Ganga @ Gangathar v. State By:-Inspector of Police,Denkanikotai Police Station,Denkanikottai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.11.2007CORAM:THE HON'BLE MR. JUSTICE D. MURUGESANANDTHE HON'BLE MR. JUSTICE V. PERIYA KARUPPIAHCrl.A.No.365 of 2006Ganga @ Gangathar...Appellant/Accusedvs.State By:-Inspector of Police,Denkanikotai Police Station,Denkanikottai....Respondent/ComplainantAppeal filed under Section 374(2) of Cr.P.C. against the judgmentand conviction made in S.C.No.164 of 2000 dated 28.8.2001 on the file ofthe III Additional District Sessions Judge, Dharmapuri District atKrishnagiri.For Appellant:Mr. P. VenkatasubramanianFor Respondent:Mr. P.. KumaresanAddl. Public ProsecutorJ U D G M E N T(Judgment delivered by V.PERIYA KARUPPIAH,J.)The sole accused, who was found guilty under Sections 376 and 302I.P.C. in S.C.No.164 of 2000 on the file of the Additional SessionsJudge, Dharmapuri, is the appellant.2.The respondent police had filed a final report against theaccused/appellant contending that the accused due to prior enmity, withan intention to commit rape upon one Sumitra, went to her land armingwith Aruval and committed rape and that in the same incident, he cut herneck with the Aruval with the intention to cause her death as a result ofwhich she died on the spot due to profuse bleeding and shock and soughtfor appropriate punishment under Sections 376 and 302 I.P.C. https://hcservices.ecourts.gov.in/hcservices/

3.The learned trial Judge upon consideration of the materialsplaced before him, felt that there is a prima facie case against theaccused, resulting framing of two charges, one under Section 376 andanother under Section 302 I.P.C. After framing of the charges, when theaccused was questioned, he did not plead guilty, denying the prosecutioncase. 4.In order to prove the charge against the accused, theprosecution examined as many as 15 witnesses and marked Exs.P.1 toP.21 and material objects 1 to 13. On behalf of the accused, he examinedhimself as D.W.1 and Ex.D.1 was marked. The learned III AdditionalSessions Judge, weighing the above materials and scanning the same fromits proper perspective, came to the conclusion that both the chargesframed against the accused/appellant are proved, beyond all reasonabledoubt. Thus concluding, the learned Judge convicted the accused underSections 376 and 302 I.P.C. and sentenced him to undergo lifeimprisonment and to pay a fine of Rs.5000/-, in default to undergo sixmonths R.I. for each offence, ordering the sentences to run concurrently.5.Brief facts of the prosecution case: (a)The accused and the deceased belong to the same village. Thedeceased Sumitra aged 12 years is the daughter of P.W.1. Three or fouryears prior to the date of examination of witnesses, the deceased went toguard their Groundnut reared land from crows at 7.00 a.m. When P.W.2,younger sister of Sumitra, followed by P.W.1 went to the land to providetea to Sumitra, they saw the accused going with blood stained clothes ata distance of 50 ft. armed with blood stained Aruval and found Sumitradead with bleeding injuries on her neck. Thereafter, the accused fledaway from the scene of crime. (b)P.W.1 in his evidence would state that six months prior to thedate of occurrence, the accused teased the deceased, which was reportedto his brother-in law-P.W.3 and the cousin of the accused, who called theaccused and beat him and in order to take revenge of the same, theaccused had murdered the deceased. P.W.3 also would state that he beatand warned the accused for having teased the deceased Sumitra. (c)P.W.4 who belongs to the same village, saw the accusedfollowing the deceased with Aruval on the date of occurrence at 7.00 a.m.and two hours later, when he returned to village, he saw Sumitra dead,where people also gathered. (d)P.W.1 reported the incident to P.W.5, the VillageAdministrative Officer, who recorded his statement and gave complaint toP.W.11, the Head Constable. On receipt of the complaint, P.W.11recorded the same in the G.D.-Ex.P.18 and informed the same to theInspector of Police, P.W.14 on the same day through telegram. https://hcservices.ecourts.gov.in/hcservices/ (e)P.W.14 on receipt of the information came to the station andafter perusing the statement of P.W.1 and the endorsement made by P.W.5,registered a case in Cr.No.220 of 1996 for the offence under Section 302I.P.C. on the same day and took up the case for investigation. The firstinformation report is Ex.P.2. He sent the F.I.R. through P.W.12-PoliceConstable to the Judicial Magistrate, Hosur. Thereafter, at 4.10 p.m. hewent to the scene of crime, prepared rough sketch Ex.P.19 andobservation mahazar Ex.P.3 in the presence of VAO and another. He hadrecovered M.Os.2 & 3 blood stained earth and corresponding sample earthfrom the place of occurrence and M.O.4-a swinging rope used for drivingaway the birds under the cover of Mahazar Ex.P.4 in the presence of thesame witnesses. He also recovered M.Os.11 & 12, blood stained earth andsample earth available 50 ft. away the scene of occurrence and a whitetowel-M.O.13. He also examined P.Ws.1 to 3 and 5 in the presence ofPanchayatdars and held inquest over the body and prepared inquest reportEx.P.20 and sent the body for post mortem through P.W.13 toThenkanikottai Hospital with requisition Ex.P.6. (e)On receipt of the requisition, P.W.7, Dr. V.Saroja conductedautopsy on 7.10.1996 at 10.30 a.m., who noticed the following thefollowing injury:"An incised wound on the centre of the neck about 10.15 x2.5 cm x up to cervical vertebra, cutting all the majorvessels, nerves, muscles, trachea and oesophagus." The doctor analysing the effect of the injury opined in Ex.P.7, postmortem certificate that the deceased died of shock and hemorrhage due tothe injury to the vital vessels and trachea in the neck. (f)In continuation of the investigation, on 8.10.1996, P.W.14 alsoexamined P.W.4 and other witnesses and recorded their statements then andthere and sent the recovered objects to the Court. On 11.10.1996 at 8.45a.m., on the voluntary confession made by the accused to P.W.10 who wastalking with P.W.6, they brought the accused to P.W.14, who recorded hisconfession statement, the admissible portion of which is Ex.P.15. Herecovered the shirt of the accused-M.O.5 under Mahazar-Ex.P.17 and tookthe accused to the place where he concealed the weapon-M.O.1 andrecovered the same. (g)Further, P.W.14, requested the Court under Ex.P.8 to send theaccused for medical examination. Accepting the same, the learned DistrictMunsif-cum-Judicial Magistrate, submitted the accused for medicalexamination under Ex.P9. On receipt of the requisition, P.W.8, Dr.Vallinayagam examined the accused and gave certificate Ex.P.10. He alsogave requisition Ex.P.11 to send the case properties for examination,which were sent under Ex.P.12 to the Forensic Lab. Ex.P.13 is theChemical Examination Report and Ex.P.14 is the Serologist's Report givenby the Forensic Sciences Department. In order to ascertain the age ofthe deceased, he examined P.W.6, the Head Master of the School, who gavecertificate, Ex.P.5 indicating that the date of birth of the deceased as https://hcservices.ecourts.gov.in/hcservices/

8.5.1986 as per the school records. He submitted the accused, toascertain his age, before P.W.15, who gave opinion that the age of theaccused is more than 18 years. Thus, concluding the investigation andcollecting the relevant materials, he filed the final report, which leadto trial. 6.During trial, the learned trial Judge accepting the oralevidence of P.Ws.1 to 4 and the medical evidence given by the doctorscoupled with other attending circumstances, came to the conclusion thatthe accused is aged 18 years at the time of occurrence and that he hadcommitted rape upon the deceased and in order to screen the offence ofrape, he had committed murder by using Aruval, thereby causing her deathand that the circumstantial evidence relied on by the prosecution clearlypoints out the guilt of the accused undoubtedly. 7.Heard Mr. P. Venkatasubramanian, the learned counsel for theappellant and the learned Additional Public Prosecutor, Mr. P. Kumaresan.8.The learned counsel for the accused/appellant would submit inhis argument that, (i)the trial Court had completely deviated from the principles ofcriminal jurisprudence and the case entirely rests upon circumstantialevidence and the persons who saw the accused immediately and prior to theoccurrence viz., P.Ws.1, 2 and 4 respectively are the relatives of thedeceased girl and the interested testimony of the said witnesses wastotally relied upon by the trial Court and the accused is not connectedwith the offence. (ii)the trial Court had come to the conclusion on the allegedconfession given by the appellant relating to recovery of the weaponM.O.1 and the reliance of the recovery on the alleged confession of theappellant/accused will not form a chain for the conviction of the accusedon the basis of circumstantial evidence. (iii) the motive for the commission of the offence is not at allsufficient to hold the conviction against the accused. (iv) the medical evidence regarding the commission of rape would goa long way to show that there were no injuries on the private parts ofthe deceased girl and therefore, the commission of rape could not beinferred from the circumstances of the case. (v)even if the appellant/accused is found to have committed rapeand murder of the deceased girl, his age was only 16 years five months asper school certificate Ex.D1, which is below 18 years and therefore, thetrial conducted by the Sessions Court is vitiated and the authority toconduct the trial is the Juvenile Justice Board under The JuvenileJustice (Care and Protection of Children) Act, 2000. https://hcservices.ecourts.gov.in/hcservices/ (vi)the age of the accused was not ascertained by the investigatingofficer by getting birth extract or school certificate and on the otherhand, the accused was submitted for medical examination and the doctorhad opined that he was above the age of 18 years on the date of offence.Whereas the accused has produced before the trial Court, the schoolcertificate in Ex.D1 which would show that the date of birth of theaccused was 5.5.1980. The evidence of the doctor who examined theaccused for ascertaining the age had categorically admitted in his crossexamination that he cannot deny that the accused is below the age of 18years and therefore, the proof supported by Ex.D1 would prevail over theevidence of the doctor and accordingly, the accused was aged below 18years on the date of the alleged offence. (vii)the trial Court ought to have decided that it has nojurisdiction to try the case and the accused is entitled for acquittal onthat score alone and in view of the fact that the accused was an"Adolescent offender" as per the Madras Borstal Schools Act, 1925 andtherefore, the conviction and punishment imposed against the appellantare not sustainable in law. On the above lines, elaborating the same with available materials, avehement submission was made for acquittal of the accused from thecharges under Sections 376 & 302 I.P.C.9.On the other land, the learned Additional Public Prosecutor,Mr. Kumaresan would submit in his argument that the evidence of P.Ws.1 &2 cannot be neglected merely because they are the father and youngersister of the deceased Sumitra, who happened to witness the accusedbending his head and on seeing them fled away with the Aruval in his handand P.W.2 had immediately gone and witnessed her elder sister Sumitradead with cut on her neck on the spot, where the accused was standing andthe chance witness P.W.4 also had seen the accused holding the Aruval andwas following Sumitra when she was going to her land for the purpose ofdriving away the crows. He would further submit in his reply that thechance witness cannot be termed as an interested witness. Further, thecomplaint was given immediately to the Village Administrative Officer andthe Village Administrative Officer had submitted the same to Thali PoliceStation and a case was registered at 3.00 p.m. on that day itself andtherefore, the evidence of P.Ws.1 & 2 cannot be disbelieved merelybecause they are the relatives of the deceased Sumitra.10.As regards the contention of the learned counsel for theappellant regarding the confession and recovery of the weapon and themotive is concerned, the learned Additional Public Prosecutor wouldfurther submit that the presence of blood stains in the weapon-M.O.1 andthe clothes of the accused and the blood stains in the dresses of thedeceased girl viz., M.Os. 5, 6 to 8 and the blood stains in the earth;the extra judicial confession given by the accused to P.W.10 and the https://hcservices.ecourts.gov.in/hcservices/ subsequent confession given by the accused to the police, leading torecovery of M.O.1 Aruval and the shirt worn by the accused would go along way to show the involvement of the accused in the crime. Therefore,the Addl. Public Prosecutor would submit in his argument that thecircumstantial evidence which proved the motive, presence of the accusedprior to the occurrence seen by P.W.4 and after the occurrence seen byP.Ws.1 & 2 and recovery of the weapon from the accused would go a longway to show that the circumstantial evidence had formed a complete chainand no link is missing in the said chain.11.With regard to medical evidence, the learned Addl. PublicProsecutor would submit in his argument that the evidence of the postmortem doctor examined as P.W.7 would categorically show that the vaginalsmear taken from the body of the deceased contain the sperm and the samewas identified as human sperm and even though the Serologist Report hadnot disclosed that the semen found in the vaginal smear of the deceasedSumitra and the semen collected from the accused have not tallied, noinconclusive finding is given in Ex.P.14. The circumstantial evidencewould show that the accused was the culprit seen at the place ofoccurrence prior to and after the occurrence and therefore, mere presenceof sperm at the vaginal smear of the deceased itself would fasten theaccused with the commission of rape against the deceased Sumitra. 12.As regards the age and jurisdiction of the trial Court to trythe case, he would submit that the accused was 18 years old on the dateof offence as per the evidence of P.W.15 and the certificate given underEx.P.21 is conclusive and therefore, the accused cannot be acquitted onthe basis that he was a Juvenile and the trial Court had competentjurisdiction to try the accused and the conviction and sentence imposedby the trial Court is quite correct and therefore, the conviction andsentence need not be set aside and the appeal may not be allowed. 13.We have carefully considered the evidence and the materialsavailable on record, perused the judgment of the lower Court and alsogiven anxious thought to the arguments advanced on either side.14.The age of the deceased Sumitra was only 12 years at the timeof commission of offence. According to the argument of the learnedcounsel for the appellant Mr. Venkatasubramanian, P.Ws.1 & 2 arerelative witnesses and their evidence cannot be accepted. No doubt, thecomplainant (P.W.1) is the father and P.W.2 is the sister of the deceasedSumitra. They happened to see the accused at the place of occurrence andimmediately after the occurrence and there is no evidence to show thatsome other witnesses were also present and they were not examined on theside of the prosecution. P.W.2 is a child witness who was aged 13 yearson the date of examination and was aged only 7 years on the date ofoccurrence. She was found to have competent to give evidence by the trialCourt and her evidence was recorded. She had spoken clearly about thepresence of the accused at the scene of occurrence and she had found herelder sister Sumitra profusely bleeding from her neck and was dead. She https://hcservices.ecourts.gov.in/hcservices/ had also identified the weapon M.O.1 which was taken away by the accused,while he was fleeing. The said evidence of P.W.2, the child witnesscannot be disbelieved merely because she is the younger sister of thedeceased Sumitra. Her evidence had corroborated the evidence of P.W.1and the complaint given by P.W.1. This evidence of P.Ws.1 & 2 have beensupported by the evidence of P.W.4, who is a chance witness, who hadwitnessed the accused following the deceased Sumitra on the fateful dayat about 7.00 a.m. Therefore, the evidence of P.Ws.1, 2 & 4 cannot bediscarded merely because they are the relative witnesses. It is a settledlaw that when the witnesses are found to be best witnesses to provecertain facts they cannot be disbelieved merely because they arerelatives of the deceased. 15.Moreover, the weapon has been recovered from the accused on hisconfession, leading to recovery, to the police immediately after theextra judicial given to P.W.10. The said recovery would categoricallyshow that he was involved in the offence committed against Sumitra. Thechain of events and the motive spoken by P.W.1 and P.W.3 would go a longway to show that the accused had committed the offence as spoken by thewitnesses. 16.However, it was argued by the learned counsel for the appellantthat there was no evidence of injuries on the private parts of thedeceased Sumitra and the sperms found in the vaginal smear have not beentallied with the sperm collected from the accused and therefore, theoffence of rape could not have been committed by the accused. There isno doubt that the vaginal smear of the deceased girl Sumitra containsperms. It is also not compared that the sperm found in the vaginal smearwith the sperm collected from the accused, because the sperms collectedfrom the accused could not be classified as the grouping test wasinconclusive due to disintegration. The said failure of grouping thesperm or comparing the sperm will not affect the case of the prosecutionbecause the evidence of P.Ws.1 & 2 have not disclosed that some othermale person was also present at the scene of crime. The resistance of thedeceased girl could not have been possible on seeing the accused withAruval threatening her to put to death and hence there might not be anyviolence at the time of commission of rape. Therefore, the over allcircumstances, at the scene of occurrence, would show that the accusedalone was present and the deceased girl was found raped and dead at thescene of occurrence as seen by P.Ws.1 & 2 and the accused was fleeingfrom the scene of occurrence. Under the above facts and circumstances ofthe case, we are of the considered view that the accused had committedrape upon the deceased Sumitra and subsequently on the fear that shewould disclose about the same to others, he had cut the neck of thedeceased Sumitra and thereby committed murder.17.Finally, the learned counsel for the appellant advanced hisargument on technicality that the accused was a juvenile on the date ofthe commission of offence and therefore, the trial conducted by the trialCourt is vitiated under the provisions of the Justice Juvenile (Care and https://hcservices.ecourts.gov.in/hcservices/ Protection of Children) Act, 2000 and the appellant was also an'adolescent offender' on the date of the judgment and therefore, theaccused ought not to have been convicted and sentenced as per the MadrasBorstal Schools Act. He would further argue that the birth certificateobtained from the school authorities in Ex.D1 would prevail over themedical opinion given by the doctor on the examination of the accused andtherefore, the appellant is coming under the category of 'Juvenileoffender' as per the Juvenile Justice Act, 2000. He had also cited anauthority reported in 1989 Supreme Court Cases (Crl.) 486 (Bhoop Ram v.State of U.P. ) in support of his case. The relevant passage runs asfollows:"The first is that the appellant has produced a schoolcertificate which carries the date June 24, 1960 against thecolumn 'date of birth'. There is no material before us to holdthat the school certificate does not relate to the appellant orthat the entries therein are not correct in their particulars.The Sessions Judge has failed to notice this aspect of the matterand appears to have been carried away by the opinion of the ChiefMedical Officer that the appellant appeared to be about 30 yearsof age as on April 30, 1987. Even in the absence of any materialto throw doubts about the entries in the school certificate, theSessions Judge has brushed it aside merely on the surmise that itis not unusual for parents to understate the age of theirchildren by one or two years at the time of their admission inschools for securing benefits to the children in their futureyears." 18.On a careful perusal of the judgment of the Apex Courtsubmitted by the learned counsel for the appellant, we could understandthat the certificate obtained from the school authorities viz., Ex.D1,when it is not otherwise invalid or found to be defective, it wouldprevail over the opinion of the medical officer as given in Ex.P.21.Therefore, we could see that the age of the accused on the date ofoffence would be 16 years five months and it is not above 18 years. TheJuvenile Justice Act, 1986 was in force on the date of the offence viz.7.10.1996. According to the said Act, the Juvenile is defined underSection 2(h) of the Act. Section 2(h) reads as follows:"juvenile" means a boy who has not attained the age ofsixteen years or a girl who has not attained the age ofeighteen years.According to the said Section, 'Juvenile' means a boy, who has notattained the age of 16 years. Admittedly, the accused had completed theage of 16 years on the date of offence and therefore, he cannot be termedas 'juvenile' on the date of offence as per the law prevailing in thecorresponding period. Therefore, the proceedings taken under the said Actis corresponding to the present Act. Therefore, the accused cannot beconsidered as a "juvenile" on the date of occurrence and the trial https://hcservices.ecourts.gov.in/hcservices/ conducted by the trial Court is quite legal and it is binding. Thelearned counsel for the appellant would further submit in his argumentthat the appellant is an "adolescent offender" on the date of judgmenti.e. on 28.8.2001 and therefore, the conviction against the accused couldbe sustained, but the sentence of life imprisonment ought to have beenquashed. He had relied upon a judgment rendered by our High Courtreported in 2000 (1) LW Crl. 142 (Ramasamy v. State). The relevantpassage runs as follows:"In 1989 SCC (Cri) 486, the Supreme Court held that if theaccused has crossed the maximum age of detention in anapproved school, the only course to be followed is tosustain his conviction but quash the sentence and releasehim forthwith. In view of the above, we are of the viewthat though the conviction of the appellant is sustained,his sentence is quashed as was ordered by the SupremeCourt. In the result, the appeal is disposed of in theabove terms."19.On a careful perusal of the above judgment submitted by thelearned counsel for the appellant and the Madras Borstal Schools Act, wecould see that the definition of Adolescent Offender was amended in theyear 1989 by Madras Act No.15 of 1959 fixing the year as not less than 18years or more than 21 years. The same was subsequently amended by Act13/1989 to the effect that, in respect of boys it is not less than 16years and in respect of girls not less than 18 years and not more than 21years of age in either case. Therefore, we have to see whether theaccused was within 16 years of age and not more than 21 years of age tobe classified as 'Adolescent Offender' for the purpose of gettingbenefits under the Madras Borstal Schools Act as well as the aforesaidjudgment of our High Court. 20.According to Ex.D1, the date of birth was 5.5.1980. The date ofjudgment of the trial Court is 28.8.2001. Therefore, the age of theaccused as on the date of judgment is 21 years 3 months. Therefore, theaccused cannot be termed as an 'adolescent offender' in order to attractthe provisions of Madras Borstal Schools Act. Therefore, the judgmentscited by the appellant's counsel are not applicable to the present case. 21.On over all discussion, we are of the considered view that thearguments advanced by the learned counsel for the appellant are notsustainable and the conviction and sentence of the lower Court passedagainst the accused to undergo imprisonment for life on both offencesunder Sections 376 and 302 I.P.C. and the fine imposed at Rs.5000/- peroffence are sustainable and are not liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ In the result, the appeal is dismissed holding the accused guilty ofoffences under Sections 376 and 302 I.P.C. and confirming the judgment ofconviction and sentence made in S.C.No.164 of 2000 on the file of the IIIAdditional District Sessions Judge, Dharmapuri. kvSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.The III Addl. District Sessions Judge,Dharmapuri District at Krishnagiri.2.-do- Thro, The Principal Sessions Judge,Dharmapuri District at Krishnagiri.3.The District Collector,Dharmapuri at Krishnagiri.4.The Director General of Police,Chennai.5.The Public Prosecutor,High Court, Madras.6.The Superintendent, Central Prison, Vellore.7.The Inspector of Police,Denkanikottai Police Station,Denkanikottai.BS(CO)dcp/28.11 CRL.A.No.365 OF 2006