manoharan, as we stated earlier has written a long letter on 25.07.2012 to the trial Judge and at the end of his examination under Section 313 Cr.P.C, he requested the trial Judge to treat that letter as his written statement given under Section 313 Cr.P.C. What is the evidentiary value of such a letter, which forms part and parcel the statement of the accused under Section 313 Cr.P.C? The answer to this question lies in the classical statement of law of Vivian Bose J, who strode like colossus in the Indian Judicial firmament during the Fifties of the previous Century. (Paragraph 8 of Hate Singh Bhagat Singh v. State of Madhya Bharat (AIR 1953 Supreme Court 468):

"8. Now the statements of an accused person recorded under Ss.208, 209 and 342, Criminal P.C. are among the most important matters to be considered at the trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in evidence and treated as evidence and be duly considered at the trial (Ss.287 and 342)."

Section 342 under the old Code is Sec. 313 in the new Code.

68. Very recently, the Hon'ble Supreme Court in Dara Singh v. Republic of India ((2011) 2 Supreme Court Cases 490), has relied upon the letter written by the accused to the Sessions Judge, wherein he has confessed his guilt. Therefore, there is no impediment for us to rely upon the letter dated 25.07.2012, sent by Manoharan to the Sessions Judge.

69. In any event, the letter will come within the meaning of the word "matters" used in the definition of the expression "Proved" in the Evidence Act. There is one school of thought which states that if the Court accepts the inculpatory portion then it should also accept the exculpatory portion. This view was negatived by the Constitution Bench in Nishikant Jha vs. State of Bihar [AIR 1969 SC 422] wherein, the Hon'ble Supreme Court has stated that if the exculpatory portion of statement is against the evidence on record, there is no bar for the Court to accept the inculpatory portion and proceed with the case.

70. Now we are giving a tabular column to corroborate the confession statement:

Sl. No. Confession Statement Ex.P.18 Written Statement Dated 25.07.2012 Evidence on Record

1.

He knows Mohanakrishnan He admits this fact

2. Mohanakrishnan picked him up around 9.30 a.m. in the Maruthi Omni Van saying that they are going to Aliyar Dam He admits this fact

3. Mohanakrishnan took the two children in School uniform in the Maruthi Omni Van He admits this fact

4. Mohanakrishnan went to meet the Tailor He admits this fact Evidence of the Tailor P.W.20 Senthilkumar, who saw both of them with the children at 10.00 a.m.

5. Mohanakrishnan and Manoharan went to purchase cow dung powder from the shop of Nayagam [P.W.35] He admits this fact P.W.35 Nayagam corroborate this fact.

6. Both of them went to Gopalsamy hills with the two children and climbed the hill by walk He admits this fact Both of them were seen with two children at Gopalsamy Hills by N.Mani, P.W.25.

7. Both of them proceeded to a secluded place besides the canal He admits this fact

8. Both of them parked the vehicle and Manoharan goes to attend nature's call He admits this fact

9. On Manoharan returning, he finds Mohanakrishnan raping 'X' after tying her with a rope He admits this fact

10. After Mohanakrishnan, Manoharan raped 'X' He does not admit this fact

11. Manoharan attempts vaginal coitus, the child cried, he does anal coitus He does not admit this fact The postmortem shows 'X' had injuries on vagina and anus. Manoharan had injury in the penis.

12. Thereafter they went to winner bakery and purchased milk for Rs.10/-

He admits this fact Saravana Kumar, P.W.23, owner of Winner Bakery corroborates.

13. The Children are given cow dung powder mixed in milk Giving of milk alone is admitted Viscera shows the presence of auramine poison in the stomach and small intestine of both the children (Ex.P.50 and 53)

14. The children drank some of the milk mixed with auramine and spit the rest in the van He does not admit this fact Stains were found in the floor mat of the van

15. Both the accused take the children to Deepalapatti area of the canal He does not admit this fact Both of them are seen by Sundarrajan, P.W.24.

16. Mohanakrishnan pushed 'X' in the canal and Manoharan pushed 'Y' in the canal He does not admit the fact Body of 'X' and 'Y' are recovered from the canal and the postmortem report shows that they died of drowning and they had auramine poison in the stomach

71. Therefore we have no hesitation in holding that the confession statement Ex.P.18 has been corroborated in all aspects and the same is true. If one reads the letter dated 25.07.2012, which Manoharan wanted to treat as a written statement under Section 313 Cr.P.C., the exculpatory portions are absolutely incredible. He says that it was Mohanakrishnan, who raped 'X', but he was simply sitting and watching. Then, he says that he got down from the van at a distance and after that he was picked up by Mohanakrishnan again and at the time, the two children were missing. What is baffling us is, Manoharan was aged about 23 years at that time and he did nothing to prevent Mohanakrishnan from committing a horrendous crime of raping a child and pushing the two children into the running canal. We find that the explanation given by Manoharan in his written statement is patently false and the Hon'ble Supreme Court has stated that a false explanation will provide the missing link in a case based on circumstantial evidence.

72. Now we may discuss the defence evidence adduced by Manoharan.

Mr.Ramasamy, father of Manoharan was examined as D.W.1. He has stated that they belong to Angalankurichi village and that on one day, i.e. on a Saturday, while he was in his house, his son was taken away by unidentified policemen. He further stated that he was kept in Ukkadam Police station. He further stated that on Sunday, his son was arrested and he was given Rs.50/- by the police people to go home. According to him, his son told that he had not committed any offence. This evidence needs to be stated only to be rejected because Manoharan himself in his letter to the Sessions Judge has accepted that he went along with Mohanakrishnan and the two children and therefore, the contention of the father that his son was innocent is unbelievable.

73. Arumugam, D.W.2, the Head Constable of the respondent police station was examined in order to show that he had written the various statements in this case during investigation. The prosecution did not even cross-examine him rightly, because when the Inspector is interrogating a person, it is not wrong for the Head Constable to write the statements to assist the Investigating Officer.

74. Sunil, D.W.3 of Vodafone was examined with regard to the tower details of the Mobile phone used by Mohanakrishnan. We find that this evidence also has no relevance at all. It is not Manoharan's Case that he was away from Mohanakrishnan because he has unequivocally admitted that he and Mohanakrishnan were together with the children.

75. The defence examined Mr.Balashanmugam, the Deputy Director of Tamil Nadu Forensic Sciences laboratory in order to show that if the children had died of drowning, there would have been diatoms in the thoracic region. After postmortem, the sternums of 'X' and 'Y' were sent by the postmortem doctor to the Tamil Nadu Forensic Sciences Laboratory to check the presence of diatoms along with the sample of water collected from the canal by the police. By reports, Ex.P.51 and Ex.P.54, the Forensic Sciences Laboratory had opined that they did not detect diatoms in the sternums of the two children and in the water samples that was sent for analysis. In case of death due to drowning the diatoms in the water can be detected in the internal organs of the victim because the victim would have swallowed the water if the victim had been pushed alive. Since diatom was not found in the sternums of both the children, the defence wanted to argue that they did not die of drowning. Their own defence witness has clearly stated in the course of cross-examination that when river water is running in a high speed, it will be very pure and it will not have diatoms. Therefore, there was no diatom found either in the sample water or in the sternum of the children. Had the Chemical Examiner found diatom in the sample water but did not find diatom in the internal organs, then an inference may be drawn that death had occurred prior to drowning. Therefore, the evidence of D.W.4 has no relevance at all in this case.

76. The defence examined Dr.Nirmal Kumar, Jail doctor in order to show that she did not observe any injury on the body of Manoharan. The defence wanted to show the injury in the penis was not noted by the Doctor. But the Doctor in the cross-examination has stated that he did not examine Manoharan at all, because he was not produced before him. It is not necessary that every prisoner will be automatically produced before the jail Doctor while entering the prison. Had Dr.Nirmal Kumar examined Manoharan and found that there was no injuries, then the defence version that the injury was subsequently created may have a bearing. When Dr.Nirmalkumar had no occasion to examine Manoharan, it cannot be stated that there is no injury on his penis at the time of his admission in the jail.

77. What is the motive for pushing the two children in the canal?, Because they had raped 'X' and wanted to conceal the crim.

78. To sum up, we hold that the prosecution has proved all the circumstances beyond reasonable doubt and if we apply the golden rule laid down by the Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra [1984 (4) SCC 116] the inescapable inference we come to is, that Manoharan had joined Mohanakrishnan who had already kidnapped the two children; that Manoharan raped 'X' and also had sodomica luxuria (anal coitus); that Manoharan shared the common intention with Mohanakrishnan in the murder of 'X', by pushing her in the canal; and Manoharan murdered 'Y' by pushing him in the canal; the murder was committed in order to cover up the offence of kidnapping and rape.

79. Finally, coming to the various charges framed by the trial Court, our conclusion is as follows:

(i) I Charge (under Section 120(b) I.P.C.) : There is no material to show that Mohanakrishnan had entered into a Criminal conspiracy with Manoharan to kidnap the children and therefore, his conviction and sentence for this charge is set aside.

(ii) II Charge (Under Section 364-A I.P.C.) : There is no material to show that Manoharan had kidnapped the two children for ransom. Kidnapping was done by Mohanakrishnan and no ransom was demanded by either of them. Hence, the conviction and sentence for this charge is set aside.

(iii) III Charge (Under Section 376 (2) (f) and 376 (2) (g) I.P.C.): We uphold the conviction and sentence imposed by the trial Court on Manoharan for the charge of gang rape of minor girl 'X'.

(iv) IV Charge (under Section 302 I.P.C.) (For the murder of 'Y') : We hold that this charge has been proved beyond reasonable doubt against Manoharan and the conviction imposed by the trial Court is confirmed.

(v) V Charge (under Section 302 r/w 34 I.P.C.) (For the murder of 'X') : We hold that this charge has been proved and the conviction imposed by the trial Court is confirmed.

(vi) VI Charge (under Section 201 I.P.C.) : Motive for murdering the children was to cover up the evidence of kidnapping by Mohanakrishnan and rape by both of them. Hence, the conviction and sentence imposed by the trial Court for this charge is confirmed.

80. Now we have to address the not so comfortable aspect of the case, namely, whether to confirm the death sentence or commute it to life. We do not want to multiply the authorities on the aspect of death sentence and we have now to balance the aggravating and mitigating circumstances to see if death sentence is warranted in this case, as held in Bachan Singh vs. State of Punjab [1980 (2) SCC 684].

81. We are also aware of the recent judgment of the Supreme Court in Shankar Kisan Rao Khade vs. State of Maharashtra [2013 (5) SCC 546], wherein, apart from the Rarest of Rare cases Test, we should apply Crime Test and Criminal Test for determining whether death penalty is necessary in a given case.

82. In this case, the aggravating circumstances are:

(i) The offence is one of rape of a minor and murder of two children;

(ii) The hands of 'X' were tied behind and one after the other they have raped her;

(iii) After committing rape, cow dung powder which contains auramine and which is normally used for committing suicide was purchased from a shop and milk was purchased from another shop.

(iv) Thereafter, they mixed the cow dung powder and milk and filled it in a water bottle and gave it to the children. Both the children drank a little bit of it and spit the balance in the car. Then the accused realised that since the children had spit the milk mixed with poison, they may not die. They wanted to make sure that the children die and so they took the children to Deepalapatti, a secluded place in the outskirts of Coimbatore District, where the P.A.P. canal flows with gusto.

(v) They pushed one child after the other and the body of the children were recovered several kilometres away in the canal. Manoharan pushed 'Y' and the body was recovered 12 km away from Deepalapatti two days later. Here both the victims were innocent, helpless and defenceless children.

83. MITIGATING CIRCUMSTANCES:

There is nothing to suggest that Manoharan suffered from any emotional or mental imbalance or disturbance or was under any external provocation while committing this offence. As regards the chances of him not indulging in commission of such a crime again, we find that even in his letter addressed to the learned Sessions Judge, he was trying to fix the responsibility on Mohanakrishnan and was attempting to absolve himself completely of the offence. He went to the extent of even charging that the Magistrate had colluded with the police in recording the confession by seeing the videograph. There does not seem to be any remorse shown by Manoharan.

84. CRIME TEST:

The victim in this case were 10 and 7 years old and they were defenceless. The victim 'X' was first raped by Mohanakrishnan; Manoharan committed rape and since she cried, he committed sodomy. Since that also did not satisfy him, he masturbated in order to release his excitement in the presence of the children. They were administered poison and then to be doubly sure that they die, they were pushed into the running waters.

85. CRIMINAL TEST:

Manoharan is an able bodied person and is aged about 23 years. As stated earlier, he does not seem to show any inkling of reformation. Therefore, we hold that the criminal test is also satisfied.

86. RR TEST:

This is society centric test and not judge centric test, i.e. whether the society will approve the awarding of death sentence to certain types of crime or not. In Sevaka Perumal v. State of Tamil Nadu [1991 (3) SCC 471] the Supreme Court has said :

"The "rarest of the rare case" comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of the society. Where an accused does not act or any spur of the moment provocation and he indulged himself in a deliberately planned crime and meticulously executed it, the death sentence may be the most appropriate punishment for such a ghastly crime."

In this case also, the accused will be a menace to the society as could be inferred in the manner in which he raped a 10-year old child and pushed a 7-year old boy in the canal. Hence, the R.R. test is also satisfied.

87. On our part, we asked the question, Is it, Dharmic to award death penalty? What is "Dharma"? In the Vana Parva in Mahabharatha, Yudhishtira was confronted by Yaksha as to what Dharma is? He replies:

"The Vedas are diverse. The smrithis are different. There is no sage whose view is not different from that of another. The principle of Dharma is concealed in the innermost recess. What the good have followed, is the way."

88. For we, the Judges of the High Court, have to tread the path laid by the Supreme Court which is what our Constitution also mandates.it is the Supreme Court which is the Mahajana and we have to follow the path of the Apex Court. In an almost similar circumstance, the Supreme Court in Sunder @ Sundararajan vs. State by Inspector of Police [2013 (3) SCC 215], confirmed the award of death sentence by the Courts below. In that case, a minor boy, the only child to his parents, was kidnapped for ransom and murdered. Here, the two children were kidnapped, one of them gang raped and both of them were given poison and pushed into the canal alive where they suffered a watery grave. We are inclined to follow the foot steps of the Supreme Court and we hereby confirm the award of death sentence to Manoharan, the accused herein.

89. In the result, the death sentence awarded on the accused Manoharan for each charge under Section 302 and under Section 302 r/w 34 IPC by the judgment dated 01.11.2012 of the learned Sessions Judge, Mahila Court, Coimbatore in S.C.No.44 of 2011 is confirmed. Consequently, Crl.A.No.854 of 2012 is dismissed.

90. Before parting with the case, we feel it as our bounden duty to say a few words about Mr.A.Raghunathan, learned Senior Counsel who defended the accused.

Mr.A.RAGHUNATHAN, learned Amicus Curiae:

He is 77 years old and has been practising for the last 55 years on the Criminal Side. In other words, he was practising even when the 1898 Criminal Procedure Code was in force. When he commenced the cross examination of the witnesses before us, the Court Hall was very thin. On the next day, we were surprised to see the entire Court gallery filled with students from the adjoining Law College meticulously taking notes and members of the Bar occupying the rest of the Court Hall. For us, it was a treat to watch Mr.A.Raghunathan cross examine the witnesses. He stood about 10 feet away from the witness stand and framed his questions in such a manner that the witness had to either say 'Yes' or 'No'. There was no intimidation or filibustering cross-examination by him. He treated the witnesses with utmost courtesy and permitted them to even add and give explanations without interrupting them. Such traits are a rarity in Criminal Courts today. His summing up arguments clearly demonstrated that he was not only thorough with the entire facts but also sound on the first principles of law in general, more particularly, in the provisions of the Evidence Act. We fervently hope that those who were watching him in action would soon take a leaf from his book and blossom as competent trial lawyers. We record our sincere thanks to Mr. A. Raghunathan, Senior Advocate, who, at our request, accepted to defend the accused pro bono.

Mrs.K.R.Vairam, the learned counsel on record for the accused also deserves our appreciation for giving her utmost assistance to Mr.A.Raghunathan.

We also appreciate the efforts of Mr. S. Shanmugavelayutham, Public Prosecutor and his team for the assistance rendered to this Court.

To conclude:

"Death is here and death is there, Death is busy everywhere All around, within, beneath Above is death and we are death

- SHELLEY [S.R.,.J.] [P.N.P.,J.] 24.03.2014 gms/arul/sj Index : Yes Internet : Yes S.RAJESWARAN,J.

AND P.N.PRAKASH, J.

gms/arul/sj Pre-delivery Order in R.T.No.1 of 2012 and Crl.A.No.854/2012 24.03.2014

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