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
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
