Ulagalanthaperumal and Selvamony vs State

T. Sudanthiram, J.—This Criminal Appeal is directed against the judgment rendered by the Court of Sessions Judge, Kanyakmari Division

at Nagercoil, in S.C.No. 119 of 2003 dated 30.11.2007.

The appellants are the accused and the respondent is the complainant. The appellants/ accused-1 and 2 have been convicted u/s 366 IPC and

sentenced to undergo 7 years R.I. along with a fine of Rs.5,000/- each, in default to undergo 6 months R.I. each; convicted u/s 376 IPC and

sentenced to undergo life imprisonment along with a fine of Rs.5,000/- each, in default to undergo 6 months R.I. each, and convicted u/s 302 IPC

and sentenced to undergo life imprisonment along with a fine of Rs.5,000/- each, in default to undergo 6 months R.I. each. Challenging the

conviction and sentences imposed by the Trial Court, the present Criminal Appeal has been filed by the accused 1 and 2/ appellants.

The case of the prosecution in brief, is that on 04.01.2002, at about 07.00 p.m., while the deceased by name Arulviseleen, aged about 9 years,

was returning home after completing her tuition class, the accused-1 and 2 came there and the first accused took her in a bicycle and the second

accused followed them. Thereafter, she was taken to a nearby coconut grove and she was raped by accused-1 and 2. After committing the crime

of rape, she was murdered and put in a nearby small pond.

To prove the case of the prosecution, P.Ws.1 to 22 and documents Exs.P1 to P53 were marked. Material Objects 1 to 29 were also marked.

On the side of the defence, D.Ws.1 to 3 were examined and documents Exs.D1 to D4 were marked. The evidence let in by the prosecution

through witnesses are as under:

(i) P.W.5 - Yesudhason, who was none other than brother-in-law of the deceased, on 04.01.2002 at about 6.45 p.m., saw the deceased coming

in the school uniform at about 250 feet from Agastheeswaram.

(ii) P.W.7-Vincent Masilamony, who was standing near the church of Agastheeswaram at about 7.00 p.m. on that day, saw the deceased after

completing her tuition class, coming in the school uniform, holding her basket. Accused 1 and 2 were following her.

(iii) P.W.8-Ponnappan, who was walking along with another person by name Masilla Sudharsan, saw the first accused near the Agastheeswaram

Junction. At that time, he saw the first accused coming from south direction. Behind P.W.8, the deceased was coming holding her bag in her hand.

The first accused approached her and told her that he would give a lift in his bicycle and took her in his bicycle. The second accused also followed

her in another bicycle. Thereafter, P.W.8 came to know that the body of the deceased was found in the tank. He went to the place and found the

girl being dead.

(iv) P.W.13 was coming to Agastheeswaram in his bicycle on 04.01.2002 at about 7.30 p.m. At that time, he saw both the accused 1 and 2

standing in front of the grove belonging to one Arumugam. On seeing both the accused, he left the place.

(v) P.W.1 is the maternal uncle of the deceased. P.W.2 is the grandmother of the deceased. The deceased went to the school on 04.01.2002 at

about 8.00 a.m. and did not return even after 7.00 p.m. She normally would return to the house after completing her tuition class in the house of

P.W.3-teacher. P.Ws.1 and 2 searched for the deceased and they came to know that the deceased had left after the tuition, at 6.30 p.m. itself.

P.W.4 was also enquired but they were not able to get any information. Hence, P.Ws.1 and 2 went to the Police Station and gave the complaint

under Ex.P1, at about 11.00 p.m.

(vi) P.W.18-Head Constable on receipt of Ex.P1, registered the case in Crime No. 3 of 2002 and prepared Ex.P29-First Information Report.

P.W.6, who was also in search of the deceased, on the next day morning, saw the dead body of the deceased in a tank near Arumugam Thoppu.

This was informed to P.W.1. P.W.1 informed the same to the police about the death of the deceased. P.W.19-Sub Inspector of Police, altered

the case from ""girl missing"" to under Sections 376 and 302 IPC and prepared Ex.P19-Express Report. P.W.20-Inspector of Police took up

further investigation in the matter and rushed to the place of occurrence and prepared Ex.P2-Observation Mahazar. Thereafter, he conducted

inquest over the body of the deceased from 10.00 a.m. to 12.00 noon and prepared Ex.P32-Inquest Report. P.W.17-Photographer took

photographs at different angles on the body of the deceased. P.W.20 sent the body of the deceased for conducting autopsy under a requisition.

Thereafter, M.O.1-Nylon Wire basket, M.O.2-Stainless steel tiffin box, M.O.3-Bible, M.O.4-Torn note book and M.O.5-Ball point pen, were

recovered under Ex.P3-Seizure Mahazar. M.O.9-Chappals were recovered from the coconut grove.

(vii) P.W.12- Doctor, on receiving an intimation from the police, conducted autopsy on 05.01.2002 at about 4.30 p.m. She noticed the following

injuries:

Appearances found at the post mortem: Lies on back dry nourished symmetrical black. No hair growth in the Armpits-pubis. Externally 1 cm

linear abrasion over the left eye lid just above the eye lashes. 2) Abrasion of about 5 cm x 1 cm irregularly over cheak just below to the left eye. 3)

A small abrasion on the inner aspect of the lower lip overshape very small 2 cm left side 4) 1.5 cm linear abrasion on the upper lip left side. 5)

Abrasion less than . cm over the right elbow joint posterior. 6) 2 abrasions very small less than 1/2cm nearby over the right forearm, near the

elbow joint anterior. 7) Abrasion of about 1cm just below the popoliteal fossa on the right leg. 8) Linear abrasion of about 1cm later to the left

margin of the vaginal orifice. 9) 1cm linear abrasion on the anterior lateral aspect of the vaginal orifice right side. P/V vaginal orifice admit little

finger wholly. The gloved finger blood stained. Vaginal walls irregular. Not smooth. P/R intact walls. Hymen ruptured. Eyes closed. Nose mucous

discharge present mouth closed. Jaws clenced. Hands free. Abdomen uniform. Internal opening thorax no fluid or blood inside. Heart

C/S.congested 75 gms. wt. 5 cc of dark coloured blood. Clots present. Lungs congested Right 200 gms, left 150 gms. Trachea, Larynx, Bronchy

mucosaclea congested. Hyoid bone sent for expert opinion. Stomach congested contain 50cc of digested food material. Liver 400 gms wt.

Congested. Spleen 50 gms. Congested. Kidney 60 cms. congested. Intestine congested. Bladder empty. Uterus small size 2.5cm x 1 cm. Brain

congested 600 gms. wt. Teeth 5/5 / 5/5 Vaginal swab taken preserved test tube. Vagi smear - glass slide.

The Doctor opined that the death would have occurred 18 to 20 hours prior to post mortem and the death would appear to be due to the

cumulative effect of sexual offence and asphyxia.

(viii) It is also the evidence of P.Ws.14 and 15 that while they were talking on 06.01.2002, the first accused came there and called P.W.15

separately and deposed that both the first and second accused, having drunk liquor, had planned to rape the deceased if she would come alone

after the tuition class, and they raped and killed the girl by drowning her in a nearby pond.

(ix) On the same day, P.W.20-Inspector of Police recorded the statements of P.Ws.14 and 15 and on information, he arrested the first accused

near Nangu Mukku Road on 07.01.2002 in the presence of witnesses and recorded his confessional statement. Ex.P22 is the admissible portion

of the confessional statement of the first accused. He also arrested the second accusedon the same day in the Thaliyaruthan Chanthai of

Panchalingapuram in the presence of same witnesses. Ex.P23 is the admissible portion of the confessional statement of the second accused. On the

basis of the confessional statements, he recovered M.O.13-bicycle and M.O.12-Blue banian, under Ex.P23. Thereafter, P.W.20 sent both the

accused to the Doctor for conducting potentiality test under a requisition. P.W.11-Doctor, who examined A-1 and A-2, issued Exs.P9 and P10-

Potentiality Certificates. P.W.20 also gave a requisition to send the properties for chemical examination. Thereafter, P.W.21 continued the

investigation. After completing the formalities, final report was filed against both the accused.

The accused were questioned u/s 313, Code of Criminal Procedure as to the incriminating circumstances against them. On the side of the

defence, D.Ws.1 to 3 were examined and documents Exs.D1 to D4 were marked. The defence witnesses were examined to show that the blood

group of the second accused was A1 Positive and not AB group.

The trial Court, after analysing the evidence, convicted and sentenced the accused, as already stated supra.

Learned Counsel for the appellants/accused Mr.Lajapathi Roy has submitted that there is no eye-witness to the occurrence, and the case of the

prosecution rests only on circumstantial evidence. The circumstances are not properly established against the accused and also, a false evidence

has been let in by the prosecution. The Trial Court did not accept the evidence of P.Ws.14 and 15 with regard to extra judicial confession said to

have been given by the second accused. Therefore, now the remaining evidence is only through P.Ws.7, 8 and 13. P.Ws.7 and 8 are the witnesses

to speak to the fact that the deceased was last seen in the company of Accused-1 and 2 but their evidence is contradictory. P.W.7, even in the

chief examination, stated that it was the first accused who took the deceased, but he changed his version by saying that it was the second accused

who followed the deceased. Further, P.W.7 has stated that the second accused was wearing a dhoti, but only a lungi was recovered. P.W.8 was

not examined at the time of conducting inquest by the Police. During the inquest, P.W.8 had never informed the police that he had seen the

deceased with the accused. P.W.13 had stated that he had seen the accused 1 and 2 near Arumugam thoppu, but not stated that he had seen the

deceased along with them at that time. Further he was not on talking terms with the second accused and there was animosity among them. The

statements of those witnesses recorded by the Police were sent to the Court only on 19.02.2002, which would show that it was only an after-

thought. Learned Counsel for the appellants/accused 1 and 2 further pointed out that it is the evidence that the sniffer dog was brought on

05.01.2002 and it establishes the fact that police were not knowing about the accused on 05.01.2002. The learned Counsel would further point

out that the semen detected was not sent for DNA test, so as to establish the guilt of the accused by scientific test, but on the other hand, the

prosecution had let in false evidence by saying that the blood group of the second accused was AB, which correlated to the blood group found in

the petticoat of the deceased, but actually the blood group of the second accused was only A1 positive.

Learned Counsel for the appellants/accused has further submitted that even though the case of the prosecution is that the accused 1 and 2 have

killed the deceased by drowning her in the pond, it is the definite opinion of the Doctor that the death was prior to drowning. The learned Counsel

also submitted that the evidence relied on by the prosecution regarding the last seen theory is unacceptable and it has been made deliberately only

to connect the accused to the crime. He relied on the decision of the Hon''ble Supreme Court in the case of Tipparam Prabhakar Vs. The State of

Andhra Pradesh, , in which, in paragraph-16, it has been observed as under:

The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and

when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes

impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and

possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased

were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.

He also relied on a decision of the Hon''ble Supreme Court in the case of Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra

Pradesh, , in which in Paragraphs-26, 27 and 28, it has been held as under:

It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of

incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit

no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion,

however grave it may be, cannot be a substitute for a proof and the Courts shall take utmost precaution in finding an accused guilty only on the

basis of the circumstantial evidence.

27.The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last

seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes

impossible. Even in such a case the Courts should look for some corroboration.

In State of U.P. v. Sathish this Court observed: (SCC p.123, para 22)

The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive

and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes

impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and

possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased

were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the

deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.

Per contra, learned Additional Public Prosecutor appearing for the respondent-Police, has submitted that there is no contradiction in the

evidence of P.W.7. P.W.7 has stated first that he had seen the first accused going behind the deceased in a bicycle and thereafter he added that

the second accused had also followed them. Learned Additional Public Prosecutor has submitted that P.Ws.7 and 8, had no animosity against the

accused to depose falsely. Evidence of P.W.13 corroborates the evidence of P.Ws.7 and 8. P.W.13 had seen the accused 1 and 2 near

Arumugam Thoppu, which is nearer to the place where the body of the deceased was found. Learned Additional Public Prosecutor has also

submitted that the medical evidence establishes the fact that the deceased died only due to homicidal violence, after being subjected to rape.

Learned Additional Public Prosecutor has also further submitted that the evidence relied on the side of the prosecution establishes that the

deceased and accused were last seen together by the witnesses.

This Court considered the submissions made by the learned Counsel on either side and perused the materials and evidence available on

record.

There is no eye-witness to the occurrence in this case, and the case solely rests on circumstantial evidence. The circumstances relied on by the

prosecution are as follows:

(1) The medical evidence that the death of deceased was due to homicidal violence.

(2) P.Ws.7 and 8 had seen the deceased along with accused 1 and 2 on the date of occurrence.

(3) P.W.13 had seen the accused 1 and 2 in front of Arumugam Thoppu, which is nearer to the place of occurrence.

(4) Blood group of the second accused is AB and the same group blood was found in M.O.25-petticoat, M.O.23-skirt and M.O.24-shirt of the

deceased.

(5) Extra-judicial confession given by the first accused to P.W.15 spoken by P.W.14 also.

With regard to the first circumstance, i.e., the death of the deceased was due to homicidal violence, and according to the prosecution, the

murder was committed after subjecting the deceased to rape, P.W.12-the Doctor who conducted post mortem and issued Ex.P17-Post Mortem

Report, had opined that the death appeared to have occurred due to cumulative effect of sexual offence and asphyxia. Doctor had categorically

stated even during cross-examination that the asphyxia was not due to drowning. Doctor had mentioned in the Post Mortem Report that the

vaginal orifice admitted little finger wholly and the gloved finger was blood stained and that the hymen was also ruptured. Further, there were

several abrasions on the body of the deceased. All these injuries lead to show that the deceased was subjected to rape. Ex.P17 and the evidence

of the Doctor P.W.12 establishes the fact that the deceased died due to asphyxia. Therefore, the prosecution had established that the death was

due to homicidal violence after subjecting the deceased to rape, but the question still remains as to whether accused-1 and 2 are responsible for

the grave crime.

The second circumstance relied on by the prosecution is, P.Ws.7 and 8 had seen the deceased along with accused 1 and 2. The main evidence

of the prosecution rests on the deposition of P.Ws.7 and 8, who had seen the deceased and the accused 1 and 2 at about 7.00 p.m. on

04.01.2002 on which date, the deceased was murdered. Though P.Ws.7 and 8 were examined by the Investigating Officer on 05.01.2002, their

statements reached the Magistrate only on 19.02.2002. The inquest was conducted in this case on 05.01.2002 from 10.00 a.m. to 12.00 noon. It

is not the case of the prosecution that the Investigating Officer had examined P.Ws.7 and 8 at the time of conducting the inquest. At the time of

conducting the inquest, the accused were not known to the Investigating Officer. P.W.8, in the cross-examination, stated that he informed the

Police Officer even at about 10.00 a.m. about the first accused taking the deceased in his bicycle. If P.Ws.7 and 8 had been examined at the time

of inquest or before the completion of the inquest, the fact about the accused being seen by them and the suspicion about the accused as to their

involvement in the crime would have been reflected in the Inquest Report. Thus, there is a considerable doubt with regard to the statements said to

have been recorded from P.Ws.7 and 8 on 05.01.2002. Further, P.W.7, in the beginning of the deposition, in the chief examination, stated that the

first accused followed the deceased in a bicycle. He had further stated that at that time, no other person was going on the road and he left that

place after 15 minutes. After stating the above, in the narration in chief, he said that the body of the victim was found on the next day, but he added

further in the chief examination that he had seen the second accused following. It is not known whether both the accused 1 and 2 followed the

deceased jointly or followed her separately. On the next day, he went to the place where the body was found and informed the same to the Police

Officer. As already mentioned, the Inquest Report did not contain anything about the accused. On a careful reading of the cross examination of

P.Ws.7 and 8, a doubt arises with regard to their evidence in the chief examination.

With regard to the third circumstance that P.W.13 had seen the accused 1 and 2 on 04.01.2002 at about 7.30 p.m. in front of a coconut

grove of one Arumugam, it does not help the case of the prosecution, since P.W.13 had not stated that he had seen the deceased along with the

accused at that time. Further, he had admitted in the cross examination that he was not in talking terms with the second accused.

With regard to the fourth circumstance that AB positive blood was found in the petticoat of the deceased-girl, and the blood group of the

second accused is AB, it is not acceptable. Though P.W.11-the Doctor had stated that the blood group of the second accused is AB positive, he

admitted in the cross examination that originally in the report, where the blood group was mentioned was struck off and the words ""AB Positive

was substituted. P.W.22, who tested the blood of the second accused, had stated that ""A Positive"" is the blood group of the second accused and

she wrote in Ex.P53-Case sheet that the blood group of the second accused is ""A Positive"". P.W.22 was also examined as D.W.3, as per the

direction of the Trial Court, and once again, the blood of the second accused was tested and it had been established that the blood group of the

second accused is ""A1 Positive"". The second accused was examined again by D.Ws.1 and 2 and it also establishes the fact that the blood group of

the second accused is ""A1 Positive"". Thus, the Investigating Agency has made some attempt to create some evidence against the accused. In this

connection, the Trial Court has observed as under:

This blood grouping is not at all tallying with neither Accused A1 nor Accused A2 in the light of valid evidences both oral and documentary through

D.W.3 Mallika under document Ex.D3 and D4 as well as chemical examination report as well as serologist report Ex.P44 and P45 marked

through P.W.21 and according to the through valid evidence the blood grouping of Accused A1 is ''B positive'' and Accused A2 is ''A positive''.

Moreover the chemical examination report which is marked as Ex.P16 through P.W.12 Doctor Swarnam also shows that spermatazoa were not

detected in Vaginal smear of Arulvisleen and semen was not detected in a cotton swab fitted in a small stick.

One more circumstance relied on the side of the prosecution, is that the first accused gave extra judicial confession to P.W.15, but the same

has not been accepted by the Trial Court for the reason that P.W.15 was the close relative of the accused. In this connection, the Trial Court has

observed as under:

If really the said extra judicial confession was given on 6.1.2002 to the close relative of Arulviseleen Iravel P.W.15 naturally this witness would not

have let the Accused A1 free and he would definitely handedover the accused to the police that too with the help of Rajaselvan if any resistence is

employed on the side of Accused A1. Failure of such conduct on the part of P.W.15 is not only against the ordinary prudent layman act but also it

is highly unbelievable and hence the above evidence of P.W.15 and P.W.14 shall not support the case of the prosecution.

For the above stated reasons, it is held that even though the prosecution has established the fact that the deceased was subjected to sexual

rape and murdered, the involvement of the accused 1 and 2 in the crime has not been established by the prosecution in the manner known to law.

It is the duty of the prosecution to establish each and every circumstance by reliable evidence and to prove beyond reasonable doubt and

thereafter all the circumstances so proved must lead only to the guilt of the accused and not to any other hypothesis. It is well settled position of

law that suspicion, however grave it may be, it cannot be a substitute for proof.

Though we feel about the heinous crime committed against the deceased young girl, aged about 9 years, subjecting to rape and murder, we

have no other go except to acquit the accused 1 and 2, since the prosecution had failed in its duty to establish its case against the

appellants/accused 1 and 2.

In view of the foregoing reasons, the Criminal Appeal is allowed and the judgment of conviction and sentences passed by the Court of

Sessions Judge, Kanyakumari Division at Nagercoil, in S.C.No. 119 of 2003 dated 30.11.2007 is set aside, and the appellants/accused 1 and 2,

are acquitted of all the charges levelled against them. The appellants / accused 1 and 2 are set at liberty and they are directed to be released

forthwith, unless their presence is required in connection with any other case.