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Saturday, September 17, 2016

Section 376 IPC and sentenced to undergo rigorous imprisonment for life. Besides, he has been found guilty of the offences punishable under Section 394 read with Section 397 IPC as well as under Section 447 of the IPC for which he has been separately sentenced to undergo rigorous imprisonment for seven years and three months respectively. = However, to hold that the accused is liable under Section 302 IPC what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death. The intention of the accused in keeping the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual assault. The requisite knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of medical and para-medical staff. The fact that the deceased survived for a couple of days after the incident and eventually died in Hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position. Therefore, in the totality of the facts discussed above, the accused cannot be held liable for injury no.2. Similarly, in keeping the deceased in a supine position, intention to cause death or knowledge that such act may cause death, cannot be attributed to the accused. We are, accordingly, of the view that the offence under Section 302 IPC cannot be held to be made out against the accused so as to make him liable therefor. Rather, we are of the view that the acts of assault, etc. attributable to the accused would more appropriately attract the offence under Section 325 IPC. We accordingly find the accused appellant guilty of the said offence and sentence him to undergo rigorous imprisonment for seven years for commission of the same.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS.1584-1585 OF 2014


GOVINDASWAMY                             ...APPELLANT

                             VERSUS

STATE OF KERALA                  ...RESPONDENT


                               J U D G M E N T


RANJAN GOGOI,J.


1.          The accused appellant has been convicted under  Section  302  of
the  Indian  Penal  Code,  1860  (hereinafter  referred  to  as  “IPC”)  and
sentenced to death.  He has additionally been convicted  under  Section  376
IPC and sentenced to undergo rigorous imprisonment for  life.   Besides,  he
has been found guilty of the offences  punishable  under  Section  394  read
with Section 397 IPC as well as under Section 447 of the IPC  for  which  he
has been separately sentenced to undergo  rigorous  imprisonment  for  seven
years  and  three  months  respectively.   The  conviction  of  the  accused
appellant and the sentences imposed have been confirmed  in  appeal  by  the
High Court. Aggrieved, the present appeals have been filed.

2.    The case of the prosecution  in  short  is  that  the  deceased/victim
girl, aged about 23 years, was working in Ernakulam and was engaged  to  one
Anoop (P.W.76), who  also  happened  to  be  employed  in  Ernakulam.  Their
betrothal ceremony was  to be in the house of the  deceased  at  Shornur  on
2nd February, 2011.  P.W.76 along with his family members were scheduled  to
visit the house of the deceased on that day.  Accordingly, on 1st  February,
2011 the deceased boarded the Ernakulam-Shornur  Passenger  Train  at  about
5.30 p.m. from Ernakulam Town North Railway Station to go  to  her  home  at
Shornur.  The  deceased  had  boarded  the  ladies  division  of  the   last
compartment. There were other passengers  in  the  ladies  division  of  the
compartment along with the deceased. When  the  train  reached  Mulloorkara,
all other lady passengers in the ladies  division  of  the  compartment  had
alighted and, therefore, the deceased also got  down  along  with  them  and
hurriedly entered the ladies coach  attached  just  in  front  of  the  last
compartment. The train reached Vallathol Nagar  Railway  Station,  where  it
halted for some time.

3.    According  to  the  prosecution,  the  accused  appellant,  who  is  a
habitual offender, noticed  that  the  deceased  was  alone  in  the  ladies
compartment. As soon as the train had left Vallathol Nagar  Railway  Station
and moved towards Shornur the accused entered the  ladies  compartment.  The
prosecution alleges that inside the compartment the  accused  had  assaulted
the deceased and, in fact, repeatedly hit her  head  on  the  walls  of  the
compartment.  The prosecution has further  alleged  that  the  deceased  was
crying and screaming. It is the case of the prosecution that the victim  was
dropped/pushed by the accused from the running train to the track  and  that
the side of her face hit on the crossover of the railway line.  The  accused
appellant also jumped down from the other side  of  the  running  train  and
after lifting the victim to another place  by  the  side  of  the  track  he
sexually assaulted her. Thereafter he  ransacked  her  belongings  and  went
away from the place with her mobile phone.
4.          It is the further case of the prosecution that  P.W.  4  -  Tomy
Devassia and P.W. 40 - Abdul Shukkur were  also  traveling  in  the  general
compartment attached in front of the ladies compartment.  According  to  the
prosecution, the said witnesses heard the cries  of  the  deceased.  P.W.  4
wanted to pull the alarm chain to stop the train but he was dissuaded  by  a
middle-aged man who was standing at the door of the  compartment  by  saying
that the girl had jumped out from the train and escaped and  that  in  these
circumstances he should not take the matter any  further  as  the  same  may
drag all of them to Court. However, when the train reached  Shornur  Railway
Station within a span of 10 minutes, P.W.4 and P.W.40  rushed  to  P.W.34  –
Joby Skariya, the guard of the  train  and  complained  about  the  incident
which  triggered  a  search,  both,  for  the  deceased  and  the   accused.
Eventually, the deceased was found in a badly  injured  condition  lying  by
the side of the railway track and the  accused  was  also  apprehended  soon
thereafter in circumstances which need not detain the  Court.  According  to
the prosecution, the deceased was removed to the local  Hospital  whereafter
she was taken to the Medical College Hospital, Thrissur where she  succumbed
to her injuries on 6th February, 2011. It is  in  these  circumstances  that
the accused was charged with the commission of crimes in question for  which
he has been found guilty and sentenced, as already noticed.

5.    A large number of witnesses (83 in  all)  had  been  examined  by  the
prosecution in support of  its  case  and  over  a  hundred  documents  were
exhibited. For the present it  would  suffice  to  notice  the  evidence  of
P.Ws.4, 40, 64 and 70. The  Postmortem  report  (Exhibit  P-69)  and  D.N.A.
Profile (Exhibit P-2) would also require a specific notice and the  relevant
part thereof may also require to be reproduced.
6.    P.W.4 and P.W.40, as already mentioned, were traveling in the  general
compartment which was attached just in  front  of  the  ladies  compartment.
According to both the witnesses, they heard the sounds  of  a  woman  crying
and wailing coming from the ladies compartment and though P.W. 4  wanted  to
pull the alarm chain of the train he was dissuaded by a middle-aged man  who
reported to them that the issue should not be carried  any  further  as  the
woman had alighted from the train and had made good her  escape.   According
to P.W. 4 and P.W.40, they brought the matter to the  attention  of  P.W.34,
the guard of the train as soon as the  train  had  reached  Shornur  railway
station. The recovery of the deceased and the apprehension  of  the  accused
followed thereafter.
7.     P.W. 64 – Dr. Sherly Vasu who was then working as Professor and  Head
of  Department  of  Forensic  Medicine,  M.C.H.   Thrissur   conducted   the
postmortem examination of the deceased with the  assistance  of  five  other
doctors (who were also examined). According to P.W.  64,  he  had  noted  24
antemortem injuries on the body of the deceased, details of which have  been
mentioned by him in the postmortem report (Exhibit P-69). While it will  not
be  necessary  to   notice   the   details   of   each   of   the   injuries
sustained/suffered by the deceased, the evidence of P.W. 64 so  far  as  the
injury Nos.1 and 2 is concerned, being vital, would require specific  notice
and, therefore, is extracted below:
“Injury No.1 is sufficient to render  her  dazed  and  insensitive.   It  is
capable of creating dazeness to head and  rendering  incapable  to  respond.
These wounds may not be of the nature of exclusive  cause  of  death.   This
injury will be caused only if the head is forcefully  hit  to  backward  and
forward against a hard flat surface.  Need  not  become  total  unconscious.
But can do nothing. The injury described in No.1 is caused  by  hitting  4-5
times against a flat surface holding the hair from back with a  right  hand.
These injuries are photographed in detail in  Ext.  P.70.  CD.  This  is  my
independent findings.  I  have  also  checked  the  matters  listed  in  the
requisition from an independent evaluation what I understand is  that  after
hitting the head on a flat and hard substance several  times  and  rendering
insensitive dropped.  (Q) If hit against the wall (of  train)  holding  hair
from behind it will occur? (A) Yes. It will occur so.

Injury No.2.  It is the injury sustained from  beneath  the  left  eye  upto
chin bone. Further below and on lips. There are  fractures  on  maxilla  and
mandible.  About 13 teeth  have  gone  severed.   The  left  cheek  bone  is
pulverized.  A vertically long mark of rubbing chin bone and cheek is  seen.
 So it is added in remarks that fall on to smooth  surface  of  a  rail  and
gliding forward (upward) (gliding). The gliding mark on lower chin  is  seen
5 cm. (Gliding movement) In post mortem  request  it  is  pushed  down  from
running train.  So though it was a running  train  it  had  only  negligible
speed.  In inflicting this  injury  the  speed  of  the  train  had  only  a
negligible role.  The speed ignorable.  Since she was  rendered  insensitive
as a result of injury No.1 in the absence of natural reflex the face had  to
bear the full force of the descent, it is seen.  In case she was  not  dazed
and had alert reflexes and fallen in such a condition she would  have  moved
hands forward and the hands would have showed the force of the fall to  some
extent.  There was no injuries of fall on elbows, wrists and inner  boarders
of fore arms.  There was no reflexes in this fall. No.2  are  injuries  that
may have been caused by fall of a person having the weight  of  this  person
(42 kg.) from a height of 5 to 8 feet.  These injuries will be sustained  if
this portion (left cheek bone crosswise) hits against train  tract.  I  have
visited this scene on 9-2-2011 with C.I. Chelakkara.

      These 5 tracks were seen.  They are seen  as  intercoin  (cross).   So
understood that it can happen when fallen from a moving train into the  next
near cross tract. Usually two tracks go Parallel. This is not such a  place.
Left cheek bone has been thoroughly pulverized. The bone was  pulverized  as
there are air cells inside maxilla.  By the force of the fall as  there  are
air cells inside maxilla.

8.          The opinion of P.W. 64 as to the cause  of  death  mentioned  in
the postmortem report is as follows:


“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 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.

9.          P.W.64 in his evidence had also explained  that  the  aspiration
of blood into the air passage could have been due to the victim  being  kept
in a supine position,  probably,  for  sexual  intercourse  which  may  have
resulted in anoxic brain damage.

10.   There are other parts of the postmortem report  and  the  evidence  of
P.W. 64 which would also require a specific notice insofar  as  the  offence
under Section 376 IPC alleged against the accused  appellant  is  concerned.
The relevant part of the postmortem report is extracted below:
“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.  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)”

11.         The evidence of P.W. 70  –  Dr.  R.  Sreekumar,  Joint  Director
(Research) holding charge of Assistant  Director,  D.N.A.  in  the  Forensic
Science Laboratory, Trivandrum and the report of examination  (Exhibit  P-2)
may now be noticed.

12.         P.W. 70 in his deposition  has  stated  that  after  examination
following results were recorded at pages No.19 and 20 of Exhibit P-2:
      Item 1(a) and 2(b) contain the vagina  swabs  of  the  victim  whereas
Item 2(a) is vaginal smear collected from the victim.  Item 3(a)  is  a  cut
open garment (M.O.1) and Item 18 is a torn lunky (M.O.5).  Item No.8 is  the
blood sample of the accused.
      According to P.W. 70, as per the DNA  typing  the  seminal  stains  on
Item No. 1(1), 2(a), 2(b), 3(a) and 18 belonged to the accused to  whom  the
blood sample in Item No.8 belongs.
      Furthermore, from the evidence of P.W.  70  it  is  evident  that  the
blood of the victim [Item 1(b)] was found in the  clothing  of  the  accused
i.e. pants [Item No.13 (M.O.8)],  underwear  [Item  No.14  (M.O.21)];  Shirt
[Item No.17 (M.O.6)].

13.         So far as the offence under Section 376 IPC is  concerned,  from
a consideration of the  postmortem  report  (Exhibit  P-69)  D.N.A.  Profile
(Exhibit P-2) and the evidence of P.W. 64 and  P.W.  70,  there  can  be  no
manner of doubt that it is the accused appellant who had committed the  said
offence. The D.N.A. profile, extracted above, clinches the issue  and  makes
the liability of the accused explicit leaving no  scope  for  any  doubt  or
debate in the matter.  We, therefore, will find no difficulty in  confirming
the conviction of the accused under Section 376 IPC.  Having regard  to  the
fact that the said offence was committed on the  deceased  who  had  already
suffered extreme injuries on her body, we are of the view that not only  the
offence under Section 376 IPC was committed by the accused, the same was  so
committed in a most brutal and grotesque  manner  which  would  justify  the
imposition of life sentence as  awarded  by  the  learned  trial  Court  and
confirmed by the High Court.

14.         Insofar as the offence under Section 394 read with  Section  397
IPC is concerned, there is also adequate evidence on  record  to  show  that
the accused after committing the offence had taken away the mobile phone  of
the deceased and had, in fact, sold the same to P.W.7 – Manikyan  who  again
sold the same to P.W.10 – Baby Varghese  from  whom  the  mobile  phone  was
seized by the Police.

15.         This will bring the Court to a consideration of the  culpability
of the accused for the offence punishable under Section 302 IPC and  if  the
accused is to be held so liable what would  be  the  appropriate  punishment
that should be awarded to him. The evidence of P.W. 64,  particularly,  with
reference to the injury No. 1 and 2, details of which  have  been  extracted
above, would go to show that the death of the deceased was occasioned  by  a
combination of injury  no.1  and  2,  and  complications  arising  therefrom
including aspiration of blood into the  air  passages  resulting  in  anoxic
brain damage. The same, in the opinion of the doctor (P.W.64), had  occurred
due to the fact that the deceased was kept in  a  supine  position  for  the
purpose of sexual assault. In a situation where  death  had  been  certified
and accepted to have occurred  on  account  of  injury  Nos.  1  and  2  and
aspiration of blood into the air passages on  account  of  the  position  in
which the deceased was  kept,  the  first  vital  fact  that  would  require
consideration is whether the accused is responsible for  injury  No.2  which
apparently was occasioned by the fall  of  the  deceased  from  the  running
train. Before dealing with Injury No.2 we would like to observe that we  are
of the opinion that the liability of the accused for Injury No.1  would  not
require a redetermination in view of the evidence of P.W.4 and P.W.40 as  to
what had happened in the ladies compartment coupled  with  the  evidence  of
P.W.64 and the Postmortem report (Exhibit P-69). However, so far  as  Injury
No.2 is concerned, unless the fall from the train can  be  ascribed  to  the
accused on the basis of the cogent and reliable evidence,  meaning  thereby,
that the  accused  had  pushed  the  deceased  out  of  the  train  and  the
possibility of the deceased herself jumping out of train is ruled  out,  the
liability of the accused for the said injury may not necessary follow.
16.     In this regard, the learned counsel for the State  has  referred  to
injury No.1 sustained by the deceased, as deposed  to  by  P.W.64,  and  has
contended that in view of the impaired mental  reflexes  that  the  deceased
had at that point of time it may not have been possible for her  to  take  a
decision to jump out of the train.  While  the  said  proposition  need  not
necessarily be incorrect what cannot also be  ignored  is  the  evidence  of
P.W. 4 and P.W. 40 in this regard which is to  the  effect  that  they  were
told by the middle aged man, standing at the door of the  compartment,  that
the girl had jumped out of the train and had  made  good  her  escape.   The
circumstances appearing against the accused has to be  weighed  against  the
oral  evidence  on  record  and  the  conclusion  that  would  follow   must
necessarily  be  the  only  possible  conclusion  admitting  of   no   other
possibility.  Such a conclusion to  the  exclusion  of  any  other,  in  our
considered view, cannot be reached in the light of the facts noted above.
17.   Keeping of the deceased in a supine position for commission of  sexual
assault has been deposed to by P.W. 64 as having a bearing on the  cause  of
death of the deceased. However, to hold that the  accused  is  liable  under
Section 302 IPC  what  is  required  is  an  intention  to  cause  death  or
knowledge that the act of  the  accused  is  likely  to  cause  death.   The
intention of the accused in keeping  the  deceased  in  a  supine  position,
according to P.W. 64, was for  the  purposes  of  the  sexual  assault.  The
requisite knowledge that in the circumstances such an act may  cause  death,
also, cannot be attributed to the accused,  inasmuch  as,  the  evidence  of
P.W. 64 itself is to the effect that such knowledge and information  is,  in
fact,   parted with in the course of training of  medical  and  para-medical
staff. The fact that the deceased survived for a couple of  days  after  the
incident and  eventually  died  in  Hospital  would  also  clearly  militate
against any intention of the accused to cause death by the  act  of  keeping
the deceased in a supine position. Therefore, in the totality of  the  facts
discussed above,  the  accused  cannot  be  held  liable  for  injury  no.2.
Similarly, in keeping the deceased in a supine position, intention to  cause
death or knowledge that such act may cause death, cannot  be  attributed  to
the accused. We are,  accordingly,  of  the  view  that  the  offence  under
Section 302 IPC cannot be held to be made out against the accused so  as  to
make him liable therefor.  Rather, we are of  the  view  that  the  acts  of
assault, etc. attributable to the accused would more  appropriately  attract
the offence  under  Section  325  IPC.   We  accordingly  find  the  accused
appellant guilty of the said offence and sentence him  to  undergo  rigorous
imprisonment for seven years for commission of the same.
18.   Consequently and in the light of the above discussions,  we  partially
allow the appeals filed by  the  accused  appellant.  While  the  conviction
under Section 376 IPC, Section 394 read with Section  397  IPC  and  Section
447 IPC and the sentences imposed for commission of the  said  offences  are
maintained, the conviction under Section 302 IPC is set  aside  and  altered
to one under Section 325 IPC.  The  sentence  of  death  for  commission  of
offence under Section 302 IPC is  set  aside  and  instead  the  accused  is
sentenced  to  undergo  rigorous  imprisonment  for  seven  years.  All  the
sentences imposed shall run concurrently. The order  of  the  learned  Trial
Court and the High Court is accordingly modified.

                                                     ....................,J.
                                         (RANJAN GOGOI)


                                                     ....................,J.
                                                          (PRAFULLA C. PANT)


                                                     ....................,J.
                                                          (UDAY UMESH LALIT)
NEW DELHI
SEPTEMBER 15, 2016

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