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PATHI ALIAS PATHINATHAN .. ACCUSED versus STATE REP. BY

High Court of Madras

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Pathi alias Pathinathan .. Accused v. State rep. by - REFERRED TRIAL (MD) No.1 of 2007 [2007] RD-TN 1618 (25 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 25/04/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

REFERRED TRIAL (MD) No.1 of 2007

Pathi alias Pathinathan .. Accused vs

State rep. by

The Inspector of Police

Kodaikanal Police Station

Crime No.502 of 2003 .. Complainant Referred trial registered by this Court for confirmation of death sentence imposed on the accused in S.C.No.67/2006 on the file of the Principal Sessions Judge, Dindigul District, by a judgment dated 26.2.2007. For Accused : Mr.C.Ramachandran

Amicus Curiae

For Complainant : Mr.A.Balaguru

Additional Public Prosecutor

:JUDGMENT



(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Trial referred by the Principal Sessions Judge of the Court of Session of Dindigul District for confirmation of the sentence of death passed upon the said prisoner in S.C.No.67/2006 on 26.2.2007.

2.The short facts of the prosecution case can be stated thus: (a) P.W.1 is the husband of P.W.3. Out of the wedlock, they had two children, one Shanmugavel examined as P.W.5, and a female child by name Prianga aged 4. They were all residing at Shanbaganoor, Kodaikanal. Both the children were educated at Palvadi situated near St. Xavier School. The children used to leave for the school at 8.00 A.M. and used to return in the afternoon. Hence, they used to take their lunch in tiffin boxes. After sending them to school at 8.00 A.M, P.Ws.1 and 3 used to go for coolie work. On the date of occurrence namely 25.11.2003, as usual, the children left for the school in the morning hours. P.Ws.1 and 3 also left for their work. At about 5.30 P.M., the child Prianga and her brother P.W.5 were playing in front of their house. After P.W.5 went to the house, Prianga was playing with P.W.6, Anitha, the daughter of one Balan. Sometime later, P.W.6 also went to her house leaving Prianga who was playing with the accused. P.Ws.1 and 3 who returned from work, went to the neighbour's house. At that time, they found Prianga playing with the accused. (b) The accused in order to quench his sexual thirst, took the child Prianga inside the house and laid the child in the inner room in the horizontal position. At about 7.30 P.M., he removed the jatti of the child and attempted to thrust his private part into the vagina of the child. When he found it difficult, he enlarged the whole by tearing her private part. The child began to cry when she could not bear the pain. Immediately, he made her quiet by touching her with burning beedi. Thereafter, he quenched his sexual thirst by raping her. Then, Prianga raised alarm. After closing her mouth, he continued to have the sexual intercourse which resulted in profuse bleeding from the private part of the child. As a result, the child succumbed. (c) P.Ws.1 and 3 who went to the nearby house, on return, could not see Prianga. They immediately enquired the accused; but, he informed them that Prianga was not there. Thereafter, they searched for the child, but could not trace her. The accused left his house on the night of 25.11.2003 by locking the doors. At about 5.30 A.M. on 26.11.2003, when P.W.7 along with his wife and neighbour was burning the dry leaves in order to warm themselves, they found the accused taking the dead body of Prianga. In view of the fear entertained by them for the accused, a drunkard, they did not inform this fact to anybody. On 26.11.2003, P.Ws.1 and 3 along with P.W.4, the nephew of P.W.1, searched for the child. P.W.4 entertaining suspicion over the conduct of the accused leaving the house on 25.11.2003 night and not returning on 26.11.2003, peeped through the window of the house of the accused and found the tiffin carrier of Prianga and the jatti of Prianga inside the house. Immediately, he went behind and went inside Samiyar Thottam, where he found the dead body of Prianga. Immediately, the same was informed to P.W.1.

(d) P.Ws.1 and 3 along with others proceeded to the spot and found Prianga with bleeding injuries along with two burn injuries on the body. On 27.11.2003, P.W.1 immediately proceeded to the respondent police station at about 3.00 P.M. and gave Ex.P1, the report, to P.W.17, the Inspector of Police of that Circle. On the strength of Ex.P1, the report, P.W.17 registered a case in Crime No.502 of 2003 under Sections 376 and 302 of I.P.C. The printed First Information Report, Ex.P15, was despatched to the Court through a Constable. (e) The Investigating Officer took up investigation. At 4.15 P.M., he proceeded to the scene of occurrence. In the presence of P.W.13, the Village Administrative Officer, and another witness, he made an inspection of the scene of occurrence and prepared Ex.P8, the observation mahazar, and Ex.P16, the rough sketch. Then, he made an inspection of the place where the dead body was found, and recovered M.O.6, bloodstained earth, and M.O.7, sample earth, under a mahazar, Ex.P9. The dead body of the child was photographed through P.W.8, the Photographer, and the photos along with the negatives were marked as Ex.P4. The Investigator conducted an inquest on the dead body of Prianga between 16.40 hours and 17.40 hours in the presence of witnesses and panchayatdars and prepared Ex.P17, the inquest report. He examined the witnesses and recorded their statements. Then, he recovered from the house of the accused M.O.8, bloodstained cement plaster, M.O.9, sample cement plaster, M.O.1, tiffin box, and M.O.2, white colour jatti, under a cover of mahazar. (f) Pursuant to a requisition, Ex.P11, given by the Investigator, P.W.14, the Civil Surgeon, attached to the Government Hospital, Kodaikanal, conducted autopsy on the dead body of Prianga and found two burn injuries and abrasion on the face. The Doctor has also found that the vagina of Prianga allowed two fingers to enter. The Doctor has given Ex.P12, the postmortem certificate, with her opinion that death would have occurred about 48 - 60 hours prior to postmortem; and that the deceased would appear to have died due to shock and bleeding occurred during rape activity, and injury to vagina and laceration extending upto peritoneal cavity and injury to head. (g) Pending the investigation, P.W.16, who was in additional charge of Kodaikanal Circle, arrested the accused on 3.12.2003 at Shenbaganoor - Panbarparai falls. The accused volunteered to give a confessional statement, which was recorded in the presence of witnesses. The admissible part is marked as Ex.P5. Following the same, he took the Investigator and the witnesses and produced M.O.3, bloodstained lungi, M.O.4, jatti, and M.O.5, full arm shirt, which were recovered under a mahazar, Ex.P6. The Investigator also recovered M.O.12, a half burnt chappel. The accused was produced before P.W.18, the Doctor, to test his potency. The Doctor, after the examination, gave a certificate, Ex.P23, recording that he was potent. On 12.12.2003, the accused was produced before the Judicial Magistrate. The statement given by the accused was recorded by P.W.12, the Judicial Magistrate, Nilakottai, under Sec.164 of Cr.P.C., after following the procedural formalities. The said proceedings are marked as Ex.P7.

(h) All the material objects recovered from the place of occurrence and from the dead body, and also the material objects produced by the accused on confession, were subjected to chemical analysis by the Forensic Sciences Department. Ex.P25 is the Chemical Analyst's report, and Ex.P26 is the Serologist's report. On completion of investigation, the Investigating Officer filed the final report.

3.The case was committed to Court of Session, and necessary charges were framed against the accused under Sections 376, 302 and 201 of I.P.C. In order to substantiate the charges, the prosecution marched 19 witnesses and also relied on 26 exhibits and 12 material objects. On completion of evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side, found the accused guilty in respect of all the charges and awarded 7 years Rigorous Imprisonment along with a fine of Rs.5,000/- and default sentence under Sec.201 of I.P.C. and life imprisonment along with a fine of Rs.5,000/- and default sentence under Sec.376 of I.P.C. The trial Court recording a finding in respect of the charge of murder that it is a rarest of rare cases, awarded punishment of death under Sec.302 of I.P.C. For the purpose of confirmation, the matter has been placed in the hands of this Court. No appeal has been preferred by the accused. Under the circumstances, the Court thought it fit to appoint Mr.C.Ramachandran as Amicus Curiae, who is having the criminal practice of more than 4 decades, in order to secure the best assistance for the Court to render its findings.

4.Advancing his arguments on behalf of the accused, the learned Counsel would submit that in the instant case, the prosecution had no direct evidence to offer; but, it rested its case only on the circumstantial evidence; but, the prosecution was unable to place or prove the necessary circumstances in order to find the accused guilty; that P.W.1 is the father, and P.W.3 is the mother of the child; that according to the prosecution, P.W.5, the brother of the child, and P.W.6 were also other two children who were playing with the child Prianga at about 5.30 P.M. on the date of occurrence namely 25.11.2003, and P.W.5 is the other child of P.Ws.1 and 3, and P.W.5 came back to the house leaving the sister Prianga who was playing with P.W.6, and P.W.6 also left for her house, and at that time, the accused was playing with the child; that according to P.Ws.1 and 3, after coming from the work, they found the child playing with the children, and thereafter, when they went to the neighbour's house, they saw the child playing with the accused, and after sometime at about 7.30 P.M., they did not find the child, and then, they came out and enquired the accused who was a neighbour; but, the accused informed them that he did not know about the child; and that they had to search the child outside; that under the circumstances, P.Ws.1 and 3 should have entertained suspicion over the conduct of the accused even assuming to be so; that no one could expect P.Ws.1 and 3 the parents of the child of tender age of 4, did not go to the police station for a period of about 48 hours; that the evidence of P.Ws.1 and 3 that they were searching for the child throughout the night and also along with P.W.4 on the next day, and they went to the police station only on 27.11.2003 was highly doubtful; that apart from that, according to P.W.4, he peeped through the window on 27.11.2003, and he found the tiffin carrier, M.O.1, and jetti, M.O.2, of the child; but, Ex.P1 which was given by P.W.1 to the Police Officer, does not refer to the jetti, and also when the history of the case was given for the purpose of postmortem, the jetti was also not referred to; that it is highly doubtful whether jetti would have been taken from the house of the accused; that even the Investigating Officer has candidly admitted that jetti was also not sent for the purpose of analysis, and thus, it also adds the doubt.

5.The learned Counsel would further submit that burnt ash and also half burnt chappel which is marked as M.O.12, were recovered from the place of occurrence; that it was also recovered pursuant to the confession and on identity by the accused; that it is highly a matter of surprise to note that M.O.12 was found in front of the house of the accused; that if to be so, P.Ws.1, 3, 5, 6, 7 and 10 all were coming around the house all along the days, and thus, the recovery of half burnt chappel is nothing but an introduction; that according to P.W.6, when she was playing with Prianga, Prianga was wearing the school uniform which was blue in colour; but, according to the observation mahazar, the colour of the skirt was found to be one in black; and that the same also casts a doubt.

6.The learned Counsel would further add that the medical evidence, in the instant case, did not support the prosecution case; that according to P.W.14, the Doctor, who conducted postmortem, the child would have died about 48 to 60 hours prior to autopsy; that if to be so, according to the medical jurisprudence, there should have been putrefaction; that under such circumstances, swelling would have also been possible; and that no one of the clothes was found with any symptom of semen.

7.Added further the learned Counsel that in the instant case, the prosecution has examined P.Ws.7 and 10 to the effect that P.W.7 at about 5.30 A.M., he was burning the dry leaves, and at that time, he along with his wife and others were sitting, and he found the accused carrying the child, and though he was able to see the child and though he entertained suspicion, he did not inform to the parents since the accused was a drunkard, and in view of the fear for him, he did not inform so, and even after they were searching for the child, he did not do so; that the evidence of P.W.7 that he did not inform so is nothing but highly artificial; that it creates a doubt whether P.W.7 could have seen so; that as far as P.W.10 was concerned, he was a neighbour, according to whom, he heard the distressing cry of the child from inside the house of the accused; that he has also candidly admitted in the course of the cross- examination that the cry of the child, if made, would have been heard by the persons in the nearby houses also; that if to be so, P.Ws.1 and 3 could have well heard; but, it was not their case; that the evidence of P.Ws.7 and 10 is nothing but only for the purpose of introduction; and that under the circumstances, the evidence of P.Ws.7 and 10 was to be rejected.

8.Added further the learned Counsel that the prosecution relied only on the circumstantial evidence; that the accused was taken to the Magistrate for the purpose of recording the statement under Sec.164 of Cr.P.C., wherein he has also stated that he has nothing to do with the offence, and he was arrested somewhere, and he has not produced anything, and it is a cooked up case against him; that under the circumstances, that part of the evidence was not useful to the prosecution, and thus, the prosecution had the only evidence of these witnesses; and that the circumstances brought about, did not connect the accused with the crime in question, and hence, the prosecution has not proved the case in any manner; but, the trial Court has not considered the position either factual or legal, and hence he is entitled for acquittal;

9.Added further the learned Counsel that if the Court takes a view that the circumstances placed and proved, were sufficient enough to find that it was he who committed the rape and also caused the death of the child, no intention could be culled out from the evidence available; that even according to the prosecution case, he never intended to cause death of the child; that after the commission of rape, there was profuse bleeding, and it has caused the death; that under the circumstances, the act of the accused cannot be considered to be one of rarest of rare cases, and hence, penalty what is awarded by the trial Court, is excessive.

10.In support of his contention, the learned Counsel relied on the two decisions of the Apex Court reported in 2001 SUPREME COURT CASES (CRI) 248 (STATE GOVT. OF N.C.T. OF DELHI V. SUNIL AND ANOTHER) and in (2007) 1 MLJ (CRL) 634 (AMRIT SINGH V. STATE OF PUNJAB).

11.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.

12.It is not in controversy that a child of tender age of 4 by name Prianga, the daughter of P.Ws.1 and 3, died following a sexual assault at the night hours of 25.11.2003, and after the dead body was found by P.W.4, he informed to others. P.W.1 immediately rushed to Kodaikanal Police Station and gave a report. Thereafter, a case was registered, following which the investigation was done, during which the inquest was made. Pursuant thereto, the dead body was subjected to postmortem by P.W.14, the Doctor, who has given her opinion that the child died would appear to have died due to shock and bleeding occurred during rape activity, and injury to vagina and laceration extending upto peritoneal cavity and injury to head, as evident from the postmortem certificate also. Thus, without any impediment it could be recorded that the child Prianga died following the sexual assault made on her by rape.

13.In order to substantiate the charges, three in number, levelled against the accused, the prosecution rested its case only on the circumstantial evidence, since it had no direct evidence to offer. It is an admitted position that the accused also had his residence nearby that of P.Ws.1 and 3 who were the parents of the child Prianga. It was his usual practice to play with the child in front of the house along with the other children. P.Ws.1 and 3 had no animosity against or any strained relationship with the accused in the past. He was moving with the family members of the prosecution witnesses friendly. The child Prianga and his brother P.W.5 Shanmugavel, were being educated in the nearby school. They used to go to the school at about 8.00 A.M. and come in the afternoon. After sending the children to the school, P.Ws.1 and 3 used to go for their coolie work and return in the evening. As usual on the date of occurrence, both the children were sent for school that morning, and thereafter, P.Ws.1 and 3 went for their coolie work. When they returned from the coolie work, both P.Ws.1 and 3 witnessed Prianga playing with the children, P.Ws.5 and 6. First P.W.5 went to the house. At that time, Prianga was playing with P.W.6 Anitha. Thereafter, P.W.6 also left for her house. At that time, it was the accused who was playing with the child Prianga. P.W.6, a child, who is well acquainted with the accused, has clearly spoken to the fact that it was the accused who was last playing with Prianga in front of the house at about 6.30 P.M. At that time, both P.Ws.1 and 3 went to the neighbour's house. They also witnessed Prianga, the child, playing with the accused. When they returned at about 7.30 P.M., they did not find the child in the house. Immediately, they enquired the accused, who was sitting in front of the house. He was telling them that the child was not with him, and she went, and they had to search her outside. With that answer, he kept quiet. Thereafter, they were searching for the child on that night and also on the next day. P.W.4, the nephew of P.W.1, also joined with P.Ws.1 and 3 in search of the child on the next day; but, they could not trace the child. Entertaining suspicion over the conduct of the accused that he left the house on that night locking the house, and he has not returned, P.W.4 peeped through the window, when he found M.O.1, tiffin carrier, and also M.O.2, jetti, inside the house of the accused. Thereafter, he went backside and found the dead body of the child on the second gallery in a college premises. He immediately informed the same to all of them. P.W.1 went to the Police Station and gave a complaint.

14.The first circumstance what was noticed by the Court was that the child was last seen playing with the accused, and the second one was the conduct of the accused that he left the house on the night of the date of occurrence, and the child was found behind the house of the accused. One more circumstance was M.Os.1 and 2, tiffin carrier and jetti respectively, belonging to the child, were found inside the house of the accused. Now, at this juncture, it has to be pointed out that once the house of the accused was kept locked, and he went away from the place, how M.O.1, tiffin carrier, and M.O.2, jetti, happened to be inside the house, it is for the accused to give an explanation in this regard. The learned Counsel brought to the notice of the Court that in Ex.P1, jetti is not referred to, and also even the history of the case sent for the purpose of postmortem certificate, does not refer to jetti. It is pertinent to point out that the observation mahazar prepared by the Investigator in the presence of two witnesses, refers to the presence of the jetti inside the premises of the accused. Thus, the presence of these M.O.1, tiffin carrier, and M.O.2, jetti, of Prianga in the locked house of the accused was a strong circumstance against the accused.

15.Added circumstances are that the accused was arrested in the presence of the witnesses by the Investigator. He came forward to give a confessional statement. The bloodstained lungi, bloodstained jetti, and full arm shirt belonging to the accused, were recovered from him in respect of which a witness has been examined. All these material objects were subjected to chemical analysis. The blood group found therein, were found to be tallying with the one as found in the items what were recovered from the place of occurrence and the clothes recovered from the dead body, and also the clothes recovered from the accused, which were worn by him at the time of occurrence. Thus, the scientific evidence was pointing to the complicity of the offender.

16.Added further, in the instant case, the medical opinion placed by the prosecution through P.W.14, the Doctor, was in corroboration of the other circumstances. According to P.W.14, the Doctor, the dead body was subjected to postmortem, and the vagina was found to be swelling and was able to allow two fingers inside, and also the death would have been caused due to the profuse bleeding following the sexual assault. The contention put forth by the learned Counsel for the accused is that it was a child of 4 years old, and therefore, the opinion of the Doctor that her vagina allowed two fingers was nothing but an exaggeration against the actual condition, and further, there was swelling which was also possible due to the putrefaction that would have happened, since death had happened before 48 to 60 hours, and as per the medical jurisprudence, it was possible. Even as per the prosecution case, the accused was aged 58 years, and the child was only 4 years old. At that time, when the child was 4 years old, it is quite natural that he could not have a proper penetration, and there was profuse bleeding, which also caused the death. The same would indicate that tearing the private part only, he would have had the penetration, and thus, in the instant case, the Doctor's opinion canvassed, was also in favour of the prosecution.

17.Apart from the above, the prosecution examined two witnesses namely P.Ws.7 and 10. This Court has to necessarily agree with the learned Counsel for the accused. The way in which they have deposed before the Court would be sufficient to reject their testimonies. Thus, in the instant case, all the circumstances are available pointing to the guilt of the accused. This Court is mindful of the caution that in a given case like this, where the prosecution rested its case exclusively on the circumstantial evidence, the necessary circumstances must be placed and proved by the prosecution pointing to the hypothesis that except the accused, no one else could have committed the offence. In the instant case, the prosecution by examining the above witnesses has placed necessary circumstances as narrated above, pointing that except the accused, no one else could have committed the crime, and thus, it was the accused who took the child of tender age of 4 years and had sexual intercourse after tearing the private part and also caused profuse bleeding and caused her death. Under the circumstances, the trial Court was perfectly correct in finding so. That apart, in order to screen the evidence, he took the dead body and threw at the place where it was found. The trial Court has marshaled the evidence proper and found him guilty under Sections 201, 302 and 376 of I.P.C. This Court is unable to see anything to disturb the factual finding recorded by the trial Court.

18.Coming to the punishment awarded by the trial Court, this Court is unable to see anything insofar as two charges under Sections 201 and 376 of I.P.C. So far as the charge of murder was concerned, it was a brutal and gruesome murder. The trial Court was of the view that it was a fit case where capital punishment of death should be awarded. In the instant case, even from the evidence of P.W.7, it would be quite clear that the accused was a drunkard and used to take ganja, and apart from that, he was not shown to be educated, and not having civilization. One more circumstance is that the medical opinion would indicate that Prianga died out of profuse bleeding which followed the sexual assault. Thus, there is nothing available to indicate that he had got the intention to kill the child. The evidence would go to show that in the course of the sexual assault, profuse bleeding followed, and the child died. Out of the two decisions cited by the learned Counsel for the accused, this Court is of the considered opinion that it is a fit case where this Court could well follow the decision reported in (2007) 1 MLJ (CRL) 634 (AMRIT SINGH V. STATE OF PUNJAB), wherein it has been held that the manner in which the deceased was raped may be brutal, but it could have been a momentary lapse on the part of the accused, seeing a lonely girl at a secluded place, and the offence though heinous, but under no circumstances, it can be said to be a rarest of rare cases. In that case, the death penalty awarded by the trial Court, was found to be not proper. In the instant case, the facts are analogous. Following the judgment, this Court has to make a comment that the case on hand is one which cannot be stated to be one of rarest of rare cases, which would require the capital punishment. Under the circumstances, the punishment given by the trial Court under Sec.302 of I.P.C., is modified to one for life imprisonment. The sentences are to run concurrently. Accordingly, it is ordered and sent to the trial Court.

19.Before parting with the judgment, the Court has to make a note of appreciation for the assistance rendered by Mr.C.Ramachandran, Amicus Curiae, and also Mr.A.Balaguru, the Additional Public Prosecutor, and it can be recorded as assistance in the real sense of the terms.

Mr.C.Ramachandran, appointed as Amicus Curiae, is entitled to get remuneration from the Legal Aid, Madurai.

To:

1.The Principal Sessions Judge

Dindigul District

2.The Inspector of Police

Kodaikanal Police Station

Crime No.502/2003

3.The Public Prosecutor

Madurai Bench of Madras High Court

nsv


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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