IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE17H DAY OF DECEMBER201326TH AGRAHAYANA, 1935 Death Sentence Ref..No. 3 of 2011 -------------------------------------- AGAINST THE
JUDGMENTIN SC NO.345/2011 OF ADDITIONAL DISTRICT AND SESSIONS COURT (FAST TRACK I), THRISSUR DATED1111/2011 .... APPELLANT/PETITIONER: --------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SPECIAL PUBLIC PROSECUTOR SRI.A.SURESAN RESPONDENT: ---------------------- GOVINDASWAMY, S/O.ARUMUGHAM, RESIDING AT AIVATHAKUDI, SAMATHWAPURAM, ERNAJI PO, VIRUDHAJALAM, KADALOOR DISTRICT, TAMIL NADU. BY ADVS. SRI.B.A.ALOOR SRI.P.A.SIVARAJAN SRI.E.SHANOJ CHANDRAN SRI.P.C.GEORGEKUTTY SRI.K.I.TOGI THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON0411/2013 ALONG WITH CRMC.NO.125/2012 AND CRA.NO.149/2012,THE COURT ON1712/2013 PASSED THE FOLLOWING: Kss [CR] T.R. RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.
-------------------------------------------------------------- D.S.R. No. 3 of 2011, Crl. Appeal No.149 of 2012, & Crl. M.C. No.125 of 2012 -------------------------------------------------------------- Dated this the 17th day of December, 2013. C O M M O N
JUDGMENT
Kemal Pasha, J.
Facts are stranger than fiction! Gone are the days of men rising to the occasion as heroes or warriors to save fellow human beings from danger! The lethargic lukewarm attitude, the insensitivity to respond, and selfishness to be non-responsive from the part of the fellow passengers of a running train to extend a helping hand, to lift a girl from danger, has resulted in a grave tragedy as the one in this case! How cruel is the attitude D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
2. :- of a section of the community, who even dissuade willing persons to respond to such cries for help? It is all the more tragic and pitiable to note the lukewarm attitude of the Indian Railways towards the safety and security of women passengers! 2. The factual matrix depicts severe sexual assault, robbery, and murder of a poor girl of 23, who had to travel by the ladies compartment of a passenger train, with the sweet dreams of her proposed marriage alliance. The girl, who wanted to have a safe journey, unfortunately opted for the ladies compartment, which ultimately turned out to be her graveyard. The girl became lonely for her continued journey to the destination for just about 10 minutes, became virtually trapped in it. A dare criminal, who is a monstrous creature in the form of a sex perverted assailant, barged in to the compartment, and pounced upon her in order to satisfy his lust and also for robbery. She was attacked, overpowered, assaulted, and the dangs dived! 3. As per the directives of the Apex Court, in all rape trials, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
3. :- anonymity of the victim must be maintained as far as necessary. Therefore, we refer the victim girl in this case as 'the deceased' or 'deceased girl' or 'the girl' or 'the victim', in accordance with the context.
4. Deceased girl, aged 23, hailing from a poor family at Shornur got a small job at an institution named `Homestyle Interiors (Pvt) Ltd.' functioning at the Oberon Mall, Edappally, Ernakulam. She and her family consisting of her younger brother and their mother were eking their livelihood from the monthly salary of 6000/- being earned by her. Once in a while, during holidays, she used to go to her house at Shornur by the Ernakulam - Shornur passenger train, which leaves Ernakulam by 5.30 p.m.
5. During the course of her employment, she got acquainted with PW76, a 24-year-old young man employed at Ernakulam, who is the friend of some of her co-workers. They liked each other and he proposed her. Both the families also D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
4. :- concurred to have such an alliance and thereby they decided to conduct a ceremony for fixing their betrothal at the house of the deceased on 2.2.2011. PW76 along with his family members were scheduled to visit the house on that day, and therefore, the presence of the deceased was also required there.
6. The deceased bordered the ladies division in the last compartment of the Ernakulam-Shornur Passenger Train, which started at 5.30 p.m. on 1.2.2011, to Shornur, with Ext.P25 ticket, from the Ernakulam Town North Railway Station. PW3 Rejula, her daughter, her mother and her granddaughter were also present in that ladies division along with the deceased. The deceased got friendly with them within a short time. When the train reached Thrissur, most of the passengers in that ladies division got down. Another lady also who was present in that ladies division got down when the train reached Wadakkanchery. There, PW3 got down at the platform, purchased milk for the child from the Milma booth there, and got back to the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
5. :- compartment. At that time, she could notice the hungry look stared at her by the accused, who was standing outside the compartment and by peeping through the window. When the train reached Mulloorkara, PW3 and her family also got down there. As there was nobody else in the ladies division of that compartment, the deceased also got down along with them and hurriedly made an entry into the ladies coach attached just in front of that last compartment. The train reached Vallathol Nagar Railway Station, where it lay idle for some time.
7. The prosecution case is that the accused who is a habitual offender, could notice that the deceased was left alone in the compartment. When the train left Vallathol Nagar Railway Station, and moved towards Shornur, the accused swiftly hoisted into that ladies compartment, and rushed to the victim. The screaming victim frantically ran here and there in a fury in the limited space available in the compartment, in order to escape from the clutches of the accused. She resisted and resisted D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
6. :- hard. She was caught and her head was forcibly hit repeatedly on the walls of the compartment. On sustaining fatal injuries, she became dazed and practically immobilized. Her loud cries and screams died down in the compartment as wild cries. She was dropped from the running train down to the track. The side of her face forcibly hit on the crossover of the railway line.
8. The accused, who is experienced in that way of doing things, jumped down from the running train on the other side, rushed to her, and lifted her to a shady safe place at the side of the track. He hurriedly tore away and removed her dress, and raped the poor girl whose face was with full of blood, oozing out from the injuries on her head and face. He acted as a necrophile. After satisfying his lust, the accused ransacked her belongings, searched for the valuables in her bag, and robbed her mobile phone which was the only valuable material with that poor girl, and decamped with the booty, by leaving the victim in nudity, in supine position. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
7. :- 9. PW4 and PW40, who were two male passengers of the train travelling by the general compartment attached in front of that ladies compartment wherein the deceased was travelling, heard the cries of the deceased. Even though PW4 wanted to pull the alarm chain to stop the train, he was dissuaded by a middle-aged man who was standing at the door at the right rear side of that compartment by stating that the girl had jumped out and escaped, and further by warning that he should not drag others unnecessarily to court. PW4 and PW40 could notice the accused coming to the front left door of that ladies coach, and by holding on the side bar of the compartment getting down to the lower step by taking a leaning position forward to jump out of the train which was then moving in a slow speed, just about 15 km/h. Even though PW4 questioned the acts of the accused, he jumped down, safely landed on his feet and right palm, swiftly sprang up, and took his way back through the side of the track, towards the direction from which the train came. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
8. :- 10. Within a short span of 10 minutes, the train reached Shornur. Immediately PW4 and PW40 rushed to PW34 guard of the train and complained about the incident, which triggered in the search of the track by some young men of the locality, and PW19 Gang-man of the Vallathol Nagar Railway Station. Some of the young men who came for search could see the accused coming from the railway track to the Kalamandalam Bus Stop. The accused was seen panting. The accused attempted to hire an autorickshaw, as if he wanted to go to Shornur or Thrissur. Even though they suspected the accused as a person who fell down from the train, they let him go on noticing that his left palm was amputated, and thought him to be a person engaged in begging in trains.
11. Thereafter, all of them engaged in a search at the railway track, and ultimately, by about 9.30 p.m., the distorted and mutilated body of the deceased which was in almost naked state could be traced out from the side of the railway track D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
9. :- wherein she was subjected to rape. The deceased was seen fighting for her life and was seen moving her right hand and right leg. Blood was seen oozing out from the injuries on her face and head. There was difficulty to breathe and the breathing produced a peculiar sound on account of the obstructions on the airway as blood aspirated into it. By that time, the left side of her body had become paralytic.
12. PW19 took the deceased to the Shornur-Thrissur road, from where the deceased was taken to the Taluk Hospital, Wadakkanchery by the police jeep which came in pilot duty to the Minister, who was proceeding to Shornur. PW62 Junior Medical Consultant on duty at the Taluk Hospital, Wadakkanchery, who examined the deceased by about 10.30 p.m. realised that she was critically ill and was very serious, and she was immediately referred to the Medical College Hospital, Thrissur. She was taken to the casualty of the Medical College Hospital, Thrissur, by the very same jeep. Several medical D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
10. :- experts attended her. Gynaec consultation was also done.
13. On the basis of Ext.P8 First Information Statement furnished by her brother PW6 at 2.30 a.m. on 2.2.2011, PW46 ASI of police, Cheruthuruthy Police Station registered Crime No.41/2011 of the Cheruthuruthy Police Station U/Ss. 307 and 376 IPC, through Ext.P40 F.I.R, at 3.30 a.m. On 2.2.2011 at 4 a.m, PW81 C.I. of Police, Chelakkara, took over the investigation.
14. Surgical operations were done on her, and all sorts of possible medical assistance and supports were given to the deceased. Even after that, her condition never improved, and she continued in the ventilator in very critical condition. By 6.2.2011, her condition became very bad and peripheral pulses were not felt. In the last consultation by PW79 Neurosurgeon at 2.30 p.m. on 6.2.2011, ECG was found to be flat line, BP was not recordable, and cardiac sounds were not heard. Finally, her ordeals were over, when her death was declared at 3 p.m. on D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
11. :- that day.
15. PW81 along with CW137 H.C., CW136 H.C. and PW73 W.P.C. reached the Shornur Railway Station at 4 a.m. on 2.2.2011 itself and examined the ladies compartment No.08495 of Ernakulam - Shornur Passenger Train in which the deceased had travelled on the date of incident. From the floor, beneath the wash basin near to the front door of the bogie, MO19 series pieces of hair clip, MO23 steel coloured ring of a key chain, MO24 glass type transparent bead, MO31 plastic button having yellow colour on one side, and MO30 violet coloured button broken into three pieces, having with writings as 'double', one of which contained thread also, were found, and the same were seized through Ext.P37 mahazar.
16. PW52 collected the materials lying scattered at the place where the deceased was found lying at the railway track, and he kept it in safe custody. On 2.2.2011 at 8 a.m., PW52 produced all the said 21 items which are MO2, MO7 to MO13 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
12. :- series, MO16, MO21, MO22, MO25 series, MO26, a puppet, two artificial ear studs, MO34 to 38 and Ext.P25 ticket of the deceased, at the Cheruthuruthy Police Station, before PW81, which according to his direction, were seized by PW46 through Ext.P31 mahazar.
17. On getting the report regarding the death of the deceased at 3 p.m. on 6.2.2011, PW81 reached the Medical College Hospital, Thrissur, conducted the inquest, and prepared Ext.P36 Inquest Report. He gave requisition for the postmortem examination.
18. On 7.2.2011, PW64 Professor and Head of the Department of Forensic Medicine, Medical College, Thrissur conducted the postmortem examination on the body of the deceased, with the assistance of five other doctors namely Dr.A.K.Unmesh (DW1), Dr.P.S.Sanjay (CW119), Dr.Rajendra Prasad.V.K (CW120), Dr.Anad.T.P. (CW121) and Dr.Shahida M.V. (CW122), and thereafter PW64 issued Ext.P69 postmortem D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
13. :- certificate. PW64 produced the nail clippings and pubic hair samples, which PW81 seized through Ext.P74 mahazar 19. PW63 Dy.S.P, in Palakkad Railway, got a message during the dawn of 2.2.2011 for enquiring about a Tamil speaking one handed man, who is the suspect in Crime No.41/11 of the Cheruthuruthy Police Station. On the basis of such message, while he along with the police party was in search of such a person, they could see the accused, who is a person corresponding to the descriptions received, in suspicious circumstances in front of the bus stand situated in front of the Palakkad Railway Station, by about 11 p.m. He was seen dressed in MO5 lungi and MO6 shirt. Bloodstain was seen at the chest portion of MO6 shirt. Buttons of the shirt were seen detached and lost. From his conduct and words, PW63 developed a strong suspicion about his involvement in the crime. He took him into custody and produced him at the Cheruthuruthy Police Station at 1 a.m. on 3.2.2011, and handed over him to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
14. :- PW81, for further investigation.
20. Major part of the investigation was conducted by PW81, which followed the investigation by PW82. PW82 completed the investigation, and filed the final Report before the Judicial First Class Magistrate's Court, Wadakkanchery, where it was taken on file as C.P.No.30/2011. The learned Magistrate committed the case to the Court of Session, where it was taken on file as Sessions Case No.345/2011, and the same was made over to the Additional Sessions Court (Adhoc-I), Thrissur for trial and disposal.
21. On the side of the prosecution, PWs1 to 83 were examined, Exts.P1 to P101 were marked, and MOs 1 to 43 series were identified. The prosecution and the accused were heard. As no grounds were made out to acquit the accused under Section 232 Cr.P.C, the accused was called upon to enter on his defence. On the side of the accused, DW1 was examined, and no documents were marked. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
15. :- 22. On reopening the evidence, DW1 was again summoned and examined as CW1, and Exts.C1, C2, and C2(a) were marked. Arguments of the Prosecution and the defence were heard. The court below found the accused guilty of the offences under Sections 376, 302, 394 r/w 397, and 447 IPC, and convicted him thereunder. On hearing on the question of sentence, PW83 Sub Inspector, Fingerprint Bureau, Chennai was summoned and examined, and Exts.P93(c), and P102 to P110 were marked. Again, arguments from both sides were heard.
23. The court below sentenced the accused to death by directing that he be hanged by the neck till he is dead, and to pay a fine of 1,00,000/-(Rupees One lakh only), in default, to undergo Simple Imprisonment for 2 (two) years under Section 302 IPC, Imprisonment for Life and to pay a fine of 1,00,000/- (Rupees one lakh only), in default, to undergo Simple Imprisonment for 2 (Two) years under Section 376 IPC, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
16. :- Rigorous Imprisonment for 7 (seven) years and to pay a fine of 1000/-(Rupees one thousand only), in default, to undergo Simple Imprisonment for 1 (one) month under Section 394 r/w 397 IPC, and Rigorous Imprisonment for 3 (three) months under Section 447 IPC, through the impugned judgment.
24. The learned Additional Sessions judge has placed the entire proceedings in this case before this Court for confirmation under Section 366(1) of the Cr.P.C, and hence this Death Sentence Reference No.3 of 2011. Challenging the conviction and sentences, the accused has preferred Crl.Appeal No.149 of 2012 also.
25. DW1 Dr.A.K. Unmesh, as petitioner, has preferred Crl.M.C. No.125 of 2012 for getting the remarks and observations as against him in paragraphs 85, 86, 88, 89, and 155 in the judgment impugned in Crl.Appeal No.149 of 2012, expunged. Over and above it, the said petitioner as appellant, has preferred Crl.Appeal No.1996 of 2011 under Section 341 of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
17. :- the Cr.P.C, challenging order dated 31.10.2011 passed by the court below in Crl.M.C. No.1647 of 2011 in S.C.345 of 2011.
26. As the facts relating to, and the evidence in respect of D.S.R. No.3 of 2011, Crl.Appeal No.149 of 2012, and Crl.M.C. No.125 of 2012 are interconnected, we deem it appropriate to dispose of the same through this common judgment. Crl.Appeal No.1996 of 2011 filed under Section 341 of the Cr.P.C can be disposed of through a separate judgment. As there are two different appeals in connection with this case, the appellant in Crl.Appeal No.149 of 2012 has been referred to as 'the accused' and the petitioner in Crl.M.C. No.125 of 2012, who is the appellant in Crl.Appeal No.1996 of 2011 has been referred to as 'DW1' in this common judgment.
27. Heard the learned counsel Sri.B.A. Aloor appearing for the accused in Crl.Appeal No.149 of 2012 and the learned Special Public Prosecutor Sri.A. Suresan. Heard the learned Senior Counsel Sri.T.A. Shaji appearing for the petitioner in D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
18. :- Crl.M.C.125 of 2012 and also Sri. Kaleeswaram Raj, learned counsel appearing for the defacto complainant in Crl.Appeal No.1996 of 2011.
28. The learned counsel for the accused in Crl.Appeal No.149/2012 has argued that the court below has totally misread the entire evidence in the case and has failed to appreciate the evidence in its correct perspective. It is also argued that an independent appreciation of the entire evidence is required to be made by this Court in this appeal, and if not, the accused would be put to substantial miscarriage of justice.
29. We are conscious of the fact that in terms of Section 366(1) of the code, "When the Court of Sessions passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court." In Mohinder Singh v. State of Punjab [(2013) 3 SCC294, it D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
19. :- was held as follows: "The scope and application of the above section is only in cases where a sentence of death has been passed by the Court of Session. The Court of Session should refer the proceedings to the High Court and the High court can only deal with them as a court of reference. It is the practice of the High Court to be satisfied on the facts as well as the law of the case, that the conviction is right, before it proceeds to confirm that sentence. In other words, the High Court has to come to its own independent conclusion as to the guilt or innocence of the accused, independently of the opinion of the Sessions Judge. In a reference for confirmation of death sentence, the High Court must examine the entire evidence for itself independent of the Session Court's views. While confirming the capital sentence, the High Court is under an obligation to itself consider what sentence should be imposed and not be content with the trial court's decision on the point unless some reason is shown for reducing the same. Where, in addition to an appeal filed by an accused sentenced to death, the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
20. :- High Court has to dispose of the reference for confirmation of death sentence under Section 366 of the Code, the High Court, while dealing with reference, should consider the proceedings in all its aspects and come to an independent conclusion on the material on record apart from the views expressed by the Sessions Judge. The confirmation of death sentence cannot be based only on the precedents and/or aggravating facts and circumstances of any other case." 30. In State of Tamil Nadu v. Rajendran [(1999) 8 SCC679, a Three Judges Bench of the Apex Court held: "When a reference is made to the High Court under Section 366 of the Code of Criminal Procedure by the learned Sessions Judge on passing a sentence of death, the High Court has to satisfy itself whether a case beyond reasonable doubt has been made out against the accused for infliction of the extreme penalty of death. The proceedings before the High Court in such a case require a reappraisal and reassessment of the entire facts and law so as to come to its D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
21. :- independent conclusion but while so doing, the High Court cannot also totally overlook the conclusion arrived at by the learned Sessions Judge. In performing its duty, the High Court is of necessity bound to consider the merits of the case itself and has to examine the entire evidence on record." 31. Being the first appeal, and also as the matter is placed before this Court by the court below for the confirmation of the death sentence, it is trite that this Court is expected to make an independent appreciation of the entire evidence in this case. We have heard in extenso all the counsel referred to above on most of the days for the period from 5.10.2013 to 4.11.2013. Now, we are dealing with the evidence in this case in order to have a reappraisal and reassessment of the entire facts and law so as to come to an independent conclusion.
32. PW16 is a Law Graduate and MBA Degree holder, working as H.R.Manager at 'Homestyle Interiors' functioning in Oberon Mall, Edappally, Ernakulam, where the deceased was D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
22. :- also working. On 4.3.2011, PW82 produced before court, Ext.P100 appointment order of the deceased obtained from 'Homestyle Interiors'. Ext.P100 is appointment order dated 3.11.2010 issued by the Managing Director of 'Homestyle Interiors' functioning in Oberon Mall. It seems that she was appointed there as `Merchandiser' with effect from 10.11.2010. The evidence of PW16 and the contents of Ext.P100 clearly prove that the deceased joined that institution and worked there, till 5 p.m. on 1.2.2011.
33. PW16 lastly saw the deceased alive at 5 p.m. on 1.2.2011. She along with the deceased was residing at `S.I.Apartments', Alinchuvadu, where the accommodation was provided by the said Company, in which they were working. The Company has prescribed dress code, as cream coloured sleeve shirt, black pants, black shoe etc. Hair has to be clipped and net has to be put on. According to PW16, as a function was scheduled to be held in connection with the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
23. :- betrothal of the deceased on 2.2.2011, the deceased obtained her permission and proceeded to her house by the Ernakulam - Shornur Passenger Train. The deceased had worn a wrist watch having black coloured strap and carried a black bag, when she left the Company lastly. Thereafter, she could see the deceased at the I.C.U. of the Medical College Hospital, Thrissur, on the next day.
34. The deceased is the elder sister of PW6. According to PW6, he was working as a driver at a house at Thrissur. The deceased was working at an institution situated in Oberon Mall, at Edappally, Ernakulam. She was staying in a flat of that Company. PW18 is their mother. The deceased used to come home, by train. They are economically weak. They were pulling on by the income of the deceased. By about 2.30 p.m. on 1.2.2011, he had gone to the place of work of the deceased at Ernakulam. Then the deceased had asked him whether she could also go along with him to their house. As the family D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
24. :- members of his employer would be there in the car, he could not accommodate the deceased, and therefore, he told her to come by the evening train. By about 7 p.m. on 1.2.2011, he had called the deceased over phone. Then she had told him that the train was about to leave Thrissur, and that there was a family also in the train.
35. According to PW6, 8089783489 was the phone number of the deceased. The said Sim card was taken in his name. On 2.11.2011 a function for fixing the betrothal of the deceased was scheduled, for which, the people from the house of the proposed bridegroom (PW76) were scheduled to visit the house of the deceased, and it was for that function, the deceased was coming to the house. 9539491343 is the mobile number of their mother PW18. Usually, the deceased used to get down at Shornur, and his friend PW36 used to pick her up from the Railway Station by his autorickshaw, to her house. Usually, the deceased used to travel by the ladies compartment. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
25. :- 36. PW18 is the mother of the deceased and PW6. She is illiterate. Her husband had deserted her and the children. Thereafter, by working as housemaid, she was eking her livelihood and that of the children, and educated the children. The deceased got a job at Ernakulam and was drawing a monthly salary of 6,000/-. As there was a function in connection with the betrothal of the deceased, to be held on 2.2.2011, she had called the deceased and asked her to come on 1.2.2011. Deceased started from Ernakulam by the Ernakulam - Shornur Passenger Train at 5.30 p.m. on 1.2.2011 and she had to get down at Shornur. After getting into the train, the deceased had called her and told her that she had got into the train. After some time, the deceased gave her a missed-call thereby, she called back and talked for some time. When the train was about to reach Mulloorkara, the deceased had called PW18 and told her that she would call again when the train would reach near Shornur. PW18 used to go to the Railway Station by the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
26. :- autorickshaw of PW36, who is one of her neighbours, to fetch the deceased. As she was not well, she had told PW36 to go and pick up the deceased from the Railway Station. PW36 is the friend of her son PW6. Even though she had attempted to contact the deceased over the phone, she could not get connected. Therefore, she called PW36. She was told that when PW36 called the deceased over the phone, he could realise that the phone of the deceased was switched off. PW36 told PW18 that he would wait at the Railway Station and would pick up the deceased.
37. PW36 is an autorickshaw driver residing at Shornur, in the neighbourhood of the deceased. PW18 is the mother of the deceased. He used to drop the deceased at the Shornur Railway Station and also take her back to her house. On 1.2.2011, PW18 had asked him to take the deceased from the Shornur Railway Station, by stating that the deceased would be coming by the passenger train at 8.45 p.m., thereby he went to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
27. :- the Shornur Railway Station with his autorickshaw.
38. PW76 is an employee engaged in polishing works at an institution named 'Car & Port' at Ernakulam. He knew the deceased, who was working at 'Homestyle' at Ernakulam. A friend of the deceased, named Rafiqueth, is the friend of his elder brother Pramod. Rafiqueth was also working along with the deceased at 'Homestyle'. He had occasions to see the deceased along with Rafiqueth and Pramod and thereby he got acquaintance with the deceased. They liked each other and decided to marry. He informed the matter to PW18 and PW6, who are the mother and brother of the deceased. They also liked it. His family members also liked the alliance. He along with the members of his family, was scheduled to visit the house of the deceased by 4.30 - 5 p.m. on 2.2.2011.
39. According to PW76, on 1.2.2011, the deceased started from Ernakulam to her house at Shornur by the Ernakulam-Shornur Passenger Train at 5.30 p.m. The deceased D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
28. :- had contacted him over the phone and told him that she was going to her house. They had contacted over phone 6 - 7 times during the said journey. Lastly, by about 8.30 p.m. she had called him and informed that the train had reached Vallathol Nagar Railway Station and told him that after 10 minutes the train would reach Shornur, and she would call him on reaching her house, as the charge of her mobile was about to run out.
40. According to PW3 Rejula, a Muslim lady aged 36, on the date of incident, in the evening she had travelled by the Ernakulam-Shornur passenger train along with her mother, daughter and her one year old granddaughter, by the ladies compartment, which was the last compartment. The deceased was also travelling by the said compartment. The deceased got into the train from the North Railway Station, Ernakulam. The deceased was sitting by her side. They talked each other. The deceased had told her that her house is at Shornur and she was working at Ernakulam. When the train reached Thrissur, most of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
29. :- the passengers got down and another lady who was travelling by the said compartment also got down at Wadakkanchery. She also got down there, purchased milk from the milma booth and again boarded the compartment. At that time, she could notice the accused who was standing outside and peeping through the window of the train, into the compartment. The accused stared at her with a hungry look, and she complained about it to her mother. She identified MO5 as the lungi, and MO6 as the shirt worn by the accused.
41. According to PW3, when the train reached Mulloorkara, she and others got down there. As the deceased became lonely in the compartment, she also got down and got into the ladies compartment just in front of the guard room. There were no other persons in that compartment also. According to her, the guard also could note down them and the deceased. She identified MO7 bag, MO8 pants, MO1 shirt, and MO9 watch worn by the deceased. Subsequently, she could D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
30. :- identify the deceased as well as the accused, on seeing the TV news regarding the incident.
42. PW34 was a guard of the Passenger Train in Southern Railway. On 1.2.2011, he was on duty as guard in Ernakulam-Shornur Passenger Train No.56608. He signed on duty on that day at 17.05 hours. The train started at 17.40 hours from the South Railway Station, Ernakulam. The scheduled time for reaching Shornur was 21.20 hours. On that day, it reached Shornur at 20.45 hours, i.e., 35 minutes ahead of the scheduled arrival.
43. According to PW34, the guard room in the said Passenger Train was in the last compartment. The said compartment was divided into four divisions. The last division in that coach is luggage room, the next to it is the ladies division, then next to it is the guard room, and the next division in the front is the luggage and chest room. There is another exclusive D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
31. :- ladies compartment, attached just in front of that coach. The number of the ladies coach in front of his coach, is 048495. On 1.2.2011 the train reached Mulloorkara Station at 20.18 hours and Vallathol Nagar Station at 20.27 hours. When the train stopped at Mulloorkara Station, some ladies who were travelling by the ladies division in his coach, got down at the road side where there is no platform, and there was a girl aged around 20 years, among them. The said girl rushed to the ladies coach in front of it, and gained entry into it. The duration of the stop there is only for one minute. Normally, no ladies would get down at the right side where there was no platform and that was why he had noted it.
44. PW4 is a resident of Konichira, Wayanad. On the date of incident, in the evening, he travelled by the said train in the third compartment from the last, to Shornur for catching the West Coast Express train for going to Kozhikode, from there. As the train was lying idle for some time at the Vallathol Nagar D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
32. :- Railway Station, he was afraid that the other train might go, and therefore, he took his bag and stood near the door and looked at the guard who was in the last compartment. He could see the guard engaged in some work along with a lady staff, near the guard room. At that time, the accused came from his back and tapped on his shoulder, and asked for space to move. The accused got down by murmuring something and went towards back, and was calling somebody, as if he was searching for somebody in the ladies compartment, by peeping into the ladies compartment. PW4 was standing at the back door on the left side. Then he could see the accused again coming back to the said compartment and getting inside it, through the middle door of the compartment. He could notice that the left palm of the accused was amputated at the wrist.
45. After some time, the train moved. Then PW4 could hear the cry of a lady from the ladies compartment next to it, at the back. Then he told PW40 and others in the compartment D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
33. :- that cry of a lady was heard. They also heard the cry; but they could not go back, as there was no passage to get into the next compartment. A middle-aged man was seen standing at the right door at the rear side of that General compartment. When PW4 approached that man and told him about the cry, he told him that a girl had jumped through the right door of that ladies compartment and she had escaped. When he demanded to pull the alarm chain to stop the train, that man directed him not to disturb other passengers and requested him not to drag them to court, by stating that the girl had escaped. As that man got angry, PW4 did not pull the chain and he again went to the rear left door and stood there. When he looked back, he could see the accused standing at the lower step of the front left door of the ladies compartment, and attempting to jump down, by holding on the bar at the side the door with his right hand and by leaning forward. He questioned the accused, and asked as to what he was going to do. By answering that there was nothing, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
34. :- the accused jumped out and landed safely by his feet and right palm on the ground, and then sprang up and walked towards back. The train was in a slow speed. The accused was seen walking towards the Vallathol Nagar Railway Station.
46. When the train reached Shornur Railway Station, PW4 along with PW40 rushed to the guard and told the matter. The guard came out along with the boy carrying the box. As per the direction of the guard, the said boy got inside the ladies compartment and then got out, as he could not find anybody in it. Then they, along with the guard, went to the R.P.F office and told the matter. He and PW40 gave their name, place and phone number there. He and PW40 exchanged their phone numbers also. By the West Coast Express Train, he reached Kozhikode and then to his house by about 3.30 a.m. on 2.2.2011.
47. PW40 is a student residing at Parappanagadi and is D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
35. :- also working as Videographer at Poonam Media, Thrissur. On 1.2.2011, at 7.30 p.m. he got into the Ernakulam - Shornur Passenger Train from Thrissur, for going to Shornur. He purchased Ext.P23 ticket from the Thrissur Railway Station. He was travelling by the last general compartment in the train. The train reached Shornur at 8.45 p.m. The said general compartment was the third one in the train from the rear end towards front. There was a halt for the train for some time at Vallathol Nagar Railway Station. At that time, he could notice the accused whose palm of the left hand was amputated, getting down from the said bogie in which he was travelling. PW4 was standing at the left rear door of that compartment. It was after talking some thing to PW4 that the accused got down from that compartment. He could realise that it was something related to giving way for him to get down. The accused was found dressed in MO5 lungi and MO6 shirt. After getting down from the compartment, the accused looked around and was seen going D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
36. :- towards the ladies compartment on the rear side. It was by about 8.30 p.m.
48. Thereafter, the train moved forward in a slow pace. When it covered some distance, PW40 could hear the cry of a lady from the ladies compartment at the rear side, just adjacent to the compartment in which he was travelling. It continued for some time, for about one minute. He told the matter to an aged couple who were sitting by his side and they in return told him that they also heard it. Apart from looking each other, nobody had reacted. A man, aged around 50 years, was seen standing at the rear right door of that general compartment. He heard the said man telling PW4 that a girl had jumped out of the train and she had escaped. PW4 had told him about the pulling of the alarm chain. Then, that man objected it, by telling that unnecessarily PW4 would drag all of them to court. Again, PW4 went to the rear left door which remained open. By looking to the backside, PW4 was seen talking to somebody. When he D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
37. :- looked, he could realise that PW4 was talking to the accused who was standing at the front left door of the ladies compartment at the rear side. He could hear PW4 questioning the accused as to who was he and as to what he had done and warning him by saying that he would not let him go. By that time, the accused was seen getting down to the lower step of the left door of the said ladies compartment by catching on the side bar of the door with his right hand, by leaning forward. Then the accused jumped down to the ground, and was seen walking through the side of the track, towards the direction from which the train came.
49. The train passed through a bridge and then reached the Shornur Railway Station. PW40 along with PW4 got down from the train and peeped into the ladies compartment, from where the cry was heard by standing out side. They could not see anybody. Immediately, they approached the guard of the train and told the matter. The guard asked another staff to get D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
38. :- into the said ladies compartment and to examine it. After getting into the compartment and looking, the said staff came and reported that there was nothing in the compartment. Thereafter, he along with PW4 and the guard went to the R.P.F. Office and informed the matter. The guard gave something in writing there. PW40 gave his phone number to PW4 and in turn, he gave his phone number to him. PW4 gave those telephone numbers to the guard. Thereafter, he proceeded to his house.
50. PW38 is residing at Vallathol Nagar in Vettikkattiri. She could see the railway track by sitting at her house. On 1.2.2011, by about 8 - 8.30 p.m., when she was sitting at the sit- out of her house, she heard the cries of a girl from the passenger train, seeking for help. The said passenger train was going to Shornur, towards north. Her house is situated 100 mtrs. towards north from the railway platform and 20 mtrs. away towards west from the railway track.
51. The house of PW39 is situated just adjacent to the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
39. :- western side of the Vallathol Nagar Railway Station at Vettikkattiri. PW38 is his neighbor. His house is situated after 5 - 8 houses towards north from the house of PW38, towards Shornur side. On 1.2.2011 at 8.30 p.m., he saw the Ernakulam - Shornur Passenger going towards Shornur. At that time, he was sitting at the sit-out of his house. From the rear portion of the train he heard the cry of a female as 'Aiyyo'. Even though he lighted the torch, by then the train had moved away. Just at that time he could see an ambulance going towards Thrissur, through the Highway. He thought that the cry was in connection with the accident, which had occurred due to the explosion of gun powder at Thrangali. It was only in the next morning he came to know that a girl was found lying just 600 mtrs. away, towards Shornur side from his house, and that she was taken to the hospital.
52. According to PW34, guard of the Ernakulam-Shornur Passenger Train, on 1.2.2011, it reached Shornur at 20.45 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
40. :- hours, i.e., 35 minutes ahead of the scheduled arrival time. The train stopped at platform No.3 of the Shornur Railway Station. Immediately PW4 and PW40 who were passengers of the train rushed to him and told him that some time after the departure of the train from the Vallathol Nagar Railway Station, they heard the cry of a girl from the coach attached behind their coach and that the girl jumped out from that coach to the right side, and after some time a man jumped out of that coach to the left side. His room was in the last compartment, and there is another ladies compartment just in front of that coach. In front of that ladies compartment, it is a general compartment in which PW4 and PW40 were travelling. He was informed that it was from the ladies compartment attached in front of the last coach that the said persons jumped out and therefore, he instructed the box boy on duty who came to take the line box, to check up the said ladies compartment. After verifying whether anybody was there in the ladies compartment, the boy reported that there was D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
41. :- nobody in it.
53. PW34 took PW4 and PW40 to the RPF Station at the railway platform and informed the matter there. The two policemen attached to the RPF, who were present there, contacted the local police station over phone and informed the matter. PW34 directly called Vallathol Nagar Station Master over the phone and informed to him also. The Station Master replied that he would sent somebody to verify it. He noted down the phone numbers of PW4 and PW40 and then he went to the Station room and gave a written message to the Station Master on duty. The Station Master acknowledged its receipt in the copy of the said message. Ext.P30 is the attested copy and Ext.P30 (a) is the carbon copy of the message. Thereafter, he signed off through Ext.P19. Ext.P21 is his sign on record at Ernakulam.
54. PW71 was the Station Master at the Shornur Railway Station as on 1.2.2011. On that date, he was on night duty from 8 p.m. onwards. Ernakulam-Shornur passenger train arrived at D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
42. :- the 3rd platform at the Shornur Railway Station at 8.45 p.m. Within a short time, PW34 who was the guard of the said train approached him and informed that 2 to 3 passengers had told him that a woman and subsequently a man had jumped out of the train after the train had left Vallathol Nagar Railway Station. PW34 furnished a report and he had acknowledged in its carbon copy. He identified Ext.P30 and Ext.P30(a) as the said report and its copy. He gave information over the phone to the Vallathol Nagar Railway Station Master, S.I of Shornur RPF, and the Cheruthuruthy Police Station. He gave message of the same over phone to Palakkad Section Controller and Thiruvananthapuram Section Controller.
55. While PW54 was working as as Station Manager at Thrissur Railway Station on 2.3.2011, he produced Ext.P30(a) photocopy of the report furnished by PW34, Ext.P49 attested copy of the rough journal of the guard in train No.56608, Ext.P50 attested copy of CDO/CTR, Ext.P52 attested copy of the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
43. :- combined signing off register of the Ernakulam Railway Station. The same were seized by the police through Ext.P48 mahazar in which he also had affixed his signature.
56. PW57 is the Divisional Operations Manager of the Southern Railway at Thiruvananthapuram. He had verified and attested Exts.P49 to P52 and Ext.P30 and handed over it to PW55 for handing over it to the police. Ext.P30(a) is the carbon copy of the report produced by PW34, at his office on 24.2.2011. Its original given to Shornur Railway Station by PW34 had gone to Palakkad Division. Ext.P30 is the certified copy of Ext.P30(a). He has produced the originals of Exts.P49, P50, P51 and P52 before the court below at the time of his examination with the request to return it after verifying with the copies, as the originals were required for the day-to-day use at the office.
57. On 1.2.2011, PW27 was the Manager at the South (Junction) Railway Station, Ernakulam. He produced Ext.P21 copy of the 'signing on register' relating to Train No.56608 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
44. :- `Ernakulam - Shornur Passenger', on that day. PW34 was the guard on duty in that train. PW34 had singed on duty at 17.05 hours and that train left the Station at 17.35 hours. The signing on register contains the signature of PW34.
58. On 1.2. 2011, PW25 was also a Station Master at the Shornur Railway Station. He had produced Ext.P19 attested copy of the 'sign off' register relating to the Guard and others of Train No.
56608. PW34 was the guard and he had signed off at 21.15 hours on that date. On that date, the train reached Shornur at 20.45 hours.
59. PW23 is a Loco Pilot in Southern Railway, at Ernakulam. On 1.2.2011 he was the engine driver in Train No.56608, Ernakulam - Shornur passenger. Along with him, CW19 was also employed as Assistant Loco Pilot. PW34 was the Guard on duty in the guard room of the train. On that date, the train started at 17.40 hours from the South Railway Station, Ernakulam. It reached Shornur at 20.45 hours. The said train D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
45. :- has stops at all Railway Stations in the route. On that day, the train had a halt for three minutes at 500 mtrs. away prior to reaching the Vallathol Nagar Railway Station. Then the train stopped at Vallathol Nagar Railway Station. Usually, it would stop there only for one minute. On that date, it had to stop there for six minutes as the Travelling cash chest had to be sealed at the guard room. The train started at 20.33 hours from the Vallathol Nagar Station. On reaching Shornur, during rest time PW34 had told him that two passengers had told PW34 that a girl had fallen down from the train, and the same had to be verified. In cross examination, he stated in evidence that the train was being driven in a slow speed from Vallathol Nagar on that date, and the speed was only 15 km/h.
60. PW42 is the Station Master at the Vallathol Nagar Railway Station. He was on duty from 8 p.m. on 1.2.2011 to 6 a.m. on 2.2.2011. CW19, a lady staff was also present on duty along with him and she was on SCP duty. Her duties were to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
46. :- show the flag to trains, to seal the chest of the passenger train and to hand over memo to the drivers etc. On that day, No.56608 Ernakulam-Shornur Passenger Train arrived at the Station at 8.27 p.m. and departed to Shornur at 8.33 p.m.
61. By about 9 p.m., PW34 guard of that train called PW42 from Shornur over the railway phone and informed him that after the train had left Vallathol Nagar Station, a lady had either fallen down or jumped out from the train and following that a man also had jumped out of the train, and asked him to enquire about it. As there was no other staff to enquire about it, he called PW19 Gang-man who was on off-duty, over phone and informed the matter. PW19 arrived there within a short time and called some young men from the neighboring houses and went for a search. After searching for a distance of more than one kilometre, he came back and reported that they could not see anything. By about that time, PW46 ASI of Cheruthuruthy Police Station came to the Railway Station and they also could not find D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
47. :- anything. PW46 and the police party returned to the Police Station.
62. PW69 is a gold smith residing at Vettikkattiri. On 1.2.2011 till 8 p.m., he was engaged in gold fabrication works at his house and thereafter he went to the house of his friend PW21. After having a chat till 9.45 p.m., he was on his way back to his house by lighting his torch. As he wanted to purchase a coupon for recharging his mobile phone, he walked towards the shop of PW72 situated at the opposite side of the Kalamandalam bus stop. He was walking towards Shornur side, towards north, through the railway track. On seeing the signal of a train passing towards Shornur side, he moved away from the western track to the eastern track, and crossed it by lighting the torch. When he turned towards north, he could hear a strong and strange breathing sound as if children were breathing. He lighted the torch towards that direction which is at the eastern side of the track. He could see a 20 year old woman lying in D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
48. :- such a way that her head was on the aggregates at the western side. Her left leg was folded and the right leg was seen stretched and was rubbing on the ground. He could see socks on both her feet. Blood was seen all over her face. The shirt worn by her was unbuttoned and was seen lifted up thereby exposing her breasts. There were no other clothes beneath her waist.
63. PW69 could see the light from a torch near the cabin situated towards north from the place where he was standing and that somebody was seen approaching to that place by lighting that torch. By that time, a train passed towards Shornur. He could see PW5 and PW48 coming over there by lighting the torch. He called them and showed the girl who was lying. All of them became frightened on seeing her. They advised him that they could move away without doing anything. He told them that they should try to save the girl as she was alive. He told them to procure a cloth from somewhere. He stood there. He could see D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
49. :- a bag and black pants lying near the girl. A shuddy was seen protruding from inside the pants. As the other two persons went away, he became frightened. Guard Sreedharan's house is situated nearby, at the western side of the track. He went to that house, where the wife of Sreedharan was present. He gave her the information and told her to pass on the information to the Railway Station over phone. His friend CW31 is residing in the next house to that of Sreedharan. He went over there, called CW31, passed on the information, and they together came back to the place where the girl was lying. CW31 had passed on the information over the mobile phone to PW33 and PW19, and called them. By the time they reached near the girl, PW48 and PW5 had returned there. They could see PW19 and PW33 also coming towards that place. Several materials were seen lying scattered near the spot. He identified the bag, pants and shuddy as MO7, MO8 and MO21, which were also seen lying there. According to PW69, there was no possibility for the girl to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
50. :- fall there and he felt that somebody had dragged that girl to that spot. He could realise that the girl was brutally raped by somebody. PW19 took and lifted the girl up. The girl was taken to the road, and they stopped a police jeep that was coming through the road as pilot to the Minister. PW19 and Nazar took the girl into the jeep and they took her to the hospital.
64. PW48 is residing at his house situated at Vettikkattiri, near to the Vallathol Nagar Railway Station. He has been working as a temporary driver at the Kerala Kalamandalam for the last six years. On 1.2.2011 at 9.15 p.m. he was walking from his house through the railway track, to Kalamandalam. He could see another person walking in front by lighting a torch. That man stopped and stood still by lighting the torch to one direction for a while, and then came back. On seeing that man, he could identify him as PW69, one of his neighbours. PW69 told him that a lady was lying near the box. He lighted the torch to that direction. The scene which he saw was shocking. Blood was D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
51. :- oozing out from the injuries on the head and face of the girl. Her right hand and right leg were moving. There was a slight groan. The cloth looking like churidar top was seen lifted and rolled up thereby exposing both her breasts. There were no clothes at the portion beneath the breast on the rest of the body. Socks in khaki colour were seen worn by her on her feet. According to PW48, the girl was lying in such a state as her head and upper portion of the body was on the aggregates, at the first track and the remaining portion of the body and her legs, on the ground. She was lying in supine position. She was not speaking and was not conscious. He identified the bag and all the materials including the cream coloured shirt worn by her which was seen lifted and rolled up.
65. Immediately PW48 told PW69 to attract the attention of the public. By that time, they could see PW5 who is conducting a shop nearby, coming through that way after closing his shop. PW5 and PW69 went to the Railway Station side, for D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
52. :- inviting the attention of the public. He went to the nearby house of his father's younger brother Unnikrishnan, from where he informed the matter to his friends over phone. By the time when he reached along with Unnikrishnan back to the place where the girl was lying, he could see many persons gathered there. A dhoti was procured by a person from a nearby house. When it was used to cover the body of the girl, he could see the portion of her vagina in wet condition. After covering the body with the dhoti, he along with PW19 and CW33 took the girl to the Shornur road. When a police jeep was seen coming in escort for the Minister, they stopped the vehicle, and took the girl into the jeep. PW19 and CW33 also got into the jeep and the jeep proceeded towards Thrissur direction. After that, he along with others returned to the railway track, to the place where the girl was lying. There was a bag, some papers, identity cards etc. Near to it, a black pants and a shuddy inside it, as if the same were removed together, were seen lying. PW52 who was D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
53. :- present there was asked to collect and keep the entire materials. As he had to got to the Shornur Railway Station for picking up the Registrar of the Kalamandalam who would be coming to the Railway Station by the train, he went to Kalamandalam, took the car and went to the Railway Station.
66. PW5 is conducting a provision shop at the north of the Kalamandalam bus stop, at the western side of the Vallathol Nagar Railway Station. He used to close his shop by about 10 p.m. On 1.2.2011, he was walking through the railway line, to his house at 9.45 p.m., after closing his shop. There were altogether five tracks at that place. He could see a light near the fourth track, and somebody called him as `hello, hello'. By about that time, a train passed through the second track. Then, he went near the spot. There, he could see PW69 and PW48. He had a torch with him. When he lighted it, he could see a girl about 20 years old lying there with a groan. The lower half of her body was nude. She was moving one of her hands and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
54. :- legs. She was seen lying in between the fourth and the fifth track. Just on seeing her, he could realise that it was not an ordinary incident. Immediately, he called PW52 and his other friends through his mobile phone, and informed the matter. Apart from a mere groan, the girl had no memory. She was not speaking; she had severe injury on her face etc., and blood was seen oozing out. Her head portion was on the aggregates and leg portion was on the ground. PW48 went for bringing a cloth for covering the body of the girl. He went to the Railway Station and informed the matter to a lady who was engaged in showing signals there. Again, he came back to the spot. By that time, many persons had gathered there. PW19, who was employed in railway, was also present there. PW19 with the help of CW33 and one Ravi, who were present there, took the girl to the State Highway (Thrissur-Shornur road) which is situated 10 mtrs. away and 10 mtrs. above, from the railway track, through the portion among the bushes. The girl was taken to a police jeep which D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
55. :- came in escort to the Minister, and was taken to the hospital.
67. PW5 again came back to the spot where the girl was lying. There, he could see MO7 bag in an open state, near which a purse being used by girls, identity card, the black pants of that girl which contained the underwear also, facial cream etc. All those things were taken by PW52, for handing it over to the police.
68. PW19 is the Gang-man of the Railway at Vallathol Nagar Railway Station. For the last 17 years, he has been residing at the railway quarters at Vallathol Nagar. Even when he was transferred to other stations, he continued to reside at the said railway quarters at Vallathol Nagar. For the last eight months, he has been continuously working at the Vallathol Nagar Railway Station. On 1.2.2011 at 9.20 a.m. he was engaged in a chat with others at the platform. At that time, PW42 Station Master called him over his mobile phone and told him that there was `a run over of two persons' from the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
56. :- Ernakulam-Shornur Passenger Train, and asked him to go and verify it at the track in between 3/500 to 2/800, and 2/850 through the up-line. Immediately, he went on a search along with CW31 Ali. They could not see anything and thereby they came back and reported the matter to PW42. Then, PW42 told them that the persons who fell down from the train were a Tamil man and a Tamil woman, and asked them to verify once again.
69. Then, PW19 along with PW33 went through the down- line towards Shornur side. When they reached 3/725, somebody had lighted torch towards them and called them from 3/650. He along with PW33 rushed to the spot, where they could see PW69, and realised that it was he who had called them. He told them that a girl was lying there. At that place, there are 5 lines lying north-south. First line at the eastern side is known as the low line and it was being used for the purpose of transporting aggregates alone. The aggregates were put there in between the said eastern low line and the second line towards west from D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
57. :- it. He could see the deceased girl lying in such a manner that her head portion was on the aggregates, and the leg portion on the ground. Blood was seen oozing out from her head. There were movements for one of her hands and one of her legs and there was a slight groan. She was lying in a supine position, but slightly turned towards side. Three buttons from bottom to the top of the rose mixed with cream coloured shirt worn by the girl, remained open. She was nude from the waist to her legs. There were two socks on her feet. He could see her bag lying opened near her. Some cards etc. were seen lying scattered. Black pants and shuddy were also seen there.
70. PW19 lifted her up and took her to the road. There were bushes on the side of the road in between the track and the road. He carried the deceased through the portion among the bushes and the others had lighted torch for him to proceed. On the opposite side of the road there was a house. He asked PW33 to go and fetch a piece of cloth from there. PW33 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
58. :- brought a cloth and put it over the deceased. They could see a police jeep coming in escort for a Minister. CW43 Nazar who was present there stopped the police jeep. They took the girl to the jeep and took her to the Government Hospital, Ottupara. The girl was around 20 years old and she was slightly moving one of her hands. The doctor on examining her, told them to take her to the Medical College Hospital, immediately. A green bed sheet was given from the hospital by which they covered the girl and took her to the Medical College Hospital, Thrissur by the same police jeep. They reached the hospital by about 11 p.m. 4 - 5 doctors were present there at the hospital and they examined the deceased. After some time, Cheruthuruthy Police reached there. Thereafter, PW6 who is the brother of the deceased also reached there. Then, he returned to his quarters.
71. According to PW19, the Ernakulam-Shornur Passenger Train came through the fourth line from east. There were concrete sleepers in between the 3rd line and the 4th line, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
59. :- near to the crossover. The place where the deceased was found lying was about 30 mtrs. towards east from the said crossover point. He identified the pants, bag, shirt and other materials found at the place where the deceased was lying. According to him, when he saw the girl, nobody had helped him to lift the girl up. As her vagina was seen wet, he could realise that she was trapped and was raped. Her shirt was seen lifted up forcibly. There were only four railway lines near the place where the deceased was seen lying. The other line was the low byline being used for transporting aggregates alone. That line starts from the platform and proceeds towards north-south.
72. PW2 is residing near Shornur and has been working at Chalakkudy. On most of the days, he is a day scholar. On 1.2.2011, at 6.55 p.m., he got into the Ernakulam-Shornur Passenger Train from Chalakkudy. On 2.2.2011, while he was coming back to Shornur by the same train, police came to the train in search of persons who had travelled by the said train on D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
60. :- the previous evening. They were asking for a one-handed man, who had allegedly travelled by the said train on the previous evening. As he could see such a person who was travelling by the said train on the previous evening, he told the police about it. He was asked to appear at the Chelakkara Police Station. He could not go on the next day, whereas, he could appear only on 4.2.2011. On 1.2.2011, he was travelling by the third compartment from the engine. He could notice a one-handed man who was in shabby dress, got into that compartment on that day. Repeatedly, he walked to and fro through that compartment, watching other passengers, and therefore, PW2 noticed his movements. PW2 identified the accused as the said man. According to him, the accused got down at Irinjalakkuda. He saw the accused at the office of the Circle Inspector of Police and identified him.
73. According to PW75, who is conducting a provision shop in front of Kalamandalam, on 1.2.2011 at about 9.30 p.m. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
61. :- some persons came in front of his shop and told him that two persons had fallen down from the Ernakulam-Shornur Passenger Train. He took the torch from the shop and went along with them in search of the persons allegedly fallen down from the train. The said persons had reached before his shop by an autorickshaw, and the said autorickshaw was parked in front of his shop. At that time, by seeing the autorickshaw, the accused who was in soiled dress, approached him and asked him whether the autorickshaw would go to Thrissur. He identified MO5 and MO6 as the lungi and the shirt worn by the accused.
74. PW45 is a 21-year-old autorickshaw driver at Vettikkattiri. PW33 is his elder brother. On 1.2.2011 during night, he was waiting for passengers in his autorickshaw parked by the road side at Panjal, Vettikkattiri. After about 9 p.m., his friend named Sulaiman called him over his mobile phone and requested his presence near Kalamandalam side, by stating that he came to know that a person had fallen down on the railway D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
62. :- track there, from the train. Immediately he reached there by his autorickshaw, and stopped his autorickshaw near the old road leading to the railway track from the Thrissur-Shornur main road. He could see 3-4 persons engaged in a chat near the shop situated there. He asked them as to whether they were aware of such an incident. They replied that they did not come to know about such an incident.
75. According to PW45, at that time, the accused, who dressed in soiled clothes came to him from the side of the Kalamandalam bus stop by crossing the road, and asked him whether he was ready to go for hire to Shornur. The upper portion of the shirt of the accused remained open without buttons in 2 - 3 button holes. He replied that he came in search of a person who had allegedly fallen down from the train, and therefore, he would not go for a drive. On hearing it, the accused became perplexed, and there occurred a change of expression on the face of the accused, and immediately the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
63. :- accused cut across the road, and went towards the bus stop. There was streetlight near the bus stop, and also there was sufficient light from the nearby shops. He had noticed that the left palm of the accused was amputated. By that time, by an autorickshaw and a bike, his elder brother PW33 and his friends came over there and asked him whether he could see the person fell down from the train. Then, he told them by pointing towards the accused that he had suspicion as to whether it was the accused who had fallen down. Then, they questioned the accused. He went on a search, from the portion of the cabin towards Shornur aside. PW33 and his friends also came in search behind him. He had noted down the nature of the lungi and the shirt worn by the accused and he identified the same as MO5 and MO6.
76. PW33 is residing at Vettikkattiri, at the eastern side of the Thrissur-Shornur main road towards east to the Vallathol Nagar Railway Station, which is about 400 mtrs. away towards D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
64. :- south from Kalamandalam. He is a fish monger. On 1.2.2011, from 8 p.m. to 9.30 p.m., he along with his friends numbering 8 - 9 persons, was sitting and chatting in front of 'Achuthan Pharmacy' situated in front of Vallathol Nagar Railway Station, as usual. By about 9 p.m., his younger brother Musthafa came by that way, after visiting one of their relatives. At that time, the Station Master and another lady who was on duty there told Musthafa that two persons had jumped out of the train, and requested him to verify it. Musthafa told PW33 and his friends about it and requested their participation also. PW33 along with CW24, CW25, CW26 and CW27, got into the autorickshaw of Rias and went to Kalamandalam bus stop which is situated half a kilometre away from the Railway Station. They stopped the autorickshaw there. There, they could see his younger brother PW45 who came over there by his autorickshaw. He also had reached there, as somebody had told him over phone about the incident. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
65. :- 77. According to PW33, at that time, the accused was seen coming from the narrow line leading to the Railway Station and after talking something to PW45, he moved towards the bus stop at the right side of the road. Then, PW45 expressed a doubt to them whether the accused was the person who had jumped out of the train. Therefore, all the six of them approached the accused and talked to him. He was seen dressed in a soiled lungi and shirt. Two buttons towards the top of the shirt were found missing. He identified MO5 lungi and MO6 shirt as the clothes worn by the accused at that time. They asked him as to from where he was coming. Then the accused replied in Malayalam mixed with Tamil that he was coming from Thrissur and that he came over there by train from Thrissur and was going back to Thrissur. As if he had engaged in begging, the accused showed his left hand, the palm of which was seen amputated. There was very good light from the mercury lamp at the bus stop. The accused tried to explain that he was engaged D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
66. :- in begging in trains. The accused was seen panting and was seen perplexed. By thinking that he was only a beggar, they let him go away.
78. According to PW42, who was the Station Master at the Vallathol Nagar Railway Station, while the young men, who had participated in the search, were discussing the matter by standing at the premises of the Railway Station, one among them revealed that they could see a one handed man at the road side near the Station and when questioned, that man had told them that he was a beggar and was waiting for bus towards Thrissur side. The road there was near to the railway track. He asked PW19 and the young men to search the railway track once again and thereby they went in search.
79. According to PW33, they crossed the road and came to the railway track. There were only two tracks there; at the same time, there were five tracks at the place where the girl was lying. Even though they had searched for a distance of around D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
67. :- 1= kms. towards north from Kalamandalam towards Shornur side, they could not see anybody. They returned to the Kalamandalam side, and came to the Vallathol Nagar Railway Station side through the main road by bicycle. Others came by the autorickshaw. They informed the Station Master that they could not see anybody on search. They further told the Station Master that they had occasion to see a one handed man. Then, the Station Master told him that a phone call came and that it was a Tamil man and a Tamil woman who had jumped out from the train. The Station Master asked them to go and search once again. Then the time was about 9.50 p.m. PW19, who was holding a torch, was also present there, after the search.
80. According to PW33, they divided themselves into two groups. He along with PW19 went towards one way and Rias, who is the son of PW52, Anil, Vipin Das and Alimon went towards the other way. When he, along with PW19, walked through the track and reached about 50 mtrs. away from the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
68. :- place at which the girl was lying, PW19 received a phone call. Somebody was seen lighting a torch by standing at a distance of 50 mtrs away. On seeing it, they went to that place and there, they could see three persons standing. They had attracted their presence by lighting the torch. They could see a girl lying in such a manner as her head was on the aggregates and the legs were on the ground, just after the first track. The road is situated 10 mtrs. away towards east from that spot and it is at a higher level of 10 feet. One cannot see that spot by standing on the road as there were thick bushes in between that spot and the road. The girl looked like a girl of 20 years. PW19 and the other three persons had torches with them. There was moon light also. She was fully nude from waist to downwards and was seen wearing socks at her feet. A small pit was seen beneath her heel. The shirt worn by her was seen lifted up and her breasts were seen exposed. Injury was found on her face and blood was seen oozing out. The portion of her vagina was seen D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
69. :- wet. They felt that she was raped. Persons who saw her in the torch light immediately retracted and stood apart as she was in such a state.
81. According to PW33, there was a slight groan from the girl and movements for one leg. The girl was unconscious and was not talking. He went to the house of PW52, and obtained a dhoti. He gave that dhoti to PW19 and the same was put on the body of the girl. PW19 lifted and took the girl. He also helped PW19 by lifting that portion of the body near the neck. The girl was taken to the hospital by the escort police jeep of the Minister, who came by that way. PW19 and Nazar also accompanied the girl by the jeep.
82. PW33 could see the black pants which also contained the shuddy in it lying away from the body. There was a purse also. Many articles were lying scattered near the body, which were seen fell from the bag which remained open. No mobile phone was seen. PW52 collected the materials of the girl which D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
70. :- were lying scattered there and subsequently produced it before the police. PW33 identified MO1 shirt worn by the deceased, MO16 purse, MO7 bag and MO8 black pants in which MO21 underwear was also found.
83. PW52's native place is Cheruthuruthy. According to him, on 1.2.2011 by about 9.45 p.m. his friend Azeez called him over phone and told him that a woman was found lying as if she had jumped out from the train. By about 10 p.m. he reached there. There he could see CW33, PW33, PW19, PW69, and PW5. A woman was lying injured at the railway track. She was covered with a dhoti. PW19 took and lifted her up. All of them climbed to the road. When a police jeep came as a pilot vehicle for the Minister, they stopped it and PW19 and CW33 entered inside the jeep with the injured girl, and took her to the hospital. The girl was looking like 20 years old. Blood was oozing out from the injury on her face.
84. According to PW42 Station Master at the Vallathol D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
71. :- Nagar Railway Station, he received a phone call at the Station and was informed that a girl was seen lying north to the Railway Station, adjacent to the track and that it could have been an accident by falling from a train and further that the girl was nude and was groaning. It was further informed that the girl was about 22 years old and had injuries. He passed on that information to the Cheruthuruthy Police Station over the phone. PW19 and the other persons who were with him reached near the girl, took him to the road, from where she was taken to the hospital by a police jeep.
85. PW24 was working as Additional Sub Inspector of Police at the Anthikkad Police Station as on 1.2.2011, and he was on pilot duty on that date with the Revenue Minister, Sri. K.P. Rajendran. On that day by about 6.30 p.m. there had occurred an explosion of gunpowder at a place called Thrangali at Shornur, in which some persons died and many others got injured. The Minister was going to that place. At about 10 p.m., D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
72. :- while he was proceeding from Thrissur to Shornur in front of the vehicle of the Minister, he could see some persons coming to the road from the railway line by taking a girl. They waved their hands and stopped the vehicle. They told him that the girl had fallen down from the train and had sustained a head injury and that no vehicle was available to take her to the hospital. The girl was taken to the rear portion of the said vehicle. PW19 Gang- man of the railway and another man working at the Kalamandalam also got in the vehicle by carrying the girl. The Minister stopped his car, got down and enquired the matter and directed him to take the girl to the hospital.
86. They took the girl to the Government Hospital at Wadakkanchery. The girl was unconscious. There was a slight groan. There was head injury, and blood was oozing out from the injury on the head. She was covered with a lungi. A portion of the cream-coloured shirt of the girl could be seen. PW19 took the girl from the Jeep to the Doctor, who after examining her, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
73. :- told them that the injury was very serious and she should immediately be taken to the Medical College, Thrissur. The girl was taken to the casualty of the Medical College, Thrissur. Her name was not known. From the words of the persons who took the girl to the Jeep, he could understand that the girl was subjected to rape. They told him that two persons had jumped out of the train and a one handed Tamilian who was suspected to be one out of them was stopped there. They reached the casualty at the Medical College, Thrissur at about 11 p.m. PW24 informed the incident about the girl over the wireless to the Cheruthuruthy Police, and informed them that the girl was taken to the hospital. Thereafter, he went for attending duty with the Minister. On the way, he went to the Cheruthuruthy Police Station and informed the matter. At that time PW24 came to know that the Cheruthuruthy police had already gone to the Medical College, Thrissur. It was by about 1 a.m. on 2.2.2011 that he had entered the Cheruthuruthy police station. He D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
74. :- identified MO1 as the shirt worn by that girl.
87. According to PW18, after waiting for the deceased among the passengers who arrived by the said passenger train, PW36 called PW18 and informed her that the deceased was not present among the passengers who came by the said train. She called PW36 to her house. When PW36 came by his autorickshaw, she called a person named Ravi who is one of her neighbours and they went to the Shornur Railway Station and searched everywhere. As they could not find the deceased, they approached the Station Master and told the matter. Then they were told that a girl had fallen down from the train, and that the said girl was taken to the Medical College Hospital. They contacted PW6. As per the directions of PW6, PW18 was taken back to the house by the autorickshaw and thereafter the others went to the Medical College Hospital, Thrissur. On the next day, she went to the Medical College Hospital, and saw the deceased at the I.C.U, and identified her. The deceased died at D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
75. :- the Medical College Hospital, Thrissur on 6.2.2011.
88. According to PW36, even though he had reached the Shornur Railway Station as directed by PW18, and waited with the autorickshaw, the deceased was not found among the passengers came by the said passenger train, and thereby he gave that information to PW18 over phone. He was asked to look in the next train at 10.30 p.m. also. In that train also, she was not present, and he conveyed that information also to PW18. Then he was asked to reach at the house of the deceased with the autorickshaw. He reached there, from where, PW18 and another neighbour Ravi came along with him to the Shornur Railway Station. Even though they searched for the deceased at the guest room, platform, and the train, they could not find her there. They approached the Station Master. The Station Master told them that a girl had fallen from the train near the Vallathol Nagar Railway Station and that she was taken to the Medical College Hospital. He informed the matter to PW6 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
76. :- over phone. PW18 was crying.
89. According to PW71, on 1.2.2011 by about 10.30 p.m. when he had contacted PW42, he was told that a girl who had sustained head injury was found at the railway track at a distance of about 450 mtrs. away from the Railway Station by PW19 Gang-man, and that PW19 along with some others had taken that girl to the Medical College Hospital.
90. According to PW71, by about 11 p.m, PW18 and two others had approached him and told him that she was waiting for her daughter who had to reach the Railway Station by the 8.45 p.m. train, and that her daughter had not reached. He was also informed that the girl had not reached by the 10.20 p.m. train also. Then he told them that a girl of about 20 years old had fallen down from the train at Vallathol Nagar and that she was taken to the Medical College Hospital. On hearing it, PW18 started crying. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
77. :- 91. According to PW36, as per the direction of PW6, they proceeded to Thrissur. When they reached the place called Kuraancherry, PW6 called him and informed that the deceased was serious and therefore, he should not take PW18 to the hospital, and requested him to take PW18 to the house by telling something. Therefore, he told PW18 that there was nothing to worry and that PW6 would take the deceased to the house after getting her discharged. On the next morning, by 7.30 a.m. he went to the Medical College Hospital. As the deceased was in the I.C.U, he could not see her. Later, the deceased died.
92. PW62 was the Junior Medical Consultant at the Taluk Hospital, Wadakkanchery on 1.2.2011. On that night, by about 10.30 p.m. an unknown lady who was injured was brought by Anthicad Police in the escort police jeep of Minister Sri.K.P. Rajendran, along with PW19 railway employee etc. He was told that the said injured had fallen from the train and it could be either accidental or homicidal. The patient was D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
78. :- unconscious. As she was seriously injured, she was sent by the same vehicle to the Medical College Hospital, Thrissur for Neuro-surgical care. On 12.2.2011, he produced Ext.P68 before the police.
93. According to PW76, during her last talk with him over phone by about 8.30 p.m. on 1.2.2011, the deceased had joked by telling him that a Tamilian had a look on her and was going away. When he called her after some time, her mobile phone was switched off. Even though he tried several times, it was in switched off mode. On the next day also, he had called her till noon and on all such occasions her phone remained in switched off mode. Therefore, by about 2.20 p.m. he called PW18 over her phone. It was then only he was told that the deceased had sustained injuries and admitted as inpatient at the hospital. On 3.2.2011, PW76 went to the Medical College Hospital, Thrissur. The deceased was in I.C.U. and was connected to the ventilator. He could see her only though the glass. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
79. :- 94. PW37 is the Assistant Professor in Surgery at the Medical College, Thrissur. On 1.2.2011, he was on duty at the casualty. On that night at 11 O' clock, the deceased was brought at the casualty. He examined her and prepared and furnished Ext.P32 wound certificate. She was brought by PW19. The alleged history was that "fell down from the train at 9 p.m. at Vallathol Nagar". He has noted the following features: - "The patient was unconscious. G.C.S score E.I. M2 V.I. strider was present. Pulse rate 86/minute. BP was 90/70. Pupil was bilaterally 3mm. Not reacting to light. Chest air entry equal on both sides. Added sounds - present. Abdomen was soft". He has noted the following injuries:- 1. Contusion 4 x 3 cm on left side of mandible involving floor of mouth.
2. Black eye left side-present.
3. Nasal bleed and oral bleed-present.
4. Contusion on left side face. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
80. :- 95. According to him, the injuries could be caused as alleged. He saw the said patient at 11 p.m. When he saw her, she was in a very critical stage, and was fighting for life. She had signs of serious head injury. She was unconscious. There was difficulty to breath as blood was oozing from the nose and mouth. Pupils were not reacting to light. BP was very low. There were severe sounds when she was breathing, as the pipes were filled with the blood. Glasgow Coma Scale (G.C.S) was only 4. In the case of a dead body it will be 3, and in the case of a normal human being, it will be 15. Therefore, the neurological examination and evaluation showed that she was almost dead. She was nearing death due to the first injury. There was fracture of the mandible. Blood had oozed into the floor of the mouth. There was inflammation over and inside the mouth. The said blood could go into the lungs, which could result in death. It would result in pneumonia. If such an injured is conscious, the injured cannot speak; but can make sounds. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
81. :- Injury No.2 could be as a result of injury inside the head or on getting assault on that portion. As she was unconscious, her vision could not be tested.
96. On fracture of mandible, blood was seen oozing through the nose and mouth. On fracture of skull due to bursting of blood vessel in head, blood can ooze out of the nose. He attempted for endo-tracheal intubation. His attempt for inserting tube directly into the lungs through the mouth, failed as there were fractures of the bones of the face. Therefore, he did emergency surgery of tracheotomy. It was for establishing the airway and for sucking the aspirated blood and also for giving oxygen. As BP was low, I.V was established, through which fluids were given. Then, he came out of the acute care room of the casualty, and prepared Ext.P32. When he came out of the room, he could see the brother of the deceased, who furnished the name and address of the deceased. According to him, what were done by him were only life-saving mechanisms. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
82. :- Had it not been done, she would have died then and there. He had suggested Gynaec consultancy. He was also present in the team of doctors who prepared Ext.P3 report. She was removed to ventilator.
97. The deceased was subjected to neurosurgery by him and other doctors. His name is shown in page number 10 of Ext.P4 case sheet. PW79 Neurosurgeon has noted down the circumstances in which the surgery was done. PW79 is the Head of the Department. If the patient is in supine position on sustaining such injury, and if pressure is applied on her, aspiration would be more severe. Clotted blood from the brain was removed after opening the skull. The portion of the skull was kept in her abdomen. The same was done in order to decrease the pressure in the head. According to PW37, the said injuries are sufficient in the ordinary course of nature to result in immediate death.
98. While PW1 Dr. Thanooja was working as an Assistant D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
83. :- Professor, O&G at the Medical College, Thrissur, on 2.2.2011, she examined the deceased, aged 23 and issued Ext.P1 certificate. The deceased was brought by PW19, who was the Gang Maestri of the Vallathol Nagar Railway Station, in a police jeep. She has noted the following history:- "The girl was travelling in the local train on 1-2-2011 and found lying naked in the railway track at 10 p.m. The patient was unconscious and not responding to calls. A lacerated wound of 2 cm. was there on left lower lip. Black eye, left side contusion and an abrasion on left cheek. Undergarments were soaked in blood. Abrasion right forearm dorsal aspects. Contusion on right forearm 1 cm. left side hemiplegia (state of paralysis)".
99. After examination of the deceased, PW1 made the following observations in Ext.P1:- Gynaec examination:- Pubic hair is scanty; but matted with mucoid secretion, it is clipped. No tears inside vagina copious. Mucoid materials inside vagina seen. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
84. :- Hymen showed fresh tear at 4 O'clock and 7 O'clock position. Based on the above facts, she is satisfied that there is evidence of recent sexual act. No injuries on the abdomen and breast. Pelvic examination:-uterus normal size, mobile, no pathology in uterus. Patient had head injury. Internal capsular bleed in CT scan and not moving left side of body and unconscious. Strider Tracheotomy done. She is dangerously ill. Vaginal swab (2 in numbers), vaginal smear (2), pubic hair clippings and nail clippings taken. Undergarment was also taken. All the same were sent for chemical examination and DNA matching.
100. According to PW1, there was evidence of signs of resistance. Ext.P2 is the forensic report. There is head injury and multiple facial injuries. There was intra cerebral haemorrhage and the patient was dangerously ill.
101. On 3.2.2011 PW1 along with the other Doctors in the Medical College Hospital attended the victim and gave Ext.P3 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
85. :- report. PW1 identified MO1 as the cream coloured partially torn shirt, MO2 blood stained petticoat (shimmy), MO3 brassiere torn, and MO4 pink underskirt loosely found on the body of the victim. Patient was unconscious and she was having respiratory difficulty. Tracheotomy was placed prior to her examination. CT scan was also taken. As she was in serious condition, she was put on ventilator. She could not survive without ventilator and Tracheotomy. According to PW1, the injuries are sufficient to cause the death. After the examination, PW1 came out of the room, and contacted the police, asked the crime number and wrote it on the sample.
102. PW46 was the Assistant Sub Inspector of Police, Cheruthuruthy. On 1.2.2011 he was on station charge, as the S.I. had gone to the police headquarters. On that day, he was on duty in connection with the accident due to the explosion at Thrangaly. After returning from there, he had his bath and food. After that, the person on GD charge informed him that an D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
86. :- information was received to the effect that a Tamil man and a Tamil woman had jumped from the 'Shornur Passenger' after the train passed Vallathol Nagar Station. He along with the home guards reached near the southern gate of Kalamandalam, at the Shornur-Thrissur Road. He reached the place where the railway track and the road are lying in the same level. He crossed the tracks from west to east, and searched from the portion of the up-line going to Shornur to the Vallathol Nagar Railway Station. He could not find anyone, and he informed the matter to PW42 Station Master of the Vallathol Nagar Railway Station. He directed PW42 to convey any information in the matter, if received.
103. When PW46 was on his way to another place, a person named Noushad residing at Cheruthuruthy called him over phone and informed him that the body of a lady was found at the railway track, near Kalamandalam. After some time, he was again called and informed that the said woman was alive D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
87. :- and that no vehicle was available to take her to the hospital. He told him to take her to the road by stating that he would be coming with the jeep, and further directed him to take her to the hospital by any other vehicle, if available in the meanwhile. When he reached near Kalamandalam, he could see a police jeep starting from the front of the bus stop and proceeding towards Thrissur side. From the persons found gathered there, he came to know that the injured lady was taken to the hospital.
104. At that time, PW46 was informed from the police station that information was received to the effect that a one handed man had jumped out of the train. He searched for such a person near the track. Then, some other persons, who were there, told him that they could see such a person near the Kalamandalam bus stop, and they had stopped him and questioned him and released him as they felt that he was a beggar.
105. They told PW46 that he might have gone away by D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
88. :- some other vehicle. He went to the spot where the girl was lying. He could see blood there. On getting information that the injured girl was taken to the M.C.H, he went to the casualty. He could see a girl aged about 22 years lying at the casualty, being attended by doctors. The name and address of the girl were not available then. As the persons who brought the girl to the hospital told him that the girl was lying nude from waist to downwards, and that the girl was subjected to rape, he passed on that information to the doctors. The gynecologist examined the deceased.
106. According to PW6, after 9 p.m. on 1.2.2011, PW18 had called him and told him that the deceased had not reached the house. By about 10 - 10.30 p.m., again he called PW18. At that time, the phone was picked up by his friend PW36. He was informed that a girl had fallen out of the train and was taken to the Medical College Hospital, Thrissur. He reached the Medical College by an autorickshaw after 11 p.m., and identified the girl D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
89. :- as his sister. Doctors were seen examining the deceased. By about 1 a.m., a lady doctor came to examine her. The Doctor told him that she had sustained a head injury and that she was raped.
107. On 2.2.2011 at 2.30 a.m., PW6 furnished Ext.P8 First information Statement before PW46 A.S.I Gopinathan. According to him, he stated before the police in respect of the incident in which somebody had pushed out the deceased from the train and committed rape on her.
108. PW46 recorded Ext.P8 First Information Statement furnished by PW6 at 2.30 a.m. on 2.2.2011, on the basis of which, he registered Crime No.41/2011 of the Cheruthuruthy Police Station under Sections 307 and 376 IPC, through Ext.P40 F.I.R., at 3.30 a.m.
109. One of the main arguments resorted to by the learned counsel for the appellant is that there was inordinate D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
90. :- delay in registering the FIR in this case. It is argued that even though the Railway Police and the local police had received information regarding the crime, no FIR was registered till 3.30 a.m. on 2.2.2011.
110. It has to be noted that at first PW4 and PW40 heard cries of the deceased from the ladies compartment attached behind the general compartment in which they were travelling, and on enquiries, they came to know from the middle aged man, whose identity could not be established by the investigating officers even after a thorough investigation, that a girl had jumped out of the train and escaped. Thereafter, PW4 and PW40 could see the accused jumping out of the running train which was moving in slow speed and walking back towards the direction from which the train came. They gave information to PW34 Guard as and when the train reached Shornur. The matter was informed to the RPF office at the railway platform and also to the Station Master. They took the information in the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
91. :- sense that a Tamil woman and a Tamil man had jumped out of the train. Can a FIR be registered on the basis of such a vague information, especially when even the names of those persons allegedly jumped out the train were not available? 111. The learned Special Pubic Prosecutor has invited our attention to the decision reported in State of Himachal Pradesh v. Shree Kant Shekari [2004(8) SCC153, wherein it was held, "The unusual circumferences satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumference for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
92. :- and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case." 112. In State of Punjab v. Ramdev Singh [(2004) 1 SCC421, it was held as follows:- "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
93. :- is explained to the satisfaction of the court, the same cannot by itself be a ground for disbelieving and discarding the entire prosecution version, as was done by the High Court in the present case." 113. Even when the victim was taken to the hospital, her name was not known to anybody. The witnesses, who saw the injured girl and the way in which the deceased was lying at the side of the railway track, could reasonably suspect that she was subjected to rape. Either the name of the victim or the name of the accused was not available. The identity of the victim was also not available. It was when PW36 along with PW18 and a neighbour reached the Railway Station and made enquiries regarding the girl who was expected to come by the passenger train, then only the Station Master could tell them that a girl had fallen from the train and was taken to the hospital. The information was passed on to PW6 who rushed to the casualty of the Medical College Hospital, Thrissur and identified the victim who was attended by the Doctors, as his sister who is the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
94. :- deceased. Even at that time he was not aware that the deceased was raped. Only by 1 a.m. when PW1 came out after examining the deceased and told him that the deceased had sustained a head injury and that she was raped, he could realise something regarding the incident. Then only he came to know that she was deliberately dropped from the train and was subjected to rape. He furnished Ext.P8 First Information Statement at 2.20 a.m. on 2.2.2011 before PW46, on the basis of which PW46 registered the crime under Sections 307 and 376 IPC through Ext.P40 FIR at 3.30 a.m.
114. Till then, it was not discernible to PW46 or anybody whether the deceased had jumped out of the train or accidentally fallen from the train or dropped from the train. Her identity was not known. The identity of the accused was also not known. Can anybody find fault with the police in not registering an FIR without any particulars at all? It has to be noted that for the incident happened after 8.30. p.m. on D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
95. :- 1.2.2011, first information statement was furnished by the brother of the deceased at 2.30 a.m. on 2.2.2011 and a crime was registered at 3.30 a.m. on 2.2.2011. The so called delay is for less than 4 hours. The matters are self explanatory. We find that there is no delay at all in registering the crime, and the circumstances in which the FIR happened to be registered at 3.30 a.m. on 2.2.2011 have been clearly explained by the prosecution.
115. According to PW18, when she saw the deceased at the I.C.U. the deceased was unconscious. Thereafter, she returned to the house only after the death of the deceased.
116. PW81, while working as the C.I. of Police, Chelakkara, took over the investigation of this case at 4 a.m. on 2.2.2011. On that day, he entrusted PW46 to make arrangements for the scene guard of this case. According to PW46, as per the direction of PW81, he arranged the scene guard. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
96. :- 117. PW66 is a police constable attached to the Pazhayannur Police Station, who was on scene guard duty in this case from 4 a.m. till 4 p.m. on 2.2.2011 along with another C.P.O. named Ram Mohan. The said police station is coming under the C.I., Chelakkara. They guarded around 20 mtrs. distance towards north and 20 mtrs. distance towards south, from the scene of occurrence. He was present during the preparation of the scene mahazar and also while the Scientific Assistant was collecting the material objects from the spot.
118. According to PW4, during the dawn of 2.2.2011, without much later to his arrival at his house at Kozhikode, he was called by a policeman from the office of the Circle Inspector of Police, Chelakkara and asked whether he had travelled by the said train. He was told that the girl was serious and therefore he should reach Chelakkara Police Station. He reached the Chelakkara Police Station at 5 p.m. and narrated the entire incidents to the Circle Inspector. He gave both his train tickets D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
97. :- to the police, which the police seized through Ext.P5 mahazar. He identified the said tickets as Ext.P6 series.
119. On 2.2.2011, PW72 was a Senior C.P.O. attached to the C.I. Office, Chelakkara. PW4, who had travelled by the passenger train involved in this case on 1.2.2011, had produced Ext.P6 series tickets, and the same were seized through Ext.P5 mahazar, in which he affixed his signature.
120. PW73 is a W.C.P.O. attached to the C.I. Office, Chelakkara. On 2.2.2011 at 5 p.m. she saw PW4 producing his train ticket by which he had travelled, by train from Ernakulam to Kozhikode on 1.2.2011, before the police at the C.I. Office, Chelakkara, which the police seized through Ext.P5 mahazar. She has affixed her signature in Ext.P5 mahazar.
121. PW30 is the Chief Booking Supervisor at the Ernakulam Junction Railway Station. According to him, on 7.3.2011 he was shown Ext.P6 series railway tickets. Out of it, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
98. :- ticket number 604115254 is for journey from Ernakulam Junction to Calicut. It is a ticket to the express train. It was issued from that Railway Station at 17.14 hours on 1.2.2011. Ext.P26 is the report furnished by him to the police to that effect.
122. According to PW40, in between 7 a.m. and 8 a.m. on 2.2.2011, he got a phone call from a number which was not known to him. He was told that it was from the Office of the Circle Inspector of Police, Chelakkara and he was asked to report at the office of the Circle Inspector of Police, Chelakkara for knowing details regarding this case. By about 4 p.m. on that day, he reached the office of the Circle Inspector and he narrated all what he could see during the previous night. He furnished Ext.P23 ticket, and the police seized the same through Ext.P33 mahazar in which he also affixed his signature.
123. On 2.2.2011 at 4 p.m. PW73 W.C.P.O. attached to the C.I. Office, Chelakkara, saw PW40 handing over the train ticket by which he had travelled in the Ernakulam-Shornur D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
99. :- Passenger Train on 1.2.2011, before the police at the C.I. Office, Chelakkara. The same was seized through Ext.P33 mahazar. She has affixed her signature in Ext.P33 mahazar.
124. PW28 is the Chief Booking Supervisor at the Thrissur Railway Station. Ext.P23 train ticket number 601989508 is an ordinary ticket that was issued from his office at 19.06 hours on 1.2.2011. He had furnished Ext.P22 report to that effect to the investigating officer.
125. According to PW81, on 2.2.2011 he saw the injured who was in the ICU at the M.C.H. Thrissur, and that she was unconscious.
126. After sending the deceased along with PW19 and Nazar to the hospital, PW52 along with the others present there returned to the railway track where the girl was lying. At about 10 p.m., PW52 collected the materials lying scattered at the place where the deceased was found lying at the railway track. The D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
100. :- bag and the other articles lying scattered there were collected by him and he kept it in safe custody. The pants and shuddy were seen removed together. The same were taken along with the churidar top. Other articles were taken in the bag. On the next day, he produced all those materials before PW81, at the Cheruthuruthy Police Station. PW81 seized the same through a mahazar. PW52 identified all the materials including MO34, MO35, MO36, MO37 and MO38 series.
127. According to PW81, on 2.2.2011 at 8 a.m., PW52 who is residing near the scene of occurrence, has produced 21 items which are MO2, MO7 to MO13 series, MO16, MO21, MO22, MO25 series, MO26, a puppet, two artificial ear studs, MO34 to 38 and Ext.P25 ticket of the deceased, at the Cheruthuruthy Police Station, which according to his direction, were seized by PW46, through Ext.P31 mahazar.
128. PW29 is the Chief Booking Supervisor at the Ernakulam Town (North) Railway Station. According to him, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
101. :- Ext.P25 ordinary train ticket number 6022774451 was issued at 17.45 hours on 1.2.2011 from Window 6 shift No.C from the Entry Booking Office-II of the Ernakulam Town (North) Railway Station. He had furnished Ext.P24 report to that effect to the investigating officer.
129. According to PW35, on 2.2.2011 at 8 a.m., he saw his friend PW52 producing a black handbag, black pants, churidar, mobile phone charger, a pen without top, identity cards, two photographs (one passport size and one stamp size), a hair net, chalan receipt, cards looking like visiting cards, small black bag, hair pin like slides, face creams, lipstick, powder etc., before the C.I, Chelakkara, at the Cheruthuruthy Police Station. The same were seized through Ext.P31 mahazar, in which he also affixed his signature.
130. According to PW46, on 2.2.2011 he seized the material objects produced by PW52, through Ext.P31 mahazar. PW46 identified the black pants, shuddy, cream-coloured D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
102. :- churidar top, LG mobile charger, ID card, election ID card, a train ticket, a visiting card, and a small purse containing two hairpins, coins, three pearl studs, a white ear stud, another ear stud of which the bead was lost, and a small puppet seized by him through Ext.P31 mahazar. There was a plastic cover containing two passport size photographs and two stamp size photographs of the deceased, and two Sim cards, one of Airtel and one of Aircel. There was a remittance slip from the SBI, Palarivattom, a cash memo of the Reliance hypermarket limited, a pen without top, a black coloured hair net, a tube of new ponds lotion, Vaseline, fair and lovely etc. He identified all those materials.
131. According to PW71, at 4 a.m. on 2.2.2011, PW81 C.I of Police Chelakkara, along with the 2- 3 policemen, approached him and informed him that a girl was subjected to sexual abuse and a case has been registered for the same. They requested him to open the ladies compartment in which the deceased was D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
103. :- travelling, for a search. He along with PW34 went over there, opened the said compartment, and paved way for search.
132. PW81 along with CW137 H.C., CW136 H.C. and PW73 W.P.C. reached the Shornur Railway Station at 4 a.m. on 2.2.2011 itself and examined the ladies compartment No.08495 of Ernakulam - Shornur Passenger Train in which the deceased had travelled on the date of incident. The train was stationed there in the same state as it reached during that night. From the floor beneath the wash basin, near the front door of the bogie, MO19 series of pieces of hair clip, MO23 steel coloured ring of a key chain, MO24 glass type transparent bead, MO31 plastic button having yellow colour on one side and MO30 series of three pieces of broken button having violet colour with writings as 'double', one of which contained thread also, were found. The same were seized through Ext.P37 mahazar. PW81 identified the said material objects. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
104. :- 133. PW43 is conducting a stall at the third platform of the Shornur Railway Station. On 2.2.2011 after 4 a.m. while he was arranging materials for sales by opening his stall, the police reached there along with PW34 and other railway staff. The Shornur-Ernakulam Passenger Train came on the previous night was lying in the track in front of his stall. The ladies compartment, which was the last but one compartment from the rear end of the train was opened and all of them entered in it. Some materials were seen lying scattered on the floor of the compartment. He could see MO23 steel ring of a key chain, MO24 bead, MO19 series portions of a damaged black hair clip, MO30 pieces of button in violet colour and MO31 yellow coloured button. The police seized the said materials through Ext.P37 mahazar.
134. According to PW82, on 9.2.2011 at 11.30 a.m., PW41 produced MO9 watch of the deceased which was entrusted to him by the duty nurse at the MCH, at the C.I. Office, Chelakkara. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
105. :- PW82 seized the same through Ext.P35 mahazar.
135. PW41 is the brother's son of PW18. According to him, on 3.2.2011 he had gone to the Medical College Hospital, Thrissur and saw the deceased. The duty nurse had handed over MO9 watch of the deceased to him, which he kept and produced before police, which the police seized through Ext.P35 mahazar on 9.2.2011. He also is a signatory to Ext.P35.
136. According to PW81, the material objects seized from the train compartment, MO9 watch produced by PW41, and the material objects produced by PW52 were shown to PW18 and PW6. They identified the same (except MO30 series), as the articles of the deceased. On 4.2.2011, the aforesaid material objects were shown to PW16, CW45, and another woman named Nimmi John, who were the co-workers of the deceased at Ernakulam. They also identified the material objects of the deceased. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
106. :- 137. According to PW16, the deceased was using a black coloured LG mobile phone, which she identified as MO14. She identified MO1 cream coloured Shirt, MO2 Petticoat, MO3 Brassieres, MO7 black coloured bag, MO8 black Pants, MO9 Watch, MO10 churidar and top, MO19 series are the broken portions of a clip, MO21 underwear, MO22 mobile phone charger, MO12 identity card of the Company, and MO20 hair net issued by the Company, as articles being used by the deceased.
138. PW18 identified MO9 as the watch and MO7 as the bag of the deceased. She had identified the cream that was inside the bag, the black pants, churidar top, underwear, identity card, key chain, etc. of the deceased. She identified MO23 steel ring, MO24 plastic bead and MO16 purse of the deceased. She identified MO25 series of cosmetic items which included 'Fair and Lovely', facial cream etc., which were found to have been carried by the deceased in the bag. She identified MO26 series ear studs, hair pin, doll, artificial pearls, portions of ear studs etc. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
107. :- of the deceased.
139. According to PW6, apart from a small gold nose- wear, the deceased had no gold ornaments. He identified MO1, MO7 and MO8 as the dress, MO9 watch, MO10 churidar, and MO16 purse of the deceased. MO11 was the electoral ID card and MO12 was the ID card issued by the Company where she was employed. He identified MO13 series as her photographs.
140. PW51 is working as the Assistant Director (Physics) at the Forensic Science Laboratory, Thiruvananthapuram. According to her, the buttons in this case were received by her for scientific examination and she prepared and issued Ext.P2 report after comparative examination of the said buttons with the buttons of MO6 shirt. It was MO30 button which was subjected to comparative examination by her. She made the comparative study with MO33 series buttons removed from MO6 shirt. According to her, MO30 and MO33 series are the buttons of MO6 shirt. She furnished the following opinion in Ext.P2 report:- D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
108. :- "pieces of buttons contained in item No.16 and the buttons collected from the shirt, item No.17 are the same".
141. PW51 has examined item No.17 with the buttons in item No.16. Colour, size, style and cast mark are the same. Item No.17 is MO6 shirt with the buttons. It is a full sleeve dark gray colour shirt with saffron blue and gray colour lines and designs and bearing tailor's label "Karl Hogan Formals by double bull". The name "double" was seen written on the buttons also. The said cast mark is there on MO30 as well as MO33 series. All those buttons are in deep violet colour. Holes in all those buttons are similar. There are seven button holes in MO6 shirt including that of the collar button. Two holes each are there on the handcuff. Three buttons each from the handcuff and two buttons from the front side at the bottom were the buttons removed. Ext.P46 is the forwarding note received by her. One out of the three pieces of MO30 contained thread also. She compared that D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
109. :- thread with the thread by which other buttons on the shirt were stitched, and it was found that all the threads were the same.
142. PW79 has been working at M.C.H. Thrissur for the last three years in Neuro Surgery. He has 12 years' service in Neuro Surgery. He had attended the deceased and the particulars of his treatment are included in Ext.P4 case sheet. Ext.P4 (a) page 17 of Ext.P4 shows his first consultation of the patient at 1.10 a.m. on 2.2.2011. The patient was fully unconscious and was in ventilator. The G.C.S. was 3/15, which means that she was almost dead. B.P. was very low. C.T. was taken and he started the medicine. His second consultation was at 8 a.m. on 2.2.2011, and the particulars of the same are shown in Ext.P4 (b) page 21 in Ext.P4.
143. Again, the patient was in ventilator, in very critical condition. Ext.P4(c) page No.31 contains his third consultation, which was on 3.2.2011 at 8. a.m. The condition was very critical as that of the previous days. Ext.P4(d) page No.37 contains the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
110. :- particulars of the meetings of the Medical Board at 10.30 a.m. on 4.2.2011, and their findings. B.P. was very low even on supportive medicines. She was unconscious, and on ventilator. As per the opinion of the Board, he has repeated the C.T. Scan.
144. Ext.P4(e) page No.49 contains the findings of the C.T. Scan on 4.2.2011. There was increase in the size of the haemorrhage. Adjacent brain edima was increased. Mass effect and midline shift increased. Therefore, the Board decided for surgery on the brain. Surgery was done from 3.30 p.m. to 6.30 p.m. on 4.2.2011. In the surgery, he removed the haemorrhage, and removed a bone flap from the skull to reduce the brain edima. That bone flap was kept in her abdomen. Ext.P4(f) page No.10 contains the surgical operation notes. The condition of the patient continued as the same. The patient was in the ventilator throughout.
145. Ext.P4(g) page No.57 contains the Medical Board meetings and findings at 11 a.m. on 5.2.2011. The condition of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
111. :- the patient was the same, and there was no improvement. Ext.P4(i) page No.75 contains his next consultation, at 8.30 a.m. on 6.2.2011. Condition was very bad. Peripheral pulses were not felt. They continued the same medicines. Ext.P4(j) page No.93 contains his last consultation at 2.30 p.m. on 6.2.2011. ECG was flat line. B.P. was not recordable. Cardiac sounds were not heard. C.P.R. was started at 3 p.m. The deceased was declared dead. The deceased was under his care, and under the supervision of the Medical Board.
146. Dr.Geo was the junior of PW79. The certification of death was recorded by him as per the direction of PW79. Ext.P4(k) page No.1 is the summary sheet. The Glasgow Coma Score (G.C.S.) of the patient had never improved. She was continuously on mechanical support, and only on that account she survived. G.C.S. is the internationally accepted scoring system by which neurological status is assessed. 3 -15 is the score rate. 3 is the score of a dead person and, 15 is the score D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
112. :- of a living normal person. At the time of admission, her G.C.S. was '3' and she was sinking and had never improved. According to him, the head injury sustained to the deceased is one of the causes of death, and it was very fatal.
147. Due to 'Thrangaly explosion' all the doctors were present at the casualty during the night of 1.2.2011, till the early morning of 2.2.2011. He was actually operating on one of the victims of the fire explosion and he rushed to this victim to attend her, on getting intimation. They have done the maximum to save the life of the patient.
148. The deceased was declared to be dead at 3 p.m. on 6.2.2011. On receiving the report regarding the death of the deceased at 3 p.m. on 6.2.2011, PW81 reached the Medical College, Thrissur, conducted the inquest, and prepared Ext.P38 inquest report. He gave requisition for the postmortem examination. PW6 also was present during the inquest. PW44 is the Shornur Municipal Councilor, who also was present during D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
113. :- the inquest of the deceased. He affixed his signature in Ext.P38 inquest report which was prepared at 4.30 p.m. on 6.2.2011.
149. PW22 is a photographer by profession, working at 'Swapna Studio', Wadakkanchery. As per the direction of the police, he took the photographs of the deceased during the inquest, at 4.30 p.m. on 6.2.2011, at the Medical College, Thrissur. He produced the same before PW81 Circle Inspector of Police, Chelakkara at 9 a.m. On 5.3.2011. PW81 seized the same through Ext.P17 mahazar. He identified the photographs as MO29 series. The photographs were taken in the digital card. After taking the print, it was deleted from the memory.
150. During the period of incident, PW68 was working as a Woman Police Constable at the Cheruthuruthy Police Station. She was engaged in the guard duty of the dead body of the deceased in this case. By about 6 p.m. on 6.2.2011 the body was entrusted to her after inquest, for postmortem examination. She was also present during inquest. On getting the dead body, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
114. :- she produced the application for postmortem examination at the Medical College, Thrissur. As it was late, the postmortem examination was not conducted on that day. The body was refrigerated and thereafter at 7 a.m. on the next morning the body was taken to the postmortem room.
151. According to PW81, on 7.2.2011 PW64 conducted the postmortem examination on the body of the deceased, and produced the nail clippings and pubic hair samples. PW81 seized the same through Ext.P74 mahazar, and produced it before court for forwarding to the F.S.L.
152. PW64 is the Professor and Head of Department of Forensic Medicine, Medical College Hospital, Thrissur. On 7.2.2011 at 7 a.m. a request was handed over to her for conducting the postmortem examination on the body of the deceased, aged about 23 years involved in Crime No.41/11 of Cheruthuruthy Police Station. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
115. :- 153. According to PW64, she joined in the Forensic Medicine as a Tutor in the year 1982 at the Medical College, Kozhikode and worked there till she was transferred to Thrissur on 7.6.2010. She became a Professor in the year 2001. She had done her fellowship in 1996 in U.K. under the Greater Manchester Police and Scotland Police - a combined training. She had undergone training on sexual assault victims' examination and crisis intervention centre in Manchester. She has been a postgraduate teacher for several years in her carrier.
154. PW64 being the Head of the Department, has conducted this postmortem examination, in between 7.15 a.m. to 9.15 a.m. on 7.2.2011, with the assistance of five other doctors namely, Dr.A.K.Unmesh (DW1), Dr.P.S. Sanjay, Dr.Rajendra Prasad.V.K., Dr.Anad.T.P. and Dr.Shahida M.V. PW64 was provided with the treatment records bearing I.P.No.2277, Ext.P4 case sheet, and KPF102request of the investigating officer for autopsy, along with the summary of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
116. :- Ext.P38 inquest report. The body was identified by PW68, who was in charge of the body. On conducting the postmortem examination, PW64 prepared and issued Ext.P69 certificate in respect of the postmortem findings. She has noted 24 antemortem injuries, that include trogenic therapeutically induced injuries which are part of the treatment. Her findings in the postmortem are as follows:- "A. General: Body was that of a moderately built and nourished adult female of height 153 c.m. and weighing 42 kg. Having medium complexion. Head was seen bandaged. Hospital dressings were seen also over left side of abdomen. Face and whole body was oedematous. Scalp hair was shaven. Black eye was present on left side. Eyes were in a closed state conjunctivae pale and oedematous. Subconjunctival haemorrhage present on left side and cornear hazy. Bloodstained mucoid fluid was seen at nostrils. Tip of tongue was protruding external genetalia showed injuries-refer below: other D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
117. :- external body orifices appeared normal. Nails were blue. Rigormortis was fully established and retained all over the body. Postmortem staining was on the back aspect not fixed. There was ano sign of decomposition. (Body had been refrigerated). Subclavian venous puncture marks were seen on right side of front of chest. Intravenous needle puncture marks seen on front of both elbows and back of hands. Multiple femoral puncture marks were seen over both groins. Surgical tracheostomy, tube in situ and healthy found reverse "?" mark sutured surgical incisin of neurosurgery 24 c.m. long on the right frontotempero Parietal region of head (refer below). B. Injuries(Ante-mortem):
1. Lacerated wound (2x0.2x0.5 c.m.) with a surrounding abraded contusion (2.8x1.5 c.m.) left side of forehead with its upper end 2.5 c.m. outer to midline and 5.5. c.m. above eyebrow (the wound was seen sutured). Abraded contusion 2.5x1x0.6 c.m. on left side of forehead with its inner end 5 c.m. outer to midline and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
118. :- 2.5 c.m. above eyebrow. Abraded contusion 5x3.5x0.5 c.m. on right side of forehead just outer to midline and 1 c.m. above eyebrow. Contusion of left temporalis muscle (8x6.5x0.6 c.m.) involving its whole thickness. The left orbita margin (upper showed a fissured fracture, which was seen extending to the left side of frontal bone, upwards (5.5 c.m.). the floor of left side of anterior cranial fossa also showed fracture, which was extending to the mid portion of bone of skull up to the pituitary fossa. Traumatic disruption of stem of pituitary gland. Left frontal lobe of brin showed multiple areas of haemorrhage (max. size 0.5 c.m. with overlying focal subarchnoid haemorrhage). (Remark hard hit of forehead on a flat surface).
2. Grazed contused abrasion(vertical graze), 9.5x7 c.m. on left side of face from lower margin on left orbit to jaw line. Skin and the subcutaneous tissue along the outer edge of the injury were seen contused. The adjoining part of left half of lower lip showed multiple lacerations (sutured). Laceration 3.2x0.3x0.5 c.m. just below and parallel to the lip margin of left half of lower lip. Graze D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
119. :- abrasion with a surrounding contusion over an area 9x5x1.3 c.m., vertically placed on upper part of left side of front of neck and partially involving the lower jaw margins. Soft tissues of cheek contused. Maxilla (left cheek bone) fragmented. The mandible (jawbone) showed a fracture (obliquely placed, complete) involving the chin. The upper alveolar margin of left side was seen avulsed upwards exposing the bony structures underneath. There was recent traumatic loss of incisors on upper jaw, left upper canine and premolars, lower central incisors and the left lower canine and Premolars teeth (traumatic avulsion/dislocation-surgical care given.) (Remark-fall on to smooth surface of rail and gliding forward).
3. Surgical craniotomy wound with sutures, reverse mark shaped, 24 c.m. long, overlying the right side of forehead and adjoining part of head with its lower back end 1 c.m. above the tragus of right ear. The scalp tissue underneath showed infiltration of blood. A bony flap measuring about 11x9 c.m.(involving right side of frontal, temporal and parietal bones) was seen removed D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
120. :- using burr holes. The dura showed multiple cuts. Synthetic foam material (surgical) was seen insitu with overlying surgical sutures(surgical wound). The right gangliocapsular region showed evidence of surgical intervention(4.5x3.5x3c.m. seen packed with gel foam). (Remark-intermediate coup injury modified surgically).
4. Tracheotomy wound 4x0.8 c.m. transversely placed on lower part of front of neck in midline (surgical, healing, healthy).
5. Surgical sutured wound 10 c.m. long, transversely placed on left side of front of abdomen with its inner end 3 c.m. outer to midline and 13 c.m. below costal margin(surgical, healing, healthy).
6. Abrasion 2.2x0.1 c.m. vertically placed on left side of front of chest 3 c.m. below collarbone and 1 c.m. outer to midline. Two curved abrasions 1x 0.1 c.m. and 0.6x0.1c.m. each. 0.5 c.m. apart, with a convexity facing upwards and inwards, the inner one being 10 c.m. to the right of midline just below right collarbone and one similar mark 0.5x0.1 c.m. just below middle of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
121. :- left collarbone. Abrasion 2x1.2 c.m. incorporating curvy linear contused abrasion (0.8 c.m., curved down) on front of left shoulder. (Remark-multiple nail marks along the neck line of garment). 7.' U' shaped linear skin contusion mark on the back of upper chest (Remark-neck line imprint, pull from front).
8. Abrasion 3x1 c.m. on right side of front of chest 2 c.m. outer to midline and 8 c.m. above costal margin.
9. Multiple small abrasions(horizontal placement) over an area 18x2.5 c.m. to 6.5. c.m. separated by intervening normal areas along the middle of lower part of front of chest and upper part of front of abdomen overlying the xiphisternum. (Remark-ground contact) 10. Graze abrasion over an area 2.5x1.5 c.m., overlying the prominence of hipbone.
11. Two linear abrasions close by each other 1 c.m. each just below injury No.10. (Remark- pull on the sash line). D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
122. :- 12. Abrasion 2x0.7 c.m. on outer aspect of right arm 3 c.m. above elbow.
13. Graze abrasions. 7.5x5 c.m. over the outer-back aspect of right forearm, 5 c.m. below elbow down. Graze abrasions 11x3.5 c.m. on outer back aspect of right forearm and adjoining part of wrist in line with the same.
14. Multiple (four) descrete contused abrasions (each squarish measuring 1x0.8 c.m.) over an area 7x2 c.m. on middle of back of 6 2.5x1.5 c.m., right hand overlying the outer four metacarpals. Contused abrasion 0.6x0.5 c.m. on back of distal knuckle of right thumb. Another three similar descrete contused abrasions on the back of right forearm 12 c.m. above these. Together they formed a patterned picture. (Remark-crushing in between door and frame).
15. Abraded contusion 2x2 c.m. (squarish) on outer aspect of left wrist just above thenar eminence, two small-contused abrasions 5 c.m. below it (0.9x0.6 c.m.) and contused abrasion of left thumbnail, all in the same line. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
123. :- (Remark-crushing of hand between door and frame).
16. Fine abrasions as three parallel lines 1.2 to 1.5 c.m. apart transverse, on the outer aspect and back of left wrist.
17. Grazed contused abrasion 2x4 c.m. on back of head 5 c.m. behind lower part of left ear. Scalp contusion with edema underneath.
18. Abrasion 3x1.5 c.m. on back of right shoulder in its upper part.
19. Multiple spotted abrasions over an area 11x4.5 c.m. on small of back. Contusion with overlying abrasions 8x5.5x0.4 c.m. on upper inner quadrant of right buttock.
20. Contused abrasions 1.2x1 c.m. each on back of both heels. (Remark - injury No.17 to 20 suggestive of contact area with ground-secondary).
21. Abrasion 2x1.5 c.m. on back of right thigh near its outer aspect, 17 c.m. above knee.
22. Abrasion 2x1 c.m. on front of right knee. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
124. :- 23. Abrasion 2.5x2 c.m. on front of left knee in its upper part.
24. Abrasion 0.5x0.4 c.m., 0.4x0.3 c.m. and 0.3x0.2 c.m. on the middle of top of middle three toes of left foot. (The abrasions were covered by black scabs and the contusions described were of dark red colour consistent with the duration of injury - more than 5 days). C. Internal Findings: Head, neck and Chest: Scalp: Skull see above Brain was soft, edematous friable of violatious purple hue to gray matter. Durette's haemorrhage over the white matte all over and disintegrating with all its vessels thrombosed suggestive of hypoxic brain damage - ventilator brainpicture. Neck and its structures appeared normal and intact except for the mild glottic edema. Air passages were pale. Lungs were heavy, dark red, firm bits sinking in water(right and left 600 gms. each) and showed with very minimal areas of aeration at front regions. Chest D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
125. :- cavities showed straw-coloured serous fluid collection- 100 ml. Each. Heart was normal in size; valves and chambers appeared normal. The inner 2/3 of myocardium was pale. Coronary arteries were patent. D. Abdominal Structures: Stomach was 3/4th full with dark red fluid (altered blood), without any unusual smell, mucosa showed erosions at multiple sites. A dislocated tooth was also seen inside the stomach cavity. There was mucosal edema of the entire gastro-intestinal tract. The loops of intestines were also edematous. Liver appeared pale. Gall bladder was seen distended with bile. Spleen and pancreas appeared normal. Both kidneys were swollen with pale cortex and congested medullary region. Adrenals and pancreas appeared normal. The peritoneal cavity also showed straw coloured, serous fluid collection similar to that of the chest cavities. E. Pelvic Structures: Urinary bladder was empty. Uterus and its appendages appeared normal, the cavity was empty; endometrium showed congestion and the cervical os was circular. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
126. :- The right ovary showed polycystic changes. Spine was intact. Vaginal introitus and wall showed contusion all around, most prominent just behind urethral meatus. Hymen showed a recent complete tear at about 5 'O' clock position and partial recent tear at about 7 'O' clock positions (as suggested by edema and hyperemia of edges) and a natural indentation at 1 'O' clock position. (Remark - recent sexual intercourse). Samples of blood, viscera, vaginal swabs and smears were preserved and sent for chemical analysis. Nail clippings and pubic hair samples were preserved and handed over to the police constable in charge, in a sealed envelop. Opinion as to cause of death: The decedent had died due to blunt injuries sustained to head as a result of blunt impact and fall and their complications including aspiration of blood into air passages (during unprotected unconscious state following head trauma) resulting in anoxic brain D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
127. :- damage. She also showed injuries as a result of assault and forceful sexual intercourse. She had features of multiple organ disfunction at the time of death." 155. According to PW64, injury No.1 contains three injuries caused due to blunt force. The said injuries could be caused by forcibly hitting that portion of the head on several times on a flat hard body, and at least four times that portion of the head should have been hit against such a flat hard object. According to PW64, injury No.1 is sufficient to render a victim dazed and insensitive. The said injuries are sufficient to create inertia which would render the victim non-reactive. The said injuries are independently sufficient to result in death. The said injuries could be caused only on hitting that portion of the head repeatedly on a hard flat surface. On sustaining those injuries, the victim may not become totally unconscious; at the same time, the victim should have become incapable of doing anything or to react. The said injuries were caused by hitting D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
128. :- that portion of the head on the hard flat object, 4 - 5 times forcibly, by catching on her hair at the back of the head.
156. PW64 has photographed the said injuries, by using her camera and transferred it to CD. The CD has been marked as Ext.P70. It was Dr.Sanjay who had transferred the photographs from her camera to Ext.P70. She produced Ext.P70 before the investigating officer, who seized it through a mahazar on 3.3.2011.
157. According to PW73 W.C.P.O. attached to the C.I. Office, Chelakkara, PW64 produced Ext.P70 CD containing the photographs taken during the postmortem examination of the deceased and the same was seized through Ext.P77 mahazar on 3.3.2011 at 11 a.m., in which she also affixed her signature.
158. According to PW64, around 13 teeth of the deceased were lost in injury No.2. The grazed contused abrasion could be caused on the fall on a smooth surface of a rail and by gliding D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
129. :- forward, i.e., upwards. On account of injury No.1, she had become insensitive, thereby she lost reflex. Therefore, her face has received the whole impact of her descend. Had she been not dazed and had reflex, she would have stretched her hands on descend and in such case the major part of the impact would have been received by the hands. There were no injuries due to the fall on her elbows, wrists, and inner boarders of forearm. It is evident that she could exercise any reflex in such descend.
159. PW64 had visited the scene of occurrence along with PW81 on 9.2.2011. There, she could see 5 tracks and they inter coin and cross. She could realise that the said injury could be caused on a fall from the train on the cross track. As there are air cells inside the maxilla, the left cheek bone became fragmented.
160. Regarding injury No.3, her opinion is that the blood clot seen on the internal capsule of the right side of the brain could be as a result of injury No.1 or 2. The same was surgically D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
130. :- removed.
161. According to PW64, she could note down 5 nail marks in injury No.6 on the body. The same could be as a result of an attempt to forcibly tear away the cloth of the deceased downwards by using the right hand from the neck line from the front. Injury No.7 could be caused on the forceful pulling of the cloth of the deceased from the neck line at the front, which resulted in the pressing of the neck line of the cloth at the back.
162. Injury Nos.8 and 9 could be caused on hitting those parts on the ground and it could be caused due to the fall. According to PW64, injury Nos.10 and 11 could be caused on forcibly pulling the dress worn by the deceased at her waist portion. It could be caused on account of the fall also.
163. Injury Nos.14 and 15 are crush injuries to both hands as a result of crushing in between door and its frame. According to PW64, it could mean that the victim tried to cling on to the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
131. :- door frame and the door was forcibly closed or slammed to incapacitate her. Injury No.16 could be caused on the holding of the left wrist of the deceased by the assailant forcibly with his right hand.
164. PW64 has clearly stated in evidence that any assault by using both the hands could not be found on the body of the victim. All the injuries caused due to assault were caused with the right hand of the assailant. Injury Nos.1, 6, 7 and 16 would indicate that the assailant was taller than the deceased and an erect person, who was very agile (mentally alert and quick) in executing those injuries in rapid succession using his right hand only. There were no injuries on account of any assault, on the right side of the victim. No injuries, which were caused by assault by using both the hands or the left hand, could be seen on the body of the victim. According to her, injuries 6 and 7 followed by injury No.16, followed by injury No.1, could be executed within 10 - 20 seconds. Other injuries (2, 8, 9, 12 and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
132. :- 13) could be caused by dropping her on to the track. Injury Nos.17 to 20 are suggestive of contact with ground on second drop where she was found lying supine. She was in a prone position when she was dropped from the train and sustained injury No.2. She would be dazed and unconscious and unable to correct her to position by herself. She was found later a little away, lying supine. The blood drops were also found stellated, which indicate that she was dropped there from at least a height of 50 c.ms. Injury Nos.22 to 24 may occur along with injury No.2, in the fall.
165. No spinal injuries were noted. Examination of genitalia showed the findings consistent with recent sexual intercourse.
166. PW64 was a signatory in Ext.P3. Prior to the postmortem examination also, she had seen Exts.P3 and P4. Hymen's tear at 5 O' clock position seen in the postmortem co- relates with the tear at 4 O' clock position described by the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
133. :- Gynecologist in Ext.P1 certificate. The change happens due to slagging of tissues and loss of tone after death. She has noted vaginal introitus entry. The wall of vagina showed contusion all around. It was most prominent just behind the opening of urethra. This along with hymeneal tears indicates defloration or sexual intercourse on a virgin woman.
167. Injury No.1 may cause some bleeding from the ethroid fracture at the roof of nose which could be aspirated. Injury No.2 causing open injuries in the form of loss of several teeth and fracture and fragmentation of maxilla and mandible, would have caused profuse bleeding into the oral cavity. This was aspirated into air passages while she was left in the supine position which had resulted in anoxic brain damage. Head injury is very fatal by virtue of its topographic distribution inside the brain or by virtue of aspiration of blood.
168. According to PW64, in cases of head injury, medix and para medix are advised to position the patient with head D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
134. :- tilted to one side in order to prevent aspiration of blood. That knowledge is universal. Had she been left in the prone position as such she laid when she sustained injury No.2, there would have been minimum chance for aspiration of blood. But, since she was brought in the supine position probably for sexual intercourse as indicated by the vaginal findings, she had aspirated blood into the air passages resulting in anoxic brain damage. Head injury rendering her unconscious and the oral cavity bleeding followed by leaving her in the supine stage resulting in aspiration of blood, has resulted in her death. Head injury, oral cavity bleeding, and leaving her in the supine stage there, are the three sequential events which were fatal and which had resulted in her death.
169. According to PW64, the deceased had died due to the blunt injuries sustained to the head as a result of blunt impact and fall and their complications including aspiration of blood into air passage resulting in anoxic brain damage. She D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
135. :- also showed injuries as a result of assault and forceful sexual intercourse. She had fracture of multiple organ dysfunctions at the time of death.
170. According to PW64, injury Nos.1 and 2 are sufficient in the ordinary course of nature to cause death. Injury Nos.1 and 2 are fatal. The black eye was due to infiltration of blood into the loose tissues of the eye lid as a consequence of injury No.1 or 2 or both. Conjunctival haemorrhage present on left side and bleeding just beneath the transparent membrane covering the white of the eye. Blood stained mucoid fluid was seen at nostrils. Blood stains may come either from the lungs or from local trauma. Tongue was protruding on account of terminal shock and loss of front teeth. Left side of the body has suffered hemiplegia or paralysis due to intra-cerebral haemorrhage on the right side.
171. According to PW64, penetration is essential for tear in the hymen. She collected and preserved sample of blood, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
136. :- viscera, vaginal swabs and smears, nail clippings and pubic hair of the deceased and the same were sent for chemical analysis. Ext.P2 is the report received from the Forensic Science Laboratory. Item No.19 series and item No.20 in page No.10 of Ext.P2 were items collected by PW64. Ext.P71 is the chemical analysis report in respect of the items preserved by PW64. Pituitary gland is the master gland. According to her, change of position from prone to supine, immediately after the incident had facilitated aspiration of blood from the injured sites into the air passages.
172. According to PW64, contusions in vagina become manifest several hours after the incident. In this case, the Gynecologist examined the victim at 1.30 a.m. on 2.2.2011. It may not develop to manifest externally at that time. Nearly six hours is required to change the colour (pink colour) of the abrasions. If the examination was done within six hours of the incident, there is every possibility of missing the same. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
137. :- 173. According to PW64, injury No.7 ('U' shaped) could be caused by the forcible pressing of the edges of MO2 petticoat at the back. Injury No.10 could be caused by the forcible pulling down of MO8 pants from the waist of the victim.
174. PW64 was subjected to lengthy cross examination, which in fact, continued for three days. PW64 has stated in evidence that Ext.P3 is in her handwriting. During cross examination, the defence had no case that the postmortem was not conducted by PW64 and the same was conducted by DW1. In fact, a question was put to PW64 as follows: "You have conducted postmortem with great prejudice?" The lengthy cross examination of PW64 clearly denotes that it is the admitted case of the defence that the autopsy was done by PW64.
175. CW118 Dr.Unmesh A.K, who was not examined by the prosecution, was cited by the accused as a defence witness and examined as DW1. According to DW1, he has been working in the forensic division for the last more than 10 years. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
138. :- Presently he has been working as Associate Professor and Deputy Police Surgeon, at the Medical College Thrissur. After taking MBBS, he took MD in forensic and a degree in forensic from the National Institute of Forensic Medicine. He has been working at the MCH for the period from June, 2008 onwards. On 7.2.2011 he was on duty. According to him, it was he who conducted the postmortem examination of the deceased in this case. PW64, who is the head of his department, asked him and his junior Dr.Rajendra Prasad to form a team and to conduct the said postmortem examination. Complying with that direction, he along with Dr.Rajendra Prasad conducted the postmortem examination of the deceased at 7 a.m. on 7.2.2011. The P.G student of his department, Dr.Anand, was also present for aiding him, and recorded the facts dictated by him during the postmortem examination. Over and above him, a junior of DW1, Dr.Sanjay, had also assisted them by taking photographs. The House Surgeon in charge on that day namely Shahida, and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
139. :- Attenders namely Krishnan and Sathi were also present.
176. According to him, body was received from C.P.O Sreedevi at 7 a.m., for which receipt was issued. The fact that the body so received had to be recorded in the register and the postmortem detailed notes. The same was done by Dr.Anand. The postmortem commenced at 7.05 a.m. and terminated at 9.10 a.m. By 7.30 a.m., PW64 also had reached the room. According to DW1, a certificate prepared in his handwriting and that of Dr.Anand was handed over to PW64 for producing before court, which according to his memory, was on 15.2.2011. He has not affixed his signature in Ext.P69. On all pages of the certificate prepared by him, he along with Dr.Rajendra Prasad had affixed their signatures. When he was asked as to what happened to the certificate handed over to PW64, he answered that he did not know it. According to him, that certificate was prepared on 7.2.2011, and delay had occurred to get it typed.
177. DW1 was subjected to searching cross-examination D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
140. :- by the learned Special Public Prosecutor. According to DW1, he realised that Ext.P69 is the postmortem certificate of the deceased. When he was asked as to the time up to which he was on duty on 6.2.2011, he answered that it was till 6 p.m. Including PW64, six doctors and two post graduate students have been working in their department. His usual duty time is from 6 a.m to 4 p.m. Usually postmortem examinations are being conducted during 9 a.m to 4 p.m. only. When he was asked whether the autopsy was conducted in the presence of PW64, he answered that PW64 came only after his noting down the injuries and while he was opening the body. He admitted that PW64 had also taken some photographs by using her camera. When he was asked whether the postmortem examination was conducted in the presence of the police, he denied it and stated that PW81 was called and one injury was shown to him.
178. According to him, PW64 had called him over phone after 6 p.m. on the previous day and directed him and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
141. :- Dr.Rajendra Prasad to conduct the postmortem examination of the deceased at 7 a.m. on 7.2.2011, and asked him to make all arrangements for the same, and further told him that there was special direction for the same from the District Collector named Thomas. When it was suggested that no postmortem examination could be conducted prior to 9 a.m. without the permission of the Department Head, he admitted it as correct. When it was suggested that the Department Head has to certify the postmortem being conducted under the leadership of the Department Head, he admitted it as correct. He admitted that he had no written authorisation or order from PW64 for enabling him to conduct the postmortem examination of the deceased, and stated that there was only telephonic message. When he was asked as to when the body was received after inquest on 6.2.2011, he answered that he did not know it. According to him, he received the inquest report at 7 a.m. on 7.2.2011.
179. When he was specifically asked as to whether he had D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
142. :- called PW64 over phone on 6.2.2011, he admitted it and revealed that he had contacted her over his mobile phone in between 4 p.m. and 6 p.m. in the presence of the District Collector and Minister K.P. Rajendran, and they also talked to PW64. He admitted that even though all of them contacted PW64 over phone, she did not give permission to conduct the postmortem examination on that day. According to him, he was asked to conduct the postmortem on the next day as it was late when the body was received after the inquest. According to him, he happened to reach there on 6.2.2011 as he was called by Dr.Rajendra Prasad to clarify a doubt. He was not on duty on that day. There is an allowance of 290/- for each postmortem examination. When he was asked whether he had received such allowance in this case, he gave an evasive reply that he did not know it and that the allowance bill for each month was being prepared by the Department Head and the Confidential Assistant. According to him, he could not say whether he had D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
143. :- received such an allowance in this case without verifying the records. When it was suggested that it was PW64 who conducted the postmortem examination in this case, and he had only assisted her as the department doctor, he denied it and has gone to the extent of stating that PW64 had not even worn a pair of gloves on that day. When it was suggested that he along with Dr.Anand had taken down the notes narrated by PW64, who conducted the postmortem examination of the deceased, he answered that Dr.Anand had taken down the notes of the postmortem examination being conducted by him and Dr.Rajendra Prasad as per the direction of PW64.
180. When he was asked whether he was deposing falsehood before court on account of his enmity towards PW64 as she had denied permission to conduct the postmortem examination on the body of the deceased in this case after 6 p.m. on 6 to 2011 even though he along with the District Collector and the Minister had sought for her permission at his D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
144. :- instigation, he answered that he had reached the MCH on 6.2.2011 in connection with the inquest of the deceased in this case, and that he had no special interest to conduct the postmortem. He admitted that forensic experts will never interfere in the inquest, and that in this case also he had not interfered in the inquest.
181. DW1 was recalled under Section 311 Cr.P.C. on 15.10.2011 by the court below and examined as CW1. The original file of the postmortem in this case (Postmortem No.176/11) from the Department of Forensic Medicine, Medical College, Thrissur along with postmortem notes were obtained and marked as Ext.C1. The same was handed over to CW1.
182. When he was examined by the court, he stated that there are 28 pages in Ext.C1. According to him, pages from 11 to 21, 25 and 26 were prepared by him and Dr.Rajendra Prasad, signed, sealed and submitted by him, and the other pages were not submitted by him. The papers submitted by him contained D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
145. :- his handwriting and that of Dr.Anad. (He compared Ext.P69 with his notes). According to him, there is no difference in the findings in Ext.P69 and the postmortem notes written by him. Some different words are seen used; but according to him, the meaning of those words are the same and there is no difference at all. According to him, they had mentioned the cause of death in the notes and the certificate prepared by him and Dr.Rajendra Prasad, typed and submitted. Further, according to him, as per the findings entered by him and Dr.Rajendra Prasad who had done the postmortem examination, the deceased died on account of the blunt force sustained to her head. They had also found that the deceased was subjected to sexual harassment. He admitted that the entry in Ext.C2 postmortem register on 7.2.2011 marked as Ext.C2(a), is in his handwriting. According to him, he had entered his name and that of Dr.Rajendra Prasad in Ext.C2(a) on 7.2.2011, and after that as per the direction of PW64, her name was also incorporated in the portion at the top D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
146. :- of their names.
183. CW1 was cross examined by the learned counsel for the accused, in which he has stated as follows:- He had commenced the postmortem examination at 7.05 a.m. and concluded it at 9.10 a.m. When he was asked that as per Ext.C1 report prepared by him, the postmortem was commenced at 7.15 a.m. and concluded at 10.15 a.m, he answered that he could not say it as page No.5 did not contain his signature. When it was suggested to him that PW64 had not reached there during the time from 7.15 a.m. to 10.15 a.m. and has not participated in the postmortem examination, he answered that PW64 had reached there by 7.30 a.m. According to him, he along with Dr.Rajendra Prasad conducted the postmortem examination, and there was partial presence of PW64. According to him, it was signed along with Dr.Rajendra Prasad who conducted the postmortem examination as per the direction of PW64. When it was suggested that till 10.15 a.m. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
147. :- on 7.2.2011 his name and that of Dr.Rajendra Prasad only were there in Ext.C2 and the name of PW64 was subsequently entered in it, he answered that it was so entered on a near date and he did not remember that exact date. After entering the opinion, he along with Dr.Rajendra Prasad had affixed their signatures and affixed seal also on the left side, after entering the word 'conclusion'. The signature of PW64 was affixed at 10.15 a.m. PW64 has entered at its right side as 'modified to include details' and also 'see above'. When it was suggested to him that many corrections had been made in the postmortem draft written/prepared by him, he answered that the interpretation of the injuries are seen included.
184. He was cross examined by the learned Special Public Prosecutor. He admitted that pages 1 to 8 in Ext.C1 are the copy of Ext.P69. When he was asked whether pages 9 and 10 contain the postmortem draft prepared by PW64, he answered that it is in the handwriting of PW64. He admitted that D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
148. :- pages 11, 12 and 13 of Ext.C1 are the 102 Form signed by the investigating officer, for postmortem. He was specifically asked whether he had entered in page No.11 in the seal, 'received at', 'Doctor', 'to do the case', 'and to assist' and also at the face of the seal as '7 a.m.', '7.2.2011', 'SV / AKU / RP' and 'P.M.No.176/011' in his handwriting. He answered that '7 a.m.', '7.2.2011', 'T.S / EVK176011' were the entries made by Dr.Anand, and the entries as 'AKU / RP', 'to do the case' were written in his handwriting and that he had affixed his dated initial in it. According to him, on the left side he had affixed his dated signature also. According to him, the term 'SV' is seen written on the left side of the term 'AKU' and that term 'SV' was not entered in his handwriting. He denied the suggestion that all the said entries were made in the same handwriting in the same ink. 'SV' denotes Sherly Vasu, 'AKU' denotes A.K.Umesh, 'RP' denotes Rajendra Prasad, 'T.S' denotes T.Sathi and 'EVK' denotes E.V.Krishnan. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
149. :- 185. When it was suggested to him that the signature of PW64 was affixed below it, he answered that it could be seen. He admitted that in page No.12 the person to whom it was addressed is the 'Professor and Police Surgeon, Government Medical College, Thrissur (M.G.Kavu)'. According to him, all the postmortem requisitions to Thrissur Medical College is addressed to that address. He admitted that there is an entry at the bottom made by PW64 as 'urgent', 'Dr. A.K.U. and Dr. R.P. to prepare draft and submit, case sheet is entrusted to you please return it immediately after drafting to Dr. P.K.Mohan'. According to him, as per the said direction he had immediately submitted draft, thereafter the certificates were typed and signed by him and Dr.Rajendra Prasad and submitted before PW64.
186. Pages 14 and 15 in Ext.C1 contain the forwarding note for forwarding the samples taken from the body of the deceased in the postmortem examination, for chemical examination. He admitted that usually either the doctor who D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
150. :- conducts the postmortem, or if it is a team, the Senior Doctor in it used to affix the signature in such forwarding note. He admitted that the said forwarding note was issued by him, and signed by him 'for Dr.Sherly Vasu, who is the Professor of his Department'.
187. According to him, it is not fully correct to say that pages 16 to 26 in Ext.C1 contained the postmortem notes. His version is that pages 16 to 21, 25 and 26 only were the papers submitted by him in the postmortem notes which contained his handwriting and that of Dr.Anand. He admitted that entries in black ink in the handwriting of PW64 are there in pages 16 to 21, 23, 24, 25 and 26. Handwriting in the direction contained in page 26 as 'modified to include the details to see above' is also in the handwriting of PW64, and her signature is also there.
188. He has specifically admitted that as per Ext.C2, 42 postmortems only were allotted to him in the month of February, 2011. At the same time, according to him, he had done 43 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
151. :- postmortems in February, 2011 including this joint postmortem. He admitted that he had accepted an amount of 12,150/- (probably 12,180/-) at the rate of 290/- for each postmortem in respect of a total number of 42 postmortems conducted by him during the month of February, 2011, from the treasury, as allotted to him by the Principal.
189. In page 11 of Ext.C1, it has been specifically written that the said postmortem was assigned to SV / AKU / RP. The names of the Technical Assistants are also seen written in the same ink and the same handwriting as 'T.S' and 'EVK'. In cross examination, DW1 has taken the stand that the other terms except `SV' were written by him in his own handwriting at 7 a.m. on 7.2.2011, and it contains his signature. He has taken the stand that the term `SV' was subsequently added and it was not done by him.
190. We have perused the said document, and satisfied that the said entries were made at the same time, in the same D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
152. :- handwriting by using the same pen, with the same ink. The terms were seen filled up in spaces in a seal affixed. If the term `SV' was subsequently added as narrated by DW1, he would have kept almost the first half of that short space vacant and would have filled in the term `AKU / RP' at the extreme right half of that space, which is not normally expected from a normal human being who fills up such a short space. Even on a bird's- eye view, it is evident that the term `SV /' and the term `AKU / RP' were filled in together contemporaneously by the very same person, at the very same time, by using the very same pen, and the very same ink. When we have pointed out that aspect to the learned senior counsel for DW1, he had no explanations to offer on it. As rightly found by the court below, the said evidence of DW1 on that aspect is false and unbelievable.
191. When DW1 was asked whether he was allotted with 42 postmortems only during the month of February 2011, the stand taken by him was that he had done 43 postmortem D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
153. :- examinations during that month including the joint postmortem in this case. At the same time, when he was examined as CW1, he admitted in the cross-examination by the learned special public prosecutor, that he had received postmortem allowance for 42 postmortems only for the month of February, 2011 which was sanctioned to him by the Principal of the medical college, and drawn by him from the Treasury. Had he been authorised and conducted the postmortem examination in this case by leading the team, definitely he would have claimed the amount of 290/- as allowance for the postmortem examination in this case also. There is absolutely nothing to disbelieve the versions of PW64 that the postmortem was conducted by a team led by her. It has come out from the versions of DW1 that there were attempts from his part through the then District Collector and the Minister for obtaining permission from PW64 for the conduct of the postmortem examination in this case in the evening of 6.2.2011, to which she had not heeded, as this postmortem had D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
154. :- to be conducted in daylight. The versions of DW1 clearly spell out the enmity in his mind towards PW64. It is evident that he wanted to settle scores with PW64, for which he has practically misused his position to have a bargain with the mutilated body of the poor victim in this case, which is quite normally unheard of.
192. The learned Special Public Prosecutor has invited our attention to the contents of Ext.C1 postmortem notes. Originally what was scribbled in it as to the cause of death was "death was due to blunt injury sustained to head and there were injuries of sexual assault". According to the learned Special Public Prosecutor, the same was only a cryptic report, which even did not reveal the necessary ingredients to constitute the act of forceful sexual intercourse committed by way of rape on the victim as the terms used were vague and therefore, PW64 who had conducted the postmortem examination, had to incorporate necessary details by way of corrections, and the same were contemporaneously made by her. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
155. :- 193. The learned Special Public Prosecutor has invited our attention to G.O.(MS)No.364/68/Home dated 14.10.68 issued by the Home (A) Department, Thiruvananthapuram in respect of the duties and responsibilities of Police Surgeons. As per the same, the Police Surgeon shall conduct all Medico- legal autopsies in the hospital to which he is attached and he shall personally attend to cases of homicide, traffic accidents, suspicious deaths and other important cases. His assistants may conduct autopsies for all other simple deaths when the cause of death is reasonably certain in the opinion of the Police Surgeon.
194. This being a case which had invited serious public attention, the aforesaid directions in the Circular come into play and it is the Police Surgeon who is none other than PW64 had to conduct the autopsy in this case. The learned Special Public Prosecutor has produced the extract of the Government Order applicable to all Government hospitals in Kerala, which states as D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
156. :- follows:- "The Director and Professor of Forensic Medicine state that no postmortem should be conducted after 4 p.m. since a thorough postmortem took out 1 - 1= hours and since it has to be done only in natural day light, cases cannot be accepted after 4 p.m. limit. This is the practice followed in all Medical Colleges and throughout the world. By the order of the Governor, Secretary to Government." 195. The Government of Kerala has issued Circular No.18023/H1/86/Home dated 4.9.1986 thereby making clear that it is always safe to conduct the postmortem during day time so as to ensure credence to the postmortem certificates by courts.
196. We have perused Ext.C2 Postmortem Duty Assignment Register of the Medical College, Thrissur. Ext.C2(a) is the entry in respect of the postmortem examination in this D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
157. :- case made on 7.2.2011. DW1 has admitted that the said entry was made by him in his own handwriting. The handwriting of DW1 is peculiar, which can easily be identified. According to DW1, he had entered the names of the doctors to conduct the postmortem examination as 'Dr.Unmesh/Dr.Rajendra Prasad' and subsequently the name of 'Dr.Sherly Vasu' (PW64) was incorporated at the top of their names in Column No.3 of Ext.C2 (a) as per the direction of PW64. On a perusal of Ext.C2(a), it can be seen that the said claim made by DW1 is also false. The name of 'Dr.Sherly Vasu' in the first line and below it, the names of 'Dr.Umesh/Dr.Rajendra Prasad' are seen entered contemporaneously by DW1 in his own handwriting. All the said entries in column No.3 are within that column itself. The entries made by him in column No.4 and column No.5 of Ext.C2(a) are just on the middle of those columns. The entries of the names of the said three doctors in column No.3 are also in the middle of that column, and it is not at the upper line or the lower line of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
158. :- that column. Ext.C2 clearly shows that on 5.2.2011 and 6.2.2011 DW1 had not conducted any postmortem examinations. All the postmortems on those two days were conducted by Dr.Rajendra Prasad.
197. From all the above, it is evident that there was a conscious attempt from the part of DW1 to settle scores with PW64 out of his personal animosity and departmental feud towards her. It is pertinent to note that the accused has chosen DW1 as his witness to speak against PW64. It has clearly come out that DW1 has misused his position by speaking against the acts done by PW64 in the matter. The entire evidence relating to the postmortem examination of the deceased in this case, clearly reveals that the postmortem examination was conducted by a team of doctors under the leadership of PW64, and that PW64 conducted the postmortem with the assistance of the other members of the team including DW1. Even though there was a conscious attempt from the part of DW1 as aforesaid to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
159. :- damage the evidence of PW64, admittedly he has no complaints with the contents of Ext.P69. DW1 has no case that the contents of Ext.P69 are not correct. He has practically admitted that PW64 has used some different words other than the words used by him; but such words carry the same meaning. Apart from some explanations incorporated regarding the injuries, even according to DW1, the injuries, observations and findings entered in Ext.P69 are the same as those observed and found by him also.
198. Regarding expert opinion, the Apex Court in Ramesh Chandra Agrawal v. Regency Hospital Ltd. and others [(2009) 9 SCC709 held as follows: "The law of evidence is designated to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
160. :- experience of the layperson. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed. The other requirements for the admissibility of expert evidence are: (i) that the expert must be within a recognized field of expertise, (ii) that the evidence must be based on reliable principles, and (iii) That the expert must be qualified in that discipline." 199. The opinion as to the cause of death in a case of murder is an opinion relating to science. As per Section 45 of the Indian Evidence Act, when the court has to form an opinion upon such a point of science, the opinion of persons specially skilled in such science upon that point is a relevant fact and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
161. :- such person can be called as an expert. The importance of that provision has been explained in State of H.P. v. Jailal [(1997) 7 SCC280. In order to bring the evidence of a witness as that of an expert, it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. The real opinion of the expert is to put before the Court, all the materials, together with the reasoning which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation on those materials.
200. In Ramesh Chandra Agrawal (supra), it was held:- "An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
162. :- criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions." 201. Without examining an expert as a witness in court, no reliance can be placed on an opinion alone. The value of the opinion of the expert rests on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of the expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. It is true that the importance of an opinion is tested on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be crosschecked. Emphasis should be given to the data on the basis of which such opinion has been formed. On a perusal of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
163. :- the data furnished by PW64 through her evidence as well as the contents of Ext.P69, and also the facts narrated by her in order to support her opinion, we are satisfied that the opinion as to the cause of death furnished by PW64 can only be accepted. The evidence clearly reveals the competency of PW64 and her credibility as an expert in the field.
202. Through out, the deceased remained unconscious after her cries from the train and her dropping from the train to the track, till her death. PW37, who examined the deceased at about 11 p.m. on 1.2.2011 and issued Ext.P32 wound certificate, could see that her pupil was not reacting to light and the G.C.S. was even E.I. M2 V.I. She had respiratory difficulty and strider was present. According to him, she was sinking and was struggling for life. The G.C.S. was only 4. It has to be noted that the G.C.S. is 3 in a dead body and is 15 in a normal human being. She was almost dead and as observed by the court below, it was a living death. The medical findings indicate a D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
164. :- definiteness and certainty of death and not a mere probability. She was connected to ventilator and the life in her was prolonged only on medical support, i.e., on tracheotomy and ventilator support. According to PW37, the head injury suffered by the deceased was sufficient in the ordinary course of nature to cause the death.
203. According to PW1, who examined the deceased at the casualty of the Medical College Hospital, Thrissur at 1.30 a.m. on 2.2.2011, the deceased was dangerously ill and her life could not be extended without medical support. Even when she was brought to the casualty, she had suffered left hemiplegia. According to PW1, her condition was imminently dangerous and death was the most probable result and that the death was immediate and close at hand.
204. From the evidence of PW79, Chief Neuro Surgeon of the Medical College Hospital, Thrissur, the deceased was continuously on medical support only, and only on that account D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
165. :- she survived till 6.2.2011. The evidence revealed that even when she was brought to the casualty she was in a vegetable state and B.P. was very low. She was fully unconscious and was in ventilator. Even after surgery, her condition never improved, and continued to be worse. Finally, her death was declared at 3 p.m. on 6.2.2011. According to PW79, the head injury is one of the causes of the death and that the said injury was very fatal.
205. The postmortem examination was conducted by PW64 with the assistance of five other doctors, including DW1. Her opinion as to the cause of death of the deceased is that the deceased had died due to blunt injuries sustained to her head, as a result of blunt impact and fall and other complications including aspiration of blood into air passage resulting in anoxic brain damage. PW64 also noted the injuries as a result of assault and forcible sexual intercourse. The deceased had features of multiple organ dysfunction at the time of death. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
166. :- There is absolutely no reason to disagree with the findings entered by PW64 in Ext.P69 postmortem certificate and also the findings and observations of PW1, PW37 and PW79. There cannot be any better opinion as to the cause of death of the deceased, than the one expressed by PW64 in Ext.P69. We fully endorse the findings entered by PW64 in Ext.P69 and find that the deceased had died due to the blunt injuries sustained to head as a result of blunt impact and fall and other complications including aspiration of blood into air passages, resulting in anoxic brain damage, and that the death is homicidal. We further find that she was brutally raped.
206. The reliefs sought for by DW1 as petitioner in Crl.M.C.125 of 2012 is to get the remarks and observations as against him in paragraphs 85, 86, 88, 89 and 155 in the impugned judgment made by the court below, expunged.
207. In paragraph 20 of the Crl.M.C., the petitioner has extracted those remarks and observations made by the court D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
167. :- below. It reads thus: " I. In paragraph 85 it is observed as follows: "Therefore, the evidence of Dr.Unmesh regarding the same is false and unbelievable." In the same paragraph it is recorded as follows: "From the available materials, it is evident that postmortem was conducted by a team of doctors under the leadership of Dr.Sherly Vasu and there is no merit in the contention of Dr.Unmesh that postmortem was done by him along with his junior and not by Dr.Sherly Vasu. It is false and contrary to materials available before me. Hence, unbelievable." ii. In paragraph 86 it is observed as follows: "It is known to DW1 that Ext.C1 is only a contemporary note prepared at the time of postmortem and he had come to the court intentionally hand in glove with the defence intending thereby to save, or knowing it to be likely that he will thereby save the accused from legal punishment, or subject him to a less punishment. He being a public servant knowingly disobeys the directions of law as to the way in which he is to conduct himself as such public servant. He was picked D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
168. :- and chosen by the defence knowing his everlasting departmental feud with Dr.Sherly Vasu. In the cross examination, the learned prosecutor has asked requisite questions regarding the same and his answers made it clear that he has deep rooted personal enmity and departmental feud with his superior, Dr.Sherly Vasu. He has knowingly made use of the court proceedings to pay off his old scores. In the cross examination, DW1 stated that there are corrections, erasion and additions in his notes and Ext.P69 contains additions." iii. In paragraph 88, with reference to Ext.C1, it is recorded as follows: "It is therein stated that "death was due to blunt injury sustained to head and there were injuries of sexual assault". It is a cryptic report based it on conjectures and inherently defective." iv. In paragraph 89 with reference to Ext.C1 itself it is recorded as follows: "It is not a complete and final report. It was prepared as a note (contemporary) at the time of postmortem. Some columns were left blank and those columns were D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
169. :- filled up by Dr.Sherly Vasu(PW64). It is known to DW1. Opinion of cause of death is also modified and details are added separately in each column. It is an admitted fact that all columns in the report contains the writings of Dr.Sherly Vasu as the head. Ext.C2 is the register of postmortem kept in Medical College Hospital, Thrissur. Ext.C2(a) is the relevant entry made by DW1, in his own handwriting. It is specifically stated therein that the postmortem of Soumya was conducted by Dr.Sherly Vasu (PW64). Dr.Unmesh (DW1) and Dr.Rajendra Prasad(CW119) on 7.2.2011. According to Dr.Unmesh, the name of Dr.Sherly Vasu was written by him in his own handwriting as requested by PW64. But he does not know the date when it was done. He has intentionally evaded from giving a definite answer. I have perused Ext.C2 and C2(a) and I am satisfied that Ext.C2(a) entry was made by him at the same time with the same ink and pen. Considering the entire evidence, I am of the opinion that there is merit in the contention of learned Prosecutor. I am satisfied that postmortem detailed note and Ext.P69 findings are as a result of a team work as deposed by Dr.Sherly Vasu D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
170. :- (PW64) and the claim of Dr.Unmesh is false and without any basis and it is evident from the answers given by Dr.Unmesh(DW1) in the cross examination of the learned Public Prosecutor. That is why, Dr.Unmesh had clandestinely admitted the contents of Ext.P69 and the findings of Dr.Sherly Vasu later. He categorically stated that the opinion as to cause of death noted in Ext.P69 and the opinion as to cause of death noted in the postmortem detailed note(Ext.C1) are the same and there is no difference in the contents. Considering the entire evidence, I am satisfied that the postmortem was done under the supervision of the head of the department Dr.Sherly Vasu as deposed by her and her evidence is convincing. On the other hand, the evidence of Dr.Unmesh regarding the same that Dr.Sherly Vasu did not conduct the postmortem is false and unbelievable. He has given evidence as DW1 intentionally with some ulterior motive knowing that his evidence is false." v. In paragraph 155 it is recorded as follows: "But the respondent herein Dr.Unmesh(DW1) deposed intentionally before court, that postmortem was D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
171. :- conducted by him and not by Dr.Sherly Vasu. She did not even wear a glove at the relevant time............." "Office is directed to fie a written complaint before the concerned Magistrate Court against Dr.Unmesh for having committed the offence punishable u/s 193 of IPC before this Court." 208. The learned Senior Counsel for the petitioner has relied on the decision in State of Uttar Pradesh v. Mohammad Naim (AIR1964SC703, wherein it was held that the High Court can, in the exercise of its inherent jurisdiction, expunge remarks made by it or by a lower court if it be necessary to do so, to prevent abuse of process of the court or otherwise to secure the ends of justice, but the jurisdiction is however of an exceptional nature and has to be exercised in exceptional cases only.
209. In the decision noted in State of Uttar Pradesh (supra), it was further held as follows: "It is a principle of cardinal importance in the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
172. :- administration of justice, that the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by the Supreme Court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case as an integral part thereof, to animadvert on that conduct. It has also D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
173. :- been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve." 210. It was a case wherein the Apex Court was dealing with a situation wherein some disparaging remarks were made by the learned Additional Sessions Judge, as against the entire police force of a State. In the facts and circumstances of the case in hand, the said decision has no application at all. In this case, the party whose conduct is in question, was before the court and he was given an opportunity to explain or defend himself. As we have already found, the evidence on record appearing on the conduct of the petitioner are justifying the remarks, and that the said remarks and observations form the integral part of the impugned judgment. The said observations had to be entered by the court below to disbelieve the portions of the deposition of the petitioner so far as it were contrary to the evidence adduced by PW64. Those remarks and observations D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
174. :- were absolutely necessary in order to disbelieve DW1 and to rely on the valid evidence adduced by PW64. We further find that those observations and remarks were absolutely necessary for entering the finding and the decision in the case. Matters being so, the decision noted in State of Uttar Pradesh (supra) has no application in this case.
211. The learned Senior counsel for the petitioner has relied on the decision in A.M. Mathur v. Pramod Kumar Gupta and others [(1990) 2 SCC533, wherein it was held: "Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our Judges. This quality in decision making is as much necessary for Judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect; that is, respect by the judiciary. Respect to those who come before the Court as well to other D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
175. :- coordinate branches of the State, the Executive and Legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process." 212. The decision noted in A.M. Mathur (supra) was rendered in a case wherein some defamatory remarks were made by the Madhya Pradesh High Court against a Senior Advocate and the ex-Advocate General of the State, while dismissing an apparently unsustainable revision petition. The said decision has also no application as far as this petition is concerned. Similarly, the decisions in Abani Kanta Ray v. State of Orissa and others (1995 Supp (4) SCC169 and State of M.P. v. Narmada Bachao Andolan and another [(2011(12) SCC689 have also no application in this case.
213. We are of the considered view that the court below cannot be found fault with in making such remarks and observations contained in paragraphs 85, 86, 88, 89 and 155 of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
176. :- the impugned judgment, as those remarks and observations were required in order to take a decision in the matter and to enter on a correct finding.
214. It cannot be said that the petitioner, who is a public servant, was not aware of the consequences of adducing false evidence. When such evidence, the portion of which was patently false, is adduced, the hands of the court are not fettered in making an observation or finding that the said evidence is false. When those remarks and observations are required for the adjudication of the matter and to enter on a correct finding, those remarks and observations become an integral part of the judgment, the same cannot be expunged. Matters being so, we find that the Crl.M.C. No.125 of 2012 filed by the petitioner is devoid of merits, and is only to be dismissed, and we do so.
215. PW68 W.C.P.O received the body after postmortem examination by about 9.30 - 9.45 a.m. The same was released D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
177. :- to the relatives of the deceased through Ext.P73 Kychit, for the last rites and funeral. According to PW76, he was at Ernakulam on the date of death of the deceased. He went over to her house, and participated in the funeral.
216. After the postmortem examination, PW68 was called by the doctors to the postmortem room and she was entrusted with seven covers which contained samples taken during the postmortem. Two covers were to be handed over to PW81 and five covers were to be produced at the Chemical Examination Laboratory, Ernakulam. Covering letters were also entrusted to her. She produced the said to covers before PW81 at 11 a.m on 7.2.2011, which PW81 seized through Ext.P74 mahazar, in which she also affixed her signature. The remaining five covers were produced at the laboratory.
217. According to PW19, police came by about 10 a.m. on 2.2.2011, and he pointed out the place where the deceased was lying. When the police came to the scene of occurrence, the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
178. :- Scientific Assistant was also present along with them. According to PW81, at 10 a.m. on 2.2.2011, PW19 pointed out the scene of occurrence in this case. He had given message requiring the presence of the Scientific Assistant for collecting the evidence. He along with PW49 Scientific Assistant examined the scene of occurrence.
218. According to PW81, he has noted the scene of occurrence correctly in Ext.P72. At a distance of about 500 mtrs. away towards north from the Vallathol Nagar Railway Station, there are five railway lines including the crossover at the western side of the Shornur-Thrissur Highway road, lying north- south. Out of the same, the heap of aggregates at the western side of the eastern most railway line and the surroundings and the crossover connecting the up-line and the down line situated at a distance of 10 mtrs. and 20 c.ms. away towards south-west, and the concrete sleeper bearing number R.Cs 2000 and the spot where the aggregates stained with blood were lying, is the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
179. :- scene of occurrence. PW81 prepared Ext.P72 scene mahazar. PW65 residing at Vettikkattiri, saw the police reaching the scene of occurrence in this case, and preparing Ext.P72 scene mahazar, in which he also affixed his signature.
219. PW49 is the Scientific Assistant at the Regional Forensic Science Laboratory, Thrissur. As per the request of PW81, she examined the scene of occurrence in this case on 2.2.2011. PW81 was also present along with her. She collected samples, sealed, labelled it, and handed over to PW81, which PW81 seized through a mahazar. From the railway track at that place she collected the following samples from two different spots:- (1) Stones having dark brown stains on it collected from track No.5 towards west. (2) Stones having dark brown stains on it collected from the scene of occurrence near electric post 3/36. (3) Control for item Nos.(1) and (2) having no stains on it collected from the surrounding area. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
180. :- (4) Few hairs collected from one of the dark brown stained pebbles found in the location mentioned in item No.2.
220. Scene of occurrence was guarded well by the police. On examination of the scene, PW49 could see disturbances indicative of a scuffle having taken place in between the first and second track, as aggregates were moved and soil in the ground were seen disturbed. Disturbance was seen on the order of arrangement of the pebbles in the track, and the soil on the neighbouring area which is one metre towards west near the electric post 3/36. Dark brown stains on the pebbles were seen spread in that area.
221. Items collected by PW49 were sent for chemical examination. She identified the said materials returned after chemical examination, as MO32 series. Ext.P43 series are the specimen seals provided by her and entrusted with PW81 with Ext.P44 report regarding the collection of samples. According to her, item Nos.9 to 12 described in pages 8 and 9 of Ext.P2 are in D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
181. :- respect of the specimen collected by her.
222. There were 5 railway tracks, east to west at the place of occurrence. Thrissur - Shornur road passes through the eastern side of the railway track. First track contains two rails (lines) and then there is a space then the second track, then there is a space. Then the 5th railway line near to a cross. PW49 had collected item No.1 from that place. Items 2 and 4 were collected one metre away towards east, from that spot. On those two locations, she could see blood stains. On some stones here and there on the 5th line, there were blood drops. She could see star marks of blood which could occur only when the blood falls from the space above on the stones, and spreading of such blood falls from height. There was a trailing of blood stains connecting the two spots.
223. At 1 p.m. on 2.2.2011, PW65 saw the Scientific Assistant producing the material objects collected by her before the police, which the police seized through Ext.P41 mahazar, in D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
182. :- which also, he affixed his signature. PW46 seized the materials collected by the Scientific Assistant from the scene of occurrence, contained in four covers, through Ext.P41 mahazar.
224. According to PW81, the materials collected by PW49 Scientific Assistant from the scene of occurrence were seized through Ext.P41 mahazar. He identified the said materials which are received back after chemical analysis, as MO32 series. The specimen seal and the report furnished by PW49 are Ext.P43 series.
225. PW81 filed an application before the Superintendent of the Medical College Hospital, Thrissur for examining the injured, who is the deceased in this case with the help of an expert team of doctors and to obtain a report, on 3.2.2011. On 3.2.2011, a team of senior doctors including PW1, PW37, PW64 and some other doctors of the Medical College Hospital, Thrissur attended the victim, examined her, evaluated her D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
183. :- condition, and furnished Ext.P3 report prepared in the handwriting of PW64.
226. On 2.2.2011, PW81 filed requisition for forwarding the properties collected from the body of the injured like, vaginal swab, smear, nail clippings etc., to the F.S.L. for examination and report, and also for obtaining the report of PW37.
227. According to PW81, based on the descriptions given by the witnesses who had seen the said one handed man, PW58 expert in portrait building prepared Ext.P29 caricature at the Cheruthuruthy Police Station.
228. PW58 is a Civil Police Officer working at the Cherpu Police Station. He is a Post Graduate who is also a computer expert. He had passed the in-service course in portrait building system imparted by the Department, and also in respect of basic operation, Word, Excel, Data entry etc. On 2.2.2011 in the evening, he reached Cheruthuruthy Police Station as per the direction of PW81. He prepared Ext.P29 caricature, from the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
184. :- descriptions and features furnished by CW23, PW33, PW45, CW24 and CW25. Ext.P29 contains his signature. According to him, Ext.P29 has similarity with the accused.
229. PW45 came to know in the morning on 2.2.2011, that it was a girl who had fallen down and that she was taken to the hospital. By about noon, the PW81 came to his house and asked him about the accused. His statement was recorded. On that day by about 6 p.m. he was called to the Cheruthuruthy Police Station, where he could see a police man sitting before a computer. Some eyes, noses etc. were shown to him, and he was asked to point out similar features as that of the accused. PW33 and his friends who also saw the accused on that night were also present. All of them gave the features of the accused, and by using it, Ext.P29 caricature looking similar to the accused was drawn.
230. According to PW33, by about noon on 2.2.2011 the police came to his house. He narrated the details and also told D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
185. :- about the accused. In the afternoon on the same day he was called to the Cheruthuruthy Police Station. 3-4 one handed men were shown to him. He told the police that the accused who was seen by him on the date of incident was not among those persons. On 2.2.2011 in the evening, all the five persons including him were called to the police station and were asked to describe the features of the said person who was seen by them, like his eyes, ears, hair, nose etc. They gave the details, thereby, Ext.P29 caricature of that man was drawn by PW58. According to him, Ext.P29 is very similar to the accused.
231. According to PW81, as it was revealed that a one handed Tamil man had jumped out of the ladies compartment, and such a person was seen at the bus stop near the scene of occurrence, information was passed on to the other police stations for tracing out such a person.
232. PW63 has been working as the Deputy Superintendent of Police, in Palakkad Railway from 11.8.2008 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
186. :- onwards. During the dawn of 2.2.2011 he got a message for enquiring about a Tamil speaking one handed man, who is the suspect in crime No.41/11 of the Cheruthuruthy Police Station. On the basis of such message, he along with other policemen went to Shornur, Kuttippuram, Wadakkanchery, Thrissur, Chalakkudy, Alathur, Kuzhalmannam, Palakkad Railway Stations etc., in search of such a person. While so, by about 11 p.m., they could see the accused, who is a person corresponding to the descriptions received, in suspicious circumstances in front of the bus stand situated in front of the Palakkad Railway Station. He was questioned. He gave his name and address as Govindhaswamy @ Charly S/o Arumughan, 51 Aivakkudy, Viruthachalam, Kadaloor District, Tamil Nadu. He was seen dressed in MO5 lungi and MO6 shirt. Bloodstain was seen at the chest portion of MO6 shirt. Some of the buttons of MO6 shirt were seen detached and lost. From his conduct and words, it developed a strong suspicion about his involvement in the crime. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
187. :- He took him into custody and produced him at the Cheruthuruthy Police Station at 1 a.m. on 3.2.2011, and handed over him to PW81. He identified the accused and MO5 and MO6 before the court below.
233. According to PW81, on the basis of the details of the suspect received by the Railway Police, Palakkad, PW63 Deputy Superintendent of Railway Police, Palakkad took the accused into custody and brought him to the Cheruthuruthy Police Station and handed over him to PW81. When the accused was questioned, he furnished his name as Charly as well as Govindhaswamy. A police party was sent for verifying the correctness of the name and address furnished by the accused. PW33, PW45, CW23, CW24, CW25 and CW26 were called to the Police Station in order to identify the accused as to whether he was the person who was seen near the Kalamandalam bus stop by 9 p.m. on 1-2-2011. All of them clearly identified the accused as the said person. PW33, PW45, CW23, CW24, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
188. :- CW25 and CW26 who had identified the accused on 3.2.2011 at the Cheruthuruthy Police Station, identified the dresses worn by the accused as the very same dresses worn by the accused when they saw him on 1.2.2011 also.
234. On 3.2.2011, PW33 was called to the Cheruthuruthy Police Station in the afternoon. When he reached there, he could see the accused sitting on a bench there. Immediately on seeing the accused, he could clearly identify him as the person who was seen by him near the Kalamandalam bus stop during the night on the date of the incident. The accused identified him also. Thereafter, the others were also called; they also identified the accused. PW33 identified MO5 lungi and MO6 shirt worn by the accused when he saw the accused for the first time during the night of 1.2.2011.
235. According to PW45, on 3.2.2011 by about 2 p.m., he was called to the Cheruthuruthy Police Station. There, he could see the accused sitting on a bench. He identified the accused D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
189. :- as the person who was seen during the night on the date of incident, and furnished statement to that effect. The accused was seen wearing the very same clothes worn by him during that night, which are MO5 and MO6.
236. On 3.2.2011, PW40 was called by the police and was asked to report at the Cheruthuruthy Police Station to identify a suspect. When he contacted PW4, he was told that he was also asked to report at the Cheruthuruthy Police Station. Both of them reached Shornur by the Malabar Express during the dawn of 4.2.2011, from where they reached Cheruthuruthy Police Station by an autorickshaw. There, they could see the accused who was seen by them on 1.2.2011 in the train, sitting on a bench at the Cheruthuruthy Police Station.
237. By about noon on 3.2.2011, PW4 was called by the police and requested for his presence at the Cheruthuruthy Police Station to identify the suspect who was apprehended by the police. PW40 contacted him and he was told that PW40 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
190. :- was also called by the police. Both of them reached the Cheruthuruthy Police Station by about dawn on 4.2.2011. There, they could see the accused sitting on a bench at the police station. Immediately on seeing him, they could identify the accused.
238. According to PW4, the accused was the very same person he had identified in the train, police station, and before the Magistrate. The dresses worn by the accused on the date of incident were seen soiled, and dirty. The accused was dressed in MO5 lungi and MO6 shirt. According to him the said shirt had a print just like that of a tricolour flag. He identified MO5 and MO6.
239. According to PW81, on 4.2.2011 at 1.30 a.m. PW4 who came from Wayanad, and also PW40, reached Cheruthuruthy Police Station and identified the accused who was sitting at the police station. Their statements were also recorded. They further identified that the dress worn by the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
191. :- accused at that time were the very same dress worn by him when they saw him on 1.2.2011.
240. According to PW81, the police party deputed for verifying the name and address furnished by the accused, reported that the said details furnished by the accused were false. When the accused was further questioned, he furnished his name and address as Govindhaswamy, aged 30, son of Arumughan, 51, Aivathakkudy, Eranchy Post, Samathwapuram, Viruthachalam, Kadalur District. Enquiries revealed that the said details furnished by the accused were correct. The police party further informed him that the accused is a person involved in several cases of the Salem, Erode Railway Stations etc., for the offences under Sections 392, 397, 379 IPC etc.
241. At 2 a.m. on 4.2.2011, PW81 took the accused to his office at Chelakkara, and recorded his arrest through Ext.P14 arrest memo. Ext.P91 inspection memo was prepared after examining the body of the accused. The injuries found on the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
192. :- body of the accused are noted in Ext.P91 as follows:- "On the left side of his neck and below his neck scratches made by something recently, were seen. On the backside of his left shoulder also such scratches were seen. Some recent injuries with scabs were seen below his right elbow. Recent scratches were seen on the back of his right elbow. On his right knee and below it and also on the front of the right foot, injuries and its marks recently occurred were seen. Recently occurred abrasion was seen on the back of his right thigh. Recent injuries were seen on his left knee and below it".
242. At 2.10 a.m. when he placed the accused under arrest, MO5 lungi and MO6 shirt worn by the accused were seized through Ext.P13 mahazar. His arrest was informed to his brother Subramanyan through the police station and telegram.
243. PW17 is a Panchayath member, residing near the Circle Inspector's office, Chelakkara. According to him, there was a large crowd at 2 a.m. on 4.2.2011 in front of the Circle Inspector's office at Chelakkara. On getting information that the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
193. :- accused in this case was being brought to the Circle Inspector's office, he also went over there. He saw the police bringing the accused. The accused was dressed in MO5 lungi and MO6 shirt, which the police seized through Ext.P13 mahazar. He is also one of the attestors in Ext.P13. The accused was placed under arrest through Ext.P14 arrest memo, in which also he affixed his signature.
244. PW81 issued request letter to the Superintendent of the Medical College, Thrissur for conducting the potency test of the accused. A team of doctors headed by PW47 examined the accused and issued Ext.P42 certificate. The fingerprints of the accused were collected and the same were sent to the Fingerprint Bureau for examination. Request was given for sending the same to the Fingerprint Bureaus of other States also. Ext.P93 is the report received from the Fingerprint Bureau, Thiruvananthapuram, along with Ext.P93(a) covering letter.
245. PW47 Dr. Hithesh Sanker, while working as Assistant D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
194. :- Professor and Police Surgeon, Medical College, Thrissur, has examined the accused on 4.2.2011 at 12 noon, for the examination of the injuries sustained by the accused and also for potency test, as per the requisition of PW81. According to PW47, he had taken consent from the accused prior to the examination. He examined the accused in the presence of Dr.Haris (CW116) and Dr.S.Sreekumar (CW113), at the Department room of the Medical College Hospital, Thrissur. After examining the accused, PW47 issued Ext.P42 certificate, in which PW47, along with CW113 and CW116, has affixed their signatures and seal. Over and above the said two other doctors who have signed in Ext.P42, the Post Graduate students of PW47 were also present during the examination of the accused. In Ext.P42, PW47 has noted down the identification marks of the accused. He personally verified the said identification marks of the accused and identified the accused before the court below.
246. The details in Ext.P42 are the following:- D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
195. :- Clinical History: Clinical history of drug intake, alcohol and smoking since 17 years. He met with an accident in 2004 and the left palm was amputated. History of sexual development: He started masturbation at 13 years of age and there is history of night emission and nocturnal erection and he has heterosexual and homosexual practice at least twice in a week. History stated by the subject: On 1.2.2011, at night he entered into the female compartment of a passenger train and attempted robbery on a female and pushed her out of the train and after that he jumped out of the train and assaulted the female and did sexual intercourse. The injuries on his body were produced by the female victim. After the incident, he ran away from the scene and entered into a private bus to Thrissur and then to Palakkad. He had a bath at the Railway Station at 11 a.m. on 2.2.2011. History given by the accused:- Govindhaswami, 30 years accused in Crime No.41/2011 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
196. :- of the Cheruthuruthy Police Station, pushed out the victim, 23 years, from Ernakulam - Shornur Passenger Train and sexually assaulted the injured victim. His left arm was seen amputated 16 c.m. below the elbow. Findings: An adult male having secondary sexual characteristic fully developed. Local examination including penis and scrotum were also noted in Ext.P42. He had normal sexual development. Systemic examination also carried out and were within normal limits. Examination of anal region was also normal. His B.P. was 120/70. He had penial erection during the examination. Femoral artery pulsation palpable on both sides which indicate that he had normal blood flow. On examination, 21 injuries were found in the form of abrasion and abraded contusion and there were multiple infected heeling wounds in and around both knees. The said injuries were covered with reddish- brown adherent scab with erythema around. The following injuries 1 to 21 are noted in Ext.P42. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
197. :- Injuries: "1. Abrasion 1 cm. long on left side of front of neck obliquely placed, upper inner end 0.5 c.m. outer to midline and 2 c.m. above collarbone.
2. Abrasion 0.5x0.5 c.m. on left side of front of neck upper end 3.5 c.m. outer to midline and 1.5 c.m. above collarbone.
3. Abrasion 0.5 c.m. long linear on left side of front of neck obliquely placed 4 c.m. outer to midline and 1 c.m. above collarbone.
4. Abrasion 0.5 c.m. long linear on left collarbone 5.5 c.m. outer to midline.
5. Abrasion 2.5x0.2 c.m. long on left side of front of chest obliquely placed 2 c.m. outer to midline and 1.5 c.m. below collarbone.
6. Abrasion 2 c.m. long linear on left side of front of chest obliquely placed upper end 8 c.m. outer to midline and 4 c.m. below collarbone.
7. Crescentic abrasion 0.5 c.m. long on right D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
198. :- side of root of neck 4 c.m. above collarbone.
8. Abrasion 0.5 c.m. long linear on front of right shoulder 3 c.m. above collarbone.
9. Abrasion 5 c.m. long linear on front of right shoulder 1 c.m. above collarbone.
10. Abrasion 0.5 c.m. long liner on front of right shoulder 2.5 c.m. above collarbone.
11. Abrasion 0.2 c.m. long liner on front of left elbow 20 c.m. below axilla.
12. Abrasion 1 c.m. long liner on front of left elbow 1.5 c.m. outer to injury No.11.
13. Abrasion 3 c.m. long liner on front of left elbow 1.5 c.m. below injury No.11.
14. Abrasion 0.2 c.m. long linear on front of left elbow 0.5 c.m. below injury No.13. Injury No.11 to 14 placed over an area 2 x 1 c.m.
15. Abrasion 2 c.m. long liner on back of upper part of chest oblique upper end 17 c.m. outer to midline and 8 c.m. below shoulder. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
199. :- 16. Abrasion 1.5 c.m. long crescentic on back of left side of chest just outer to midline and 30 c.m. below root of neck with concavity directed outwards.
17. Abrasion 0.5 c.m. long liner on upper part of right gluteus 4 c.m. outer to midline.
18. Multiple abrasions over an area 1x1 c.m. on back and outer side of right thigh upper margin 16 c.m. below top of hipbone.
19. Abrasion 2x0.5 c.m. vertical on front of right leg 13 c.m. below knee.
20. Abraded contusion 1 x 0.5 c.m. on upper part of back of right elbow.
21. Abraded contusion over an area 3x2 c.m. on lateral malleolus of left foot." Injury Nos.1 to 6 were placed over an area of 11x6 c.m. on the left side of front of neck and chest. Injury Nos.7 to 10 were placed over an area of 4x2 c.m. on the front of right shoulder. No bite mark was noted. His nail clippings, hair samples from scalp and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
200. :- pubic region, penial swab and slides and blood were taken, sealed, labelled and preserved for comparative analysis and DNA analysis. Opinion (1) There is nothing to suggest that the above person is incapable of performing sexual intercourse. (2) Injuries 1 to 18 were consistent with nail marks and 19 to 21 were due to blunt impact.
247. According to PW47, the age of the injuries could be more than two days and less than 4 days. The accused had given his statement to him in a mixed language in Tamil and Malayalam. Some words were in Tamil and some words were in Malayalam. The mother tongue of PW47 is Malayalam and he knows Tamil also. On examination, the accused was found to have normal muscle power on both hands and legs, i.e., both upper limbs and lower limbs. Even though he had an amputated forearm, that limb is also having grade 'V' power. He can lift the hands against the pulled resistance. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
201. :- 248. According to PW47, injury Nos.19 to 21 could be caused due to the blunt impact or during sexual intercourse on a rough surface. PW47 had forwarded the items preserved by him to the Forensic Science Laboratory, Thiruvananthapuram, for comparative analysis and DNA finger printing. Ext.P2 contains the Forensic report with regard to the same.
249. According to PW47, injuries 1 to 18 were consistent with nail marks produced by the victim. The said injuries are possible to be caused in a scuffle. In a usual sexual intercourse, no injuries may occur on the penis, as it is a normal physiological function like any other function of a human being. In unusual circumstances like penis of non-retractable nature, injury may occur. The accused is having a retractable penis.
250. In Ext.P42, the occupation of the accused has been noted as 'manual labourer/robbery'. In cross examination, PW47 has stated in evidence that the said occupation was given to him by the accused himself when asked about his occupation. The D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
202. :- accused gave his name as Govindhaswami, his age as 30 years, and also voluntarily narrated the history that he pushed out the victim from the Ernakulam - Shornur Passenger Train and sexually assaulted the injured victim.
251. In B.A. Umesh v. State of Karnataka [(2011)3 SCC85, the Apex Court by relying on the decision in M.A. Antony v. State of Kerala [(2009)2 SCC220, held that the extra-judicial confession made to the doctor can be accepted upon the rejection of the defence claim that such confession had been made in the presence of police officers, in a case wherein there is no evidence at all to suggest that any policeman was present when the accused made the confessional statement before the doctor.
252. In Aftab Ahmad Anasari v. State of Uttaranchal [(2010) 2 SCC583 it was held: "53. In State of U.P. v. M.K. Anthony (AIR1985SC48, this Court, while explaining the law relating to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
203. :- extra-judicial confession, ruled that if the words spoken by the witness are clear, unambiguous and unmistakable, one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction. According to this Court, in such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon." "54. Here, in this case, it is proved by the prosecution that PW5, Anand Swaroop was not on inimical terms with the appellant at all. After subjecting his evidence to a rigorous test on the touchstone of credibility, this Court finds that extra-judicial confession referred to by the witness is reliable and is rightly accepted by the trial court and the High Court. The contention that when the appellant was being brought D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
204. :- to the court, he was in custody and therefore, the extra- judicial confession referred to by PW5 would be hit by the provisions of Section 26 of the Evidence Act and could not have been received in evidence, cannot be accepted. "55. As observed earlier, the record shows that the appellant and another were produced before the court for extension of judicial remand. The appellant could not probabilise his defence that he was in custody of police officer. He could not name the police officer who had brought him with Mumtaz to the court premises for extension of judicial remand nor it is his case that to the hearing of the police officer who brought him to the court premises, he had made confessional statement before PW5. On the facts and in the circumstances of the case, this Court is of the opinion that it is not probabilised by the defence that the appellant was in custody of police officer while he had made extra-judicial confession before PW5. The evidence relating to extra-judicial confession inspires confidence of this Court".
253. In Gura Singh v. State of Rajasthan (2001) 2 SCC D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
205. :- 205), it was observed that despite inherent weakness of an extra-judicial confession as an item of evidence, it cannot be ignored that, "such confession was made before a person who had no reason to state falsely and to whom it is made in the circumstances which tend to support the statement". When PW47 was asked in cross examination that the clinical history was given to him by the police, he denied it and explained that police was not present there. When he was asked whether the accused had stated before him that the accused had raped any lady, he denied it and stated that accused had told him that he had sexual intercourse on a female(victim) and assaulted her.
254. In the instant case, there is absolutely nothing on record to indicate that the confessional statement made by the accused to PW47 was made in the presence of any police personnel. The accused had narrated to PW47 as to how he D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
206. :- had sustained the injuries found on him. The said extra-judicial confession made by the accused to PW47 is clearly admissible in evidence. The said confession was made voluntarily, without any coercion, undue influence, or threat. The same was not made in the presence of any police personnel.
255. PW81 submitted an application through the S.P. for obtaining the call details of the mobile phone used by the deceased. Request was placed for tracing out the mobile phone by using its I.M.E.I. number and the tower location. According to PW82, he collected and produced before court, Exts.P54 to P66 call details in respect of the Sim cards of PW7, PW10 and the deceased, in respect of the calls, through MO14 mobile phone.
256. PW60 is the Nodal Officer of Tata Tele Service. On receipt of Ext.P60 request from the S.P., Thrissur, he issued call details from 4.2.2011 to 7.2.2011 and the customer's name and address of Mobile No.8089783489 of his Company. He issued Ext.P61 call details, for which Ext.P62 certificate was also D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
207. :- issued. Ext.P63 is the covering letter. On receipt of another requisition for obtaining the call details of the said number for the period from 15.1.2011 to 4.2.2011, he issued Ext.P64 series of call details, along with Ext.P66 certificate and Ext.P65 covering letter. 'Santhosh.M.G., Mullakkal, Shornur' (PW6) is the name and address of the customer of the said number.
257. As per Ext.P64, the Sim card of the said number was used in MO14 having I.M.E.I. No.359038026891630 from 16.04 on 1.2.2011 to 00.21 hours on 2.2.2011. On the said day the said number in the said mobile handset worked from 20.22 to 20.23 under the Cheruthuruthy tower and from 20.26 to 20.30 hours under the Paanjal tower. Both these towers are having range at the Vallathol Nagar Railway Station. It worked at 00.21 hours on 2.2.2011 under the Puthuppariyaram tower, near the Palakkad Railway Station. The 15th digit in the I.M.E.I number can be any digit from 1 to 9; but the system will identify it only as '0'. Ext.P64(a) shows the concerned place of the tower code. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
208. :- Code No.26741 is of Cheruthuruthy tower, Code No.27028 is of Puthuppariyaram tower and Code No.37650 is of Paanjal tower.
258. PW59 is the Nodal Officer of the Vodaphone Company. The Company received Ext.P56 letter on 25.2.2011 issued by the S.P., Thrissur requesting for the customer's name and address and the call details for the period from 3.2.2011 to 7.2.2011 from the Vodaphone Mobile No.9843998776. Ext.P57 is the call details produced by him. Ext.P58 is the certificate produced along with Ext.P57. Ext.P59 is the covering letter. The customer of the said number is Dhanalekshmi, 1-A , Anna Colony, First Street, Ward No.4, Meloor, Madhurai, PIN-625106. As per Ext.P57, Sl.Nos.12 to 27 are call details on 3.2.2011 in respect of that number by using the handset with I.M.E.I No.359038026891630. It's tower location is Wyanad. On perusing MO14, PW59 stated that its I.M.E.I. number and the above I.M.E.I number is the same. The said calls in Sl.Nos.12 to 27 were made through MO14, by using MO17 series of Sim D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
209. :- cards. The Sim card in Sl.No.8994430001112572730 was issued from his Company. He is the authorized officer of the Company to issue such records.
259. PW56 is the Nodal Officer of Idea Mobile Company, for the State of Kerala. He is the authorized officer who has to issue the customer details and call data records of the Company. He is authorized to issue the same to the Law Enforcement Agency. On 24.2.2011, the Regional Office of the Company received Ext.P54 requisition for the call details from the S.P. Office, Thrissur from 4.2.2011 to 7.2.2011, in respect of Idea Mobile Nos.9656658489 and 9605380365 and also the name and address of the customers of the said connections. In response to it, he issued Ext.P55 series call details to the S.P., Thrissur. As per the same, item Nos.2 to 12 in the first page and item 3 in the second page were in respect of the very same I.M.E.I. No.359038026891630. The 3rd item in the second page is a SMS came to 9656658489. The call details in first page D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
210. :- from item Nos.2 to 12 are also in respect of the very same I.M.E.I. Number in which the Sim card 9605380365 was being used. The said mobile customer is PW10. On verifying MO14, PW56 identified its I.M.E.I.Number as 359038026891637. I.M.E.I. number is being identified by taking into consideration of the first 14 digits. The remaining digits coming after 14 digits are being entered as check digits as '0'. In some mobile sets the number may come up to 17 digits. The digits coming after the first 14 are not significant. The I.M.E.I. number shown in Ext.P55 as aforesaid is the same I.M.E.I. number of MO14. The aforesaid calls shown in Ext.P55 are the outgoing and incoming calls through MO14 hand set. The said 14 digits is the international number. MO18 series Sim cards are issued by the Idea Company.
260. According to PW81, on obtaining the aforesaid information, PW32 S.I. of Police Chelakkara was sent to Wayanad on 7.2.2011 for tracing out the mobile phone. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
211. :- 261. PW32 was the Sub Inspector of Police of Chelakkara during the period of the incident in this case. According to him, PW81 received information from the cyber cell that the mobile phone IMEI No.359038/026891637 which was robbed from the deceased was being used by PW10 at Vythiri, Wyanad with the Sim card of idea No.9605380385. PW81 directed him to go and to enquire about it. PW32 along with the police party reached the house of PW10 at Wyanad at 8 a.m. on 8.2.2011. MO14 mobile phone and MO18 series of Sim cards were seized from PW10 through Ext.P12 mahazar in the presence of witnesses. When questioned, PW10 revealed that MO14 was purchased by him for 300/-, from PW7 who is one of his neighbours.
262. According to PW10, the police appeared at his house on 8.2.2011, and enquired him as to how did he get MO14 mobile phone which was with him. He told them that he had purchased it from PW7 for 300/- on 3.2.2011. He had inserted two Sim cards in it. One of the Sim cards was his own and the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
212. :- other one was that of his wife. He produced MO14 mobile phone and MO18 series Sim cards before police. The same was seized by the police through Ext.P12 mahazar.
263. PW12 is one of the attestors to Ext.P12 mahazar. According to him, on 8.2.2011, he saw the seizure of MO14 LG mobile phone and MO18 series Sim cards by the police from PW10 at the house of PW10.
264. According to PW10, there was no Sim card in it when he purchased MO14 from PW7. He obtained a mobile connection from the shop of PW8. It was PW9 who had opened that mobile phone and inserted his Sim card. He was told by PW7 that the said mobile phone was purchased from Palakkad.
265. According to PW32, he traced out PW7 and questioned him. According to PW10, he also went to the house of PW7 with the police and witnessed the seizure of MO17 series through Ext.P9 mahazar. PW7 admitted that it was he D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
213. :- who had sold MO14 to PW10. According to PW11, he was present when PW10 purchased MO14 LG mobile phone from PW7 on 3-2-2011 for 300/-. PW32 took PW7 and produced him before the Circle Inspector.
266. PW7 is a resident of Waynad living with his wife and three children. He is a coolie worker, who is illiterate. Two months back to his examination, he had worked at a hotel named `Abhirami' at Pollachy. On 2.2.2011 he got in a bus at 8 a.m. for going home. He reached Palakkad by 9.55 a.m. He had a mobile phone, the rear portion of which was cracked. Even though he approached several mobile phone shops, they told him that it could not be repaired. Lastly, he was told from one mobile phone shop that they could give him another mobile phone on payment of 300/- along with his old mobile phone. He paid an amount of 300/- and also gave his old mobile phone. He got another mobile phone from that shop. The shop owner was searching for its charger. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
214. :- 267. PW7 waited in front of the shop. At that time, the accused along with another old man came over there. The accused by placing MO14 mobile phone brought by him, at the shop requested the shop owner to purchase it for 500/- by stating that he wanted such an amount for going to his native place. When the shop owner declined, the accused approached him and requested him to pay 300/- and to purchase the said mobile phone by stating that he had to go urgently to his native place. He gave 300/- and purchased MO14. According to PW7, the accused talked to him in Tamil as well as in Malayalam. By that time, he got the charger and then he proceeded to his house with the said mobile phones. The said transactions had occurred in between 10 a.m. and 11 a.m. The said shop is a small shop situated near the Railway Station. He clearly identified MO5 lungi and MO6 shirt as the dress worn by the accused. He had identified the accused at the Chelakkara Police Station also. He identified the accused in court. He D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
215. :- identified MO14 as the said LG mobile phone purchased by him from the accused as aforesaid.
268. PW7 went to his house and offered the said mobile phone to his son. His son told him that he did not want it. There was no Sim card in it. When it was charged and a Sim card was inserted, it was found to be in working condition. On the next day by about 10 a.m., he sold MO14 to his neighbour PW10, for 300/-. On 8.02.2011, police reached his house. According to him, PW10 was also present along with the police. The police could locate the mobile phone when PW10 inserted the Sim card and started using the same.
269. According to PW7, the police took him to the mobile shop owner, who also identified MO14 as the one purchased by PW7 from the accused. Then the police took him to the Chelakkara Police Station, where he could see the accused. PW7 had inserted two Sim cards in the said mobile phone. The police again reached his house, and he produced the said D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
216. :- MO17 series Sim cards, which the police seized through a mahazar. According to him, one of the same was in the name of his wife and the other was in the name of the daughter of his elder brother.
270. According to PW67 C.P.O, on 18.3.2011 he reached the house of PW7 along with PW82 at the fifth colony, Achooran Village, Vythiry at 8 a.m. PW7 produced two Sim cards, which are MO17 series before PW82, which he seized through Ext. P9 mahazar, which was prepared in the handwriting of PW67, in which PW67 also affixed his signature.
271. PW32 took PW10 to the shop of PW8 from where PW10 purchased the Sim card. Ext.P10 register by which the Sim card was issued, was seized through Ext.P11 mahazar. He had made Ext.P10(a) endorsement in Ext.P10. PW8 has a footwear shop, wherein she used to conduct the business of sales of mobile recharge coupons and also giving new connections. She had issued a Sim card to PW10 on 4.2.2011. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
217. :- She used to keep a register for the same. Ext.P10 is the register, in which PW9 employee of her shop had made Ext.P10(a) entry regarding the Sim card issued to PW10. Ext.P10 was seized through Ext.P11 mahazar on 8.2.2011. She used to insert Sim cards into the mobile phone of the clients and to give it on activation. She identified MO14 as the mobile phone brought by PW10.
272. PW32 recorded the statement of PW9. She also identified MO14 and the Sim card. PW9 is working as Salesgirl at the shop of PW8. According to her, it was she who had inserted the Sim card into MO14 mobile phone brought by PW10 at the shop. According to her, Ext.P10(a) entries are in her handwriting. PW32 produced the materials before the court, through Ext.P27 property list on 8.2.2011.
273. According to PW81, when questioned, the accused furnished Ext.P92 information as follows: - D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
218. :- "If you come with me, I will show you the place where the scrap shop is situated near the railway station to which place I went to sell the cell phone, and the provision shop, and also the cell shop situated near the Palakkad town railway gate".
274. On the basis of Ext.P92, the custody of the accused was obtained from the Judicial First Class Magistrate's Court, Wadakkanchery on 7.2.2011. On the base of Ext.P92, and as led by the accused, PW81 reached the mobile shop named `Golden mobile' which was pointed out by the accused. The accused pointed out PW50 shop owner also. He prepared Ext.P45 mahazar of the said shop. Thereafter, the accused led PW81 to the scrap shop of PW13 at Pranavu, and the provision shop of PW14. The accused pointed out PW13, PW14, and PW15. All of them identified the accused also.
275. According to PW73 W.C.P.O. attached to the C.I. Office, Chelakkara, the accused led PW81 to a shop named 'Golden Mobile' situated near the railway gate at G.B.Road, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
219. :- Palakkad and also accompanied PW81. The accused pointed out the shop and the shop owner. PW81 prepared Ext.P45 mahazar in which she also affixed her signature.
276. PW50 is running "Golden Mobile" shop at GB Road, Palakkad. On 1.2.2011, at 8.30 a.m. he opened his shop as usual. By about 10 a.m., PW7 came over there with an old broken China mobile phone and asked him whether it could be repaired. As its panel was not available, he told him that it could not be repaired. By paying an amount of 300/- along with that old mobile phone, he purchased a mobile phone from his shop, and requested him to get it charged. He connected it with the charger for charging it. PW7 was waiting there to get it charged. During that time, the accused came over there dressed in MO5 lungi and a MO6 shirt and offered to sell an old LG mobile phone. On seeing his soiled shirt and his features, he refused to purchase it. PW7 who was waiting there, saw all these and he purchased that mobile phone from the accused for 300/-. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
220. :- 277. After about one week, the police came by the police jeep with the accused. The accused who got down from the jeep pointed out his shop to the police. The police asked about the incident to him. He narrated all what had happened. Police prepared Ext.P42 mahazar in which he also affixed his signature. Again, on 9.2.2011 the police came to his shop along with PW7, and he identified him also. He identified MO14 LG mobile phone also. Before the court below, he identified the accused as the person who had appeared at his shop on 2.2.2011 and offered to sell MO14 mobile phone.
278. Now, the evidence of PW7 dealt with earlier has again to be considered. PW7 waited in front of the shop of PW50. At that time, the accused along with another old man came over there. The accused by placing a mobile phone brought by him at the shop, requested for 500/- by stating that he wanted such an amount for going to his native place. When the shop owner declined, the accused approached him and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
221. :- requested him to pay 300/- and to purchase the said mobile phone by stating that he had to go urgently to his native place. He gave 300/- and purchased the said mobile phone. By that time, he got the charger and then he proceeded to his house with the said mobile phones. The said transactions had occurred in between 10 a.m. and 11 a.m. The said shop is a small shop situated near the Railway Station. According to PW7, the police took him to the mobile shop owner, who also identified MO14 as the one purchased by the witness from the accused. Then the police took him to the Chelakkara Police Station, where he could see the accused. He clearly identified MO5 lungi and MO6 shirt worn by the accused. He had identified the accused at the Chelakkara Police Station also. He identified the accused in court. He identified MO14 as the said LG mobile phone purchased by him from the accused, as aforesaid.
279. PW15 is engaged in collecting scrap materials and disposables left by persons and to supply it at the shop of PW13 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
222. :- at Palakkad. According to him, on 2.2.2011, in the morning at about 8 - 8.15 a.m., while he was standing near the toddy shop situated near the shop of PW13, the accused along with an old man came over there. That old man was also one of the suppliers of disposables to the shop of PW13 and thereby he was known to PW15 also. That old man called PW15 and asked whether he wanted a mobile phone. When PW15 expressed his desire to see it, the accused handed over MO14. After examining it, he returned it by stating that he did not want it. Then the accused asked whether he could sell it to any other person. When PW15 looked, he could see the shop of PW13 remaining opened. He took him to the shop of PW13 and told PW13 that there is a mobile phone for sale and if required PW13 could purchase it. After leaving the accused near PW13, PW15 moved to some distance away for enabling the parties to bargain. PW13 after examining MO14, returned it by stating that he did not want it. Then the accused again asked him whether D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
223. :- he could sell it to somebody else. When PW15 was thinking about another possible purchaser, he could see the shop of PW14 remaining opened. He took the accused to PW14. Similarly, PW14 also refused to purchase it. Then the accused and the old man went away. On 7.2.2011, a jeep came near him and stopped. The accused got down from the jeep along with the police and pointed out him by stating that he was that man. When the police asked whether he knew the accused, he narrated as to what had happened on 2.2.2011 in the morning. Subsequently, he identified MO14 also, when it was shown to him. According to him, MO5 was the lungi and MO6 was the shirt worn by the accused when he had approached him on 2.2.2011.
280. According to PW13, he has been conducting a scrap shop on the rear side of Olavakkode Railway Station, Palakkad and that on 2.2.2011 at 9 a.m. the accused along with PW15 Ismail came to his shop and that the accused offered him to sell D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
224. :- MO14 mobile phone. On taking and looking at MO14, he returned it to the accused by refusing to purchase it. On 7.2.2011, the police came to his shop along with the accused by police jeep. He told the police that the accused had approached him with an offer for selling MO14 and that he had returned it and refused to purchase it. He identified the accused and also MO14 mobile phone.
281. PW14 is conducting a provision shop at the opposite side of the shop of PW13, on the rear side of Olavakkode Rail Station, Palakkad. According to him, on 2.2.2011, at about 9 - 9.30 a.m., the accused along with PW15, approached him and the accused offered him to sell MO14 mobile phone. PW15 was a person engaged in collecting scrap materials and selling it at the shop of PW13 and thereby he had prior acquaintance with PW15. After examining MO14, he returned it to the accused and refused to purchase it. On 7.2.2011, the police came to his shop along with the accused. He identified the accused and also D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
225. :- MO14 mobile phone. When the accused had approached him on 2.2.2011, the accused was dressed in MO5 lungi and MO6 shirt. He identified MO5 and MO6 also.
282. PW81 seized MO15 mobile cover of the deceased produced by PW6 on 8.2.2011, through Ext.P76 mahazar. According to PW6, the mobile handset of the deceased was that of LG Company. MO14 was the mobile phone of the deceased. He produced MO15 series cover, catalogue and guidelines of MO14, before PW81.
283. According to PW72 Senior CPO, on 8.2.2011 PW6 produced a mobile cover, its catalogue and a paper from the Cholamandalam General Insurance Company, which are MO15 series before the CI, which the CI seized through Ext.P76 mahazar.
284. According to PW18, MO14 was the mobile phone that was being used by the deceased. It was purchased from a D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
226. :- shop belongs to the friend of PW6. It was she who had accompanied the deceased to the shop for purchasing MO14.
285. PW82 was on additional charge of the Dy.S.P, Kunnamkulam, during the period of incident. PW81 handed over the case file to PW82 for the continued investigation on 9.2.2011. As per the direction of PW82, PW81 seized MO29 series photographs taken by PW22 at the time of inquest, through Ext.P17 mahazar.
286. On that day, PW82 recorded the statement of PW7, who identified the accused who was in custody. PW7 admitted that he had purchased MO14 mobile phone from the accused. On 9.2.2011 itself, PW82 reached Palakkad with PW7, and met PW50, who identified MO14 and also PW7. PW50 stated that MO14 was purchased by PW7 from the accused in front of his shop. PW13, PW14 and PW15 also identified MO14. On the same day, he reached the house of the deceased with MO9 watch and MO14 mobile phone, where PW18 and PW6 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
227. :- identified the same.
287. In Ganesh Lal v. State of Rajasthan [(2002) 1 SCC731, it was held, "Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. Illustration(a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
228. :- possession of property belonging to the deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction." 288. In Shivappa v. State of Mysore (1970 SCC(Cri)215), Baiju v. State of M.P. (1978 SCC(Cri) 142), Earabhadrappa v. State of Karnataka (1983 SCC(Cri)447), Gulab Chand v. State of M.P.(1995 SCC(Cri)552), Mukund v. State of M.P. (1997 SCC(Cri)799) and A. Devendran v. State of T.N. (1998 SCC (Cri) 220) para 20, murder and robbery were proved to have been integral parts of one and the same transaction and the presumption arising under Illustration (a) to Section 114 of the Evidence Act was applied for holding the accused guilty of not only having committed robbery but also murder of the deceased. The presumption was founded on recovery of stolen property belonging to the deceased. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
229. :- 289. In Palan v. State (1973 KLR745 it was held, "After eliminating possible theories in favour of the accused the circumstance that he was found in possession of the stolen articles has been considered along with the other circumstances brought out in evidence and if it appears to be reasonably beyond doubt, he can be found to be guilty of both robbery and murder. If in his statement under Section 342 or deposition under Section 342-A of the Crl.P.C he gives an explanation and that is proved to be false or if he keeps silence when questioned under Section 342 of the Crl.P.C the same can also be taken into account as additional links in the chain of circumstantial evidence." 290. In Vasudevan v. State of Kerala (1993(1) K.L.T Short Note, Case No. 5), it was held, "In such circumstance, accused being in possession of the stolen property is naturally presumptive proof of his having committed the theft and also to him having committed the murder as the theft and murder are so intimately connected to form part of the same transaction, the recent and unexplained possession of the stolen D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
230. :- property will not only be presumptive evidence against the accused on the charge of robbery but also on the charge of murder".
291. When valuable articles were removed from the body of the deceased after causing her death or during the time of murder, definitely such properties will assume the characteristics of stolen properties. Therefore, MO14 missing from the deceased can be treated as a stolen property removed from the deceased by the accused or forcibly snatched away by the accused. The aforesaid dictum laid down in the decisions noted supra are clearly applicable to the facts and circumstances of this case. When such ingredients are proved, the said presumption under Section 114 of the Indian Evidence Act can clearly be attracted.
292. PW81 produced back the accused before the Judicial First Class Magistrate's Court, Wadakkanchery, along with Ext.P94 remand report. Ext.P95 report dated 4.2.2011 was filed D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
231. :- before court for incorporating the name and address of the accused. Ext.P96 report was filed for deleting section 307 IPC and for incorporating section 397 IPC. On 7.2.2011, PW81 filed Ext.P97 report before court for incorporating Section 302 IPC.
293. According to PW42, Ext.P36 is the copy of the report regarding the extract of the train signal register furnished by his colleague Station Master Nandakumar which shows the train timings. On 5.2.2011 PW42 produced Ext.P36 report prepared by him in respect of the sign off register of the Vallathol Nagar Railway Station.
294. At 11 a.m. on 8.2.2011, PW81 collected MO42 series soil from the scene of occurrence through Ext.P16 mahazar. According to PW69, he showed the scene of occurrence to PW81 on 8.2.2011, from where PW81 collected blood stained soil and some other soil. PW21 is a resident of Vettikkattiri Desom just West to the Vallathol Nagar Railway Station in Cheruthuruthy Panchayath. On 8.2.2011, he witnessed the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
232. :- collection of soil by the police from the place wherein the deceased was lying, through Ext.P16 mahazar.
295. PW31 is working at the Medical College, Thrissur as Medical Record Librarian Grade-II. According to her, Ext.P4 case sheet was produced by her before the police on 5.3.2011. PW81 seized Ext.P4 case sheet of the deceased from the Medical College Hospital, Thrissur, produced by PW31, through Ext.P67 mahazar. PW61 is the Medical Record Librarian at the Medical College, Thrissur. On 5.3.2011, he affixed his signature as attestor in Ext.P67 mahazar by which the document produced by PW31 was seized by PW81.
296. At 11 p.m. on 10.2.2011, PW82 reached the Shornur Railway Station and with permission he prepared Ext.P47 body mahazar of the ladies compartment number 08495 of the Ernakulam-Shornur passenger train No.56608, lying at the third platform. PW53 is conducting trolley catering service at the Shornur Railway Station. On 10.2.2011 at 11 p.m. when the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
233. :- police prepared Ext.P47 mahazar in respect of the ladies compartment which is the second one from last of the Ernakulam-Shornur Passenger Train, he was present and he signed on it.
297. According to PW33, on 13.2.2011, PW82 came to the spot where they had seen the accused. He pointed out the spot where the accused was seen. On 13.2.2011 at 11 a.m. PW82 prepared Ext.P79 mahazar in respect of the bus stop near Kalamandalam, where the accused was seen around 9.30 p.m. on 1.2.2011, and also describing the place where the deceased was lying injured, the old rail gate road leading to the road, the lane leading to the old railroad, railway cabin, railway lines etc. PW75 witnessed PW82 preparing Ext.P79 mahazar by examining the bus stop and surroundings near Kalamandalam on 13.2.2011.
298. PW77 is the Assistant Director at the Regional Forensic Science Laboratory, Thrissur. Earlier she had worked D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
234. :- as the Senior Instructor (Forensic) at the Kerala Police Academy. As per the request of the Investigating Officer, she had visited the scene of occurrence in this case in the presence of the Investigating Officer. From two spots at the scene of occurrence, she collected blood stained stones from a depth of 30 c.ms. and 26 c.ms. and also collected, cellophane pressings from the concrete sleeper. She packed it in three sealed packets and handed it over to the investigating officer, with specimen seal. The investigating officer seized the same through Ext.P53 mahazar. On the same day, she reached Shornur Railway Station and examined bogie No.08495 of the Ernakulam - Shornur Passenger Train. But she did not get any apt evidence from it. She has prepared Ext.P80 report dated 16.2.2011 for the same.
299. According to PW77, on 13.2.2011 she had examined the railway track at first. The examination of the scene commenced at 8 a.m. and it continued up to 2 p.m. Reddish D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
235. :- brown coloured splatters mentioned in Ext.P80 can occur only when blood drops fall from a particular height on a flat surface. The pattern of splatters will differ according to the height from where the blood drop falls. The blood drop falling from around 20 inches height will create a round shape pattern with sharp delineated margin. When blood drop falls from a height of 20 - 40 inches, there will be serrated projections at the side margin of the drops, and if it is from a height of 60 - 80 inches, these serrated projections shall be lengthy like sun rays like patterns. In this case it was seen as sun rays like pattern. According to her, what she meant by the term "smear present on the track" is the pattern occurs when the blood stained body moves to another surface and that the same is smear pattern. The same had occurred in this case. MO43 series were the material objects collected by her from the scene. MO43 series are mentioned as item Nos.23, 24 and 25 in page No.11 of Ext.P2.
300. According to PW82, on 13.2.2011 at 9.45 a.m., he D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
236. :- seized MO43 series of bloodstained stones and the fibre collected from the concrete sleeper at the scene of occurrence, by PW77 Senior Scientific Assistant, through Ext.P53 mahazar. PW55 saw PW77 collecting materials from the scene of occurrence and handing it over to the investigating officer, for which Ext.P53 mahazar was prepared, in which he also affixed his signature.
301. PW67 is a C.P.O attached to the Cheruthuruthy Police Station. On 13.2.2011, he had gone to the scene of occurrence in this case with PW82. He saw PW77 examining the scene and collecting bloodstained aggregates etc. The said materials were packed and sealed and handed over to PW82, which PW82 seized through Ext.P53 mahazar. He is the scribe of the said mahazar, in which he also affixed his signature.
302. On 13.2.2011 PW19 was called to the Chelakkara Police Station and he was asked to produce the shirt and the dhoti worn by him on 1.2.2011 at the time when he lifted and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
237. :- carried the deceased. As the same were stained with full of blood, on that day itself he had washed it on reaching the quarters. MO27 series are the said shirt and dhoti, which he produced before the police. According to PW82, at 6 p.m. on that day, he seized MO27 series shirt and dhoti produced by PW19, through Ext.P17 mahazar.
303. PW74 was a Senior CPO attached to the C.I. Office, Chelakkara, as on 13.2.2011 and 26.2.2011. On 13.2.2011 at 6 p.m. he saw PW19 producing MO27 series shirt and dhoti, before PW82. The same were seized through Ext.P78 mahazar in which he also affixed his signature.
304. On 14.2.2011, PW82 filed Ext.P46 forwarding note for subjecting the properties to DNA test.
305. PW70 is the Joint Director Research holding charge of Assistant Director D.N.A. in the Forensic Science Laboratory, Thiruvananthapuram. He is M.Sc. in Zoology passed in First D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
238. :- Rank with Distinction, and also Ph.D. in Zoology with six months training in Forensic Biology and Zoology in C.D.P.O, Hyderabad. He had undergone one month training in DNA fingerprinting in the Forensic Science Department, Chennai. He has 23 years experience in Forensic Biology and 2= years experience in DNA fingerprinting.
306. On 5.2.2011, a parcel consisting of 8 sealed packets was received from Dr.Thanooja, Assistant Professor in O & G, M.C.H, Thrissur (PW1) in connection with Crime No.41/2011 of Cheruthuruthy Police Station. In connection with the same crime, another parcel consisting of 17 sealed packets was received from J.F.C.M., Wadakkanchery on 17.2.2011.
307. All the packets were sealed with impressions of seals corresponding with the specimen seal impressions forwarded. The seals were intact. The parcels in total, consist of 25 items with some sub items in some of the items.
308. PW70 examined all the items except item No.16 and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
239. :- issued Ext.P2 report, which bears his signature and office seal. Ext.P75 is the covering letter forwarded by the Director. Ext.P2 contains, the report of Rahila R.(PW51) as well. Pages 1 to 20 of Ext.P2 contain his report and the remaining two pages contain the report of PW51.
309. Item 1(a) and 2(b) contain the vaginal swabs of the victim. Item 2(a) is the vaginal smear collected from the victim. Item 3(a) is a cut open garment (MO1) and item 18 is a torn lungi (MO5). Item No.8 is the blood sample of the accused. It stands proved through DNA typing that the seminal stains on item No.1(a), 1(b), 2(a), 2(b), 3(a) and 18 belonged to the accused, to whom the blood sample in item No.8 belongs.
310. According to PW70, in page 15 of the Ext.P2 report, there is an error (typing) in Sl.No.16 (last column). In that column it is mistakenly recorded as 'XX' instead of 'XY' (the column consists of item No.8 blood sample of the accused). The blood sample of a male will always be shown as 'XY' and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
240. :- not 'XX'. Both the second and third columns are having the same profiles. Second column is with respect to the seminal stains and the third column is with respect to the blood.
311. Item 2(c) is the nail clippings of the victim. Item 3(a) is the cut open top (MO1), Item 3(b) underskirt (MO4), Item 3(c) shimmy (MO2), and Item 3(d) brassier (MO3) of the deceased. Item No.9 is pieces of granite stones (MO32). Item No.10 is also included in MO32. Item No.12 is the hairs recovered from the scene. Item No.13 is the pants (MO8) and item No.14 is the underwear (MO21) of the deceased. Item No.17 is the shirt (MO6) of the accused. Item Nos.19(a) and (b) are nail clippings of the victim taken at the time of postmortem. Item Nos.24 and 25 are granite stones collected from the scene.
312. All the above items were found containing human blood, of which blood on items 3(a), 3(b), 3(c), 3(d), 9, 10, 12, 13, 14, 17, 24 and 25 belongs to the victim to whom the blood sample in item No.1(b) belongs. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
241. :- 313. Nail clippings in items 2(c), 19(a), 19(b) contained human blood and epithelial tissues. In DNA typing, the blood stains and epithelial tissues in those items were found to be those of the victim to whom the blood sample in item No.1(b) belongs and the accused to whom the blood sample in item No.8 belongs.
314. The learned counsel for the accused has attempted to canvass an argument that there is a doubt regarding the correctness of the findings of PW70 entered in Ext.P2 by pointing out what is noted is 'XX' in column No.3 in Sl.No.16 contained in page No.15 of Ext.P2. PW70 has clearly explained that it is only a typographical error which has resulted in entering 'XX' instead of 'XY' in the said column relates to the blood sample of the accused. In respect of item No.8, he has explained that the blood sample of a male will always be shown as 'XY' and not 'XX'. The second column is with regard to the seminal stains, wherein it has been correctly shown as 'XY'. The D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
242. :- said proposition is clear from page 16 of Ext.P2 also, wherein the blood sample of the deceased who is a female is shown as 'XX' in column No.2 and blood sample of the accused who is a male is shown as 'XY' in column No.3.
315. From the evidence of PW70 and the contents of Ext.P2, it stands proved that the cream coloured cut open top of the deceased identified as MO1 which is noted as item No.3(a) in page No.6 of Ext.P2 and MO5 lungi worn by the accused which is described as item No.18 in page No.10 of Ext.P2 contained seminal stains, D.N.A. typing of which proved that the said seminal stains belong to the accused, whose blood sample is item No.8 described in page No.8 of Ext.P2. Likewise, item Nos.1(a) and 2(b) contain vaginal swabs of the victim and item No.2(a) micro slides in which the vaginal smear collected from the victim was there, were also subjected to D.N.A. Typing, which also revealed that the same contained semen and spermatozoa belong to the accused, to whom the blood sample D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
243. :- in item No.8 belongs.
316. Item No.2(c) is the nail clippings of the deceased, item No.3(a) is MO1 top of the deceased, item No.3(b) is the underskirt, item No.3(c) is the white cut open shimmy of the deceased with dark brown stains on large area, item No.3(d) is the white cut open brassier of the deceased with dark brown stains on large area, item No.9 contains 3 pieces of granite stones with dark brown stains collected from track No.5 towards west from the scene of occurrence on 2.2.2011, item No.10 contains 4 pieces of granite stones collected from the scene of occurrence near the electric post bearing No.3/36 on 2.2.2011, item No.12 is seven black hairs and a small quantity of blood flakes which were collected from the scene on 2.2.2011, item No.13 is the black coloured pants of the deceased containing small dark brown stains, item No.14 is a light saffron coloured elastic underwear of the deceased which contained small dark brown stains and item No.19(a) is few nail clippings D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
244. :- of the right hand and item No.19(b) is few nail clippings of the left hand of the deceased, collected during the postmortem.
317. Item Nos.1(a), 1(b), 2(b), 2(c) and 2(d) are MO39 series. Item Nos.4(b), 5, 6, 7 and 8 are MO40 series belonging to the accused. Item Nos.19(a) and 19(b) nail clippings, item No.20 pubic hair are MO41 series belonging to the deceased. Item Nos.21 and 22 are MO42 series. Item Nos.23, 24 and 25 are MO43 series. Item Nos.9, 10 and 11 are MO32 series. Item Nos.3(a) is MO1, 3(b) is MO4, 3(c) is MO2 and 3(d) is MO3 of the deceased. Item No.13 is MO8, item No.14 is MO21, and item No.15 is MO10 of the deceased. Item No.17 shirt is MO6 and item No.18 lungi is MO5, of the accused.
318. Item Nos.2(c), 3(a), 3(b), 3(c), 3(d), 9, 10, 12, 13, 14, 17, 19(a), 19(b), 24 and 25 contain human blood. D.N.A. typing showed that the blood stains in item Nos.3(a), 3(b), 3(c), 3(d), 9, 10, 12, 13, 14, 17, 24 and 25 belonged to the deceased, to whom blood sample in item No.1(b) belongs. Even though D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
245. :- items 5 and 18 contain blood, it was insufficient for determining the origin. The examination proved that the nail clippings in item Nos.2(c), 19(a) and 19(b) contain human blood and epithelial tissues. D.N.A. typing proved that the bloodstains and epithelial tissues in item Nos.2(c), 19(a) and 19(b) belong to the deceased and the accused, to whom the blood samples in item Nos.1(b) and 8 belong.
319. According to PW51, Assistant Director (Physics) of the Forensic Science Laboratory, Thiruvananthapuram, she examined MO30 as three pieces of violet colour button which is item No.16 in Ext.P2. MO6 shirt of the accused is item No.17 in Ext.P2. PW51 removed MO33 buttons which were found present in MO6 shirt listed as item No.17 in Ext.P2. One of the pieces of the button in MO30 contain thread also. On examination of MO30 and MO33 series, she could find that MO30 noted as item No.16 and MO33 noted as item No.17 are similar. The name 'double' was seen written in MO30 as well as other buttons of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
246. :- MO6 shirt including MO33 series. The tailor's label found on MO6 shirt listed as item No.17 in Ext.P2 showed "Karl Hogan Formals by double bull". On examination, she could find that the thread contained in one of the pieces in MO30 button was the same thread used for stitching the other buttons of MO6 also. According to her, MO30 and MO33 series are the buttons of the very same MO6 shirt. The colour, size, style and cast mark of MO30 and MO33 are the same.
320. In cross examination, PW51 clarified that some buttons on the front side of the shirt were not available and were seen detached away. According to her, on examination of the thread available on MO6 shirt at the place from where such buttons were lost, she could realise that the same were got detached very recently. According to her, the buttons for hole Nos.2, 5 and 6 at the front side were the buttons detached away and lost from the shirt. A safety-pin was seen used at the corresponding portion to the 5th button hole of the shirt for D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
247. :- closing that portion. She counted the button holes downwards from the collar starting from the first hole avoiding the hole at the collar.
321. The learned counsel for the accused attempted to canvass an argument that it is not normally possible to believe that the accused had worn the very same MO5 and MO6, which he had allegedly worn at the time of incident, when he was taken into custody and got identified by the witnesses, and also at the time of his arrest and body search. We do not see any merit in the said argument. Firstly because the accused was not doing acts, which are normally expected from a human being; secondly, PW63 Railway Dy.S.P, Palakkad took the accused who was dressed in MO5 lungi and blood stained MO6 shirt, in to custody, in front of the bus stop situated in front of the Palakkad Town Railway Station at 11 p.m. on 2.2.2011, and produced him before PW81. The accused was taken into custody on the next day itself. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
248. :- 322. In Aftab Ahmad Anasari v. State of Uttaranchal [(2010) 2 SCC583, it was held: "Yet another circumstance relied upon by the prosecution is that the underwear of the appellant was stained with blood and semen. The fact that underwear put on by the appellant was seized under a panchnama is not disputed on behalf of the appellant at all. The High Court ignored this circumstance stating that the appellant was young and, therefore, finding of semen stains was natural. However, the High Court ignored the material fact that in normal course, the underwear would not have blood stains at all and, therefore, it was for the appellant to offer explanation as to under what circumstances stains of blood were found on his underwear, seized by the police during the course of investigation." "The fact that the underwear of the appellant seized by the police had human bloodstains is sufficiently proved by the contents of report of Chemical Analyst. The fact that the bloodstained underwear put on by the appellant was seized after four days does not make any dent in the prosecution case on the ground D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
249. :- that a person would not move with such blood stained underwear for 3-4 days. One cannot lose sight of the fact that those stains were not visible and even the investigating officer had stated that on examination the underwear put on by the appellant appeared to be stained with semen at some places. If blood stains are found on the shirt or pant of a person then normally such person would not move in the village with those clothes on, because stains of blood would be visible and noticed by anyone. However, it is almost difficult for anyone to notice stains of blood on underwear worn by a person. Further, the sense of cleanliness of a rustic villager cannot be ignored by the Court." 323. As on 16.2.2011 PW78 was a Village Officer of the Cheruthuruthy Nedumpura Group Village. He prepared Ext.P81 sketch of the scene of occurrence in this case as per the request of the investigating officer. He was provided with a copy of the scene mahazar. He visited the scene and prepared a sketch in respect of the matters noted in the scene mahazar, on 11.2.2011. He produced the same before the investigating D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
250. :- officer on 16.2.2011. There were five lines at the scene of occurrence. The third line is one which connects the two lines at the eastern side and the two lines at the western side. On 16.2.2011 PW82 produced Ext.P81 sketch before court.
324. PW81 filed a report before the C.J.M, Thrissur, for conducting the T.I. parade, and also for recording the statements of witnesses who saw the accused on the date of incident in the train as well as at the Vallathol Nagar bus stop, under section 164 Cr.P.C.
325. PW80 was working as JFCM-II, Thrissur. As per Ext.P82 order of the C.J.M., Thrissur dated 10.2.2011, PW80 was authorised to conduct a Test Identification parade in this case. He was also authorised to record the statements of the witnesses also, through Ext.P83 order.
326. As per Ext.P82 order, PW80 had conducted the Test Identification parade on 19.2.2011 at Sub Jail, Viyyur. Ext.P84 is D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
251. :- the memorandum of the T.I. Parade, which bears his signature. Ext.P85 is the report of the T.I. Parade prepared by him. Four witnesses namely Tomy Devassy (PW4), Abdul Shukur (PW40), Shajahan (PW33), and Shafi (PW45) attended the parade, and all of them identified the accused Govindhaswamy correctly. Particulars of the T.I. Parade are explained in Exts.P84 and P85. Ext.P86 is the attendance of the witnesses with their signature. Ext.P87 is the signature of the accused with his right thumb impression. Ext.P88 is the name, address and signature of the known suspects participated in the T.I. Parade. Prior to the T.I. Parade, Ext.P90 notice was issued to the accused through the Superintendent of the Viyyur Sub Jail, and it was acknowledged by the accused and returned to him with a covering letter. Ext.P89 is the acknowledgment of the accused.
327. According to PW4, he got a notice calling upon him to appear at the Viyyur jail on 19.2.2011 at 8 a.m. He reached the jail. He was asked to wait. After some time, he was taken to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
252. :- the conference hall. Some persons who were looking alike were made to stand there, out of whom, he identified the accused.
328. According to PW40, he had received a summons calling upon him to appear at the Viyyur Sub Jail on 19.2.2011 at about 8 a.m. He reached Viyyur Sub Jail, where he identified the accused who was seen standing among some other persons. He affixed his signature in the report prepared by the learned Magistrate.
329. According to PW45, he along with PW33 went to Viyyur Jail at 8 a.m. on 19-2-2011. There he could see the accused, and he identified him before the Magistrate and affixed his signature to that effect in the report prepared by the Magistrate.
330. According to PW33, on 19.2.2011, he was called to the Viyyur jail and also to the Judicial First Class Magistrate's Court, Thrissur. He saw the accused at the jail and identified him D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
253. :- and gave statement to that effect.
331. After the completion of the T.I. Parade, on the same day at 2.30 p.m. PW80 had recorded the statements of the witnesses. Ext.P7 is the statement of Tomy Devassy (PW4), Ext.P28 is the statement of Shajahan (PW33), Ext.P34 is the statement of Abdul Shukkur (PW40), and Ext.P39 is the statement of Shafi (PW45). According to PW80, he had complied with all the legal formalities to conduct the T.I. Parade and to record the 164 Cr.P.C.statement. He has taken down the statement in the open Court(Court hall) in-camera, after administering oath. He has certified at the bottom of the statement. According to him, the witnesses had appeared before him in response to his notice, voluntarily, and they have furnished their statements voluntarily.
332. According to PW4, as he was asked to appear before the Magistrate's Court at Thrissur at 2 p.m. on 19.2.2011, he reached there, and furnished Ext.P7 statement before the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
254. :- Magistrate, which the Magistrate recorded under Section 164 Cr.P.C. According to him, he gave a precise version of what he had stated before police, in Ext.P7. According to PW40, on 19.2.2011 he appeared at the Magistrate's Court and furnished Ext.P34 statement in which he affixed his signature. According to PW45, on 19-2-2011, in the afternoon he appeared at the Magistrate's Court and furnished Ext.P39 statement. According to PW33, on 19.2.2011, he furnished a statement before the Magistrate at the Magistrate's Court, Thrissur. Ext.P8 is the said statement furnished by him in which he had affixed his signature.
333. PW20 is a photographer, who is a native of Chelakkara, where he is conducting a studio named 'Alfa Studio'. As engaged by PW82, he took the photographs of the scene of occurrence in this case on 21.2.2011 by using his DVD camera having a memory card. On 26.2.2011, he produced MO28 DVD containing 39 stills before the police, which the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
255. :- police seized through Ext.P15 mahazar, in which he also affixed his signature. The DVD was played in open court before the court below. Ext.P18 series photographs are taken from the stills in the DVD. On 21.2.2011 PW82 caused the photographs of the scene of occurrence to be taken and seized MO28 DVD produced by PW20 for the same. Ext.P18 series are the said photos.
334. According to PW74, on 26.2.2011 at 4 p.m. PW20 produced MO28 D.V.D. in respect of the photos taken by him in respect of the scene of occurrence, before PW82 at the C.I. Office, Chelakkara which was seized through Ext.P15 mahazar in which he also affixed his signature.
335. On 2.3.2011, PW82 seized Exts.P30 and P49 to 52, through Ext.P48 mahazar. According to PW73, on 2.3.2011 at 3 p.m. she was present when PW54 produced the attested copies of the records relating to the details of the staff in the train involved in this case on 1.2.2011, before PW82, which he seized D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
256. :- through Ext.P48 mahazar, in which she affixed her signature. The said documents seized were Ext.P49 rough journal, Ext.P50 C.T.R., Ext.P51 Train Singed Register, Ext.P52 Loco Staff signing register and Ext.P30 copy of the report furnished by PW34.
336. On 3.3.2011, PW82 seized Ext.P70 CD containing the photographs taken by PW64 during the postmortem examination, through Ext.P77 mahazar. According to PW73, on 3.3.2011 at 11 a.m. PW64 produced Ext.P70 CD containing the photographs taken during the postmortem examination of the deceased and the same was seized through Ext.P77 mahazar in which, she affixed her signature.
337. On 4.3.2011 PW82 produced before court, Ext.P100 appointment order of the deceased obtained from the institution wherein she was working. PW82 produced Ext.P93 series details obtained from the Tamil Nadu Fingerprint Bureau before court. PW82 seized 18.3.2011 at 8 a.m., MO17 series Sim D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
257. :- cards produced by PW7, through Ext.P9 mahazar.
338. One of the main arguments forwarded by the learned counsel for the accused is that the court below has not extended sufficient opportunity to the accused to adduce defence evidence. According to the learned counsel for the accused, the accused was not permitted to examine all the witnesses, who were included by the accused in the defence witness schedule. The learned Special Public Prosecutor has pointed out that the learned counsel for the accused had filed a witness schedule in which altogether 52 witnesses were included, and most of the said witnesses had nothing to do with the matters in controversy in this case. It is also pointed out that most of those witnesses, even if examined, could not have assisted the defence in any manner.
339. On 4.10.2011, the aforesaid defence witness schedule was filed. After hearing both sides, the court below permitted the examination of witnesses named 1, 5, 6, 10, 14, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
258. :- 15, 16, 17, and 18 in the list. Summonses were ordered to witnesses 1, 6, 15 and 18 for examination on 10.10.2011, to witnesses 5, 10, and 14 for examination on 11.10.2011, and to witnesses 16 and 17 for examination on 12.10.2011. On 10.10.2011, witnesses 1, 15 and 18 were present, out of whom witness number 15 alone was examined as DW1. The other two witnesses were given up by the learned counsel for the accused. On 11.10.2011, witnesses 5 and 14 were present. Witness No.10 who is none other than the brother of the accused, was reported to be absconding. Those witnesses, who were present on that day, were also given up by the learned counsel for the accused. On 12.10.2011, witnesses 16 and 17 were present. But, those witnesses were also given up by the learned counsel for the accused. Therefore, it is evident that even though eight witnesses were present for examination, only one of them was examined as DW1. According to the learned counsel for the accused, the court below ought to have summoned all the other D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
259. :- witnesses also.
340. The learned Special Public Prosecutor has pointed out that all the other witnesses were cited by the accused just for propaganda and also for causing unnecessary vexation and delay in the proceedings of the case. Witnesses 1 to 4 were cited to prove the very same point. Even though witness No.1 was present and available for examination, he was not examined and given up. The purpose for which witnesses eight and nine were cited is for proving that they did not see the police seizing dual Sim, and that they did not furnish statement before the police. The examination of the said witnesses is not at all material or warranted. Witnesses 11 and 12 were cited to depose that the accused had never stated the names of those witnesses as the name of the accused. Their examination is also not required for any purpose at all. The Divisional Operations Manager, Southern Railway is witness No.13 in the list, whose examination is also not required for any purpose. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
260. :- Similar is the case with witnesses 14 and 18 to 20.
341. The learned Public Prosecutor, Thrissur is cited as witness 22. The purpose for which he was cited is to prove that he had not provided any advice to the police prior to the filing of the final report. The learned Judicial First Class Magistrate, Wadakkanchery, was cited as witness 23 for proving that the accused was remanded by her. No purpose would be served on account of their examination. Similar is the case with witnesses 24 and 25 also. Witnesses 26 to 33 are the Editors and Reporters of the prominent Malayalam news dailies. The purpose for which they were cited, clearly reveal that the intention was to cause mere vexation and delay.
342. Witnesses 34 and 35 are the editor and reporter of a magazine named "Pachakkuthira", who was also cited for no valid purpose at all. Late Sukumar Azhikode, who was a prominent writer and orator, along with four other persons who are social workers are cited to prove that they had felicitated D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
261. :- PW4 `for not pulling the alarm chain to stop the train'. Sri. K. Radhakrishnan, MLA and Sri. K.P. Rajendran, Minister were also cited, for no valid purpose at all. Four persons were cited to prove that the police had not questioned them after the incident. Witness No.50 is cited to prove that he got down at Vallathol Nagar on the date of incident and went to his house through the road in front of Kalamandalam. Name of a person without a proper address in it was cited as witness 51 to prove that the accused was present along with him at Coimbatore on 1.2.2011.
343. It is evident that all the aforesaid persons cited by the learned counsel for the accused, who were not examined, are cited just for causing vexation and delay and also for mere publicity. We do not find any merit in the argument forwarded by the learned counsel for the accused that no opportunity was given to the accused by the court below for adducing defence evidence. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
262. :- 344. The learned counsel for the accused has forwarded a strange argument that the sperm of the accused was taken by the police with the assistance of PW47 and the same was made use of, for cooking up evidence against the accused. Can such an argument be believed even for a moment? Can it be believed that the sperm of the accused was obtained and was poured on MO1 or into the vagina of the deceased who was in a vegetable state lying connected to a ventilator in the ICU of the Medical College Hospital, Thrissur? The said argument deserves only to be discarded.
345. From the evidences discussed above, it has come out that the prosecution has succeeded to establish the following circumstances cogently and evidently. (1) The deceased, aged 23, hailing from Shornur, who is the elder sister of PW6 and the only daughter of PW18, was working as Merchandiser at M/s Homestyle Interiors (Pvt.) Ltd. functioning in Oberon Mall, Edappally, Ernakulam, and was eking D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
263. :- her livelihood and that of her family out of her salary of 6,000/- per month. (2) The deceased was provided with residential accommodation in a flat at 'S.I. Apartments', Alinchuvadu by M/s Homestyle Interiors and she was staying there along with PW16 who is the H.R.Manager of that Company. (3) PW76, who is an young man aged 24 years, working at M/s 'Car & Port' at Ernakulam, got acquainted with the deceased through his friends who are the co-workers of the deceased and he proposed to marry her, to which, both the families have concurred. (4) A ceremony for fixing the betrothal was scheduled to be conducted at the house of the deceased at Shornur and PW76 along with his family members were intended to visit the house of the deceased for the same on 2.2.2011. (5) As the presence of the deceased was required for the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
264. :- same, PW6 and PW18 called upon her to come by No.56608 Ernakulam - Shornur Passenger Train, as usual. (6) PW6, who is working as a driver in a house at Thrissur, had reached Ernakulam by noon on 1.2.2011, in connection with his job and he had visited the deceased at the Company by about 2.30 p.m., and even though the deceased had expressed her desire to go along with him to Shornur, he could not oblige as the family members of his employer were in the car, and thereby he told her to come by the evening train. (7) PW16 lastly saw the deceased alive at 5 p.m. on 1.2.2011 and that the deceased obtained permission of PW16 to proceed to her house by Ernakulam - Shornur Passenger Train, in connection with her betrothal function, and thereafter she could see the deceased at the I.C.U. of the Medical College Hospital, Thrissur, next day. (8) M/s Homestyle Interiors have prescribed dress code D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
265. :- for their employees, as cream coloured sleeve shirt, black pants, black shoe etc. and female employees have to clip their hair and put hair net on it. (9) The deceased was using MO14 mobile phone and the phone number was 8089783489, which connection was taken in the name of PW6. (10) The deceased used to get down at Shornur and from where, PW36, who is one of her neighbours and the friend of PW6, used to take her to her house by his autorickshaw. (11) Usually, the deceased used to travel by the ladies compartment and on 1.2.2011 by 5.30 p.m. she boarded the last compartment of the Ernakulam - Shornur Passenger Train having No.56608, a portion of which is meant for ladies, from the Ernakulam Town North Railway Station, after purchasing Ext.P25 ticket. (12) The last but one compartment is exclusively a ladies D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
266. :- compartment and the compartment attached in front of that ladies compartment was a general compartment. (13) The last compartment was divided into four divisions; the last division is the luggage room, the next to it, in front, is the division meant for ladies coach, then, next to it in front, is the guard room and the next division in front is the luggage and chest room. (14) PW3 Rejula, a Muslim lady aged 36, along with her mother, her daughter and her one year old granddaughter, was also travelling along with the deceased by the ladies division in the last compartment, up to Mulloorkara. (15) By about 7 p.m. at 1.2.2011, PW6 had called the deceased over phone and then she told him that the train was about to leave Thrissur, and that there was a family also in the train. (16) After getting into the train on 1.2.2011, the deceased D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
267. :- had called PW18 and told her that she had got into the train and after some time the deceased gave her a missed-call and thereby she called back and talked for some time. (17) When the train was about to reach Mulloorkara, the deceased had called PW18 and told her that she would call again when the train would reach near Shornur. (18) On 1.2.2011 the deceased had contacted PW76 over phone and informed him that she would be going to her house by the Ernakulam - Shornur Passenger Train at 5.30 p.m., and that they had contacted each other over phone 6 - 7 times during her journey in the train, and that lastly it was at about 8.30 p.m. she had called him over phone and informed him that the train had reached Vallathol Nagar Railway Station and further told him that after 10 minutes the train would reach Shornur and that she would call him, on reaching her house, as the charge of her mobile phone was about to run out. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
268. :- (19) When the train reached Thrissur, most of the passengers in the compartment in which the deceased was travelling, got down and another lady who was travelling by the said compartment also got down at Wadakkanchery, thereby the remaining passengers were the deceased, PW3 and the aforesaid family members of PW3 only. (20) PW3 got down at Wadakkanchery Railway Station and purchased milk from the milma booth and again got into the compartment, and at that time, she could notice the accused dressed in MO5 lungi and MO6 shirt, who was standing outside the compartment and peeping through the window into the compartment, staring at her with a hungry look, thereby she complained about it to her mother. (21) When they reached Mulloorkara, PW3 and her family members also got down, and that the deceased became alone in the said portion of the last compartment, thereby she also got down there and hurriedly got into the ladies compartment D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
269. :- attached in front of it, which could be noted down by PW34, as usually ladies would not get down there, as there was no platform. (22) PW4 was travelling by the general compartment attached in front of the aforesaid ladies compartment in which the deceased got into from Mulloorkara and he was standing with his bag at the left rear door of that general compartment, as he was eager to catch the West Cost Express Train for going to Kozhikode from the Shornur Railway Station, as the said Passenger Train by which he was travelling was lying idle for some time at Vallathol Nagar Railway Station, and that he was afraid that the other train might go. (23) At that time, the accused came from his back, tapped on his shoulder and asked for space to move, and then the accused got down by murmuring some thing and was seen going towards the rear side of the train as if he was searching for some thing in the ladies compartment and was peeping into D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
270. :- the ladies compartment. (24) Again the accused came back and got into the general compartment through the middle door and then PW4 could realise that the left palm of the accused was amputated at the wrist. (25) The train moved from Vallathol Nagar Railway Station and proceeded in a slow pace and then PW4, PW40 and others in the General compartment could hear the cries of a lady from the ladies compartment attached behind it. (26) A middle aged man, who was standing at the rear side of that general compartment, told PW4 and others that a girl had jumped through the right door of that ladies compartment and she had escaped. (27) The demand of PW4 to pull the alarm chain to stop the train was dissuaded and resisted by that middle aged man by saying that PW4 would be going to disturb other passengers D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
271. :- and also by requesting that they should not be dragged to court unnecessarily. (28) PW4 and PW40 were worried about the cry of the woman heard from the ladies compartment attached behind their compartment and they could see the accused coming to the lower step of the front left door of that ladies compartment from inside, and by standing there by holding on the side bar of the compartment with his right hand and by leaning forward, the accused prepared himself for a safe landing on the ground and thereafter jumped out, landed safely on the ground on his feet and right palm, and then sprang up and swiftly walked towards the rear side. (29) By about 8.30 p.m. on 1.2.2011, PW38 and her neighbour PW39 who were residing just 20 mtrs. away from the railway track and around 100 mtrs. away towards north from the railway platform of the Vallathol Nagar Railway Station, heard a frantic cry of a female from the rear portion of the Ernakulam - D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
272. :- Shornur Passenger Train, which passed through the railway track towards Shornur. (30) PW34 was the guard of the Ernakulam - Shornur Passenger Train on that day and when the train reached at platform No.3 of the Shornur Railway Station at 20.45 hours, 35 minutes ahead of the scheduled arrival time, PW4 and PW40 rushed to PW34 and complained about the cry of a girl from the said ladies compartment and further told him that the girl jumped out of that coach to the right side and after some time a man jumped out of that coach to the left side. (31) PW34 took PW4 and PW40 to the RPF Station at the Railway platform and informed the matter there and the two policemen attached to the RPF who were present there contacted the local police over phone and informed the matter. (32) PW34 directly called PW42 Station Master of the Vallathol Nagar Railway Station over phone and informed him D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
273. :- also and PW42 replied that he would sent somebody to verify it. (33) PW34 noted down the phone number of PW4 and PW40 and then went to the Station room and furnished Ext.P30 written message regarding the incident to the Station Master on duty. (34) PW4 and PW40 exchanged their phone numbers also for future contact, if any required. (35) The said train arrived at Vallathol Nagar Railway Station at 8.27 p.m. and departed to Shornur at 8.33 p.m. (36) PW42, on getting the information through PW34, called PW19 Gang-man who was on off duty, as there were no other persons who could be engaged for the same, and asked him to verify by conducting search. (37) PW19 arrived there within a short time and called some young men from the neighbouring houses and went for a search. Even though they searched for a distance of more than D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
274. :- one kilometre, they could not see anything. (38) At about that time, PW46 Assistant Sub Inspector of Police, Cheruthuruthy also came to the Railway Station, and searched, and they also could not find anything and thereby they returned. (39) PW42, on getting information that a young man who had participated in the search had occasion to see a one handed man at the road side near the Station, PW42 requested them to search the railway track once again and thereby they along with PW19 went for another search in two batches. (40) PW69, while he was on his way to the shop of PW72, situated at the opposite side of Kalamandalam bus stop at 9.45 p.m. on 1.2.2011 by lighting a torch, caught his eye on the deceased who was lying at the railway track in such a way that her head was on the aggregates on the western side and her legs were on the ground. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
275. :- (41) The parts of the body of the deceased below her waist were nude except the socks that were present on her feet, and MO1 shirt worn by the deceased was unbuttoned and was seen lifted and rolled up thereby her breasts were exposed. (42) By that time PW5 and PW48 also came over there and they also saw the deceased in such a condition. (43) They passed on the information to others and also to the police station. (44) PW19, PW33, PW52 and many others came over there and saw the deceased. (45) Blood was all over there on the face of the deceased and blood was oozing out from the injuries on her face and head. (46) Her left leg was in a folded position and she was seen moving her right leg and right hand and she produced a slight groan. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
276. :- (47) She was breathing with difficulty and by producing a peculiar sound due to obstruction in the air way. (48) MO8 black pants in which MO21 underwear was also seen, were lying near the body of the deceased, as if the same were forcibly removed together, and the other articles of the deceased were seen lying scattered near to it. (49) The place where the deceased was lying was on the side of the railway track and that the Thrissur - Shornur State High way is situated about 10 mtrs. away from that place and also 10 mtrs. above from the railway track and that there were thick bushes in between the road and the railway track there, so that nobody at the road could see the deceased lying at that spot. (50) PW33 brought cloth from the house of PW52 and put it over the deceased. (51) PW19 lifted and took up the deceased to the road D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
277. :- along with CW43 and others there. On that day, in the evening there had occurred an explosion at a place called Thrangali near Shornur, at a place where crackers and fire works being manufactured and thereby the then Revenue Minister Sri.K.P. Rajendran was proceeding to that place, along with pilot jeep of PW24, Additional Sub Inspector of Police, Anthicadu. (52) When they reached that portion of the road to which the deceased was taken at about 10 p.m. the men who were there waived hands and stopped the police jeep. (53) The deceased was taken into the police jeep and PW19 along with CW43 also got in. (54) The deceased was taken to the Government Hospital, Wadakkanchery. (55) The deceased was unconscious and was in a critical state. (56) PW62, Junior Medical Consultant at Taluk Hospital, D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
278. :- Wadakkanchery who attended the deceased, immediately referred her to the Medical College Hospital, Thrissur for Neuro Surgical management. (57) The deceased was taken to the casualty of the Medical College Hospital, Thrissur by the said police jeep. (58) On 1.2.2011 at about 9.30 p.m. the young men who participated in the search of the railway track as aforesaid, were standing in front of the provision shop of PW75 situated in front of Kalamandalam after parking their autorickshaw in front of his shop, and at that time by seeing that autorickshaw, the accused who was dressed in MO5 lungi and MO6 shirt which were seen soiled, approached PW75 and asked him whether the autorickshaw would go to Thrissur. (59) PW45, an autorickshaw driver, who is the younger brother of PW33 also came there on getting information regarding the fall of a person from the train. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
279. :- (60) The accused dressed in MO5 lungi and MO6 shirt which were seen soiled, approached PW45 and asked him whether the autorickshaw would go on hire to Shornur and PW45 replied that he came in search of a person who had allegedly fallen from the train and therefore, he would not go for a drive. (61) On hearing it, the accused became perplexed and there occurred a change of expression on the face of the accused and immediately the accused cut across the road and went towards the bus stop. (62) When PW45 saw the accused as aforesaid, the upper portion of the shirt of the accused remained open without buttons in two, three button holes. (63) By that time, PW33 and his friends also came over there by an autorickshaw and asked PW45 as to whether he could see a person who had fallen down from the train. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
280. :- (64) Then PW45 told them by pointing towards the accused that he had suspicion as to whether it was the accused who had fallen down, and thereby they questioned the accused and thereafter let him go, by thinking that the accused was a person engaged in begging in trains. (65) When PW45 and PW33 saw the accused as aforesaid, the accused was seen panting. (66) PW5, PW19, PW33, PW48, PW52 and PW69 and others who saw the deceased lying at the spot, could immediately realise that the deceased was subjected to rape by somebody. (67) Till 8.30 p.m. on 1.2.2011, PW6, PW18 and PW76 could contact the deceased over her mobile phone, and thereafter her mobile phone became switched off. (68) PW36 who had reached the Shornur Railway Station with his autorickshaw for picking up the deceased for taking her D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
281. :- to her house, could not find her among the passengers came by that passenger train at Shornur and thereby he informed the matter over the phone to PW18. (69) PW36 searched for the deceased among the passengers who reached Shornur by the 10.30 p.m. train also, and as she could not be traced out, he informed the matter to PW18. (70) PW36 went to the house of PW18, collected her along with one of their neighbours, came back to the Railway Station, and then complained to the Station Master, who in turn, told them that a girl had fallen down from the train and that she was taken to the hospital. (71) The matter was informed to PW6 also, and he went to the Medical College Hospital, Thrissur, where she could see the deceased who was being examined by doctors, and from where he came to know that the deceased was subjected to rape. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
282. :- (72) PW6 furnished Ext.P8 First Information Statement before PW46, on the basis of which PW46 registered the crime through Ext.P40 F.I.R. (73) PW81 started the investigation, traced out MO14 from Wayanad and traced out PW7, who purchased it on 2.2.2011 in the morning around 10 a.m., from the accused at Palakkad. (74) The call details from the mobile number of the deceased through MO14 till 8.30 p.m. from 8.22 p.m. on 1.2.2011 show that the said mobile phone was working within the limits of the towers coming under the Vallathol Nagar Railway Station limits, and it was under the Puthupperiyaram tower near Palakkad Railway Station just after midnight. (75) PW63 Railway Dy.S.P, Palakkad took the accused who was dressed in MO5 lungi and blood stained MO6 shirt, in to custody, in front of the bus stop situated in front of the Palakkad Town Railway Station at 11 p.m. on 2.2.2011, and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
283. :- produced him before PW81. (76) All the witnesses who had occasion to see the accused on 1.2.2011, and also PW7 who purchased MO14 from the accused in the morning of 2.2.2011, have identified the accused, when shown to them after his taking into custody. (77) The death of the deceased is proved to be homicidal, and that she was subjected to rape. (78) The injuries found on the head and face of the deceased were fatal and also were sufficient in the ordinary course of nature to cause death. (79) All such injuries were intentionally inflicted. (80) MO1 cream shirt worn by the deceased which was found on her body in a lifted and rolled up state, contained the semen and spermatozoa of the accused. (81) The nail clippings of the deceased taken from her hands contained the blood and epithelial cells of the accused. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
284. :- (82) The nail marks found on the body of the accused during the examination by PW47 are proved to be defensive wounds inflicted by the deceased. (83) MO6 shirt worn by the accused contained the blood of the deceased. (84) The vaginal swab and smear collected from the deceased contained the human semen and spermatozoa of the accused. (85) By about 8 - 8.30 a.m., on the next day to the date of incident, the accused was found in possession of MO14 mobile phone of the deceased. (86) The accused attempted to sell away MO14, and ultimately he could sell it to PW7 at Palakkad. (87) PW7 sold MO14 to PW10, from whom it was seized by the police. (88) MO30 button got detached from MO6 shirt worn by D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
285. :- the accused was seized from the floor, near the door of the ladies compartment, wherein the incident had occurred, along with the broken pieces of the hair clip and some other articles of the deceased. (89) At the time when the accused was examined by PW47 doctor, the accused made an extra-judicial confession that he had attacked the girl, dropped her from the train and then went and committed rape on her. (90) The said extra-judicial confession was made voluntarily when asked about the cause of injuries found on the body of the accused and at that time no police personnel was present in the room wherein such extra-judicial confession was made by the accused. (91) When all the incriminating circumstances made out by the prosecution as against the accused, were put to him by the court below when examined under Section 313 Cr.P.C., the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
286. :- accused gave the answer, "incorrect", and has not cared to offer any explanation at all.
346. We have noticed the manner in which most of the witnesses were subjected to cross examination by the learned counsel for the accused. It seems that most of the witnesses were subjected to lengthy cross examination for several days, and most of such cross examination are not relating to anything connected with the matters in controversy in the case. It seems that, to PW47 Assistant Professor and Police Surgeon of the Medical College Hospital, Thrissur who had examined the accused, at 12 noon on 4.2.2011, unnecessary details regarding masturbation and sexual intercourse are seen asked.
347. In cross examination, PW76 was asked whether the deceased had retired from her works at Ernakulam and had started to her place by escaping from a sex racket in which Pramod and Rafiqueth were there. The said Pramod is none other than the elder brother of PW76. It was suggested to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
287. :- PW76 that he had wished to have sexual intercourse with the deceased even prior to the marriage. It was suggested that as the deceased had not agreed to have such physical contacts, and as such physical contacts were not possible, the deceased had talked in angry mood to him on 1.2.2011. All such suggestions were denied by him. It was further suggested to PW76 that when he had called the deceased at 8.30 p.m., the phone was picked up by Pramod and Joy and they were in an angry mood towards him. He denied it. Then it was further suggested that while talking so, the brother of PW76 had told him that he had sexual intercourse with the deceased.
348. When we enquired the learned counsel for the accused whether he had any written instructions from the accused to put such questions, the learned counsel for the accused got furious and replied that he was not ready to reveal the 'professional communications' between him and the accused. We fail to understand that these are professional D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
288. :- communications. Can a lawyer put such questions to a prosecution witness who had nothing to do with the incident? 349. It seems that PW81 was subjected to cross examination for six full days. He was asked whether he came to know that the deceased had love affair with a person named Mohammed Jafry. The witness denied it. When he was asked whether Rafiqueth, Joy and Pramod were friends of the deceased, he answered that he came to know that the deceased knew Pramod and Rafiqueth.
350. When PW82 was cross examined, he was asked whether he had enquired about the sexual intercourse between the deceased and Pramod prior to the train reaching Vallathol Nagar Railway Station. The witness denied it and stated that no such incident had occurred. Then he was asked whether a gum like matter was seen beneath MO21 shuddy worn by the deceased and some white matter was seen on it, and that was liquid containing semen of Pramod. The witness denied it. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
289. :- 351. Again he was asked whether he had enquired about the getting down of the deceased and Pramod at the Vallathol Nagar Railway Station on 1.2.2011 and their walking towards the cabin and their quarrelling each other, there. The witness answered that no such incident had occurred. Again, it was suggested that during such quarrel, Pramod had snatched away the mobile phone of the deceased and took out its Sim card and threw it away. The witness answered that no such incident had occurred. Then it was suggested to PW82 that Joy had attempted to commit rape on the deceased at that place after removing the shoes, pants and shuddy of the deceased and at that time, the deceased had thrown her umbrella towards Joy and then ran through the railway track by crying aloud seeking help. The witness answered that no such incident had occurred.
352. PW82 was asked whether he had obtained the custody of the accused on 7.2.2011 for collecting semen from D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
290. :- him. The witness denied the said suggestion also.
353. Even when dealing with the evidence of PW36 autorickshaw driver who had gone to the Shornur Railway Station at the instruction of PW18 for picking up and bringing the deceased to her house, the learned counsel for the accused made a remark before us that PW36 was as good as the husband of the deceased. We had to warn the learned counsel for the accused to desist from making such unfounded statements.
354. In State of A.P. v. Gangula Satya Murthy [(1997) 1 SCC272, it was held, "We express our strong disapproval of the approach of the High Court and its casting a stigma on the character of the deceased prosecutrix. Even if the Court formed an opinion, from the absence of hymen, that the victim had sexual intercourse prior to the time when she was subjected to rape by the appellant, she had every right to refuse to submit herself to sexual intercourse by the appellant, as D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
291. :- she certainly was not a vulnerable object or prey for being sexually assaulted by anyone and this position becomes all the more clear from the contents of the letter written by the deceased to the accused deprecating the idea of a married man enjoying another woman by terming it an act of grave sin." "The Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must be emphasized that the Courts must deal with rape cases in particular with utmost sensitivity and D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
292. :- appreciate the evidence in the totality of the background of the entire case and not in isolation." 355. A three Judges Bench of the Apex Court in Delhi Domestic Working Women's Forum v. Union of India and others [(1995) 1 SCC14 held, "It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern. Rape does indeed pose a series of problems for the criminal justice system. There are cries for harshest penalties, but often times such crimes eclipse the real plight of the victim. Rape is an experience which shakes the foundations of the lives of the victims. For many, its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour and values and generating endless fear. In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings." "The defects in the present system are: Firstly, complaints are handled roughly and are not given such D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
293. :- attention as is warranted. The victims, more often than not, are humiliated by the police. The victims have invariable found rape trials a traumatic experience. The experience of giving evidence in court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the rape itself. Undoubtedly, the court proceedings added to and prolonged the psychological stress they had to suffer as a result of the rape itself." 356. In Deb Narayan Halder v. Smt. Anushree Halder [(2003) 11 SCC303, it was held, "Without there being any basis in the pleadings, or even in the evidence examined by the applicant, the learned Magistrate should not have permitted such a question to be put to the witness, particularly when it reflected not only on the character of the appellant but also on another lady who was not a party to the proceedings. In our view, the learned Magistrate was remiss in permitting such a question to be put to the witness and in recording the answer given by the witness. He should not have permitted such matters to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
294. :- go on record. This, however, discloses the attitude of the respondent and the extent to which she could go to malign the appellant and tarnish his image." 357. In State of U.P. v. Raghubir Singh [(1997) 3 SCC775, it was held as follows:- "Now the question is - should the court have allowed defence witness to make such imputations on the moral character of her mother in a case where the fact in issue was whether the accused have kidnapped and murdered her son? Section 140 of the Evidence Act permits that "witnesses to character may be cross examined and re-examined". Section 155 of the Act permits the adverse party to impeach the credit of a witness in the modes enumerated in the section. the first mode envisaged is by adducing evidence of persons who testify that they believe the witness to be unworthy of credit. Questions to elicit indecent or scandalous imputations from witnesses in the guise to shake the credit of another witness or party should not have been permitted. Section 151 of the Act saddles every trial court with the power to forbid such questions D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
295. :- "although such questions or inquires may have some bearing on the questions before the Court unless they relate to facts in issue." (The second and third modes envisaged in Section 155 are not relevant in this context.) The 4th mode prescribed in the section applies to a limited class of cases. It is: "when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character." In an early decision of the Patna High Court in Mohd. Mian v. Emperor [(1919) 20 Cri.L.J.566 (Pat)], it was pointed out that if inquiries involving any scandalous matters are made with a purpose of shaking the credit of a witness "the court has complete dominion over them and may forbid such questions even though they may have some bearing on the question before the court." But the court may have no discretion to forbid such questions, if they relate to the facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed. A Division Bench of the Calcutta High Court in Subala Dasi v. Indra Kumar Hazzya (AIR1923Cal D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
296. :- 315), had to consider the objection raised by the opposite side when a question was put to the defendant during examination whether the defendant was made pregnant by a certain person. The counsel who put the question defended it on the premise that it was relevant as his client had a case that defendant did not inherit the property by reason of her unchastity during the lifetime of her husband. The Division Bench pointed out that if the fact in issue was whether the defendant was disentitled to inherit the property by reason of her unchastity then the question would be relevant. "If, however, it was asked for impeaching her credit as a witness", the court will have to consider its powers to forbid such questions." If the fact in issue was concerning the paternity of the child Ashok, perhaps, some relevance to the moral life of his mother could have been assumed. But in this murder case where the mother of the child gave evidence that her son was murdered we find little scope for conducting any inquiry into the moral life of the mother. Law does not permit even the child of a prostitute to be murdered. The murderer in such a case D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
297. :- cannot escape by establishing that the mother of the child was of loose morals. We, therefore, deprecate evidence of DW1 as quite unnecessary and irrelevant in this case." 358. We do not understand as to why the court below had permitted the learned counsel for the accused to put such questions containing defamatory and scandalous remarks about the deceased as well as many other persons who had not even any connection with the incident in this case. The learned Special Public Prosecutor has explained that the learned counsel for the accused had quarrelled with the court below when the court below had attempted to restrict such questions. Can the right to cross examine a witness be extended to such limits in putting such scandalous questions without any basis? Under the guise of cross examination, can a lawyer be permitted to put such questions containing defamatory and scandalous matters against the deceased as well as other innocent persons who had no connection with the incident? We are of the view D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
298. :- that the ordeal of the deceased continued even after her death, in the form of such cross examination, by falsely imputing allegations of immorality. Character assassination have been done by way of such cross examination as against the innocent victim as well as other innocent persons.
359. Section 148 of the Indian Evidence Act, 1872 states:- "Court to decide when question shall be asked and when witness compelled to answer:- If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:- (1) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies; D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
299. :- (2) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies; (3) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence; (4) the Court may, if it sees fit, draw, from the witness's refusal to answer, the inference that the answer if given would be unfavourable." 360. As per Section 149 of the Indian Evidence Act, "Question not to be asked without reasonable grounds:- No such question as is referred to in Section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded." The following illustrations are given to Section 149:- "(a) A barrister is instructed by an attorney or D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
300. :- vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait. (b) A pleader is informed by a person in Court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait. (c) A witness, of whom nothing whatever is known, is asked at random whether he is a dakait. There are here no reasonable grounds for the question. (d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dakait." 361. As per Section 150 of the Indian Evidence Act, "Procedure of Court in case of question being asked without reasonable grounds:- If the Court is of opinion that any such question was asked without D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
301. :- reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister pleader, vakil or attorney is the subject in the exercise of his profession." 362. As per Section 151 of the Indian Evidence Act, "Indecent and scandalous questions:- The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed." 363. As per Section 152 of the Indian Evidence Act, "Questions intended to insult or annoy:- The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form." D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
302. :- 364. We are satisfied that the aforesaid questions were put to those witnesses not for impeaching the credit of such witnesses under Section 155 of the Indian Evidence Act. Those questions were indecent and scandalous questions which were not expected from a lawyer who is supposed to be an officer of the Court who has to assist the Court to trace out the truth.
365. In the interest of justice, we are constrained to bring the aforesaid aspects to the notice of the Bar Council of Kerala and the Bar Council of India, under Section 150 of the Indian Evidence Act, 1872.
366. In Kusuma Ankama Rao v. State of A.P. [(2008)13 SCC257, it was held, "The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1)the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
303. :- `may be' established; (2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3)The circumstances should be of conclusive nature and tendency; (4)They should exclude every other hypothesis except the one to be proved; and (5)There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused an must show that in all human probability the act must have been done by the accused." 367. These very same principles were enunciated in Paragraph 153 of the decision in Sharad Birdhichand Sarda v. State of Maharashtra(1984 SCC (Cri) 487 = AIR1984SC1622.
368. In the decision in Vithal Tukaram More and others, v. State of Maharashtra [(2002) 7 SCC20, it has been held as D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
304. :- follows: - "The essential ingredients to prove the guilt of an accused by circumstantial evidence are:- a) the circumstances from which the conclusion is drawn should be fully proved; b) the circumstances should be conclusive in nature; c) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; d) the circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused." 369. It is trite law that in a case based on circumstantial evidence, in order to prove the guilt of the accused, all such incriminating facts and circumstances should be incompatible with the innocence of the accused or the guilt of any other person. It is also the cardinal principle that suspicion however strong it be, will not take the place of proof.
370. In Aftab Ahmad Anasari v. State of Uttaranchal D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
305. :- [(2010) 2 SCC583, it was held in Paragraph 57, "The cumulative effect of the above mentioned facts taken together is conclusive in establishing the guilt of the appellant. The chain of circumstantial evidence is complete and does not leave any reasonable ground for conclusion consistent with the innocence of the appellant. The chain of circumstances is such as to show that within all human probability the rape and murder of the deceased were committed by the appellant and none else and he had also caused disappearance of evidence of those offences." 371. It seems that all the incriminating circumstances appeared in the prosecution evidence as against the accused were put to the accused, by the court below when examined under Section 313 of the Code of Criminal Procedure. However, to all such questions, the accused gave the answer as "incorrect". Apart from giving the answer as "incorrect", the accused has not cared to give any explanation at all.
372. In Neel Kumar v. State of Haryana [(2012) 5 SCC D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
306. :- 766] it was observed, "It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him." 373. In Ravirala Laxmaiah v. State of Andhra Pradesh [(2013) 9 SCC283, the Apex Court, by following the decision in State of Tamil Nadu v. Rajendran [(1999) 8 SCC679, it was held, "When an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete".
374. In Rumi Bora Dutta v. State of Assam [(2013) 7 D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
307. :- SCC417, by relying on the decision in State of Maharashtra v. Suresh [(2000) 1 SCC471, it was held, "A false answer offered by the accused when his attention is drawn to the circumstances, it renders the circumstances to be of inculpating nature. In such a situation a false answer can also be counted as providing 'a missing link'." 375. In Aftab Ahmad Anasari v. State of Uttaranchal [(2010) 2 SCC583 it was held: "While recording the statement of the appellant under Section 313 of the Code, it was put to him by the learned Judge that during the course of investigation his blood stained underwear was seized by the Police and his explanation was sought. In answer to the said question, it was never claimed by the appellant that the underwear seized was not bloodstained and that another underwear was substituted in place of his underwear which was seized. Thus, this Court finds that the High Court was not justified at all in ignoring the circumstance sought to be relied upon by the prosecution that bloodstained D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
308. :- underwear of the appellant was recovered during the course of investigation." 376. In Vasa Chandrasekhar Rao v. Ponna Satyanarayana (2000 SCC (Cri) 1104) and Geetha v. State of Karnataka (2000 SCC(Cri)1208) while explaining the law relating to circumstantial evidence has ruled that where circumstances proved are put to the accused through his examination under Section 313 of the Code and the accused merely denies the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused.
377. In Ganesh Lal v. State of Rajasthan [(2002) 1 SCC731, it was held as follows:- "In State of Maharashtra v. Suresh [(2000) 1 SCC471 a female child of tender years was raped and murdered. Case against the accused rested on circumstantial evidence. The accused when arrested was found to have injuries on his person and blood D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
309. :- and semen on the underclothes. There were several other incriminating circumstances pointing to the guilt of the accused and this one, mentioned just before, termed by this Court in its judgment as "most formidable incriminating circumstance" was put to the accused but he could not give any explanation whats over and instead chose to deny the existence thereof. This Court held that a false answer offered by the accused on his attention being drawn to such circumstance renders the circumstance capable of inculpating him. The Court went on to say that in a situation like this such a false answer can also be counted as providing "a missing link: for completing the chain of circumstantial evidence." 378. From the decisions of the Apex Court noted above, it is trite that the absence of any explanation by the accused, to the questions on such incriminating circumstances appeared in the prosecution evidence as against the accused, which were specifically put to the accused when examined under Section 313 of the Code of Criminal Procedure, clearly fill up any D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
310. :- 'missing link' or act as 'additional links' in the chain of circumstances.
379. The learned counsel for the accused has relied on the following decisions of the Hon'ble Supreme Court.
1. Thammu Rao & anr. v. State of A.P.(2013(5,6 & 7) SBR314 2. Sudhakar v. State of Maharashtra(2013(1 & 2) SBR150 3. Rampal v. State of UP(2013(1) Crimes 407.
4. Gudu Ram v. State of HP(2013(1) Crimes 364).
5. Ankush S. Gaiwad v. State of Maharashtra (2013(2)BCR(Cri) 830).
6. Rishipal v. State of Uttarakhand(2013(1) Crimes 162).
7. Sangeet & anr. v. State of Haryana(2013)(1) Crimes 25).
8. Mohinder Singh v. State of Punjab(2013 (1) Crimes 184), 9. Sankar Khade v.State of Maharashtra (2013 (3) BCR (Cri)72). D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
311. :- 10. Baliya @ Balkishan v. State of MP(2013 (1&2) SBR138 and 11. Sunil Kundu & anr. v. State of Jharkhand (2013 (2) Crimes 220 SC).
380. The learned counsel for the accused has relied on the following decisions of various High Courts, such as, 1. Ishwar P. Masram v. State of Maharashtra(2013(3) BCR(Cri) 619).
2. Rabi Majhi v. State of Orissa (2013(1) Acquittal 5) 3. Anton L.P.Fernandez v. State of Maharashtra (2013(1) Acquittal 262).
4. Ravikumar @ Sonu & anr. v. State of Delhi( (2013(2) Acquittal 244).
5. Vinod V. Mahadik v. State of Maharashtra(2013(2) BCR (Cri)447.
6. Waman Laxman Mirka v. State of Maharashtra(2013(2) BCR (Cri)478.
7. Rahul H. Kamble v. State of Maharashtra(2013 (1) D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
312. :- Crimes 516). 8.Alka G. Dhanawade v. State of Maharashtra(2013 (4) ABR121.
9. Sukuria Naik v. State of Orissa(2013(2) Crimes 161.
10. Namdeo Bapurao Gund v. State of Maharashtra (2013(2)BCR (Cri)655.
11. Champak Balu Patel v. State of Maharashtra(2013 (2) BCR (Cri)391.
12. Sudheer Babu v. State of Kerala (2013 (2) Acquittal 231).
13. State of Bihar v. Nagendra Rai & anr.(2013(1) Acquittal 652. 14.State of Maharashtra & anr. v. Prakash V.S. & anr.(2013 (2) BCR (Cri)396).
15. State of Bihar v. Chandra Bhushan Singh & ors. (2013(1) Acquittal 285).
16. Jai Kumar v. State of Chattisgarh (2013 (1) Acquittal 400). D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
313. :- 17. Tati Mala v. State of MP(2013 (1) Acquittal 434).
18. Janmajaya Bhoi v. State of Orissa(2013 (1) Acquittal 40).
19. Munna Rai v. State of Jharkhand(2013 (1) Acquittal 63).
20. Babuji Yedla v. State of Maharashtra(2013 (2) BCR (Cri) 157).
21. Mahanand Naik v. State of Goa(2013 (3) BCR(Cri)337).
22. Kalu Shekhawat v. State of Maharashtra(2013 (1) BCR(Cri) 227).
23. Faqira & ors. v. State of UP(2013 (1) Acquittal 696).
24. Chendyala Suresh v. State of AP(2013 (1) Crimes 42).
25. Shri Bhagatram v. State of MP(2013 (2) Crimes 710).
26. Kumar @ Thampi etc. v. State of TN(2013 (2) Crimes 339).
27. Champak Patel v. State of Maharashtra(2013 (1) Crimes 499).
28. Ashok Kumar v. State of HP(2013 (1) Crimes 446). D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
314. :- 29. Bamiya @ Sayan v. State of Orissa(2013 (1) Acquittal 271).
30. Ishwarbhai Makwana v. State of Maharashtra(2013 (1) BCR(Cri) 10), and 31. Jiten Bhumaji v. State of Assam(2013 (1) Acquittal 671).
381. Thammu Rao & anr. v. State of A.P (Supra) is a case wherein the deceased was beaten with a stick on the abdomen portion of the deceased by which mesentery vessels became raptured and there occurred infiltration of blood into the abdominal cavity by which the deceased died. In that case the conviction of the accused under Section 304 Part I IPC was converted to conviction under Section 304 Part II IPC. The facts have no similarity to the facts in this case.
382. Sudhakar v. State of Maharashtra (Supra) is a case in which the murder was committed in a sudden heat of passion due to provocation from the part of the deceased and the crime was not due to any premeditated action. The sentence D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
315. :- was converted from S.302 IPC to 304 Part I IPC.
383. Rampal v. State of UP (Supra) is a case wherein there was no intention on the part of the accused to cause the death of the accused. The conviction under Section 302 IPC was altered to one under Section 304 Part I IPC.
384. In Gudu Ram v. State of HP (Supra), it was found that there was no intention on the part of the accused to cause the death of the deceased and thereby conviction was altered from 302 IPC to S.304 Part II IPC. Ankush S. Gaiwad v. State of Maharashtra (Supra) is also a case relating to an incident which took place on sudden fight without premeditation and therefore, the conviction was altered from S.302 IPC to S.304 Part II IPC.
385. Rishipal v. State of Uttarakhand (Supra) is a case in which there was absence of corpus delicti and there was no cogent and satisfactory proof of the victim having met with a D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
316. :- homicidal death. It was held therein that in such cases based on circumstantial evidence, the motive assumes importance.
386. Sangeet & anr. v. State of Haryana (Supra) is a decision to which we have already adverted our attention. It was held therein that on account of the legislative changes, presently life sentence is the rule and death sentence is an exception and that death sentence has to be awarded only in 'rarest of rare cases'.
387. Mohinder Singh v. State of Punjab (Supra) is a decision to which we have already adverted our attention, wherein it was held that in death sentence reference, the High Court has to come to its own independent conclusion as to the guilt or innocence of the accused independently of the opinion of the trial judge. It was also held therein that every murder is brutal; but the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder. We have already dealt with in detail the decision in D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
317. :- Sankar Khade v. State of Maharashtra (Supra). Regarding the decisions in Baliya @ Balkishan v. State of MP (Supra) and Sunil Kundu & anr. v. State of Jharkhand (Supra), we are satisfied that those decisions have no application to the facts and circumstances of this case.
388. We have gone through the other decisions of various High Courts noted above, which are cited by the learned counsel for the accused. We are satisfied that matters in most of those decisions are covered by the decisions of the Apex Court which we have already dealt with and the other decisions are not of any help to resolve any of the matters in controversy in this case.
389. From all the discussions made above, we are satisfied that all the essential ingredients to prove the guilt of the accused by circumstantial evidence are seen proved in this case. All the circumstances from which the conclusion is drawn are fully and cogently established. The circumstances proved D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
318. :- are conclusive in nature. All the facts so established are consistent only with the hypothesis of the guilt and inconsistent with the innocence of the accused. In short, all the proved circumstances are incompatible with the innocence of the accused. The circumstances, to a moral certainty, exclude the possibility of guilt of any person other than the accused.
390. The cumulative effect of the above mentioned facts taken together is conclusive in establishing the guilt of the accused. The chain of circumstantial evidence is complete and does not leave any reasonable ground for conclusion consistent with the innocence of the accused. The chain of circumstances is such as to show that within all human probability the rape and murder of the deceased as well as robbery were committed by the accused and none else.
391. From all the aforesaid circumstances, it stands proved that when the passenger train moved from Vallathol Nagar Railway Station, towards Shornur, the accused gained D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
319. :- entry into the ladies' compartment of the train. He pounced upon the deceased, who was the only passenger in that compartment. Cries of the deceased were heard from the ladies compartment. Evidently, there was strong resistance from the part of the deceased in order to escape from the clutches of the accused. Some of the buttons of MO6 shirt worn by the accused got detached in the scuffle. There occurred several nail marks on the body of the accused. MO30 button of MO6 shirt worn by the deceased got detached and broken into three pieces, which were later recovered from the said ladies compartment, from the floor near the door. Evidently, the accused over powered the deceased and inflicted fatal injuries on her by forcibly hitting her head repeatedly on the wall of the compartment and made her non responsive and almost unconscious.
392. It has to be noted that after dropping down the deceased at the right side, from the running train which was moving in a slow pace, the accused came to the left front door D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
320. :- of that ladies compartment and on getting down to the lower door step, by holding on the side bar of the compartment near the door by his right hand, he took position by leaning forward and jumped out. He landed safely and was seen walking back towards the direction from where the train came. Evidently, he was going towards the deceased.
393. After quite some time, the accused was seen coming to the nearby road at the Kalamandalam bus stop from the railway track, evidently from the place where he had subjected the deceased to rape and robbery. Blood of the deceased was there on MO6 shirt. The accused was seen panting. He became perplexed on hearing from a person that a girl had fallen down from the train and a Tamilian had jumped out of the train. On hearing it, he moved away and escaped from there.
394. Without much delay, the girl was seen lying in almost naked state near to the railway track. Evidently, she was subjected to severe sexual assault and rape. The nail clippings D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
321. :- of the deceased were found containing the blood and tissues of the accused. The vaginal swab and smear of the deceased and MO1 cream shirt of the deceased found on her body in a lifted and rolled up position, contained human semen and spermatozoa of the accused. MO5 lungi worn by the accused at that time also contained his semen and spermatozoa.
395. It is evident that little before the incident of rape the accused was seen near the place of occurrence. A little after the rape, the accused was seen in the near vicinity of the place of occurrence and was seen panting.
396. Injury No.6 found on the body of the deceased as noted by PW64 in Ext.P69 include five nail marks. According to PW64, injury No.1 in Ext.P69 was caused by hitting the left forehead of the deceased with force repeatedly in quick succession on a flat hard surface which could be the wall inside the train, by holding her hair from behind. The explanations offered by PW64 regarding each and every injury found on the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
322. :- body of the deceased, are acceptable. According to PW64, injury Nos.1, 6, 7 and 16 noted in Ext.P69 could only be caused by the assailant with his right hand only. No injury was traced out on the body of the victim which was caused by using both the hands or the left hand of the assailant; whereas, the injuries were caused by the right hand only.
397. According to PW47, who examined the accused and issued Ext.P42 report, the accused has normal muscle power to both his upper limbs and lower limbs. Even though he had amputated forearm, which was amputated 16 c.m. below the elbow, that limb is also having Grade V power. He can lift the hands against the pulled resistance. According to PW47, injury Nos.1 to 18 seen on the accused were consistent with nail marks. Injury No.19 found on the right leg below the knee, injury No.20 found on the upper part of the back of right elbow and injury No.21 on the lateral malleolus of left foot of the accused were due to blunt impact. It has to be noted that the deceased D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
323. :- was subjected to rape by placing her on aggregates as well as on the hard uneven ground.
398. The nail clippings of the deceased contained human blood and epithelial tissues of the accused. From that itself it stands proved that there had occurred a scuffle inside the compartment of the train prior to her dropping out of the train, and the rape. MO30 button which became broken into three pieces and the thread found in one of such pieces were proved to be got detached from MO6 shirt worn by the accused. The same were seized from the said ladies compartment, along with the broken parts of the hair clip and some other materials of the deceased. The same were seized at 4 a.m. on 2.2.2011. The blood of the deceased was found on MO6 shirt worn by the accused. The vaginal swab and smear of the deceased contained the sperm and spermatozoa of the accused. Even MO1 cream shirt which was seen lifted and rolled up on the body of the deceased also contained the sperm of the accused. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
324. :- 399. Over and above all these, by about 8 to 8.30 a.m. on 2.2.2011 the accused was found in possession of MO14 mobile phone of the deceased and he sold the same to PW7. Subsequently, the same was seized by the police from PW10 to whom PW7 had sold it.
400. It stands proved that it was the accused and none else, who caused the fatal injuries on the deceased, and raped her thereby she suffered a homicidal death. It is evident that the accused had caused the death of the deceased with the intention to cause her death. Further all the said injuries intentionally caused by the accused on the body of the deceased were necessarily fatal and also sufficient in the ordinary course of nature to cause death. It stands proved that the accused has committed the offences punishable under sections 302, 376, 394 r/w 397, and 447 of the Indian Penal Code. There is absolutely nothing to interfere with the conviction passed by the court below. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
325. :- 401. The learned Special Public Prosecutor has canvassed for the maximum sentence in this case by pointing out that this is a case which comes within the category of the "rarest of rare cases", as categorised by the Hon'ble Supreme Court of India, in Bachan Singh v. State of Punjab [(1980) 2 SCC684 and Machhi Singh v. State of Punjab [(1983) 3 SCC470, and also through various subsequent judicial pronouncements.
402. The learned counsel for the accused has canvassed for the lesser alternative for the offence u/s 302 I.P.C in this case by arguing that there was no premeditated attempt on the part of the accused to do away with her, and the incident had occurred in the spur of a moment. The learned counsel for the accused has strenuously contended that this case cannot be brought within the purview of the 'rarest of rare cases' and special reasons do not exist for imposing death penalty on the accused within the meaning of Sec.354 (3) Cr.P.C.
403. We do not agree with the argument of the learned D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
326. :- counsel for the accused that the incident had occurred in the spur of a moment. There was no provocation at all from the part of the deceased. Any straight jacket formula cannot be evolved to find out as to what are the cases that can be brought within the category of rarest of rare cases, and it depends upon the facts and circumstances of each case.
404. In Shyam Narain v. State(NCT) of Delhi [(2013) 7 SCC77 it was held:- "Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. the fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
327. :- may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim." 405. In State of Karnataka v. Krishnappa [(2000) 4 SCC75 a Three Judges Bench of the Apex Court held: "Protection of society and deterring the criminal is the avowed object of law and that is required tobe achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
328. :- reflection through imposition of appropriate sentence by the court. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The courts are expected to properly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commission of like offences by others. Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos." 406. In B.A. Umesh v. State of Karnataka [(2011) 3 SCC D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
329. :- 85], it was held, "The antecedents of the appellant and his subsequent conduct indicates that he is a menace to the society and is incapable of rehabilitation. The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on the victim. He did not feel any remorse in regard to his actions, in as much as, within two days of the incident he was caught by the local public while committing an offence of a similar type in the house of one Seeba".
407. PW83 is working as Sub Inspector, Fingerprint Bureau, Chennai 28, Tamil Nadu. On 17.2.2011 she received a requisition from the Fingerprint Bureau of Thiruvananthapuram asking to trace out any previous conviction to the accused. The requisition was attached with the fingerprints of the accused. She compared the fingerprint of the accused with the fingerprints kept in their bureau records and issued Exts.P93, 93 (a) and 93(b) conviction particulars of the accused. Ext.P93(b) D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
330. :- is in her handwriting and she carried over it from the records, which bears her signature and office seal. The same were forwarded through the Head of Department, through proper channel. It contains the seal and signature of the head of the department also. She produced Ext.P93(c) copy of the original, which contains her signature and the signature and seal of the head of the department, which is conversant to her. Exts.P93(b) and 93(c) contain the particulars of conviction of the accused. Altogether eight convictions are recorded in Ext.P93(b) and (c), which reveal the following details:- (1) He is the accused in Crime No.342/07 of Railway Police, Salem u/s 379 IPC, JFCM III Salem. Date of conviction:- 22.4.2008. Sentence:- Imprisonment for Six months. He had undergone the sentence. (2) He is the accused in Crime No.49/05 of Pazhani Railway Police, C.C.No.179 of 2005 of the JFCM Pazhani in Dindugal District. Date of conviction:- 15.12.2005. Sentence:- Imprisonment for eight months D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
331. :- u/s 379 IPC. He had undergone the sentence. Ext.P104 is the document relating to the same. (3) Name of convict is Krishnan @ Raja in Case No.380/03 of Mailam Police Station u/ss.457 and 511 of IPC, CC No.223/03, J.F.C.M II of Dindivanam, Vizhuppuram District. Date of conviction:-13.12.2004. Sentence:- RI for three months. She compared the fingerprint of the accused received from F.P.B. of Thiruvananthapuram and compared with the fingerprint available on record in the above said case records and found that the convict is the same Govindhaswamy, who is the accused in this case. (4) This accused is the accused in C.C.No.301/03 u/s 379 of IPC of the JFCMC II, Erode. Case No.100/2003 of Erode Railway Police. Date of conviction 11-9-2006. Period is RI for 7 months (undergone). Ext.P105 is the document relating to the same. (5) He is the accused in Crime No.97/08 of Railway Police Erode, C.C.338/08 of J.F.C.M.C II, Erode, u/s 379 IPC. Date of conviction:- 21.8.2008. Sentence:- RI for 8 months. Ext.P107 is the attested copy of the proceedings of the J.F.C.M. II, Erode in that case. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
332. :- (6) Ext.P108 contain the copy of the F.I.R against this accused, in Crime No.910/07 of Selaiyur Police u/s 380 IPC, C.C.599/07 J.F.C.M. Thamparam. In that case, the accused gave a false name and address as Ramesh @ Raja, S/o Punnuswamy @ Arumughan, Chekalpatt Dist. St. Thomas Mont. Chenkalpatt East. Date of conviction 21.9.2007. Sentence:- RI for five months. (7) Ext.P109 contain the copy of the F.I.R against this accused, in Crime No.50/07 of Thiruvallur Town Police Station u/s 379 IPC, in C.C.No.49/07 of J.F.C.M. Thiruvallur. In that case, the accused gave a false name as Ramesh @ Raja. Date of conviction:- 16.4.2007. Sentence:- R.I. for three months. (8) Ext.P110 contain the copy of the F.I.R against this accused, in Crime No.6/05 of Kammapuram Police Station, in C.C.10/05 of J.F.C.M. Kadaloor. In that case, the accused gave a false name as Ramesh @ Raja. Date of conviction:- 11.3.2005. Sentence:- RI for 45 days u/ss. 457 and 511 of IPC.
408. During the hearing of these matters, the learned Special Public Prosecutor has produced the attested copy of the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
333. :- judgment dated 26.4.2012 passed by the 1st Additional Assistant Sessions Court-I, Salem in Sessions Case No.176/2010, as against the present accused, for the offences under Sections 392 read with 397 IPC, in Tamil, along with its English translation. The said case relates to an incident, in which the accused attacked the victim in that case with a sharp iron road and committed robbery by snatching away his purse containing an amount of 600/- at 9.15 p.m. on 20.1.2009, at platform No.1 of the Salem Railway Station. The accused ran through the track in between platform numbers 1 and 2. When the victim made a hue and cry, 6 - 7 people tried to catch the accused. But by wielding the weapon, the accused threatened them with death, and finally the policemen who were there along with some members of the public, caught the accused red handed. The accused stands convicted under Section 392 read with 397 IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of 5000/-, in default, to undergo D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
334. :- rigorous imprisonment for three more months.
409. We recall the submissions made by the learned Special Public Prosecutor regarding the conduct of the accused in the Jail, wherein he has been undergoing detention in custody at present. He submitted that the jail authorities are finding it difficult to manage the accused on account of the homosexual attitude of the accused. It is also submitted that he is quarrelsome and often exhibits violent behaviour and used to destroy the properties of the jail and also used to attack other prisoners and even the officials in the jail. It is not possible even to handcuff him as his left palm is amputated. According to the learned Special Public Prosecutor, the accused is a habitual offender who is a bloodthirsty, hardened criminal, beyond any redemption, correction or rehabilitation.
410. The learned Special Public Prosecutor produced the attested copy of the judgment dated 25.2.2013 passed by the Judicial First Class Magistrate's Court-I, Kannur, in D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
335. :- C.C1762012, in which the present accused is the accused. The allegations against the accused in that case were that he abused CW3 and CW5 who were the officials on duty at the 10th block of the Central Jail, Kannur, in filthy language, and prevented them from discharging their official duties by pouring excreta on their body, and also destroyed an observation camera installed in the cell by throwing excreta on it, thereby causing a wrongful loss of 30,000/- to the Government. In that case, the accused pleaded guilty, thereby he stands convicted under Sections 353, 294(b) of IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984 and sentenced to undergo Simple Imprisonment for 10 months under Section 353 of IPC, Simple Imprisonment for 10 months and to pay a fine of 1000/-, in default, to undergo Simple Imprisonment for one more month, under Section 3(1) of the PDPP Act, and Simple Imprisonment for three months under Section 294(b) IPC. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
336. :- 411. In State of M.P v. Babulal [(2008) 1 SCC234, it was held:- "Sentencing is thus a delicate task which requires skill, talent and consideration of several factors, such as, the nature of offence, circumstances- extenuating or aggravating- in which it was committed, prior criminal record of the offender, if any, age and background of the criminal with reference to education, home life, social adjustment, emotional and mental condition, prospects of his reformation and rehabilitation, etc. All these and similar other considerations can, hopefully and legitimately, tilt the scale on the propriety of sentence. Moreover, social impact of the crime, particularly where it relates to offences against women, cannot be lost sight of and per se requires exemplary treatment. The courts are, therefore, expected to try and decide cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. Once a person is convicted for an offence of rape, he should be treated with a heavy hand. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
337. :- 412. In Bachan Singh v.State of Punjab [(1980) 2 SCC684 the constitutional validity of the death sentence and also the sentencing procedure embodied in sub-Section (3) of Section 354 Cr.P.C. were examined by the Apex Court, and it was held in paragraph 164(b) as follows:- "While considering the question of sentence to be imposed for the offence of murder under Section 302, Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence." It was further held that, it cannot be said that death penalty violates the basic structure of the Constitution.
413. In Ramdeo Chouhan v. State of Assam [(2001) 5 SCC714, it was held:- D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
338. :- "Apart from the two schools of thought putting forward their respective points of view stridently - one pleading for retention of death penalty and the other for abolition of it- a serious question arose whether the law enabling the State to take away the life of a person by way of punishment would be hit by the forbid contained in Article 21 of the Constitution. In Bachan Singh v. State of Punjab the majority Judges of the Constitution Bench saved the death penalty from being chopped out of the statute book by ordering that death penalty should' be strictly restrict to the tiniest category of the rarest of the rare cases in which the lesser alternative is unquestionably foreclosed." 414. In Machhi Singh v. State of Punjab [(1983) 3 SCC470, it was held that where there was no provocation from the part of the victim for murder, or the murder was committed in an extremely brutal grotesque, diabolical, revolting or dastardly manner which aroused intense and extreme indignation of the community, the case can be brought within the purview of the D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
339. :- rarest of rare cases. It was further held that the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof are factors which normally weigh with the court in awarding the death sentence terming it as the 'rarest of rare cases'.
415. In Dhananjoy Chatterjee v. State of West Bengal [(1994) 2 SCC220, the Apex Court has considered a case of rape and murder of a young girl of 18 years and held that a real and abiding concern for the dignity of human life is required to be kept in mind by the courts while considering the confirmation of the sentence of death; but a cold-blooded and pre-planned murder without any provocation, after committing rape on an innocent and defenceless young girl of 18 years exists in the rarest of rare cases which calls for no punishment other than capital punishment. In paragraphs 14 and 15 of the judgment, it was held as follows:- "14. In recent years, the rising crime rate - particularly D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
340. :- violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences, in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.
15. In our opinion, the measure of punishment in a D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
341. :- given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting o the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment." 416. In Laxman Naik v. State of Orissa [(1994) 3 SCC381, the Apex Court has followed the view in Dhananjoy Chatterjee (supra), and confirmed the death sentence of the accused for the offence of rape followed by murder of a seven year old girl by her own uncle. The view taken was that the accused seems to have acted in a beastly manner in the sense that, after satisfying his lust, he thought that the victim might expose him for the commission of offence on her to her family D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
342. :- members, and the accused with a view to screening the evidence of the crime put an end to the life of that innocent girl. It was held that the accused had conceived his plan diabolically and executed it brutally in such a calculated and cold-blooded manner and therefore, undoubtedly it falls within the category of 'the rarest of rare cases' attracting no punishment other than capital punishment.
417. After considering the aforesaid aggravating circumstances in Laxman Naik (supra), the Apex Court considered the absence of any mitigating circumstances also. The decision was rendered after balancing all the aggravating and mitigating circumstances thereby considering the crime as well as the criminal. It was also considered that the victim was a totally helpless child, there being no one to protect her at the scene of crime and that the accused in that case had preplanned to commit the crime by resorting to diabolic methods and had taken the girl who had reposed complete confidence on D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
343. :- him being her uncle, to a lonely place to execute his dastardly act.
418. In Rajendra Pralhadrao Wasnik v. State of Maharashtra [(2012) 4 SCC37, the Apex Court has enunciated the principles to be followed in weighing the aggravating and mitigating circumstances, while awarding the death sentence and held as follows: "When the Court draws a balance sheet of the aggravating and mitigating circumstances, for the purposes of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evident from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused." 419. In Shankar Kisanrao Khade v. State of Maharashtra [(2013) 5 SCC546, the principle arrived at after D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
344. :- discussing various decisions of the Apex Court in the question of death sentence, is that while awarding death sentence, the "crime test" has to be fully satisfied, i.e., 100% and "criminal test" at 0%, i.e., no mitigating circumstance favouring the accused. It was held in paragraph 52, "If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the "criminal test" may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R rest depends upon the perception of the society that is "society-centric" and not "Judge-centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
345. :- crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges." 420. In Lehna v. State of Haryana [(2002)3 SCC76, which was subsequently followed in State of Rajasthan v. Kheraj Ram [(2003)8 SCC224, after discussing Bachan Singh v. State of Punjab (AIR1980SC898, Ediga Anamma v. State of A.P. (AIR1974SC799 and Machhi Singh v. State of Punjab (1983) 3 SCC470, the Apex Court has categorized the following circumstances also as circumstances in which the community may entertain the sentiment of the infliction of capital sentence. (i) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner as to arouse intense and extreme D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
346. :- indignation of the community. ii) When the crime is enormous in proportion, for the instance when multiple murders, say of all or almost all the members of a family or large number of persons of a particular caste, community, or locality are committed. (iii) When the victim of murder is an innocent child, or a helpless woman, or old or infirm person or a person vis-`-vis whom the murder is in a dominating position, or a public figure generally loved and respected by the community.
421. It has been further held that, if upon taking an overall global view of all the circumstances in the light of the aforesaid propositions, and taking into account the answers to the questions posed by way of the tests for determining the `rarest of rare cases', the circumstances of the case are such that the death sentence is warranted, the court would proceed to so do.
422. In B.A. Umesh v. State of Karnataka [(2011) 3 SCC85, in almost a similar case in which a young lady was brutally D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
347. :- raped, robbed and murdered, it was held, "On the question of sentence we are satisfied that the extreme depravity with which the offences were committed and the merciless matter in which death was inflicted on the victim, brings it within the category of the rarest of rare cases which merits the death penalty, as awarded by the trial court and confirmed by the High Court. None of the mitigating factors as were indicated by this court in Bachan Singh's case or in Machhi Singh's case are present in the facts of the instant the case".
423. From the various judicial pronouncements of the Honourable Apex Court on the subject, it has come out that in the choice of sentence the court has to weigh the aggravating and mitigating factors available on the facts and circumstances of the particular case to find out whether special reasons exist to categorize the case as one among the "rarest of rare cases". At the same time, the recent approach seems to be that there should not be any mitigating circumstance at all in order to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
348. :- consider a case of murder as the one in which the lesser alternative is unquestionably foreclosed.
424. The measure of punishment in a particular case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim, and also the mitigating circumstances, if any, and the nature of such mitigating circumstances. The manner in which the courts have to respond to the cry of the society for justice against the criminals should be by the imposition of appropriate sentences. Justice means and demands timely response from the courts by imposing appropriate sentence befitting the crime, so that the courts reflect public abhorrence of the crime. In awarding appropriate sentence, the courts must not only keep in view the rights of the criminal, but also the rights of the victim and the society at large.
425. The crime against women are on the increase now-a- days. On noticing that the victim became the lone occupant in D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
349. :- the ladies compartment, the accused barged into it, and pounced upon her as a wild beast. After inflicting fatal injuries on her, she was dropped from the running train, which resulted in her sustaining further fatal injuries. The bones on the left side of her face became fractured and fragmented. Her 13 teeth were lost. Thereafter, the accused jumped out of the train, approached her, and brutally raped the almost unconscious victim, who was about to die. Blood aspirated into her airways. When the accused applied pressure on her body, the aspiration became severe and faster. One of her teeth even went to her stomach in that process.
426. Taking the case of the poor victim in this case it can be seen that there were nobody to aid her. The accused attacked the victim by making her mute, insensitive and non- responsive, and dropped her down; thereafter he jumped out of the compartment and went back to the victim. He took her to a safe place wherein he could satisfy his lust, and after having D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
350. :- raped her and committing robbery of her mobile phone, which was the only valuable article with her, he decamped, after leaving the victim naked in a supine position. Rape and murder of the victim in this case was diabolical in conception and cruel in execution.
427. If the courts fail to respond to such cries of the society to impose death sentence provided under Section 302 of the IPC, in a case befitting to impose such extreme penalty after weighing the aggravating circumstances, and in the absence of any mitigating circumstance, in a most heinous type of barbaric rape and murder committed on a helpless and defenceless girl while she was travelling by a public transport system, like the Indian Railways, the sentence of death provided under Section 302 IPC will become a dead letter. Therefore, in such cases death penalty should be imposed when the lesser alternative is unquestionably foreclosed.
428. It is apt to quote here the following observations of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
351. :- the Supreme Court in Mahesh v. State of M.P. (AIR1987SC1346. "It will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon".
429. We have considered all the aggravating circumstances in this case. All our searches for any mitigating circumstance, were in vain. The victim had reposed utmost confidence in the Indian Railways when she opted to travel by the ladies compartment, to have a safe journey, especially without the interference of the other sex. In such a case, the Indian Railways have a duty to protect such women. The lack of any security or safety being provided by the Indian Railways in D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
352. :- such ladies compartments, paves way to any Tom, Dick and Harry to have access to such ladies compartment on their whims and fancies, so as to disturb, outrage the modesty, ravish, molest or even to rob the properties and body of such women passengers. It is evident that the aggravating circumstances in this crime have attained 100% whereas there are no mitigating circumstances at all.
430. The murder of the girl in these circumstances makes this, a case of extreme culpability. The manner in which the girl was raped, robbed and murdered, the approach, and the method adopted by the accused, disclose the traits of outrageous criminality in the behavior of the accused and his premeditated action. This approach of the accused reveals a brutal mindset of the highest order. The accused is proved to be a dare criminal. His extra-judicial confession to PW47 clearly reveals his mannerisms and sex perversions. He admits himself a heterosexual and homosexual. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
353. :- 431. The cruel tendency of the accused and his total disregard to human life is writ large from the manner of attack and the nature of injuries caused on the deceased. His conduct and behaviour is repulsive to the collective conscience of the society. The fact that the murder in this case was committed in such a deliberate and diabolic manner, indicate the cold blooded and premeditated approach of the accused to put to death a helpless young woman.
432. In this case, the culpability has assumed the proportion of extreme depravity. The accused is a perfect example of a blood thirsty and hardened criminal. We are satisfied that to spare such a blood thirsty criminal from the gallows will render the justicing system suspect. To have recourse to the lesser alternative in sentencing this accused will be a mockery of justice. This murder is committed in a most cruel, inhuman, extreme brutal, gruesome, diabolic, revolting and dastardly manner. D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
354. :- 433. This incident had sent tremors in the society and shook the collective conscience of the community. The court is not expected to shut its eyes and close its ears against such cries of the society for justice. On an over all view of all the circumstances in this case and on weighing the aggravating circumstances, and especially in the absence of any mitigating circumstance, we have no hesitation to find that this offence of murder is one in which the lesser alternative is unquestionably foreclosed. This Court would be failing in its duty, if the maximum punishment prescribed under the law is not imposed on this accused. It is not to be humane but to be callous to permit him to return to the society.
434. On an over all view of all the circumstances in this case and on weighing the aggravating circumstances, and in the absence of any mitigating circumstance, we have no hesitation to find this case as one among the 'rarest of rare cases' in which the lesser alternative is unquestionably foreclosed, and special D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
355. :- reasons do exist in this case within the meaning of Section 354 (3) Cr.P.C.
435. In the result, (1) We answer the Death Sentence Reference No.3 of 2011 and hereby confirm the sentence of death imposed by the court below on the accused, under Section 302 of the Indian Penal Code, in exercise of the powers conferred on us under Section 368 read with Section 366(1) Cr.P.C. (2) We find that there is absolutely nothing to interfere with the other sentences also, imposed on the accused, by the court below. (3) Crl.Appeal No.149 of 2012 and Crl.M.C.No.125 of 2012 stand dismissed. (4) We, hereby, order that a copy of this judgment under the seal of this Court attested by the concerned official, with signature, shall be sent to the court below, without delay, as per the mandate of Section 371 Cr.P.C.
436. Before parting with this case, we are compelled to D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
356. :- make the following observations:- (1) For noting down and acting upon our observations in paragraphs from 346 to 365 of this judgment, the Registrar General of this Court is directed to forward copies of this judgment to the Bar Council of Kerala as well as the Bar Council of India. (2) We have noticed the unfortunate lethargic lukewarm attitude of the public towards fellow passengers, especially women, in public transport systems. Had a helping hand been extended to lift the girl from danger on hearing her cries for help, the untoward incident could have been averted! Had a middle aged man, who could not be identified by the police, and some other fellow passengers, not dissuaded PW4 from stopping the train by pulling the alarm chain, the poor girl could have been rescued and the accused could have ran away in search of other fertile avenues for him. It has always to be remembered that the foremost duty of every member of the public is to extend D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
357. :- a helping hand to the needy, and to hear their cries with an open heart so as to lift them from danger. It is a pity that the cries of the girl died down in the compartment, as wild cries. (3) There should be adequate sensitisation programmes to make the public aware as to how to rise to the occasions and to act in such cases. Can we categorise the passengers of the other compartment, who had heard the cries of the girl and kept silence by leaving it as wild cries, and even dissuaded PW4 who came forward to pull the alarm chain, as responsible citizens of the country? Here in this case, the inaction from the part of the fellow passengers in the other compartment, who remained as mute spectators, sounds more than the brutality staged by the blood thirsty, sex pervert. Such continued silence will pave way for such criminals to continue such acts according to their whims and fancies. The attitude of the society must change! No doubt, the departed sole of the girl will be hovering around their minds leaving a question towards their inaction to respond, and will D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
358. :- haunt them with the incident as a nightmare. (5) We have also noticed the lukewarm attitude of the Indian Railways towards the safety and security of the passengers, especially women. The largest public transport system in the country should provide adequate safety measures to the women passengers, especially those who travel by the ladies compartment. We have noticed the submission made by the learned Special Public Prosecutor that even after this incident and a series of similar such incidents, still the ladies coaches are being attached at the rear end of the trains. (6) The ladies coaches should be attached almost at the middle of the trains. Further, we wish that there should be at least two armed women guards, who are equipped with sufficient modern communication facilities, employed on duty at a time, in each such ladies coaches. (7) The Registrar General of this Court is directed to forward a copy of this judgment to the Chief Executive Head of D.S.R.3/2011, Crl. Appeal 149/2012 & Crl. M.C.125/2012 -:
359. :- the Indian Railways. We expect an earnest positive attitude from the part of the Indian Railways in the matter. Let the ordeals undergone by the innocent victim in this case, be an eye opener to the public as well as the Indian Railways! T.R. RAMACHANDRAN NAIR, JUDGE B. KEMAL PASHA, JUDGE ul/-