C. Nagappan, J.@mdashThis judgment shall govern the disposal of Referred Trial Case No. 4/2010 and Criminal Appeal No. 161/2011.
2. The referred trialhas been preferred seeking confirmation of the death sentence passed by the Sessions Judge, Nagapattinam in S.C. No. 82 of 2009 dated 8.12.2010, whereby the sole accused therein stood charged under Sections 449, 342, 376(1), 302, 307 (2 counts) and 394 r/w 397 Indian Penal Code, 1860, tried and found guilty of the charges and awarded Life Imprisonment and a fine of Rs. 10,000/-in default to undergo Simple Imprisonment for three years, for the charge u/s 449 Indian Penal Code, 1860; Rigorous Imprisonment for one year and a fine of Rs. 1,000/- in default to undergo Simple Imprisonment for three months, for the charge u/s 342 Indian Penal Code, 1860; Life Imprisonment and a fine of Rs. 10,000/-in default to undergo Simple Imprisonment for three years, for the charge u/s 376(1) Indian Penal Code, 1860; Death Sentence subject to confirmation by the High Court, and a fine of Rs. 20,000/-in default to undergo Simple Imprisonment for five years, for the charge u/s 302 Indian Penal Code, 1860; Life Imprisonment for each count and a fine of Rs. 5,000/-in default to undergo Simple Imprisonment for three years for each count, for the charge u/s 307 (2 counts) Indian Penal Code, 1860 and Life Imprisonment and a fine of Rs. 5,000/-for the charge u/s 394 r/w 397 Indian Penal Code, 1860 and the sentences to run concurrently.
3. The said judgment is challenged by the accused in Crl.A. No. 161/2011. Both the referred trial seeking confirmation of death sentence made by the Sessions Court, and also the criminal appeal filed by the Appellant/accused, are taken up together for consideration. For the sake of convenience, in this judgment, the Appellant will be referred to as the accused.
4. To prove its case, the prosecution examined P.Ws.1 to 35 and marked Exs.P1 to P41 and M.Os.1 to 34.
5. The case of the prosecution as could be discerned from the oral and documentary evidence, can be briefly summarised as follows:
(a) P.W.12 Maragatham is the wife of P.W.11 Ramalingam. P.W.1 Prosecutrix and deceased Manikandan are their daughter and son respectively. P.W.2 Sangeetha is the daughter of elder brother of P.W.11 Ramalingam. He was employed as Assistant in Poombuhar College and his wife P.W.12 Maragatham was employed as Village Health Worker and on working days, both of them would leave for work in the morning at 8.00 A.M. and return in the evening at 6.00 P.M. They were living in their house situated at Sattanathapuram, Sirkali and started constructing first floor of their house prior to occurrence. P.W.16 Maistry Selvam, a month prior to occurrence, inducted accused B. Kumar @ Jeyakumar @ Left Kumar @ Stephen Kumar as one of the masons in the said civil work at the house of P.W.11 Ramalingam. But, however, after 20 days, he stopped the accused from the said work. On 3.10.2002, P.W.2 Sangeetha came to the house of P.W.11 Ramalingam for holiday.
(b) On 4.10.2002, P.W.11 Ramalingam and his wife P.W.12 Maragatham left the house in the morning for work and P.W.1 Prosecutrix, P.W.2 Sangeetha and Manikandan were alone in the house by locking it inside. P.W.15 Santhanakumar residing in the opposite house, while leaving his home at 9.00 A.M. on 4.10.2002, noticed accused Kumar standing inside the fence of the house of P.W.11 Ramalingam. At 9.30 A.M., accused Kumar pressed the calling bell of the house of P.W.11 Ramalingam and without opening the door, Manikandan enquired him and the accused told them that he has left his iron bowl used for masonry work, inside the house and he wanted to take it back. Though Manikandan replied that the accused could take it after the return of his father, P.W.1 Prosecutrix told that the accused was working in their house as mason and hence he can be allowed to take it and by so saying, she opened the door. Thereafter, the accused gained entry into the house and immediately bolted the door from inside and when all of them screamed, he took M.O.1 aruval from his waist and threatened the inmates not to shout by keeping the aruval on the neck of Manikandan. Thereafter, the accused Kumar gagged and tied the hands of P.W.2 Sangeetha and Manikandan and dragged them to pooja room and tied them to the window with saree. Returning to the hall, the accused Kumar raised the volume of television and went to the bedroom where P.W.1 Prosecutrix was hiding, and pulled the mattress from the cot to the ground and tied her hands and legs and gagged her. Accused Kumar removed her dresses and put her on the mattress and and committed rape on her. By that time, Manikandan managed to loosen the knot made by the saree, and came to the bedroom and saw the accused committing rape on P.W.1 Prosecutrix, and ran to the hall to make phone call. On seeing this, the accused Kumar angrily took the aruval and dragged Manikandan by hand to the toilet and cut his neck with aruval. In the meantime, P.W.2 Sangeetha who also managed to untie the knot, came and saw the accused cutting the neck of Manikandan with aruval in the toilet and out of fear, she went inside the pooja room and was hiding. P.W.1 Prosecutrix also heard the screaming of her brother Manikandan and cutting sound coming from the toilet. The accused Kumar having noticed that P.W.2 Sangeetha saw him cutting Manikandan, in fury, went to the pooja room, and cut her neck with aruval and she swooned. Thereafter, accused Kumar went to the bedroom and by then, P.W.1 Prosecutrix had put her clothes and accused demanded the jewels worn by her, and she gave her ear-stud and chain and on further demand, she gave the bureau key and the accused Kumar took away the other jewels from the bureau. M.Os.2 to 6 are the jewels. Then the accused Kumar cut the neck of P.W.1 Prosecutrix also with aruval and left the place.
(c) P.W.1 Prosecutrix managed to come out of the house and the other injured P.W.2 Sangeetha also came out and at that time, P.W.13 Kannan and Raja were proceeding in the scooter and P.W.1 Prosecutrix showed hand signal and they stopped and found P.Ws.1 and 2 with bleeding injuries and they took them to Sirkali Government Hospital in the auto driven by P.W.28 Muthukumarasamy.
(d) P.W.5 Dr. C. Elangovan examined P.W.1 Prosecutrix in Sirkali Government Hospital at 10.45 A.M. on 4.10.2002, and found a cut injury on the throat measuring 10 x 4 cms in the anterior aspect of neck exposing underlying thyroid cartilage and blood vessels. He referred her to RMMCH, Chidambaram, for further treatment. He expressed opinion that the said injury is grievous in nature and issued Ex.P7 wound certificate. Ex.P10 is the accident register extract.
(e) P.W.5 Dr. C. Elangovan also examined P.W.2 Sangeetha at 11.00 A.M. on 4.10.2002 at Government Hospital, Sirkali and found a cut injury measuring 7 x 3 cms in the front of neck on the throat exposing underlying thyroid cartilage and blood vessels. He referred her to RMMCH, Chidambaram for further treatment. He expressed opinion that the said injury is grievous and issued Ex.P8 wound certificate. Ex.P11 is the accident register extract. He also sent Ex.P9 intimation to the police. In the meantime, the parents of P.W.1 Prosecutrix on hearing the occurrence, rushed to the Government Hospital at Sirkali.
(f) On receipt of telephonic information from Sirkali Government Hospital, P.W.22 Sub Inspector Murugavelu went there and saw the injured persons. At that time, P.W.1 Prosecutrix though not in a position to speak, managed to write in a shaky handwriting Ex.P1 complaint duly attested by her mother P.W.12 Maragatham, and handed over the same to P.W.22 Sub Inspector Murugavelu and he returned to the station and registered a case in Crime No. 886/2002 under Sections 452, 342, 376, 307, 302 and 379 Indian Penal Code, 1860 and prepared Ex.P30 First Information Report and despatched the same to the Court through P.W.29 Head Constable Parasuraman and to the Higher Officers.
(g) P.W.32 Inspector Venkatesan took up investigation, went to the occurrence place at 11.45 A.M. and prepared Ex.P19 observation mahazar in the presence of P.W.17 Azhagar and Anr. and seized M.Os.25 to 34 under Ex.P20 mahazar in the presence of the said witnesses. Then he conducted inquest on the body of the deceased Manikandan from 2.45 P.M. to 4.45 P.M. and prepared Ex.P37 inquest report and sent the body for postmortem with requisition. He also gave a requisition to the Doctor to examine P.W.1 Prosecutrix for the symptoms of rape and also the Finger Print Expert to find out any chance print available in the place of occurrence. P.W.35 Inspector (Finger Print) Ramaiah visited the place of occurrence at 12.30 P.M. on 4.10.2002 and lifted two chance prints from the bureau in the house and marked them as R1 and R2. He also took photographs. Then he compared the chance prints with the finger prints of the inmates of the house and found the finger print marked as R2, tallying with the finger print of P.W.11 Ramalingam. He preserved chance print R1 in the lab. Ex.P29 is the report given by him on 5.10.2002.
(h) P.W.5 Dr. C. Elangovan conducted postmortem on the body of Manikandan at the Government Hospital, Sirkali at 5.15 P.M. on 4.10.2002, and found the following:
INJURIES An incised wound in front of the middle of the neck 4 cm above Jugular notch, extending from right Sterno cleidomastoid region to left sternoclediomastoid muscle region 10 cms in length, 3 cm breadth and Depth 2 cm. Left Sternoclediomastoid muscle was cut partially. Trachea was cut completely at the level 2 cm below cricoid cartilage. Right side internal Jugular vein and right common carotid artery cut completely. Oesophagus intact and exposed. On opening Thorax ? No. fracture ribs. Hyoid bone intact. No. foreign body in Larynx or trachea. Heart chambers empty. Heart C/S pale. Great vessels empty. Lungs C/S pale. On opening of Abdomen ? Peritoneum intact. Stomach contained approximately 200 ml of partially digested food material. Stomach mucosa pale. Small intestine empty, mucosa pale. Liver, Kidney, Spleen C/S pale. No. lacerations. Urinary bladder empty. On opening head ? No. fracture of skull bones. Brain membranes intact. No. haemorrhage. Brain matter pale. Spinal column No. fractures.
He expressed opinion that the deceased would appear to have died of haemorrhage and shock due to injury to great vessels of the neck 6 to 12 hours prior to postmortem. Ex.P12 is the postmortem certificate issued by him.
(i) P.W.3 Dr. S. Viswanathan examined P.W.1 Prosecutrix at Raja Muthiah Medical College and Hospital, Chidambaram on 4.10.2002 and found aberrations in the inner aspect of the labia minera near the hymenal opening and her hymen was not intact and he collected dry smear, pubic hair and vaginal swab for analysis. Ex.P2 is the medical report given by him. P.W.4 G. Valli, Scientific Assistant, Regional Forensic Sciences Laboratory, Thanjavur examined the pubic hair, vaginal swab and gauze cloth and issued Ex.P5 report, stating that semen was not detected in items 1 to 4 mentioned therein, and item No. 5 pubic hair, was retained for future examination.
(j) P.W.9 Dr. T.A. Chandralathan attached to Raja Muthiah Medical College & Hospital, Chidambaram, conducted surgery on the neck injuries sustained by P.W.1 Prosecutrix and P.W.2 Sangeetha, and treated them in the hospital.
(k) P.W.32 Inspector Venkatesan, examined P.W.12 Maragatham, P.W.13 Kannan, P.W.28 Muthukumarasamy and some other witnesses and recorded their statements. On 6.10.2002, he gave a requisition to the Court to send the material objects for chemical examination. On 3.11.2002, he examined P.W.1 Prosecutrix and P.W.2 Sangeetha and recorded their statements. On 21.11.2002, he examined P.W.15 Santhanakumar and Anr. and recorded their statements. On 22.11.2002, P.W.11 Ramalingam while cleaning the occurrence house, noticed M.O.1 aruval, concealed under the staircase and on his information, P.W.32 Inspector Venkatesan seized the same under Ex.P38 mahazar in the presence of witnesses and sent it to Court. On the very day, he further examined P.W.1 Prosecutrix, P.W.2 Sangeetha, P.W.11 Ramalingam and P.W.12 Maragatham and recorded their statements. On 4.11.2002, he examined P.W.16 Selvam and some other witnesses and recorded their statements. He was transferred.
(l) P.W.26 Devan, resident of Aminjikarai, Chennai, one day in the year 2002, found the accused Kumar lying in front of Albert Theatre and he enquired him and the accused informed him that he is an orphan and wanted a job and he put him in a granite factory. Thereafter, P.W.26 Devan arranged the marriage of the accused Kumar with one Susila, the daughter of P.W.27 Jesuraj, and the said marriage took place on 5.9.2007, and after the birth of a female child, the accused in the pretext of going to Salem, abandoned her.
(m) Aggrieved over the investigating agency in not arresting the accused Kumar, P.W.11 Ramalingam filed petition before the High Court and the investigation in the said case was transferred to the file of C.B.C.I.D. Thereafter, P.W.33 Inspector Sugumar took up the further investigation on 5.11.2008, and examined P.W.1 Prosecutrix, P.W.2 Sangeetha, P.W.11 Ramalingam and P.W.12 Maragatham and on information, arrested the accused Kumar at 4.50 P.M. on 11.12.2008, at Sirkali Bus Stand and enquired him in the presence of P.W.23 Village Administrative Officer, Periyasamy and Anr. and recorded the confession statement given by him, of which Ex.P31 is the admissible portion. The accused Kumar took them to M. Valliammai Aachi Pawn Shop run by P.W.24 Meyyappan and P.W.33 Inspector Sugumar, recovered M.Os.2, 4 and 5 jewels, and Ex.P24 pawn receipt, under Ex.P32 mahazar in the presence of the said witnesses. Thereafter, the accused Kumar took them to another pawn shop under the name of Sri Vinayaka Finance run by P.W.25 Chandran, and he recovered M.Os.3 and 6 silver anklets, and Ex.P25 pawn receipt, under Ex.P33 mahazar in the presence of same witnesses. He sent the accused for judicial remand. On 5.1.2009, he gave Ex.P39 requisition to the Judicial Magistrate''s Court, Sirkali to find out the potentiality of the accused Kumar by conducting medical examination and as per Ex.P17 request of the Court, P.W.10 Dr. S. Gurunathan, examined the accused Kumar and issued Ex.P18 certificate, stating that he is potent.
(n) P.W.33 Inspector Sugumar, filed Ex.P21 petition in the Court of Judicial Magistrate, Sirkali, directing the accused Kumar to give specimen writing and signature for the purpose of investigation and as per the order of the Court, they were obtained from the accused Kumar on 21.1.2009, and were sent for comparison to the Forensic Sciences Laboratory at Chennai by Ex.P22 letter of the Court. P.W.19 Thilagavathi, Head Clerk of Judicial Magistrate''s Court, Sirkali after receiving Ex.P23 request of the Investigation Officer, forwarded the material objects to the Laboratory. P.W.20 Karpagam, Scientific Officer (Document Division) of the Forensic Sciences Laboratory, Chennai, compared the signatures and issued Ex.P27 report. P.W.21 Finger Print Inspector Kasinathan, on 15.12.2008, compared the chance print R1 with the finger print of the accused Kumar and issued Ex.P28 report. P.W.6 Scientific Assistant Karpagam Badrinath issued Ex.P14 chemical examiner''s report and P.W.7 Scientific Officer Jaganathan issued Ex.P15 serologist''s report.
(o) P.W.33 Inspector Sugumar, examined P.W.3 Dr. S. Viswanathan, P.W.9 Dr. T.A. Chandralathan, P.W.10 Dr. S. Gurunathan, P.W.18 Suresh, P.W.29 Parasuraman, P.W.30 Saminathan, P.W.32 Venkatesan and some other witnesses on 14.2.2009, and recorded their statements. He was transferred on 19.2.2009, and P.W.34 Inspector Thangavelu continued the investigation and on 22.2.2009, he examined P.W.6 Karpagam Badrinath, P.W.8 Visalakshi, P.W.20 Karpagam and some other witnesses and recorded their statements. He completed the investigation on 24.2.2009, and filed the final report.
6. The accused was examined u/s 313 Code of Criminal Procedure, and he denied complicity. No. witness was examined and No. document was marked on his side. The trial Court found that the charges are proved and sentenced him as stated earlier, and has sought for confirmation of death sentence. The accused has also preferred independent appeal challenging the conviction and sentence.
7. The learned Counsel for the Appellant/accused submits that the occurrence in the case, took place on 4.10.2002 and during investigation, the accused was not apprehended and the case came to be transferred to CB CID after six years and only on 11.12.2008, the accused is said to have been arrested and No. identification parade was conducted and P.W.1 Prosecutrix and P.W.2 Sangeetha could not have identified the accused and it is not known as to how the CB CID police after such a longtime, fixed and arrested the accused and Ex.P1 complaint itself is doubtful since as per the medical evidence, P.W.1 Prosecutrix was not conscious and unable to speak and it is also doubtful as to whether P.W.12 Maragatham attested the complaint since her signature found therein, varies from the one put by her in the testimony before the Court and the recovery of jewels from the pawn shops is also unbelievable and the prosecution has not proved the guilt of the accused beyond reasonable doubt.
8. Per contra, Mr. I.Subramaniam, the learned Public Prosecutor, submits that prior to occurrence, accused Kumar was working as a mason in the first floor construction of the occurrence house and P.W.1 Prosecutrix had seen him on those occasions and the accused knew the movements of P.W.11 Ramalingam and P.W.12 Maragatham and he had chosen the time when the children were alone at home and on the occurrence day, in the pretext of taking iron bowl, he gained entry into the house and by wielding aruval, he tied and gagged the inmates and ravished P.W.1 Prosecutrix and infuriated by the act of Manikandan in trying to inform the parents by telephone about the commission of rape, he dragged him to the toilet and cut his neck resulting in his death and annoyed over the seeing of the same by P.W.2 Sangeetha, he cut her throat and thereafter, he also inflicted cut injury in the throat of P.W.1 Prosecutrix and also robbed the jewels from the person of P.W.1 and house and P.W.1 in her complaint itself, has mentioned the name of the accused, namely Kumar, with identification mark on his cheek and in those circumstances, conducting identification parade is immaterial and there is No. delay in lodging the complaint and it lends credence to the testimonies of P.Ws.1 and 2 who are injured witnesses, and the delay in arresting the accused does not affect the prosecution case and the scientific investigation corroborates the presence and participation of the accused in the crime and the conviction and sentence imposed by the trial Court on the accused, is well founded.
9. The prosecution case is that the accused Kumar committed house trespass by gaining entry into the house of P.W.11 Ramalingam and confined the inmates therein and committed rape of P.W.1 Prosecutrix and cut the neck of Manikandan resulting in his death, and he attempted to murder by inflicting cut injuries on the necks of P.W.1 Prosecutrix and P.W.2 Sangeetha and he also robbed the jewels from P.W.1 Prosecutrix and the bureau. The prosecution examined P.W.1 Prosecutrix and P.W.2 Sangeetha to prove the occurrence. P.W.1 Prosecutrix aged 12 years, and the deceased Manikandan aged 10 years, are the children of P.W.11 Ramalingam and P.W.12 Maragatham and they were living in their house at Sattanathapuram, Sirkali. P.W.11 Ramalingam was employed as Assistant in Poombuhar College and his wife P.W.12 Maragatham was employed as Village Health Worker and both of them used to leave for work in the morning at 8.00 A.M. and would return in the evening at 6.00 P.M. They started constructing first floor of their house prior to occurrence and they employed P.W.16 Maistry Selvam. According to P.W.16 Selvam, a month prior to occurrence, he inducted accused B. Kumar as one of the masons in the said civil work at the house of P.W.11 Ramalingam; but, however, after 20 days, he stopped the accused from the said work. P.W.2 Sangeetha is the niece of P.W.11 Ramalingam and she came to their house a day prior to occurrence, for holiday.
10. P.W.1 Prosecutrix and P.W.2 Sangeetha have testified that on 4.10.2002, P.W.11 Ramalingam and P.W.12 Maragatham left the house in the morning for work and they along with Manikandan were alone in the house by locking it inside and at 9.30 A.M., accused Kumar pressed the calling bell and without opening the door, Manikandan enquired him and the accused told them that he has left his iron bowl used for masonry work, inside the house and he wanted to take it back and Manikandan told him that he could take it after the return of his father; but, P.W.1 Prosecutrix told that the accused was working in their house as mason and he can be allowed to take the iron bowl and she opened the door and the accused entered the house and bolted the door from inside and when they screamed, he took the aruval from his waist and threatened them and he gagged and tied the hands of P.W.2 Sangeetha and Manikandan and dragged them to pooja room and tied them to the window with saree and the accused on return to the hall, raised the volume of television and went to the bedroom. P.W.1 Prosecutrix has further testified that she was hiding in the bedroom and the accused Kumar came there and pulled the mattress from the cot to the ground and tied her hands and legs and gagged her and he removed her dresses and put her on the mattress and committed rape on her and by that time, Manikandan who managed to loosen the knot made by the saree, came there and saw the accused committing rape on her and he ran to the hall to make phone call and on seeing this, accused Kumar who was lying on her, angrily took the aruval and dragged Manikandan by hand to the toilet and she heard the screaming of her brother Manikandan and the cutting sound coming from the toilet. P.W.2 Sangeetha in her testimony, has stated that she also managed to untie the knot and came and saw the accused cutting Manikandan with aruval in the toilet and out of fear, she went inside the pooja room and was hiding and the accused came there and cut her neck also with aruval in fury, by saying that she had witnessed the cutting of Manikandan and she swooned.
11. It is the further testimony of P.W.1 Prosecutrix that the accused Kumar returned to the bedroom and by then, she had put her clothes and he demanded the jewels worn by her, and she gave her ear stud and chain and on further demand, she gave the bureau key and the accused Kumar took away the other jewels from the bureau and he cut her neck also with aruval and left the place and she managed to come out of the house and by then, P.W.2 Sangeetha also came out and they were not able to speak on account of the cut injuries on the throat and P.W.1 Prosecutrix showed hand signal to P.W.13 Kannan and Raja who were going in the scooter, and on noticing the bleeding injuries, they took them to Sirkali Government Hospital in the auto driven by P.W.28 Muthukumarasamy.
12. According to P.W.5 Dr. C. Elangovan, he examined P.W.1 Prosecutrix in Sirkali Government Hospital at 10.45 A.M. on 4.10.2002 and found a cut injury on the throat measuring 10 x 4 cms in the anterior aspect of neck exposing underlying thyroid cartilage and blood vessels and he referred her to RMMCH, Chidambaram, for further treatment and he also sent intimation to the police. Ex.P7 is the wound certificate given by him stating that the said injury is grievous in nature. Ex.P10 is the accident register extract for the same. Ex.P9 is the written intimation to police.
13. On receipt of telephonic information from Sirkali Government Hospital at 11.00 A.M. on 4.10.2002, P.W.22 Sub Inspector Murugavelu went there and saw the injured persons and according to him, P.W.1 Prosecutrix though was not in a position to speak, managed to write in a shaky handwriting Ex.P1 complaint, and her mother P.W.12 Maragatham who was with her, put her signature in the said complaint as attesting witness and he returned to the station and registered a case and prepared Ex.P30 First Information Report and despatched the same to the Court through P.W.29 Head Constable Parasuraman and to higher officers.
14. Our attention is drawn by the learned Counsel for the Appellant to the endorsement found on Ex.P7 wound certificate stating that the injured Prosecutrix (P.W.1) is said to have been assaulted by an unknown person using aruval. It is true that such an endorsement is found in the wound certificate of both P.W.1 Prosecutrix as well as P.W.2 Sangeetha issued by P.W.5 Dr. C. Elangovan. It is the testimony of P.W.5 Dr. C. Elangovan that both the injured girls were brought by P.W.13 Kannan and he stated to him that they were attacked by an unknown person and hence he has made the endorsement. Both the injured girls suffered cut injuries on their throat and they were unable to speak and only on their hand signal P.W.13 Kannan came to their rescue and brought them in an auto to the hospital and without conversing with them, in a state of hurry, P.W.13 Kannan has stated so to the admission Doctor. There is nothing to suspect in it. In the Government Hospital, Sirkali itself, P.W.1 Prosecutrix though not in a position to speak, managed to write Ex.P1 complaint mentioning the name, occupation and identification mark of the accused, and handed over the same to P.W.22 Sub Inspector Murugavelu.
15. It is the contention of the learned Counsel for the Appellant that P.W.1 Prosecutrix was not in a position to speak and she could not have given Ex.P1 complaint and the signature of the attesting witness P.W.12 Maragatham found therein, varies from the signature put by her in her testimony before the Court and hence the complaint itself is doubtful. This contention is also devoid of merit. The cut injury suffered by P.W.1 Prosecutrix, is on the throat and therefore, she was not in a position to speak; but, at the same time, she was conscious as evident from the testimony of P.W.5 Dr. C. Elangovan and the endorsement found in Ex.P10 accident register extract, which is a contemporaneous document. According to P.W.12 Maragatham, she received information at 10.30 A.M. about the admission of her daughter P.W.1 Prosecutrix in Sirkali Government Hospital and she reached there at 11.00 A.M. and found P.W.1 Prosecutrix conscious and not in a position to speak and in her presence, she wrote Ex.P1 complaint in a shaky handwriting and she put her signature in it as attesting witness and it was handed over to P.W.22 Sub Inspector Murugavelu. The witness signature of P.W.12 Maragatham found in Ex.P1 complaint is in Tamil, whereas in the testimony before the Court as P.W.12, she has put her signature in English. Admittedly, P.W.12 Maragatham is employed as Village Health Worker and she knows both English and Tamil and she had chosen to put her signature in the complaint in Tamil whereas before the Court, she had put her signature in English. There is No. difference or variation in the signature of P.W.12 Maragatham as contended by the learned Counsel for the Appellant.
16. P.W.1 Prosecutrix was admitted as inpatient in Raja Muthiah Medical College and Hospital, Chidambaram on 4.10.2002 and P.W.3 Dr. S. Viswanathan has examined her and according to him, aberrations in the inner aspect of the labia minera near the hymenal opening were found and her hymen was not intact and he collected the dry smear, pubic hair and vaginal swab for analysis. Ex.P2 is the medical report given by him. P.W.4 G. Valli, Scientific Assistant, has stated that she examined the vaginal swab, pubic hair and gauze cloth and issued Ex.P5 report stating that semen was not detected in items 1 to 4 mentioned therein, and item No. 5 pubic hair was retained for future examination. P.W.9 Dr. T.A. Chandralathan conducted surgery on the neck injury sustained by P.W.1 Prosecutrix, and treated her in Raja Muthiah Medical College and Hospital at Chidambaram.
17. After the transfer of the case to the file of CB CID, P.W.33 Inspector Sugumar arrested the accused Kumar at 4.50 P.M. on 11.12.2008, at Sirkali Bus Stand and on 5.1.2009, he gave Ex.P39 requisition, to the Judicial Magistrate, Sirkali to find out the potentiality of the accused Kumar by conducting medical examination and to take sample hair over the genital organ and as per Ex.P17 request of the Court, P.W.10 Dr. S. Gurunathan examined the accused Kumar on 5.1.2009, and he has testified that he found accused Kumar potent. Ex.P18 is the certificate issued by him to the said effect. He also collected sample hair of the accused from his genital organ and the same was sent for comparison. P.W.4 G. Valli, Scientific Assistant, has testified that she compared the hair so collected from the accused with that of the pubic hair collected from the vagina of P.W.1 Prosecutrix in the year 2002 and retained in the lab and found them similar. Ex.P6 is the report issued by her. This scientific examination implicates the accused to the commission of rape on P.W.1 Prosecutrix.
18. Manikandan died of homicidal violence is sought to be established by the medical evidence adduced by the prosecution. P.W.5 Dr. C. Elangovan conducted postmortem on the body of Manikandan and he has testified that he found an incised wound in front of the middle of the neck 4 cm above Jugular notch, extending from right Sterno cleidomastoid region to left sternoclediomastoid muscle region 10 cms in length, 3 cm breadth and Depth 2 cm and trachea was cut completely at the level of 2 cm below cricoid cartilage and the right side internal Jugular vein and right common cartoid artery were cut completely. He has expressed opinion that the deceased would appear to have died of haemorrhage and shock due to injury to great vessels of neck 6 to 12 hours prior to postmortem. Ex.P12 is the postmortem certificate issued by him. Accepting the above, it is clear that Manikandan died of injuries sustained during the occurrence.
19. M.O.1 aruval is stated to be the weapon of offence. P.W.1 Prosecutrix and P.W.2 Sangeetha identified M.O.1 aruval as weapon of offence used by the accused at the time of occurrence. According to P.W.11 Ramalingam, he was cleaning his house on 22.11.2002 and he noticed M.O.1 aruval concealed under the staircase and informed the same to the Investigation Officer. P.W.32 Inspector Venkatesan has stated that he seized the same under Ex.P38 mahazar in the presence of witnesses and gave requisition to send it for chemical examination along with other material objects. P.W.6 Scientific Assistant Karpagam Badrinath conducted chemical examination on the material objects and issued Ex.P14 chemical examiner''s report. P.W.7 Scientific Officer Jaganathan has conducted the origin and group test and has issued Ex.P15 serologist''s report. After postmortem, M.Os.10 to 12 and 15 clothes of the deceased, and M.O.14 silken cord pieces, were seized and sent for chemical examination. Human "AB" blood group was detected in them as per Exs.P14 and P15 reports. M.O.1 aruval was also sent for chemical examination and the same human "AB" blood group was detected in it as per the above reports. This shows that M.O.1 aruval has been used during the occurrence to cut the neck of the deceased and it is the weapon of offence.
20. P.W.2 Sangeetha was examined by P.W.5 Dr. C. Elangovan at 11.00 A.M. on 4.10.2002 at Government Hospital, Sirkali and the Doctor has testified that he found a cut injury measuring 7 x 3 cms in the front of neck on the throat exposing underlying thyroid cartilage and blood vessels and he referred her to RMMCH, Chidambaram for further treatment. He expressed opinion that the said injury is grievous in nature and issued Ex.P8 wound certificate. Ex.P11 is the accident register extract for the same. P.W.9 Dr. T.A. Chandralathan attached to Raja Muthiah Medical College and Hospital, Chidambaram, conducted surgery on the neck injury of P.W.2 Sangeetha and treated her in the hospital.
21. Though No. identification parade was conducted, it does not affect the prosecution case in any way. As already seen, P.W.1 Prosecutrix in her Ex.P1 complaint itself, has stated that at 9.30 A.M. on the occurrence day, the mason Jayakumar of Vaitheeswarankoil employed in the construction work of their house, having a black mole on the left cheek, gained entry into their house, committed rape on her, cut the neck of Manikandan with aruval resulting in his death and also cut her neck as well as the neck of P.W.2 Sangeetha with the aruval resulting in injuries. Ex.P17 is the letter of the Court directing the Medical Officer, Government Hospital, Sirkali to examine the accused Kumar and to issue potentiality certificate. In the said letter, two identification marks of the accused are mentioned and the black mole on the left cheek is mentioned as first identification mark. P.W.11 Ramalingam and P.W.12 Maragatham have categorically stated that the accused Kumar worked as mason in the first floor construction work of their house. P.W.1 Prosecutrix has also testified that she has seen the accused working as mason in the construction made in their house. P.W.16 Maistry Selvam also confirms in his testimony that he inducted accused Kumar @ Jayakumar as one of the masons in the civil work at the house of P.W.11 Ramalingam and he worked for twenty days. The testimonies of P.W.1 Prosecutrix and P.W.11 Ramalingam regarding the employment of the accused Kumar as a mason in the first floor construction work of their house, were put to the accused as question Nos. 6, 71 and 72 during his examination u/s 313 Code of Criminal Procedure and the accused Kumar in his reply to those questions, has admitted in clear terms that he worked as mason in the said construction work. Hence it is clear that P.W.1 Prosecutrix had seen accused Kumar on several occasions prior to occurrence. The testimony of P.W.1 Prosecutrix that accused Kumar came to their house at 9.30 A.M. on the occurrence day is corroborated by the testimony of P.W.15 Santhanakumar who is residing in the opposite house. According to P.W.15 Santhanakumar, while leaving his home at 9.00 A.M. on 4.10.2002, he noticed accused Kumar standing inside the fence of the house of P.W.11 Ramalingam. Hence the testimony of P.W.1 Prosecutrix that it is the accused Kumar who ravished her and inflicted cut injuries on the inmates of the house during the occurrence, is credible and trustworthy. It is also the testimony of P.W.2 Sangeetha that she has seen the accused for more than 15 minutes at the time of occurrence. As already seen, she was 12 years old at the time of occurrence and has witnessed his gruesome acts and because of that, she was able to identify the accused even at a later point of time.
22. According to P.W.33 Inspector Sugumar, he arrested the accused on 11.12.2008 at 4.50 P.M., and enquired him in the presence of P.W.23 VAO Periyasamy and Anr. and recorded the confession statement given by him, of which Ex.P31 is the admissible portion and the accused took them to M. Valliammai Aachi Pawn Shop run by P.W.24 Meyyappan and he recovered M.Os.2, 4 and 5 jewels, and Ex.P24 pawn receipt, under Ex.P32 mahazar in the presence of the said witnesses and the accused further took them to another pawn shop run by P.W.25 Chandran under the name of Sri Vinayaka Finance and he recovered M.Os.3 and 6 silver anklets, and Ex.P25 pawn receipt, under Ex.P33 mahazar in the presence of same witnesses. The mahazar witness P.W.23 VAO Periyasamy has also confirmed in his testimony, that the accused gave confession in their presence providing information and took them to the said pawn shops from where the jewels and pawn receipts were recovered by the Investigation Officer in their presence. P.W.1 Prosecutrix has identified M.Os.2 to 6 as the jewels taken by the accused Kumar from her person and also from the bureau in the house. Her father P.W.11 Ramalingam has also identified those jewels. P.W.24 Meyyappan has testified that the accused Kumar came to his pawn shop on 4.10.2002 at 2.00 P.M., and pledged M.Os.2, 4 and 5 jewels and he gave a sum of Rs. 2,000/-to him and the accused put his signature in Ex.P24 pawn receipt. P.W.25 Chandran has testified that the accused Kumar came to his shop at 11.00 A.M. and pledged M.Os.3 and 6 jewels and he gave a sum of Rs. 375/-to him and obtained his signature in Ex.P25 pawn receipt. It is the contention of the learned Counsel for the Appellant that Exs.P24 and P25 pawn receipts stipulate a condition that the pledged articles have to be redeemed within a period of one year and hence M.Os.2 to 6 jewels could not have been retained in the pawn shops for six years and the recovery cannot be believed. This contention is also liable to be rejected for the reason that the owners of both the pawn shops, namely P.W.24 Meyyappan and P.W.25 Chandran, have stated that they came to know about the occurrence through newspapers. In such circumstance, there is every reason for them to retain those jewels in the shops itself and there is No. artificiality in it. According to P.W.33 Inspector Sugumar, he filed Ex.P21 petition in the Court of Judicial Magistrate, Sirkali directing the accused Kumar to give specimen writing and signature for the purpose of investigation and as per the order of the Court, they were obtained from accused Kumar on 21.1.2009 and were sent for comparison to the Forensic Sciences Laboratory, Chennai by Ex.P22 letter of Court. P.W.20 Karpagam, Scientific Officer (Document Division) of the Forensic Sciences Laboratory, Chennai has testified that she compared the signatures found on Exs.P24 and P25 pledge receipts, with that of specimen signatures and writings of the accused and issued Ex.P27 report stating that both the signatures tallied and the person who wrote both, is one and the same.
23. On the date of occurrence itself, at the request of the Investigation Officer, P.W.32 Inspector Venkatesan, the Finger Print Inspector P.W.35 Ramaiah visited the place of occurrence and lifted two chance prints from the bureau in the house and marked them as R1 and R2. According to P.W.35 Ramaiah, he compared the chance prints with the finger prints of the inmates of the house and found the finger print marked as R2, tallying with the finger print of P.W.11 Ramalingam and he preserved the chance print R1 in the lab. P.W.33 Inspector Sugumar has stated that after arresting the accused, he took finger prints of the accused and sent it for comparison. P.W.21 Kasinathan, Inspector (Finger Print), has testified that he examined and compared R1 chance print lifted from the bureau, with that of finger print of accused and found both of them identical with each other and are made by one and the same finger of the same person. Ex.P28 is his report. This also implicates the accused to the crime.
24. P.W.1 Prosecutrix and P.W.2 Sangeetha were of same age group namely 12 years, at the time of occurrence. It is true that the occurrence took place in the year 2002 and though the accused was named in the FIR, he was not apprehended for a longtime. Aggrieved over the same, P.W.11 Ramalingam moved the High Court pursuant to which the investigation came to be transferred to CB CID and only in the year 2008, the accused was apprehended by P.W.33 Inspector CB CID Sugumar. The lethargic attitude on the part of the then Investigation Officer of the local police will not lead to the conclusion that the entire prosecution case is tainted. P.W.1 Prosecutrix is the victim of rape and she has testified the manner in which the accused committed rape on her and inflicted cut injury on her neck with aruval and she has also stated about the accused robbing M.Os.2 to 6 jewels from her. P.W.2 Sangeetha is an eyewitness to the murder committed by the accused on Manikandan, and she has also testified about the accused inflicting cut injury on her neck with aruval. Their testimonies about the occurrence corroborate with each other and there is No. reason for them to falsely implicate the accused Kumar. Moreover, the scientific investigation discussed above, lends credence to the testimonies of those two injured witnesses. The presence and participation of the accused Kumar in the crime is fully established by the material evidence on record. We therefore, have No. hesitation in confirming the conviction of the Appellant/accused under Sections 449, 342, 376(1), 302, 307 (2 counts) and 394 r/w 397 Indian Penal Code, 1860.
25. It has to be seen as to whether the present case falls under the category of rarest of rare cases for imposition of death penalty. Appellant/accused Kumar is aged about 34 years and he worked as a mason in the first floor construction put up by P.W.11 Ramalingam and he knew fully well that P.W.11 Ramalingam and P.W.12 Maragatham are employed and there will be No. elders in the house on working days during office time and he trespassed into the house on the occurrence day under the pretext of taking the iron bowl and on entering, he locked the door from inside and when the inmates, namely three children, screamed, he put them under fear by showing the aruval and gagged and tied two of them to the window of the pooja room with saree and the accused raised the volume of television and went to the bedroom and pulled the mattress from the cot to the ground and tied the hands and legs of P.W.1 Prosecutrix and put her on the mattress and committed rape on her. When Manikandan having noticed the same, ran to the hall to make phone call, accused Kumar angrily took the aruval and dragged Manikandan by hand to the toilet and cut his neck with aruval resulting in his death and when P.W.2 Sangeetha happened to see the same, he also cut her neck with aruval and not stopping with that, he robbed the jewels and also cut the neck of P.W.1 Prosecutrix with aruval with the belief that all will die and the entire evidence will be wiped out. Luckily the injured children P.Ws.1 and 2 were rescued by P.W.13 Kannan by taking them to hospital in time. The accused was absconding for six years and even during that period, there is evidence to show that he married a lady and deserted her also. The Appellant/accused has No. concern for human life.
26. The Supreme Court in its latest decision in
17. It is trite that death sentence can be inflicted only in a case which comes within the category of rarest of the rare cases but there is No. hard and fast rule and the parameter to decide this vexed issue. This Court had the occasion to consider the cases which can be termed as rarest of the rare cases and although certain comprehensive guidelines have been laid to adjudge this issue but No. hard and fast formula of universal application has been laid down in this regard. Crimes are committed in so different and distinct circumstances that it is impossible to lay down comprehensive guidelines to decide this issue. Nevertheless it is widely accepted that in deciding this question the number of persons killed is not decisive. Further crime being brutal and heinous itself do not turn the scale towards the death sentence. When the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community and when collective conscience of the community is petrified, one has to lean towards the death sentence. But this is not the end. If these factors are present the court has to see as to whether the accused is a menace to the society and continue to be so, threatening its peaceful and harmonious co-existence. The court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance-sheet is to be prepared while considering the imposition of penalty of death of aggravating and mitigating circumstances and just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, it is expected that the holders of judicial power do not stammer, de hors their personal opinion and inflict death penalty. These are the broad guidelines with this Court has laid down for imposition of the death penalty.
27. We are satisfied that the extreme depravity with which the offences of murder and rape were committed on the school going children and the merciless manner in which death was inflicted on the victim Manikandan, a child aged 10 years, brings the present case within the category of rarest of rare cases which merits death penalty. None of the mitigating factors as were indicated by the Supreme Court in
28. In the result, the death sentence awarded by the trial Court, is confirmed and the Referred Trial is answered accordingly.
29. The criminal appeal is dismissed.
