Moorthy v. State by The Inspector of Police, Kovilpalayam Police Station, Coimbatore District

AccusedChargesFindingsSentenceSole accused S.376 r/w 511IPCGuiltyTen years R.I.Sole accusedS.366 IPCGuiltyTen years R.I.Sole accusedS.302 IPCGuiltyDeath Sentence The sentences imposed on the accused were ordered to run concurrentlyand in case of death sentence being confirmed, the sentence ofimprisonment would get terminated. Aggrieved over the said judgmentof the trial court, the accused/appellant has preferred CriminalAppeal No.128 of 2009.2. Both the referred trial case and the appeal at the instanceof the accused in S.C.No.258 of 2005 are taken up for considerationtogether.3. The necessary facts for the disposal of the Referred Trialand the appeal can be stated as follows:(a) P.W.1 is the father and P.W.5 is the mother of the victimgirl Anitha @ Pattammal, aged about 13 at the time of occurrence.They were the residents of M.G.R.Colony, Kovilpalayam, within thejurisdiction of the respondent Police Station. P.W.18, Kuppammal isthe mother of P.W.5 and the grandmother of the child. She was alsoresiding in the said Colony. The accused was the distant relative,namely, uncle to Anitha @ Pattammal. On 02.06.2005, at about 8.00 PM,at M.G.R.Colony, Kovilpalayam, the victim girl was playing in frontof the house of P.W.18. At that time, the accused came there. Onseeing him, due to love and affection, she ran to him and asked toprovide an artificial ornament to her. The accused, on assurance,took her in the bicycle, M.O.1 and proceeded to Mottankuttai with anintention of having a sexual assault. When the accused took thedeceased, it was witnessed by P.W.2 Ramasamy. (b) The accused took the child behind the hospital ofDr.Pappannan situate in a nearby forest area, where he got down fromthe cycle and Anitha also got down. Then, he forcibly attempted tohave an intercourse. Being shocked, she raised a distressing cry.The accused was in an intoxicated mood. Then, immediately, he gaggedher mouth and also pressed her nose and she fell down swooned.Following the same, he caused her death and in order to escape fromthe liability, he carried the dead body and threw into the wellbelonging to one Dhanraj, situate 1/2 km away from the spot of theoccurrence and proceeded to Mettupalayam in a hired M.O.1 Hero cycle,which belonged to P.W.9. On the way, there was a mechanical defect inthe cycle and hence he parked there itself and he proceeded to https://hcservices.ecourts.gov.in/hcservices/ Mettupalayam in a bus and from there to Ooty in a lorry and went tothe house of P.W.24 Sakthivel and stayed over there for few days.(c) On 02.06.2005 at about 8.00 PM, when P.W.1 returned home, hedid not find his daughter and P.W.5 also did not see his daughterafter returning from work. P.Ws.1 and 5 were of the impression thatthe deceased was in the house of P.W.18. On 03.06.2005, when P.W.1went to the house of P.W.18 and after enquiry, he got a reply thatthe child did not come there. Immediately, P.Ws.1 and 5 made asearch. At that time, P.W.2 informed P.W.1 that he found the accusedin the company of the child, taking in a bicycle. Then he immediatelywent to the house of the accused and made a search for few days.P.W.1 informed the same to P.W.3, the Village Panchayat President.Despite the search, they could not get the child.(d) On 05.06.2005, P.W.1 was advised to give a complaint to thepolice. Accordingly, he went to Kovilpalayam Police Station and gaveEx.P-1 complaint. On the strength of which, P.W.22, the Sub Inspectorof Police registered a case in Crime No.124 of 2006 under Section 363of IPC and he took up the investigation, enquired the witnesses andrecorded their statements. In the meantime, P.W.3 came to know aboutthe availability of the accused through P.W.24. (e) Then, P.W.3 accompanied P.Ws.1, 6 and 15 went to Ooty on08.06.2005 and at the house of P.W.24, the accused was present. Theytook him in a car and proceeded to Kovilpalayam and on the way, theaccused narrated the incident to P.W.3 and the same was recorded.P.W.3, along with other persons, went to the police station and heproduced Ex.P-2 report. Based on which, P.W.22 altered the case intounder Sections 376 read with 511 and 302 IPC. Express FIR Ex.P-22 wasdespatched to the Court.(f) P.W.23, the Inspector of Police, on receipt of Ex.P-22, tookup investigation. During the course of investigation, the accusedtook the police personnel to the place of occurrence, where theincident had taken place and the investigator prepared theobservation mahazar Ex.P-3. Thereafter, he took the police party tothe well where the dead body was thrown. (g) Immediately, P.W.23 sent an intimation to P.W.13, theExecutive Magistrate and P.W.13 came over there and in the presenceof witnesses, an inquest was conducted and the inquest report ismarked as Ex.P-9. Thereafter, the dead body was subjected to postmortem by P.W.12, who gave an opinion that she died of injuriessustained by her and the post mortem certificate is marked as Ex.P-6.P.W.23 caused the photographs to be taken through P.W.17 Photographerand the photos and negatives are marked as M.Os.2 and 3 series.P.W.23 arrested the accused and recovered M.Os.5 to 9 under the coverof mahazar Ex.P-24. The material objects were subjected to chemicalanalysis which resulted in Ex.P-25, the chemical analyst's report. https://hcservices.ecourts.gov.in/hcservices/ (h) Pursuant to the confessional statement, P.W.13 sent Ex.P-9inquest report along with the statements of Pws.1 and 2 to theJudicial Magistrate No.II, Coimbatore. He also sent Ex.P-11confessional statement of the accused to the said Magistrate.Pursuant to the order, P.W.21, Judicial Magistrate No.V, Coimbatore,after following the procedural formalities, as envisaged underSection 164 Cr.P.C.recorded the confessional statement of theaccused, which was marked as Ex.P-20.(i) Pursuant to statement, P.W.23 recovered M.O.1 Hero Cycle,which was also recovered under a cover of the mahazar Ex.P-5 in thepresence of witnesses. P.W.23 examined P.Ws.1 to 3, 5, 6, 8, 15, 17and others and recorded their statements under section 161 Cr.P.C.On completion of the investigation, the investigator filed a finalreport under sections 366, 376 read with 511 and 302 IPC. (j) The case was committed to the Court of Session, Coimbatoreand necessary charges were framed and the trial court, afterenquiry, acquitted the accused since the charges were not proved.Aggrieved over the same, P.W.1 filed Crl.R.C.No.812 of 2006 beforethis Court and a learned single Judge took up the case for enquiryand came to the conclusion that the judgment of the trial court wasto be set aside and it was a fit case where retrial had to beordered and accordingly, remitted the matter to the trial court forre-trial. (k) Thereafter, the matter was taken on file as S.C.No.258 of2005 by the learned Sessions Judge, Coimbatore and charges wereframed and in order to substantiate the charges, the prosecutionexamined 24 witnesses and also relied on 27 exhibits and materialobjects M.Os.1 to 9. On completion of the evidence on the side ofthe prosecution, the accused was questioned under Sec.313 of Cr.P.C.as to the incriminating circumstances found against him in theevidence of prosecution witnesses, which he flatly denied as false.No defence witness was examined. The trial court, after hearing thearguments advanced and looking into the materials available, took theview that the prosecution has proved the case beyond the reasonabledoubt and that it is one of the rarest of rare cases, which requiresthe capital punishment of death sentence and accordingly, the samewas awarded along with the other punishments, as referred to above,which is the subject matter of challenge before this court in theabove appeal. 4. This court perused the entire materials, since the matter hasbeen referred to for confirmation of the death sentence. The Courtheard the learned Additional Pubic Prosecutor, who made his sincereand honest attempt in assailing the judgment of the trial court. https://hcservices.ecourts.gov.in/hcservices/

5. Advancing arguments on behalf of the appellant/accused, thelearned counsel would submit that in the instant case, the case ofthe prosecution was that on 02.06.2005 at about 8.00 PM, the child,aged 13 years, was taken from the place where she was playing infront of the house of P.W.18, and she was sexually assaulted and onthat spot, he gagged her mouth and pressed her nose and thereafter,he threw the child in a well situate at about 1/2 km from there; thatin order to substantiate of the charges, the prosecution had nodirect evidence to offer; that it relied on the evidence of P.Ws.2,19 and 20 for the purpose of speaking the last seen theory; that inso far as the those witnesses are concerned, their evidence got to berejected; that according to P.W.2, he saw the accused having thechild at about 8.00 PM from the place where she was playing in thenight hours and if P.W.2 has seen the child being taken by theaccused, naturally one would expect immediately to question theaccused or at least inform the same to her parents; hence theevidence of P.W.2 is highly doubtful; that in so far as the evidenceof P.W.19 is concerned, according to him, he saw both together; thathad it been true, his evidence would have got to be rejected, for thesame reason which could be attributable to P.W.2; hence the evidenceof P.W.19 cannot be accepted; that according to P.W.20, he has seenthe accused alone and even assuming that P.Ws.2 and 19 have seen theaccused with the company of the child, it cannot be presumed that hewho committed either the rape or he murdered the child. 6. Added further the learned counsel that in the instant case,the body was found only on 09.06.205, after a week; thus, theprosecution mainly relied on the extra-judicial confessionalstatement alleged to have been made by the accused; that according tothe prosecution story, in order to escape, the accused went over toOoty and stayed in the house of P.W.24 Sakthivel, who informed P.W.3about his presence and P.W.3 accompanied by P.Ws.1, 2 and 6 went overthere and took him from the place of Ooty; that it is pertinent topoint out that the said Sakthivel was not examined when the case wastaken up by trial for the first time and after remand was made,Sakthivel was examined; that even from the evidence of Sakthivel, itis clear that he has not whispered or informed to P.W.3 about theavailability of the accused and only on coming to know about thepresence of the accused with P.W.24, P.W.3 went to Ooty along withothers; that apart from this, the evidence of P.Ws.3 and 24 areinconsistent and hence, it will be quite clear that after securingthe accused, all these confessional statements were brought into. 7. Added further the learned counsel for the appellant that theaccused was not questioned under Section 313 Cr.P.C. as to theevidence of P.W.2, namely, he also went to Ooty along with others andall those people took him from there and the accused made aconfessional statement; thus, the evidence of P.W.2 has not only https://hcservices.ecourts.gov.in/hcservices/ become doubtful but also the confessional statement alleged to havebeen made by the accused could not be believed; that in the instantcase, the dead body was found only on 09.06.2005; that it is highlyunnatural that they gave the complaint only on 05.06.2005; that hadit been really true that on the next morning P.W.2 told P.W.1 that hesaw the accused along with the child on the previous night, naturallythey would have gone over to the police station and given acomplaint, but not done so and that it casts a doubt on the evidenceof P.W.2 that could not have seen the accused with the company of thechild; that in so far as the charge relating to attempt to commitrape is concerned, no material is available either though directevidence or circumstantial evidence and further in the instant case,originally the trial court has given an order of acquittal and nowthe same reasons are equally applicable. Learned counsel furtheradded that on mere addition of the further evidence, namely, theexamination of P.W.24, it cannot be said that the prosecution hasproved its case; that in the instant case, the trial court has givencapital punishment of death penalty, but it is not a case of therarest of rare nature when the prosecution has not even proved thathe has got any intention to murder the child, even attempted tocommit rape and that the prosecution case was lacking on flimsygrounds. Under these circumstances, the judgment of the trial courthas got to be set aside in entirety since the prosecution hasmiserably failed to prove the charges. The learned counsel relied onthe decisions of the Supreme Court reported in (2009) 3 SCC (Cri) 92(RANVIR YADAV ..vs.. STATE OF BIHAR) and 2009 (3) SCALE 589(INSPECTOR OF CUSTOMS, AKHNOOR J & K ..vs.. YASH PAL AND ANOTHER).8. The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.9. It is not in controversy that one Anitha @ Pattammal, aged13, was found dead in an occurrence that had taken place on02.06.2005 and following the inquest made by P.W.13, and also thepreparation of the inquest report Ex.P-9, the dead body was subjectedto post-mortem and the doctor, P.W.12 gave a categorical opinionbefore the Court and also through the contents of the post-mortemcertificate marked as Ex.P-6 that she died out of multiple injuries.The injuries narrated in the post mortem certificate Ex.P-6 wouldclearly indicate that Anitha died out of homicidal violence. Thecause of death put forth by the prosecution was never disputed by theappellant at any stage of the proceedings. Hence no impediment isfelt in recording so.10. In order to substantiate that it was the accused, whokidnapped the child and attempted to commit rape on her and causedthe death, the prosecution had no direct evidence to offer; but,fortunately, the prosecution had sufficient materials and necessarycircumstances to place and also to prove the guilt of the accused. https://hcservices.ecourts.gov.in/hcservices/ The Court in mindful of caution by the settled principles of law andthe decisions rendered by the Apex Court that in a given case, wherethe prosecution rests on the circumstantial evidence, theprosecution must place and prove all the necessary circumstances,which would constitute a complete chain without a snap and pointingto the hypothesis that except the accused, no one had committed theoffence. In the instant case, on the application of the aboveprinciple, the Court is thoroughly satisfied that the prosecution hasbrought home the guilt of the accused. It is an admitted positionthat the girl Anitha, aged 13, was actually staying with her parentsP.Ws.1 and 5. On the date of occurrence i.e.on 02.06.2005 at about8.00 PM, she was playing in front of the house of her grandmotherP.W.18, whose house situate in the same colony. P.Ws.1 and 5categorically deposed that the child did not return to the house andthat there was no suspicion since they thought that the child wouldbe in the house of P.W.18. P.W.2 had categorically deposed that atabout 8.00 PM, he found the accused taking the child in M.O.1 bicycleand P.W.2 had further deposed that since he happened to be therelative, he did not entertain any suspicion. The evidence of P.W.19also to the effect that he saw the accused along with the child atabout 8.30 PM and all these would clearly indicate that the child,who was playing in front of the house of P.W.18, was taken by theaccused in M.O.1 bicycle. P.W.20 had deposed to the effect that atabout 10.00 PM, he found the accused returning alone and not with thechild. Apart from this, the child Anitha, who was found missing atabout 8.30 PM on the date of occurrence did not return at all, buther dead body was found. The first circumstance in favour of theprosecution was the evidence of P.Ws.2 and 19, who deposed that theaccused took the child and the evidence of P.W.20 to the effect thatthe accused alone returned thereafter. It is pertinent to point outthat when the deceased was found in the company of the accused andthereafter the accused alone was returning, it is for the accused toexplain as to what was happened to Anitha; but no explanation wasforthcoming before the trial court as well as before this Court.Further, the dead body was actually found thereafter only i.e.on09.06.2005. Immediately after the occurrence was over, the accusedescaped from the place by taking M.O.1 which belonged to P.W.9 and hestayed in the house of P.W.24 Sakthivel. 11. Much comment was made by the learned counsel for theappellant about the evidence of P.W.24, in whose house he took asylumand that the evidence of P.W.3 was inconsistent as to the informationpassed on. In the considered opinion of the Court, it was thoroughlyimmaterial for the simple reason that P.W.24 has categoricallydeposed that it was he who handed over the accused to P.Ws.1, 3 andothers on that particular date and further, P.W.3 and others takenhim to the police station and on the way, he made a confessionalstatement. Even barring this, much attack was made on theconfessional statement. Even assuming that the confessional statementwas alleged to have been made by the accused to P.W.3 on the way to https://hcservices.ecourts.gov.in/hcservices/ the respondent Police Station, the Court is of the opinion that theother circumstances are in favour of the prosecution, namely, whenthe accused was produced before the investigator P.W.23, he cameforward to give a confessional statement, which was recorded in thepresence of P.W.10, Village Administrative Officer. P.W.10 cannothave an axe to grind and his evidence remained unshaken despite hewas fully cross examined. According to P.W.10, when the accused wasproduced before the investigator, he gave a confessional statementand it was recorded and it was the accused who took the policeofficials along with him, went to the place of occurrence, and pointedout the place and identified the dead body, which was found insidethe well. Therefore, it is quite clear that the confessionalstatement given by the accused to the police officer led the policeto find out the dead body and without which, the dead body could nothave been taken note of. This is the strong circumstance, in theconsidered opinion of the court, to indicate the nexus of the crimeof the accused. Thereafter, the accused also produced M.O.1 bicyclewhich is also recovered under the cover of mahazar Ex.P-5, with whichhe had actually made an attempt to escape. Apart from this, theevidence of P.Ws.2, 19 and 20, namely, last seen theory; theconfessional statement given by the accused; the identification ofthe place of occurrence; the place where the body was thrown into thewell; the recovery of the dead body and also the recovery of M.O.1,all these would be indicative of the nexus of the crime with theoccurrence. 12. Added circumstance is the confessional statement Ex.P-20that is recorded by the Judicial Magistrate under section 164 ofCr.P.C. and the said Magistrate has been examined as P.W.21 and fromhis evidence, it is clear that he had recorded the confessionalstatement after following the procedural formalities and ensured thatall the requirements as envisaged under Section 164 Cr.P.C. It alsoserves as the corroborative piece of evidence.13. In so far as the charge under section 376 r/w.511 I.P.C.attempt to commit rape is concerned, the materials placed before theCourt and the medical opinion adduced are not sufficient to prove thecharge. Hence the charges of kidnapping and murder are proved. But,at the same time, as regards the charge under Sec.376 r/w 511 IPC,this court is able to notice that the act of the accused was actuallyoutraging the modesty and hence, he has got to be found guilty underSec.354 of IPC.14. Accordingly, the conviction of the appellant under Sec.302IPC by the trial Court is confirmed. In so far as the awarding ofdeath penalty, in the instant case, the court is of the consideredopinion that it is not a fit case where it has got to be affirmed.The case of the prosecution was that he took the child only for thepurpose of sexual intercourse and not with an intention to causedeath and because of her distressing cry, he gagged her mouth and https://hcservices.ecourts.gov.in/hcservices/ nose and caused her death. Further, he was in a drunken mood, even asper the case of the prosecution. 15. The Apex Court has laid down the principles to be followedin awarding capital punishment of death penalty reported in in 2008(3) CRIMES 264 (SC) (BANTU V. THE STATE OF U.P.) wherein the earlierjudgments of the Apex Court in BACHAN SINGH V. STATE OF PUNJAB (1980(2) SCC 684), MACHHI SINGH V. STATE OF PUNJAB (1983 (3) SCC 470) andDEVENDER PAL SINGH V. STATE OF NCT OF DELHI (2002 (5) SCC 234) arereferred to. It would be more apt and appropriate to reproduce therelevant passages of the said judgment which are hereunder. "32.In Bachan Singh v. State of Punjab, (1980 (2) SCC 684)a Constitution Bench of this Court at para 132 summed upthe position as follows: (SCC p.729)"132. To sum up, the question whether or not death penaltyserves any penological purpose is a difficult, complex andintractable issue. It has evoked strong, divergent views.For the purpose of testing the constitutionality of theimpugned provision as to death penalty in Section 302 ofthe Penal Code on the ground of reasonableness in the lightof Articles 19 and 21 of the Constitution, it is notnecessary for us to express any categorical opinion, oneway or the other, as to which of these two antitheticalviews, held by the Abolitionists and Retentionists, iscorrect. It is sufficient to say that the very fact thatpersons of reason, learning and light are rationally anddeeply divided in their opinion on this issue, is a groundamong others, for rejecting the petitioners argument thatretention of death penalty in the impugned provision, istotally devoid of reason and purpose. If, notwithstandingthe view of the Abolitionists to the contrary, a very largesegment of people, the world over, including sociologists,legislators, jurists, judges and administrators stillfirmly believe in the worth and necessity of capitalpunishment for the protection of society, if in theperspective of prevailing crime conditions in India,contemporary public opinion channelized through thepeople’s representatives in Parliament, has repeatedly inthe last three decades, rejected all attempts, includingthe one made recently, to abolish or specifically restrictthe area of death penalty, if death penalty is still arecognised legal sanction for murder or some types ofmurder in most of the civilised countries in the world, ifthe framers of the Indian Constitution were fully aware —as we shall presently show they were — of the existence ofdeath penalty as punishment for murder, under the IndianPenal Code, if the 35th Report and subsequent reports ofthe Law Commission suggesting retention of death penalty, https://hcservices.ecourts.gov.in/hcservices/ and recommending revision of the Criminal Procedure Codeand the insertion of the new Sections 235(2) and 354(3) inthat Code providing for pre-sentence hearing and sentencingprocedure on conviction for murder and other capitaloffences were before the Parliament and presumablyconsidered by it when in 1972-1973 it took up revision ofthe Code of 1898 and replaced it by the Code of CriminalProcedure, 1973, it is not possible to hold that theprovision of death penalty as an alternative punishment formurder, in Section 302 of the Penal Code is unreasonableand not in the public interest. We would, therefore,conclude that the impugned provision in Section 302,violates neither the letter nor the ethos of Article 19."33.Similarly in Machhi Singh v. State of Punjab (1983 (3)SCC 470) in para 38 the position was summed up as follows:(SCC p.489)"38. In this background the guidelines indicated in BachanSingh case1 will have to be culled out and applied to thefacts of each individual case where the question ofimposing of death sentence arises. The followingpropositions emerge from Bachan Singh case:“(i) The extreme penalty of death need not be inflictedexcept in gravest cases of extreme culpability.(ii) Before opting for the death penalty the circumstancesof the ‘offender’ also require to be taken intoconsideration along with the circumstances of the ‘crime’.(iii) Life imprisonment is the rule and death sentence isan exception. In other words death sentence must be imposedonly when life imprisonment appears to be an altogetherinadequate punishment having regard to the relevantcircumstances of the crime, and provided, and onlyprovided, the option to impose sentence of imprisonment forlife cannot be conscientiously exercised having regard tothe nature and circumstances of the crime and all therelevant circumstances.(iv) A balance sheet of aggravating and mitigatingcircumstances has to be drawn up and in doing so themitigating circumstances have to be accorded full weightageand a just balance has to be struck between the aggravatingand the mitigating circumstances before the option isexercised." https://hcservices.ecourts.gov.in/hcservices/

34.The position was again reiterated in Devender Pal Singhv. State of NCT of Delhi (2002 (5) SCC 234) : (SCC p.271,para 58)"58. From Bachan Singh v. State of Punjab and Machhi Singhv. State of Punjab the principle culled out is that whenthe collective conscience of the community is so shocked,that it will expect the holders of the judicial powercentre to inflict death penalty irrespective of theirpersonal opinion as regards desirability or otherwise ofretaining death penalty, the same can be awarded. It wasobserved:The community may entertain such sentiment in the followingcircumstances:(1) When the murder is committed in an extremely brutal,grotesque, diabolical, revolting, or dastardly manner so asto arouse intense and extreme indignation of the community.(2) When the murder is committed for a motive which evincestotal depravity and meanness; e.g. murder by hired assassinfor money or reward; or cold-blooded murder for gains of aperson vis-à-vis whom the murderer is in a dominatingposition or in a position of trust; or murder is committedin the course for betrayal of the motherland.(3) When murder of a member of a Scheduled Caste orminority community etc. is committed not for personalreasons but in circumstances which arouse social wrath; orin cases of ‘bride burning’ or ‘dowry deaths’ or whenmurder is committed in order to remarry for the sake ofextracting dowry once again or to marry another woman onaccount of infatuation.(4) When the crime is enormous in proportion. For instancewhen multiple murders, say of all or almost all the membersof a family or a large number of persons of a particularcaste, community, or locality, are committed.(5) When the victim of murder is an innocent child, or ahelpless woman or old or infirm person or a person vis-à-vis whom the murderer is in a dominating position, or a https://hcservices.ecourts.gov.in/hcservices/ public figure generally loved and respected by thecommunity."19.After referring to those judgments, Their Lordships in theaforesaid decision have pointed out as follows:"36.What is culled out from the decisions noted above isthat while deciding the question as to whether the extremepenalty of death sentence is to be awarded, a balance sheetof aggravating and mitigating circumstances has to be drawnup."16. The Apex Court had an occasion to consider the factors whichare to be taken into account while imposing penalty of death in acase reported in AIR 2002 SUPREME COURT 2811 (STATE OF PUNJAB V.GURMEJ SINGH) and has held as follows:"A number of factors, which are to be taken into accountwhile imposing penalty of death, for illustration are themotive of the crime, the manner of the assault, the impactof the crime on the society as a whole, the personality ofthe accused, circumstances and facts of the case as towhether the crime committed is for satisfying any kind oflust, greed or in pursuance of any organised anti-socialactivity or by way of organised crime, drug trafficking orthe like or the chances of inflicting the society with asimilar criminal act, that is to say vulnerability of themembers of the society at the hands of the accused in futureor commission of murder which may be shocking to theconscience."17. In the instant case, the proved facts would show that theappellant has murdered an innocent child of tender age and he had noexcuse to do the same. It is true, in a fit case, the court has toaffirm the death penalty; but in the instant case, before awardingthe capital punishment, the Court has to look into whether thesurvival of the accused appellant would be a menace to society infuture. The prosecution has not placed any material before the trialCourt that he was involved in any criminal case or in any nefariousor anti-social activities to indicate bad antecedent. Under thecircumstances, the case cannot fall under the category of rarest ofrare cases warranting death penalty. Hence the death penalty imposedby the learned trial Judge is modified to one of life imprisonment. Accordingly, the appellant/accused is directed to undergo lifeimprisonment for the offence under Sec.302 of IPC. https://hcservices.ecourts.gov.in/hcservices/ The conviction and sentence imposed by the trial Court on theaccused under Sec.366 I.P.C. are confirmed. The conviction andsentence imposed by the trial Court under section 376 r/w. 511 areset aside, and instead he is convicted under section 354 I.P.C. andis directed to suffer 2 years Rigorous Imprisonment. The sentencesshall run concurrently. The sentence already undergone by him shallbe given set off. Accordingly, the Referred Trial case is disposedof. The criminal appeal preferred by the appellant is dismissed.gl Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo:1.The District Sessions Judge Magalir Neethimandram, Coimbatore. 2.The Inspector of Police, Kovilpalayam Police Station, Coimbatore District.3.The Public Prosecutor High Court, Madras.4. The Superintendent, Central Prison, Coimbatore.5. Judicial Magistrate No.II, Coimbatore6. The District Collector, Coimbatore.7. The Director General of Police, Chennai. R.T. No.3 of 2008 and Crl.A. No.128 2009PA(CO)EU 19.11.2009.