State rep. by Inspector of Police,T-3, Korattur Police Station,Chennai v. K.Rajendran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.10.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.332 of 2009State rep. byInspector of Police,T-3, Korattur Police Station,Chennai.(Crime No.332/2008).. Appellant(Complainant)Vs. K.Rajendran.. Respondent(Accused)This criminal appeal is preferred under Section 378 Cr.P.Cagainst the judgment of the learned Additional District and SessionsJudge, Fast Track Court No.1, Poonamallee made in S.C.No.197 of 2008dated 1.12.2008.For Appellant : Mr.Babu Muthu Meeran, A.P.P.For Respondent : Mr.M.DevarajJUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)The State appeals. Challenge is made to the judgment of theAdditional Sessions Division, Fast Track Court, Poonamallee, made inS.C.No.197 of 2008 whereby the sole accused/respondent herein stoodcharged and tried under sections 377 and 302 I.P.C. and on trial, hewas not found guilty of the above said charges and was ordered to beacquitted.2. The short facts necessary for the disposal of this appeal canbe stated thus:(a) P.W.1 is the wife of P.W.2. P.W.3 is the daughter ofP.Ws.1 and 2. The deceased child, Jayabharathi, aged 3 years was alsothe daughter of P.Ws. 1 and 2. P.W.4 is running a petty shop. P.W.5was residing nearby the house of P.Ws. 1 and 2. On the date ofoccurrence, that was on 20.4.2008, during evening hours, P.W.3 and https://hcservices.ecourts.gov.in/hcservices/ Jayabharathi were playing in the street. At that time the respondentwho came there gave chocolates and also Rs.2/- to Jayabharathi. Onseeing the same, P.W.3 questioned the respondent why he was givingthose things to her sister, since her mother would scold her. Theaccused replied that he has given only chocolates and a small amountand there was nothing wrong in it. At about 4.00 p.m., P.W.3 went tohouse. when P.W.4 was in the shop, she saw the accused giving moneyto Jayabharathi and Jayabharathi came to the shop and purchasedchocolates with the money she had and left the shop. P.W.5 noticed,accused and Jayabharathi going through his street. But at about6.15p.m, he found the accused alone returning back. P.Ws.1 and 2 madethorough search of Jayabharathi on the whole day and since they couldnot find her, P.W.1 went to the respondent Police Station and gavea report on 21.4.2008 at 10.00 p.m., on the strength of which, acase came to be registered in Crime No.332/2008 for 'girl missing'and the F.I.R. Ex.P11 was dispatched to Court. P.W.12 was enquiringabout the same. On 22.4.2008 at about 8.00 a.m. P.W.1 was informedthat the body of the child was found nearby the pond. Immediately,P.Ws. 1 and 2 rushed to the pond and found the dead body of theirchild Jayabharathi. Thereafter, they informed the same to the Police. (b) P.W.12 Sub Inspector of Police, went to the spot andverified the said fact and amended the case to section 174 Cr.P.C.for suspicious death and the amended F.I.R. Ex.P13 was dispatched toCourt. P.W.12 took up investigation, made inspection of the place ofoccurrence and prepared the observation mahazar Ex.P.10 in thepresence of witnesses and panchayatdars. Thereafter, P.W.12 conductedinquest on the dad body of the deceased in the presence of witnessesand prepared Ex.P14 inquest report and the dead body was sent to thehospital for the purpose of postmortem.(c) P.W.7 doctor attached to the Kilpauk Medical CollegeHospital, on receipt of the requisition, conducted autopsy on thedead body of the child Jayabharathi. He found the body in adecomposed state and gave opinion in Ex.P.3 post mortem certificatethat the deceased would appear to have died of asphyxia due todrowning. (d) Pending investigation on 29.4.2008, when P.W.11 villageAdministrative Officer, Korattur was in his office, the accusedappeared before him and gave the confessional statement and the samewas recorded by P.W.11 which was marked as Ex.P8. The accused wasproduced by P.W.11 before the respondent police along with Ex.P8confessional statement. The accused was arrested by the investigatingofficer. Then the accused came forward to give confessional statementvoluntarily and the admissible part of the same was marked as Ex.P9.The accused took the investigator and the other witnesses to thebackside of Durgaiammal temple and he produced M.O.1 blue colourbanian The same was recovered under a cover of mahazar,Ex.P10. https://hcservices.ecourts.gov.in/hcservices/ (e) On requisition by the investigating officer, necessaryorders were issued for conduct of identification parade. Accordingly,Judicial Magistrate No.1, Ponneri conducted identification parade on7.5.2008 and P.Ws. 3, 4 and 5 identified the accused properly. Theidentification parade proceedings were marked as Ex.P2. The accusedwas medically examined in respect of potency and he was found to bepotent. Ex.P3 is the certificate in that regard. Further, M.O.1 wasrecovered at the instance of the accused and it was sent foranalysis and found to contain semen stains. Further all the materialobjects was sent to Court. Following the same, the investigatingofficer recorded the statement of other witnesses and the accusedwere sent for judicial remand. After completion of theinvestigation, the investigating officer filed a final report.(f) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution examined 13 witnesses and relied on 16 exhibits and 4material objects. On completion of the evidence on the side of theprosecution, the accused was questioned under section 313 Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses and he denied them as false. No defencewitness was examined. The Court heard the arguments advanced oneither side and on scrutiny of the materials has found that theprosecution has not proved the case beyond reasonable and renderedthe order of acquittal. Hence, this appeal at the instance of theState.3. Advancing the arguments on behalf of the State, the learnedAdditional Public Prosecutor would submit that the trial Judge hasnot considered and appreciated the evidence putforth by theprosecution. The prosecution mainly relied on the last scene theorywhich was clearly spoken to by P.W.3, 4 and 5 P.W.3have categoricallystated that on the evening of 20.4.2008 She was playing with thedeceased Jayabharathi it was the accused who gave chocolate and alsoRs.2/- to Jayabharathi and the same was questioned by her but theaccused replied that there is nothing wrong in it. Thereafter, P.W.3left the place. P.W.4 petty shop vendor has categorically statedthat the accused gave money to the child and the child purchasedchocolate from her shop out of the money, she had. Insofar as P.W.5is concerned, he has seen the deceased in the company of the accusedand they were going near his street and after some time he saw theaccused alone coming back. Accordingly, the last seen theory wasspoken to by all these three witnesses viz., P.W.3, P.W.4 and P.W.5. 4. The learned counsel for the State would further submit thatoriginally, a complaint has been given for 'girl missing',thereafter, when the body of the child was found in the pond, oninformation, the case was amended to section 174 Cr.P.C. and theinvestigating officer conducted inquest on the dead body of the childand examined the witnesses in that regard. It is pertinent to point https://hcservices.ecourts.gov.in/hcservices/ out, in the instant case, the prosecution had the benefit of theconfessional statement given by the accused/appellant before P.W.11Village Administrative officer, pursuant to which M.O.1 banian wasidentified which was worn by the child when she was playing on thedate of occurrence. The same was recovered from the accused whichwould clearly point the nexus between the accused and the crime. 5. The learned counsel for the State would further submit thatthe accused was found to be potent and the semen stains were actuallyfound in M.O.1 banian worn by the child. The child was found in thecompany of the accused when she was playing on date of occurrence,thereafter, she did not return home but only the dead body of thechild was found in the nearby pond and the accused had no explanationto offer. It is quite clear that it was accused who had carnalintercourse and committed rape on the child and cause her death. Thetrial Judge without considered any one of the above aspects hasrendered the judgment of acquittal. Under such circumstances, thejudgment of the trial Court has got to be set aside and it has got tobe dealt with in accordance with law. 6. In answer to the above, the learned counsel appearing for therespondent/accused would submit that the prosecution has miserablyfailed to prove the case either through direct evidence or throughcircumstantial evidence. It is an admitted position that theprosecution had no direct evidence to prove about the carnalintercourse or the charge of murder. P.W.3 was a child witness.Therefore, without proper corroboration, the evidence of P.W.3 cannotbe taken into account. Insofar as P.W.4 is concerned, she was a pettyshop owner and according to her, during evening hours on 20.4.2008,she saw the accused giving money to the child Jayabharathi and thechild purchased chocolate from her shop and from this, it cannot beinferred that it was the accused who committed the crime. So far asP.W.5 is concerned, he was the neighbour of P.Ws.1 and 2. If P.W.5had really seen the child in the company of the accused and when thechild was actually missing from the evening of 20.4.2008, he wouldhave informed the same to P.Ws.1 and 2 immediately, but he did notdo so. Even at the time of inquest P.W.5 did not whisper anythingabout the same. Therefore, it is clear that it was falselyintroduced to suit the prosecution case. 7. Learned counsel for the respondent would further submit thatin the instant case, it was noticed that the child was actually foundin the company of the accused on the evening hours of 20.4.2008 butthe dead body of the child was found only on 22.4.2008, after a longinterval. The last seen theory can be applied only when there is ashort gap between the two incidents i.e., the time on which thedeceased last found in the company of the accused and time on whichthe dead body was found. In the instant case, the gap is wide betweenthe two incidents. The last seen theory could not be accepted. Addedfurther learned counsel, the alleged extra judicial confession https://hcservices.ecourts.gov.in/hcservices/ before P.W.11, Village Administrative and the recovery of the M.O.1banian, pursuant to the confessional statement of the accused givento the police were all cooked up for the purpose of the prosecutioncase. There was no reason for the accused to appear before P.W.11Village Administrative officer, who is a stranger to him, that too,after a week, that was on 29.4.2008 and give confessional statement. 8. Learned counsel for the respondent would further submit thatinsofar as the recovery of M.O.1 was concerned, much reliance wasplaced by the prosecution before the trial Court and equally herealso but this evidence cannot be relied upon for the reasons thataccording to P.W.1, M.O.1 blue colour banian was worn by the child atthe time when the child was playing outside the house on the date ofher missing. At the time of cross examination, P.W.1 hascategorically stated that the dead body of the child was identifiedby the banian the child worn on the said day. As per the inquestreport, at the time when P.W.1 identified the dead body of herdaughter in the pond, the child was wearing jatti. Hence, therecovery of banian is a false story. There was major discrepancy inthe place of recovery of M.O.1 spoken to by the recovery witness andthe investigating officer. Thus the recovery of M.O.1 cannot bebelieved. Added further learned counsel, so far as the semen stainfound in M.O.1 banian is concerned, it cannot be accepted for thereason that, when semen stains were found in M.O.1 banian and whenpotency test was made on the accused, the semen of the accused shouldhave been sent for analysis for comparison with that of the semenstains in M.O.1 banian but the same was not done. Under suchcircumstances, there is neither any proof nor any circumstancespointing to the guilty of the accused. Therefore, the prosecution hasmiserably failed to prove the case beyond reasonable doubt and thetrial Judge has marshalled the evidence proper and has rejected thecase of the prosecution. Hence, the judgment of the trial Court hasgot to be affirmed.9. The Court paid its anxious consideration on the submissionsmade and made a thorough scrutiny of the entire materials available. 10. At the outset, it remains to be stated that the Court ismindful of the caution made by the Apex Court and the settledprinciples of law that in a given case where the trial Court, onappreciation of the evidence has rendered the judgment of acquittalof the accused, the said judgment should not be reverted unless anduntil the trial Court is perverse or the trial Judge has renderedacquittal without any reasons. On application of the above test, theCourt is afraid whether this Court could sustain the judgment ofacquittal passed by the trial Judge. 11. As could be seen above, the charges leveled against theaccused is that he has committed carnal intercourse on the threeyears old Jayabharathi and murdered her and thrown her dead body in https://hcservices.ecourts.gov.in/hcservices/ the pond. It is true that the prosecution had no direct evidence tooffer in this regard but the prosecution had the followingcircumstances in its favour. Firstly, according to P.W.3, sister ofthe deceased Jayabharathi, they were playing on the street duringevening hours on 20.4.2008. At that time, the accused came there andgave chocolates to Jayabharathi and also two rupees coin. When thesame was questioned by P.W.3, the accused reply that there isnothing wrong in it. Secondly, P.W.4 petty shop owner hascategorically deposed that she saw the accused who gave money tothe child Jayabharathi and the child purchased chocolate from hershop. Despite cross examination, the evidence of P.W.4 was clear.Thereafter P.W.5 who was residing nearby the house of P.Ws 1 and 2saw the accused taking the deceased Jayabharathi through the streetand some time later, P.W.5 noticed the accused alone returningwithout the child Jayabharathi. It is pertinent to point out thatP.Ws. 3, 4 and 5 did not to entertain suspicion against the accused.Thus, the last seen theory i.e., the deceased was found in thecompany of the accused was actually spoken to by all the threewitnesses.12. According to the prosecution, the occurrence had taken placeduring the evening hours of 20.4.2008. The child, who was found inthe company of the accused, did not come back. Therefore, it was theaccused to explain what had happened to the child. At this juncture,it has to be pointed out that the dead body of the child was found inthe morning hours on 22.4.2008 and there is an interval of about36 hours from the time when the child was found in the company of theaccused. It is well settled proposition of law that in a case likethis, even though there was a long gap between the two incidentsnamely, last seen theory and the recovery of the dead body of thedeceased, the last seen theory, cannot be rejected. In the instantcase, even though there was a gap of 36 hours from the time when thechild was found in the company of the accused and till the time thedead body of the child was found, there is no material noticed bythis Court that there could have been any intervention circumstances.The dead body was found in a decomposed state and the doctor hasgiven opinion to that effect which would indicate the fact that thechild died during the night hours on 20.4.2008. Further, the childwho went along with the accused did not return back. Therefore, itwas the accused who could give proper explanation but the accusedhad no explanation to offer. 13. When the prosecution rests its case on circumstantialevidence, it must place and prove necessary circumstances which mustconstitute a chain without a snap and if a particular circumstance ismissing and when it is within the knowledge of the accused, the Courtcan come to a conclusion that the particular circumstance can befilled up by the Court that it was the accused who had involved inthe crime. In the instant case, once the child was last seen in thecompany of the accused in the evening hours and the occurrence had https://hcservices.ecourts.gov.in/hcservices/ taken place on the same day at night hours and when the accused hadno explanation to offer as to the missing of the child, in theconsidered opinion of the Court, it is pointing to the guilt of theaccused. 14. Added circumstances are, on 29.4.2009, when P.W.11 VillageAdministrative officer was in his office, the accused appeared beforehim and narrated the entire incident and the same was recorded by theVillage Administrative Officer which was marked as Ex.P11. It is truethat it is the extra judicial confession. It is well settledproposition of law, merely on the extra judicial confession theaccused cannot be convicted unless it inspires the confidence of theCourt on the following two reasons. (1) To whom and under whatcircumstances the extra judicial confession was given (2) Whether theevidence of the person to whom the extra judicial confession giveninspires the confidence of the Court. 15. It is an admitted fact that P.W.11 Village Administrativeofficer is of the same place and the accused also belongs to thesame place. The accused has given extra judicial confession on29.4.2008 and P.W.11 has recorded the same. It was produced beforethe Investigator and the Court is unable to notice any reason toreject the same or to cast any doubt on the evidence of P.W.11 orthe extra judicial confession so recorded by P.W.11. On productionbefore the investigating officer, the accused was actually arrestedand on arrest, he came forward to give confessional statementvoluntarily. The admissible part of the confession statement ismarked as Ex.P9. Following the confession statement, he took thepolice officials along with the witnesses and produced M.O.1 banianwhich was kept behind the Durgaiamman temple. It has to be pointedout at this juncture that when the child was found missing, she waswearing M.O.1 banian and M.O.2 jatti. When the dead body of the childwas found in the pond, only M.O.2 jatti was worn by the child and thesame was produced before the Court. It is pertinent to point outthat after a long period, the evidence was taken before the Court andmerely because of minor discrepancy found in the evidence of P.W.1as stated above, it cannot be taken that the prosecution has comewith a false story. In the instant case, the recovery of M.O.1 Bluecolour banian which was worn by the deceased was produced by theaccused pursuant to the confessional statement which stands as astrong circumstance against the accused/respondent herein. Further,the accused was taken for potency test and P.W.7, doctor who examinedhim, gave Ex.P4 certificate wherein it is found that the accused ispotent. M.O.1 banian was sent for analysis and it was found thatthere was semen stains in it. The child was three years old andthere was no occasion for any semen stains that could be found inM.O.1 banian. This would indicate that unless and until there wasrape by way of carnal intercourse, there is no possibility of semenstains to be noticed in M.O.1 banian, which points to the guilt ofthe accused . All the evidence that was placed before the trial Court https://hcservices.ecourts.gov.in/hcservices/ would point that it was the accused and none else who took the childfrom the place she was playing; had carnal intercourse; caused herdeath; thrown into the pond and fled away from the place ofoccurrence. The trial Court has not considered any one of the abovefactual position or the evidence adduced, but has given the judgmenterroneously finding that the prosecution has not proved the casebeyond any reasonable doubt. 16. Therefore the judgment of the lower Court has got to be madeundone by upsetting the same. The contention of the learned counselfor the respondent do not carry any merit whatsoever. It is the casewhere the Court notices heinous crime committed by the accused. Hehad committed carnal intercourse on a three years old child, causedher death and thrown her into the pond. 17. Under such circumstances, this Court is of the consideredview, the prosecution has established its case beyond reasonabledoubt against the respondent/accused for the offence under Sections377 and 302 I.P.C. Hence, he stands convicted for the above saidoffences. Therefore, issue non-bailable warrant to the respondent/accused for his appearance before this Court on 30.10.2009 at 10.30a.m. as to the question of sentence to be imposed on him. 28.10.2009vsiThe Criminal Appeal No.332/09 having been posted on Friday the30th day of October 2009, for questioning of sentence, pursuant tothe order of this Court dated.28.10.2009 and made herein and in thepresence of the aforesaid Advocate, the Court made the followingorder:(Judgment of the Court was made by M.CHOCKALINGAM,J)Pursuant to the direction of this Court, the accused/respondentis produced before the Court, this day. He is found guilty underSection 377 IPC for carnal intercourse and also under Section 302I.P.C. for murder. He is questioned as to what he wanted to say aboutthe sentence. He replied as follows:"ehd; xd;Wk; Fw;wk; bra;atpy;iy/"This Court has found him guilty of the above said offences,reversing the judgment of the trial Court. The accused has donebarbarous act and heinous crime of carnal rape on a three years oldchild and murdered her mercilessly and in order to screen the entirecrime, he has thrown away the dead body of the child in the pond.Therefore, the accused/respondent is convicted under Sections 377 and302 I.P.C. and sentenced to undergo life imprisonment for each https://hcservices.ecourts.gov.in/hcservices/ offence. The sentences are ordered to run concurrently. Accordingly,the appeal filed by the State is allowed. 30.10.2009vsiSd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarTo1. The Additional District and Sessions Judge, Fast Track Court No.1, Poonamallee2. -do- Thro' The Principal Sessions Judge, Chengalpattu at Kancheepuram.3. The Inspector of Police, T-3, Korattur Police Station, Chennai.4. The Superintendent, Central Prison, Puzhal, Chennai.5. The Public Prosecutor, High Court, Chennai.Crl.A.No.332 of 2009JRG(CO)EM/30.10.09