Partly allowed

State v. Viswarajan @ Podi @ Karumadi

Kerala HC17 Jan 2018DSR/3/2012

Case brief

AI extract

What is this about?

Reference by the Sessions Court for confirmation of a death sentence, heard with the convict's appeal against conviction for murder and attempted rape during an attempted sexual assault of a woman. The High Court confirmed the conviction but held the case not to be one of the rarest of rare, setting aside the death sentence and substituting life imprisonment with a bar on release for 25 years.

What did the court decide?

Death sentence set aside and modified to imprisonment for life; accused not to be released till completion of 25 years actual rigorous imprisonment; sentence under S.376 r/w S.511 IPC to run concurren

State Vs Viswarajan @ Podi @ Karumadi — Murder and Culpable Homicide | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 17TH DAY OF JANUARY 2018 / 27TH POUSHA, 1939

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Death Sentence Ref..No. 3 of 2012

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AGAINST THE ORDER/JUDGMENT IN SC 181/2012 of ADDL.SESSIONS COURT-II, MAVELIKKARA DATED 31-05-2012

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COMPLAINANT(S):

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STATE

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BY ADV.SMT.AMBIKA DEVI S, SPECIAL PUBLIC PROSECUTOR FOR ATROCITIES AGAINST WOMEN & CHILDREN

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ACCUSED(S)

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VISWARAJAN @ PODI @ KARUMADI

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BY ADV. SRI.SUNIL J (STATE BRIEF)

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THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD ON 30/11/2017 ALONG WITH CRL.APPEAL NO. 532 OF 2013, THE COURT ON 17/1/2018 DELIVERED THE FOLLOWING:

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A.M. SHAFFIQUE & P.SOMARAJAN, JJ.

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==========================

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DSR No.3 of 2012 &

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Crl.Appeal No.532/2013

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====================

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Dated this, the 17^th day of January, 2018

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J U D G M E N T

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Shaffique, J.

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The accused in SC No.181/2012 has preferred the appeal challenging judgment dated 31/5/2012 by which he was convicted and sentenced to death for offence u/s 302 of I.P.C. He was also sentenced to undergo rigorous imprisonment for five years for offence u/s 376 r/w S.511 of I.P.C. and to pay a fine of `1 lakh in default of which to undergo imprisonment for a further period of six months.

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Since death penalty had been imposed on the accused, the matter had been referred to this Court and numbered as DSR No.3/2012.

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The prosecution case is that, on 24/10/2011, the accused followed the victim Smitha, with an intention to have sexual intercourse with her. While she was proceeding to her house, the

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DSR No.3 of 2012 & Crl.Appeal No.532/2013

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-:2:-

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accused came in an autorickshaw and got down near Canal Junction. He waited till the victim reached near him. Then he followed her along a gravel road which leads to the Thekkekkara U.P.School from Canal junction. The accused thereafter forcibly caught hold of her and wrongfully confined her. The incident happened on the eastern side of a pond. The accused pushed the victim into the pond and when she became semi unconscious, she was dragged through the shore to the eastern side of the gravel road. He forcefully removed her clothes and had sexual intercourse against her will. Hearing a feeble noise, CW1 and CW2 lighted their torch to the scene of occurrence. The accused, understanding the danger pushed her into the pond and she died of drowning. The victim was taken to the local hospital and later to Medical College Hospital, and by the time she was taken there, she was already dead. Crime was registered by the police based on Ext.P1 First Information Statement, at 3.00 a.m. After investigation final report was filed before the Judicial Magistrate of First Class Court, who had committed the matter to the Court of Sessions.

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DSR No.3 of 2012 &

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Crl.Appeal No.532/2013

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-:3:-

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Before the Sessions Court, prosecution examined PW1 to PW38 and relied upon Exts.P1 to P38. MO1 to MO22 were marked. On the defence side, Exts.D1 to D3 were marked. Apparently, there is no eye witness to the incident. Prosecution tried to prove the case through circumstantial evidence.

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Adv. Sri.Sunil J has been appointed as counsel to appear on behalf of the appellant. It is contended that the Court below has arrived at erroneous findings which is required to be set aside and the accused is to be acquitted. On the other hand, learned Public Prosecutor while supporting the judgment of the court below submitted that this is a fit case in which death penalty has to be given to the accused. The facts of the case clearly comes under rarest of rare case as described by the Apex Court in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] and later clarified in Machhi Singh v. State of Punjab [(1983) 3 SCC 470].

¶34

Learned counsel for the appellant points out that there is absolutely no evidence to support the prosecution version. None of the circumstances pointed out have been proved to the hilt.

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:4:-

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There are ever so many possibilities which have not been considered by the Sessions Court.

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The circumstances that had been relied upon by the prosecution to bring home the guilt of the accused is to be considered first. PW1 is Remani. She is the mother of the victim. She deposed that victim was employed in a shop at Kayamkulam. Victim goes for work at 9 a.m. and comes back between 6.45 and 7.00 p.m. On the fateful day, she did not come back in time. She therefore asked Smitha's daughter Varsha to call Smitha over phone. She could not contact her. It was a rainy day. When the victim could not be contacted over phone, her husband went to enquire about it. After some time, her husband came running and he told them that she was taken by the police and some others in a jeep. She was taken from the pond on the western side of Chennala house to the Kayamkulam Government Hospital. They together along with their elder daughter went to the hospital. They saw Smitha. She was unconscious. There was only a feeble sound. Her entire body was full of dirt and mud. She had injuries on her body. She did not have any dress. The Doctor told them to

¶38

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:5:-

¶39

immediately take her to Medical College hospital. Accordingly, she was taken in an ambulance to Alleppey Medical College. She, her eldest daughter Sindhu, her brothers Unni and Pramod had taken her to hospital. The Doctor at Medical College hospital on examining her informed that she had died. She later heard that the accused had committed the murder. She deposed that she had seen the accused going through the front of their road. She had given the FI statement which is marked as Ext.P1. She identified MO1 churidar top and MO2 churidar pant, which the victim was wearing on the fateful day. The dress was in a torn condition. She deposed that when her daughter had worn it, in the morning, it was not damaged. The shawl is marked as MO3, the underwear as MO4 and the brassiere as MO5. Those were soiled. Petticoat is marked as MO6, ladies bag, MO7, the steel tumbler as MO8, its cover as MO9, water bottle as MO10, her towel as MO11, the umbrella MO12 and the chappals MO13 series.

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PW2 is an Advocate. She knew the family of the victim. Victim's house is on the south western side of their house. She deposed that she and her mother were walking through the

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DSR No.3 of 2012 &

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Crl.Appeal No.532/2013 -:6:-

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southern side of the pond towards east. There was no light. They had a torch with them. It was about 6.45-7.00 p.m. When they were proceeding towards east through the southern side of the pond, they heard a groaning sound of a lady. They immediately thought that somebody was in an unconscious stage. She lighted the torch. She did not see anything. She called her mother and proceeded towards east. Then she heard something falling into the water. Mother was just behind her. She lighted the torch towards the place where she heard the sound. She saw a lady's body naked lying face down, on the south eastern corner of the pond. She understood that someone might have pushed her into the water with an intention to kill her. They immediately cried aloud. People in the locality came. They all came with torch and light. Youngsters who came there saw a lady with her head on the shore and her body in the water, lying face down. They did not immediately know who she was. Her face was full of dirt, mud and clay. After about 30-45 minutes, the flying squad came. They along with some youngsters and ward member, took her from the pond and she was taken to the gravel portion on the eastern side

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:7:-

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of the pond. She did not have any dress. She was unconscious. Since she did not have dress, a cloth (kaili) was brought from a nearby house and they covered her with it. Thereafter, they removed the clay from her face. PW2 identified her. The people in the locality along with the police took her in a jeep at about 7.45 p.m. People waited there even after some time. She lighted the torch in the nearby areas and they found churidar top, pant, shawl, chappals, the umbrella, bag, a kaili, underwear etc. She identified those items as MO1 to MO13 series which were that of Smitha. The colour of the kaili was green which was marked as MO14. It was soiled. There was an underwear by the side of kaili which she identified as MO15 and a men's chappal was by the side of the pond, which she identified as MO16. There was a plastic cover on the western corner of the pond with the letter 'S'. They also found a mobile phone with red and black colour. The cover with 'S' printed on it is marked as MO17 and the mobile phone MO18. There was a shirt in the cover. But she could not identify the shirt. She understood that the kaili, shirt and mobile phone might be of the person who had attacked the victim. Later

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DSR No.3 of 2012 &

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Crl.Appeal No.532/2013 -:8:-

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she knew that it was the accused whom she had seen earlier. He

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used to be seen around and is a relative of Padanilath Ambili.

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PW3 is one Gopan who is a plumber by profession. He knew the victim and the members of their family. He deposed that on the fateful day, at about 7 p.m, he had gone there. There was no light. He had proceeded to that place after hearing the cry of women. His friend Sujith was also with him. He found Radha chechi (sister) and her daughter Praseetha chechi (PW2) crying. When enquired, she pointed out the body of a lady lying in the pond. They took a torch and lighted it and they saw a lady lying there, face down on the south eastern portion of the pond. He and Sujith went inside the pond and she was taken from the pond and she was laid on her back. The face was full of clay, mud and dirt. Her face was on the shore and body was in water. Her entire body was not pulled, since she was naked. He along with Sujith proceeded to call ward member Rajamma. Several people were assembled in the area. Her body was full of dirt and clay. After sometime, somebody washed her face and they identified her as Smitha residing at R.K. Nivas. They got a 'kaili' and covered her

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:9:-

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with the same. Thereafter the flying squad came and she was taken to the Government Hospital. He also identified all the material objects which were in and around the scene at the relevant time. In cross examination, he stated that when he saw the victim, she was groaning and blood was oozing from her face. They had laid her on her back with face on the shore and her body in the water. That they have done because they thought that she may die on account of suffocation.

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PW4 is Binu, another person who also came to the scene of occurrence on hearing the cry of the women. He supports the version of PW3. The victim was taken in the flying squad's jeep to the hospital. He along with member Rajamma was in the jeep. They reached the Kayamkulam Government Hospital by around 8 p.m. She was given treatment. After sometime Smitha's mother, sister, and her uncles came. She had to be taken to the Medical College hospital for further treatment. Later he heard that she died before reaching the hospital. He also states that he had seen various material objects by the side of the pond. He knew the accused three four months before the incident. The accused,

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:10:-

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residing in the house of one Ambily, was an accused in another case where he tried to abuse another lady, had taken a minor girl to the house of Ambily and police had come and taken them. During cross examination he stated that when her face was washed, they saw blood oozing from her face. She was lying there for about 30-45 minutes.

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PW5 was the Assistant Sub Inspector of Police of Kareelamkulangara police station. He was the officer in duty in flying squad from 9 am on 24/10/2011 till 9 am on 25/10/2011. By about 7.20 p.m on 24/10/2011, when they reached park junction, they received a call in the flying squad's mobile phone that a lady was seen in the pond near Olaketti Kurishumoodu junction and they were asked to proceed to that place. They reached the scene immediately. When they reached there, some people were assembled by the side of the pond. They found the victim lying on the south eastern portion of the corner of the pond. Her face was on the shore of the pond and her body was in water. At that time, the ward member reached there. All of them took her and she was laid by the side of the pond. Somebody washed her face and

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:11:-

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they identified her as Smitha. Since the body was naked, they obtained a kaili from the nearby house and covered her body. Since the person was known, they took her in their jeep to Government Hospital. Treatment was given and since her condition was serious, she was referred to Medical College hospital. By the time, her relatives came there and they took her in an ambulance. They came back and scene was guarded at 4 am on 25/10/2011. During cross examination he deposed that he does not know whether any person had been deputed for guard duty by Sub Inspector of police before 4 am on 25/10/2011. He further deposed that the eastern shore of the pond is lying in a slanting position and it has a flat portion also. The slope would be around 2½ to 3 feet from the water level. In further cross examination he stated that initially a cognizable offence was not registered since they did not think it to be an offence.

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PW6 is Rajamma the ward member. She has also spoken in line with what other witnesses have stated.

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PW7 is Sindhu, sister of Smitha (victim). She has also spoken in line with what her mother PW1 had stated. She also

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DSR No.3 of 2012 &

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Crl.Appeal No.532/2013 -:12:-

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identified various material objects belonging to Smitha as well as those found by the side of the pond.

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The evidence of these witnesses proves the following facts: They found the naked body of Smitha lying in a pond face down. She was taken out from the pond and when her face was cleaned, people in the locality identified her as Smitha of R.K.Nivas, which is her house name. At the time she was groaning, probably she was semi conscious with pain. Her body was full of clay, dirt and mud. People in the locality along with the ward member and flying squad took her to the Government Hospital, Kayamkulam. She was given first aid and was referred to Medical College hospital and before reaching there, she died. Though all these witnesses were cross examined at length, nothing has turned out from the evidence to indicate that they were giving false statement before Court. The fact that Smitha died even before reaching Medical College Hospital is further proved by the deposition of the Doctor who conducted post mortem and the Doctors who treated her.

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PW25 is Dr.N.Dileep. He was the Medical Officer at

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:13:-

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Vandanam Medical College in the department of Surgery. While he was on duty, Smitha was brought at 11.30 p.m. He examined and confirmed that the patient was brought dead. Therefore the body was sent for postmortem for expert opinion. He also proved Ext.P13, the certificate issued by him.

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PW26 is the Duty Medical Officer at Government Hospital, Kayamkulam. He deposed that while he was working on 24/10/2011, Smitha was brought to the hospital. She was brought by the police and the Panchayat Member. Patient was semi conscious but was not responding to external stimuli. He noticed four injuries. One is on the left side of the face and also on the left upper arm. A bite mark was seen. She had a small contusion on the lower jaw. Tinge of blood mixed with mucus was found near the mouth. He did not notice any injury on the genital parts, but there was mud on the face, hair and scalp. He had given her life saving drugs. Oxygen was also given. She was not responding to any treatment and the pulse or BP was not showing any increase. Therefore she was referred to Medical College hospital. Doctor opined that he could find sexual harassment. In cross examination

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:14:-

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he stated that she was brought to the hospital at 8 p.m and referred at 8.15 p.m. Since there was no ambulance available in the hospital, private ambulance was hired which came by 8.30 p.m.. He had also proved Ext.P14 certificate issued by him.

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PW28 is the Associate Professor of Forensic Medicine and Deputy Police Surgeon. She conducted post mortem of the victim on 25/10/2011. She had noticed 19 ante-mortem injuries which are extracted hereunder:-

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“1. Abrasion 1x0.3cm on the left side of neck 5x5 cm below the ear lobule.

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2. Two abrasions 0.4x0.1cm and 1x0.5cm, 2cm apart side by side onthe right side of neck the inner one 3cm outer to mid line and 7 cm below the jaw border.

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3. Two abrasions 1x0.1cm each oblique and 1.5cm apart side by side on the right side of neck, the upper inner end of inner one being 1 cm outer mid line and 6 cm below the jaw border. Flap dissection of neck was done under the bloodless field. All neck structures were found to be normal and intact.

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4. Abrasion 0.8x0.3cm on the right side of cheek 3cm below the middle of lower eye lid margin.

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5. Abrasion 0.6x.1cm oblique on the right cheek 5cm in front and 1 cm below the ear lobule.

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6. Abrasion 0.3x0.1cm on the right side of face 1

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DSR No.3 of 2012 &

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Crl.Appeal No.532/2013

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-:15:-

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cm above the right corner of mouth.

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7. Abrasion 0.2x0.1cm on the right side of face 1.5cm outer and 0.5cm below the right ala of nose.

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8. Abrasion 0.5x0.3 cm on the right side of face 1 cm outer and 1.5 cm below the inner angle of eye.

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9. Contusion 2x2x1 cm on the chin in the mid line.

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10. Contusion 2x2x1 cm on the inner aspect of right side of lower lip 1 cm outer to mid line.

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11. Contusion 2x1.5x1cm on the inner aspect of lower lip 1.5 cm to the left of mid line.

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12. Lacerated wound 1x0.2x0.2cm on the inner aspect of lower lip in the mid line its lower end at the gum.

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13. Abrasion 0.3x0.2 cm on the left side of upper lip 0.3 cm below the ala of nose.

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14. Two abrasions 0.3x0.2 cm each 1.5 cm apart on the left cheek side by side the inner one being 1 cm outer to ala of nose.

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15. Abrasion 0.5x0.4 cm on the left cheek 2.5 cm below the middle of lower eye lid margin. Brain was congested and oedematous.

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16. Contusion (oval shaped) 4x3x0.3cm with central pallor, on the left side of face, with abrasions (four numbers) varying in sizes from 0.3x0.3 cm to 0.5x0.4 cm at the inner and lower margins.

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17. Contusion (oval shaped) 5x4x0.2cm on the right cheek (with central pallor) 3 cm outer to right corner of mouth.

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18. Contusion 4x2.5x0.3cm, oval shaped around

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DSR No.3 of 2012 &

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Crl.Appeal No.532/2013 -:16:-

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the left nipple with a pallor at its centre.

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19. Five abrasions varying in sizes from 1x1cm to 1.5x1 cm over an area 4x3cm on the outer aspect of right arm 11 cm above the elbow with contusion 7x6.5x1cm around.”

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As per the postmortem finding, death was due to drowning. She also opines that the effect of the injuries in the face and neck could have contributed to death. Ext.P18 is the post mortem certificate. She also proved the report of the Assistant Chemical Examiner obtained by her as Ext.P19. She states that injury Nos.1 to 3 can be caused by forceful pressing by the fingers of the assailant during scuffle. Injury Nos. 4 to 15 on the face are signs of resistance offered by the victim. Abrasions among the injury 4 to 15 can be caused by finger nails. When questioned whether the injuries 4 to 15 could be caused by possible application of hands and fingers around the mouth and nostrils while restraining the victim from screaming, her answer was that it was possible. She states that injury 1 to 15 can cause hypnosis to brain, ie., decrease oxygen supply, all of which could contribute to the cause of death. She also deposed that the chemical report of

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:17:-

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saliva mentioned in the chemical examination report is suggestive of acrotic bite and is possible along with central pallor mentioned in the injuries. She also stated that the finding of lathery froth in the nostril air passages together with other findings were suggestive of drowning. During cross examination, she maintained the stand that the particular case will come under the branch classification of wet drowning. In the case of wet drowning, cardial arrest and ventricular fibrillation can occur. Finding of ventricular fibrillation is not mentioned in the certificate but can be inferred as asphyxial signs are predominating. On further cross examination, she ruled out that the injury could be caused by accident, but reiterated that death was due to drowning and that the effects of injuries on face and neck could have contributed to death. From the evidence of the Doctors who had examined the deceased, it is rather clear that she became totally disoriented and unconscious after the incident and she died while she was brought to the Medical College hospital. Postmortem report indicates that the death was on account of drowning and no other possibility exists despite detailed cross

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:18:-

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examination by the counsel for accused.

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The next question is regarding the involvement of the accused in the case. PW30 was the Additional Sub Inspector of Police at Kayamkulam police station on 24/10/2011. On receiving a phone call that a lady has been taken to Kayamkulam Government Hospital and that her statement has to be taken, he reached the hospital by 8.45 p.m. She was in the Casualty mini theatre. On checking up with the Doctor, he was informed that she was referred to Medical College hospital and they were awaiting an ambulance. Her name was Smitha. She was not in a position to give any statement. On 25/10/2011 at 3 am, statement was recorded from her mother Remani, which is marked as Ext.P1. Accordingly, he registered FIR u/s 376 and 302 I.P.C. as Ext.P21.

¶104

PW31 is the photographer who had taken the photographs of deceased at the time of inquest. 8 numbers of photographs were in the Compact Disc which are marked as Ext.P22 series and Ext.P23. The certificate in terms of S.65B of the Evidence Act, is produced as Ext.P24.

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DSR No.3 of 2012 &

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Crl.Appeal No.532/2013

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-:19:-

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PW32 is the Woman Civil Police Officer who had taken the dead body of the deceased from the mortuary. Ext.P6 is the receipt in that regard.

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PW34 is a witness to the scene mahazar which is marked as Ext.P25.

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PW35 is the Assistant Director, Biology Division, Forensic Science Lab. He acknowledged having received the samples from the Court and the report is marked as Ext.P26. He also identified MO21 and MO22 which were the maxillary and mandible positive dental cast. It was compared with the photographs in Ext.P22 series and it is recorded in Ext.P26. As per his opinion, the bite mark on the facial area of the deceased person in the photographs in item 3(a) to 3(e) is caused by the person to whom the dental casts in item 5 belongs. He opined that the bite mark of a person is always unique and it will not match with another person. He also identified the soiled full sleeve shirt which is marked as MO20. He further deposed that he had examined the nail clippings which are referred to as item 2(a) and 2(b) in Ext.P26 and the result is at No.3. On conducting tests, trace of

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DSR No.3 of 2012 &

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Crl.Appeal No.532/2013

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-:20:-

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blood was detected on both the items. But the origin of the blood could not be identified as it was insufficient.

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PW36 Additional Sub Inspector of Police, Ochira was summoned to prove that there was another case against the accused u/s 363 and 366 I.P.C. The charge sheet is produced as Ext.P27. He had arrested the accused with reference to Ext.P27 and the allegation was that he had sexually abused a girl aged 17 years on 30/5/2011. In cross examination he was questioned on whether any age proof of the victim was produced. He further deposed during cross examination that there were other instances where he had abused women and is always a nuisance for them. He used to go to their houses and peeps into the room and used to take away undergarments of women.

¶116

PW37 was the Sub Inspector of Police, Ochira from 22/4/2010 to 19/12/2011. He deposed that a crime was registered against the accused when there was an attempt to sexually abuse a lady on 2/8/2011 and a case was charge sheeted u/s 452, 384 and 511 of 376 I.P.C.

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PW38 is the Circle Inspector of Police who conducted

¶118

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:21:-

¶119

investigation into the crime. He commenced investigation on 25/10/2011 and after completing the procedural requirements in regard to the death of Smitha, the body was handed over to the relatives. He had collected various material objects from the scene of occurrence including the mobile phone. The subscriber of the mobile phone was found out to be a person by name Padanilath Thekkethil Ambily. She identified the mobile phone, which belonged to her and it was given to the accused. She also identified the green coloured kaili which she had purchased for the accused during the previous Onam. She identified the chappals belonging to the accused, which was recovered from the scene. She deposed that he had gone for work along with one Sivaprasad @ Shibu on the previous day. They went in search of Shibu (PW9). Along with Shibu they went to the house of the accused at Ochira. House was locked. They made enquiries in and around the area and while making enquiries, he was located at Ochira, KSRTC Bus stand and as identified by Shibu, the accused was arrested and questioned who had confessed to the crime. He was taken to the police station and arrest memo was prepared

¶120

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:22:-

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which is marked as Ext.P13. The accused was sent for medical examination and potency test was conducted. The Doctor had issued Exts.P15 and P16 after conducting necessary tests.

¶122

PW27 is Dr.Shabeer, Medical Consultant Junior, Government Hospital, Kayamkulam. He had examined the accused and has issued Ext.P15 certificate. The wound certificate is also produced as Ext.P16. His opinion is that there is nothing to suggest that the accused was incapable of performing sexual acts. In Ext.P16 wound certificate, Doctor found that there was nail mark on his face, root of the nose and neck and a bite mark was also noted in the right index finger. Doctor opined that if he attacks another person and have a shuffle and the other person offers a resistance by hands and fingers, such injuries can be caused.

¶123

PW38 further deposed that, on the basis of statement given by the accused, the shirt which he was wearing at the relevant time was recovered from a shed in a property where Ambily was constructing a new house. On the basis of his statement Ext.P33, the shirt MO20 was recovered as per Ext.P12

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:23:-

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mahazar. All the materials which were collected by the Doctor at the time of inquest were sent for scientific examination and the report is Ext.P34. The investigating officer had recovered a mobile phone, a bag, kaili and chappals from the scene of occurrence which apparently did not belong to the victim. It is based on a finding regarding the subscriber of the mobile phone, it was noticed that it belonged to Ambili, who is examined as PW8.

¶126

PW8 in her evidence before Court admitted that the accused was living in her house until 24/10/2011. The reason for residing in her house was that four months before, there were two cases against him at Ochira Police Station. That was sexual abuse cases against women. One was a rape case and the another one was abduction of a minor girl. The mother of the accused had asked her to accommodate him since he felt that if she remains at Ochira, people will kill him. On 24/10/2011, he had gone for work at 6 a.m. He was a mason. He had gone along with his uncle's son Shibu. Shibu is her relative. At the time he went for work he was wearing a green kaili with dots and a full sleeve shirt having blue, white and sandalwood colour. She identified the kaili as MO14.

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DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:24:-

¶128

She saw the kaili in the pond on 24/10/2011 by around 7.30. Her husband who is a fish vendor did not reach home by the time. So she went out to check up whether he was coming. Then she heard a hue and cry and torch lights were blinking. It was from southern side of her house. Suddenly she along with her mother and children went to that place. People assembled there and some of them were crying. There was no light in the place and people who had come there had torch with them and they were looking in all the places. She saw MO14 in the pond. Other than MO14, there was churidar, pant, shawl, umbrella, bag etc and also two ladies chappals. She also saw chappal owned by a male. She identified MO1, 2, 3, 7, 12, 13 series, MO14 and 16. She knew that the ladies articles belonged to Smitha since Smitha's sister was there crying and mentioning that it belongs to her sister. She asked her as to what happened. She was mentioning that somebody had raped and killed her. She also identified MO17 cover and MO18 mobile phone. She deposed that MO18 mobile phone belongs to her and it was given to the accused for his use. Mobile phone was given a month back and she had taken a connection from idea

¶129

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:25:-

¶130

and obtained a sim card. She had also given her ID proof and photograph. The number is 9656235522. The application was produced before court and she identified it as Ext.P2. Along with Ext.P2, her election identify cards photocopy was also given. It was marked as Ext.P3. She further stated that by seeing the articles on the side of the pond, she knew that it was done by the accused. She also identified his shirt, which is marked as MO19. She had given a statement before the Magistrate u/s 164 Cr.P.C. which is marked as Ext.P4 series. During cross examination she stated that she has nothing against the accused. Nothing has been brought in cross examination to indicate any discrepancy in her evidence. She was further recalled and MO20 his shirt which the accused was wearing at the time of incident was proved.

¶131

PW9 is Sivaprasad @ Shibu who is the relative of the accused. He also had identified MO14 kaili, MO20 full sleeve shirt, MO16 chappals and MO17 plastic cover. MO19 shirt was in the plastic cover. He submitted that he had identified the accused to the Circle Inspector of police. He further deposed that after the work on 24/10/2011, they along with their friend Nimesh came to

¶132

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:26:-

¶133

Valanja Nadakkavu Junction. He himself and the accused went to the shop of Gopalakrishnan. Nimesh proceeded to his house. They had gone to the shop to purchase articles for PW9. They also purchased a packet of cigarette. Since the accused came while it was raining, he also had a cigarette. He said he can't go by bus as he is wet and asked him to call an auto. PW9 called his friend Aniyan. The auto came at 6.45. While calling auto, he asked whether accused could be dropped near Pallarimangalam. When Aniyan came with the auto, PW9 introduced the accused to him and he told Aniyan about their relation and that the accused was residing in the house of Ambily (PW8). Thereafter he went to his house. At the time when he proceeded to his house, Aniyan and accused were standing near the shop.

¶134

PW10 is Sunil @ Aniyan. He is also known as Aniyan Mesthri. In addition to masonry work, he also has an auto rickshaw. If somebody calls, he used to go and pick them up in the auto. He knew Sivaprasad @ Shibu (PW9) who is friend of his. He knew the accused as Shibu's relative. Shibu had introduced him to the witness. On 24/10/2011, they met in the shop of

¶135

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:27:-

¶136

Gopalakrishnan which is in front of Valanja Nadakkavu Moorthinada. He had gone there since Shibu called him. When he reached there, it was around 6.45. The accused was wearing a blue, white and sandal wood colour full sleeve shirt. He was wearing a green kaili. He had a plastic cover with him. Shibu told him that he is from Ochira and he would like to have a trip. Shibu thereafter went home. They waited in front of the shop. When he asked him whether they could go, accused told him that some one has to come and asked him to wait. He was smoking a cigarette and looking towards south. At that time, a KCT bus came, which was proceeding from south to north. Accused was looking inside the bus in order to find out whether any of his acquaintance was inside the bus. After 5 minutes, accused came and asked him to go. They proceeded towards north. When they reached kurishadi junction, he was asked to go the western side. They proceeded towards the west. The rain was drizzling. Therefore, he had put the side curtain. While they were proceeding from Kurishadi through the western road and when they reached a little further, they saw a lady walking on the

¶137

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:28:-

¶138

northern side of the road towards west. She was wearing a churidar. The accused pulled away the curtain, put his head outside the auto and was looking at the lady. He immediately thought that the accused had something to do with the lady. When they proceeded little more towards west and came near a canal, accused asked him to stop the vehicle. Vehicle was stopped on the eastern side of the canal. It was a barren place. When they stopped there, he thought that there was something. They were to go to a place further west and towards north. Though the auto charge was 40, accused gave him 30. He did not bargain since Shibu had called him. At that time, there was some light though not dark. He took his auto towards the east. The vehicle went off, as it was reserve. He shifted the main to reserve and attempted to start the vehicle. Even at that time, the accused was standing near the auto. At the time when the vehicle started, the lady who was coming from east, proceeded towards south in front of him ie on the eastern side of canal towards south through a gravel road. He saw the lady in the light of the auto. She was about 10-35 years. Immediately, he saw the accused going behind her. He

¶139

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:29:-

¶140

proceeded towards east. From these circumstances he knew that he had something to do with the lady. At that time, he did not see any other person. He also identified MO20 shirt which the accused was wearing at the relevant time. He had also given a statement before the Magistrate which is marked as Ext.P5 series. In cross examination, he stated that there is a distance of 2 kms from Gopalakrishnan's shop and kurisadi mooku.

¶141

PW11 is Soman who is also a mason. He knew the accused. He used to go for work with him. On 24/10/2011, accused along with Shibu had worked with him. On that day he was wearing a green coloured kaili which he identified as MO14 and MO20 shirt. At the time when he he had came for work, he had a plastic cover with him which he identified as MO17.

¶142

PW12 is Gopalakrishnan. He knew the accused as a relative of Shibu. He deposed that Shibu and accused came to the shop on 24/10/2011. Shibu purchased a packet of cigarette. He deposed that at that time, accused was wearing MO14 lungi and MO20 shirt. Before Shibu left, an autorickshaw came. Accused was waiting there smoking cigarette and looking towards south. Within

¶143

DSR No.3 of 2012 &

¶144

Crl.Appeal No.532/2013 -:30:-

¶145

10 minutes, he got into the auto and proceeded towards north.

¶146

PW13 is a person who knew the accused. She deposed that she used to see the accused near the canal junction several times, normally by evening. Canal junction is on the western side of Chennala house. On the eastern side of canal junction is the pond of Chennala house. Since she had seen the accused several times, she had asked him why he is roaming about as she does not know him. Accused told him that he was a relative of Ambily and his name was Viswanathan. Since he was a relative of Ambily, she did not made any further enquiries. Accused told him that he was waiting for a friend. She further deposed that she knew Smitha and she used to come in KCT Bus upto Kalathitta junction. From there she proceeds towards west till canal junction and from there towards south. Normally they come together and therefore she knew about the same. Since 24/10/2011 was a rainy day, she did not go for work.

¶147

PW14 is a conductor of KCT bus. He knew the accused as the accused was working as a cleaner in a bus. He deposed that he knew the accused as he used to see him in the bus stand,

¶148

DSR No.3 of 2012 &

¶149

Crl.Appeal No.532/2013 -:31:-

¶150

hotel etc., as he was working as a cleaner in Bismi bus and Ambily bus. He last saw the accused 8 months back from the date of incident. Thereafter he saw him on 24/10/2011. He saw him on the north east portion of Chennala house. That was about 7.30 p.m. PW14 was going to his house. His house is on the western side of Olaketty junction Kurishadi junction. He was in a motor cycle as a pillion rider and his friend Abhilash was riding the bike. When he saw the accused, he was jumping across the road. They saw him in the light of the bike. When the accused crossed the road, Abhilash suddenly applied brake. Therefore, the bike did not hit the accused. The accused was wearing only a shirt. He was wet and shirt was sticking to his body. Abhilash asked him why he was there. Accused did not say anything. If Abhilash did not stop the vehicle, it could have hit him. PW14 suddenly got down from the bike. Accused immediately ran away through a pathway towards north. He identified MO20 shirt the accused was wearing at the relevant time. For some time, accused was not seen, later, on enquiry it was found that he was involved in a rape case.

¶151

PW15 is Thulasi. She deposed that she knew Smitha of

¶152

DSR No.3 of 2012 &

¶153

Crl.Appeal No.532/2013 -:32:-

¶154

R.K.Nivas. She saw her 5 minutes before her death on 24/10/2011

¶155

in front of her house. Smitha was walking from east to west towards her house. She saw her in the tube light in front of her house. Smitha was wearing a churidar and at that time it was drizzling. She asked Smitha as to why she was late and she said that the bus was late. Smitha immediately proceeded towards west.

¶156

PW16 is the witness who had given the kaili for covering Smitha's body. PW17 is the conductor of KCT Bus. He deposed that on 24/10/2011, the bus came a little late. It reached Olaketty Kalathatt junction by about 6.45. Smitha was travelling in the said bus. She got into the bus from O.N.K. Junction as she was working in Mothy Fancy Centre.

¶157

PW20 is the Legal Manager and authorized signatory of Idea Cellular Ltd. He produced the call details of mobile number 9656235522 from 23/10/2011 to 24/10/2011. He also submitted that the connection was taken by submitting an application. The call details have been marked as Ext.P7 which is certified as per Ext.P8. The application is Ext.P2. It was in the name of Ambily, D/o

¶158

DSR No.3 of 2012 &

¶159

Crl.Appeal No.532/2013

¶160

-:33:-

¶161

Sreedharan and the address shown was Padanilath Thekkethil, Mavelikkara. Her ID proof is produced as Ext.P3. He stated that the letter M7 indicates the incoming calls.

¶162

PW22 has prepared a scene plan of the scene of occurrence which is marked as Ext.P10.

¶163

On a scanning of the evidence adduced by the prosecution, it could be seen that the accused was planning to do something in and around the area of the pond as evident from the deposition of PW13. She deposed that she had seen the accused several times during evening hours near the canal junction which is on the western side of Chennala house. That he was waiting for the deceased to come in the KCT bus by evening is evident from the deposition of the autorickshaw driver, PW10. The conductor of KCT bus, PW17 deposed that on 24/10/2011, she got down at Olaketty Kalathittu junction at about 6.45. PW15 Smt.Thulasi deposed that she had seen Smitha walking in front of her house in that drizzle about 5 minutes before her death. PW10, the autorickshaw driver deposed that the accused got down at canal junction and he saw the accused going behind a lady who

¶164

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:34:-

¶165

proceeded to the southern gravel road of canal junction from the eastern side of the canal. He also deposed that they started journey from the shop of Gopalakrishnan, 5 minutes after the KCT bus left and when they reached Kurishadi junction, he asked him to proceed towards west and on the way, he saw a lady wearing churidar and the accused immediately opened the curtain and was looking at her. PW14 Laji John at about 7.30 saw the accused wearing a shirt alone jumping across the bike in which he was travelling and driven by his friend Abhilash. The bike would have hit him unless they applied sudden brake and immediately though PW14 got down, the accused ran away in a hurry towards north through a pathway. These factors clearly prove the presence of the accused in and around the locality between 7 and 7.30 p.m.

¶166

The mobile phone belonging to Ambily, a green coloured kaili, a plastic cover bag with a shirt inside it and chappals belonging to the accused were recovered from the shore of the pond, where the body of the victim was found. All these factors clearly prove the presence of the accused in the scene of occurrence. Another clinching circumstance against the accused is

¶167

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:35:-

¶168

the comparison of the bite marks of the accused as spoken to by Dr.Sheela Virgina Rodrigs, PW29 regarding the comparison of the bite marks, bite impressions on the deceased and the cast of the maxillary and mandibular impression taken by the Doctor as that of the accused. The shirt which he was wearing at the time when he committed the crime was also recovered on the basis of his statement given to the police officer. Further, his previous conduct in sexually abusing women also proves his involvement in the crime.

¶169

The learned counsel for the appellant however tried to contend that the evidence of PW10 and PW14 is the only material to prove the presence of the accused in or near the scene of crime. It is argued that PW10 does not know the victim and he would have seen some other person, as PW10 had no acquaintance with the victim. He only proves that the accused was dropped near the canal junction. That by itself is not a circumstance to prove that the accused had committed the crime. The pond is situated by the side of a gravel road. It could be any other person who had committed the crime and being in a public

¶170

DSR No.3 of 2012 &

¶171

Crl.Appeal No.532/2013 -:36:-

¶172

place, merely for the reason that the accused got down in an auto near the canal cannot be a reason for mulcting him with the crime. Further, it is argued that PW14's evidence is totally unbelievable. First of all he is a conductor of a KCT Bus in which she used to travel quite often. Secondly it is totally impossible to see a person who is alleged to have been running in rain when it is dark, in the light of a motorbike. We don't think that the said argument of the learned counsel for appellant can be sustained in any manner. First of all, despite detailed cross examination of these witnesses, there is absolutely nothing to discredit their evidence. There is no contradiction in their evidence. There is no material omission which can be termed as contradictions. Further, the mobile phone in the name of PW8 was recovered from the scene of crime. PW8 deposed that the sim card was purchased by her and she had given the mobile phone to the accused one month back. This fact is found to be correct as per the evidence available in Ext.P2 application and Ext.P3 identity card given to the mobile company for obtaining the sim card. Further, witnesses also prove the other material objects.

¶173

DSR No.3 of 2012 & Crl.Appeal No.532/2013

¶174

-:37:-

¶175

Therefore the presence of the accused in the pond site, at or about the relevant time in the scene of occurrence is proved beyond reasonable doubt.

¶176

That the accused attempted to commit rape on the victim is proved by medical evidence and also the fact that the churidar and churidar pant of the deceased were torn and she was made naked. The bite marks prove his attempts to sexually abuse her one way or other. The injury suffered by the accused as evident from Ext.P16 certificate and the deposition of PW27 proves the fact that there was a scuffle, there was a nail mark in the face, root of the nose and neck and a bite mark was also noted in the right index finger.

¶177

Yet another argument raised by the learned counsel for the appellant was that even assuming that there is evidence to prove his presence and that his attempt was to commit rape, there was no intention to commit murder. This theory is also unsustainable. Rape on a victim itself is a heinous crime. Evidence discloses that during the process of sexual abuse, she would have become unconscious or semi unconscious. That is the reason why

¶178

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:38:-

¶179

she was groaning, probably at the time when he was attempting his sexual abuse. He would have tried to smother her to prevent her from groaning. The possibility is that when he heard some sounds while PW2 was walking through the gravel road, which was near the pond, to avoid the victim from making any other sound, he would have put her face in the pond and thereafter when he saw somebody watching and walking nearby, flashing light, the body was pushed into the water. When the body was found by the people in the locality including PW2, she was lying face down in the pond. They took her and laid her on the shore face upwards, with her body remaining in the water. At that time, her face was full of clay, mud and dirt. Nobody could identify her, which apparently indicates that her face was pushed down the slush on the shore of the pond preventing her from even breathing. It was only when her face was washed that they could identify her. Thereafter she was taken to the gravel portion. Her body was covered with a kaili and she was taken to the hospital.

¶180

Learned counsel for the appellant submits that even at the time when she was taken to the Government hospital at

¶181

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:39:-

¶182

Kayamkulam, she was alive and therefore the intention of the accused was not to commit murder. But it is relevant to note that when he had committed an act by pushing down her head into the pond, necessarily he knew that it was enough in the ordinary course to cause death by drowning. That exactly has happened in the case as evident from the scientific evidence that had been adduced in the case. Hence the contention that there was no possibility for the death is not sustainable. The acts of the accused was such that it was likely to cause death of the victim and there is no other possibility for the same.

¶183

Yet another argument raised by the learned counsel for the appellant is based on the testimony of PW15 who says that she had seen Smitha five minutes before the incident. It is contended that within a 5 minute period, it is not possible for all these things to happen. That is the accused chasing the victim, getting hold of her, pushing her down the pond, removing her dress making her naked, attempting to have sexual intercourse and thereafter PW2 hearing the sound, looking at the pond, flashing lights and the accused running away. But it is relevant to

¶184

DSR No.3 of 2012 &

¶185

Crl.Appeal No.532/2013 -:40:-

¶186

note that PW2 had seen the naked body of a lady in the pond. We have already opined regarding the presence of the accused. What time he had taken for all this cannot be discerned from the deposition of PW15 alone. It might be 5 or 10 minutes or 15 minutes. But when a lady says that she has seen her 5 minutes before, it might not be exactly the 5 minutes, may be a little more. Therefore, that by itself will not give any indication regarding the time factor involved in the commission of crime.

¶187

All these circumstances clearly point out to the complicity of the accused in the crime and that too beyond reasonable doubt. As rightly contended by the learned Public Prosecutor, all the circumstances in the case stands proved to the hilt and there is no probability to arrive at a conclusion and there is no possibility for any hypothesis that the accused might be innocent of the crime. Hence, we sustain the finding of guilt by the Court below and there is no ground made out to interfere with the said findings.

¶188

The next question is with reference to the death sentence reference. Learned Public Prosecutor submitted that

¶189

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:41:-

¶190

persons like the accused shall not be permitted to go scott free by just giving a punishment for life imprisonment. After 14 years he may ask for remission, which may be allowed. His previous conduct at this young age itself proves his sexual perversion. This is one among the rarest of rare cases as enunciated by the judgments of the Apex Court which requires death penalty to be given. A poor lady eking out her livelihood by working in a small establishment has been sexually abused and murdered by a habitual criminal. The evidence adduced by the prosecution clearly indicates that he was in the habit of sexually abusing women and even two cases have been charge sheeted against him and one case involves a minor girl as well. Such persons are a menace to the society and if they are let off after 14 years of life imprisonment as is the usual practice that is followed, he will continue the very same act and will continue to be a menace to the Society. She also referred to various judgments relating to instances where death penalty has to be imposed.

¶191

On the other hand, learned counsel for the appellant argued that death penalty granted by the Court below was totally

¶192

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:42:-

¶193

unwarranted as this is a case which does not come under any of the principles laid down under the rarest of rare cases. The entire case rests upon circumstantial evidence and in such an event it is totally illegal to award death sentence. A three Judge bench of the Apex Court in Machhi Singh (supra) held at para 32 to 38 as under:-

¶194

“32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of

¶195

DSR No.3 of 2012 &

¶196

Crl.Appeal No.532/2013

¶197

-:43:-

¶198

the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance: I. Manner of commission of murder

¶199

33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

¶200

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for commission of murder

¶201

DSR No.3 of 2012 &

¶202

Crl.Appeal No.532/2013

¶203

-:44:-

¶204

34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

¶205

III. Anti-social or socially abhorrent nature of the crime

¶206

35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

¶207

(b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

¶208

IV. Magnitude of crime

¶209

DSR No.3 of 2012 &

¶210

Crl.Appeal No.532/2013

¶211

-:45:-

¶212

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

¶213

V. Personality of victim of murder

¶214

37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

¶215

38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case:

¶216

“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

¶217

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the

¶218

DSR No.3 of 2012 &

¶219

Crl.Appeal No.532/2013 -:46:-

¶220

circumstances of the ‘crime’.

¶221

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

¶222

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.”

¶223

In yet another judgment in Sushil Sharma v. State

¶224

(NCT of Delhi) [(2014) 4 SCC 317], it was held that there can be no hard and fast rule which the Court can follow while considering whether an accused should be awarded death sentence or not.

¶225

Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents,

¶226

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:47:-

¶227

whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. It is also observed that decision to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of Court in the facts and attendant circumstances of each case.

¶228

In the present case, it is borne out that the primary intention of the accused was to sexually abuse the victim and to commit rape. In the process, he had exerted force on her and she had become unconscious. While committing sexual abuse and attempting to commit rape, he noticed the presence of certain persons when they flashed the light. Apparently to avoid the victim screaming, he had pushed her head into the water and in the process, she drowned. Thereafter, he pushed her body into the water and ran away. Taking into account the factual circumstances emanating from the case, we are of the view that

¶229

DSR No.3 of 2012 & Crl.Appeal No.532/2013 -:48:-

¶230

this is not a case which could be termed as a rarest of rare case falling within the parameters laid down in Machhi Singh (supra), and therefore the punishment of death penalty is liable to be set aside and modified to imprisonment for life.

¶231

In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka [(2008) 13 SCC 767], a three Judge Bench of the Supreme Court, held that if there is a good and strong basis for the court to substitute a death sentence by life imprisonment or by a term in excess of 14 years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, it could be done. The Constitution Bench of the Supreme Court in Union of India v. Sriharan (2015 KHC 4778) held that life imprisonment in terms of Section 53 read with Section 45 IPC means the entirety of life of the prisoner unless it is curtailed by remissions validly granted under Section 432 Cr.P.C. or Article 72 or Article 161 of the Constitution. It was held that a special category of sentence, instead of death, can be substituted by the punishment of imprisonment for life or for a term exceeding 14

¶232

DSR No.3 of 2012 &

¶233

Crl.Appeal No.532/2013 -:49:-

¶234

years and it can be put beyond the application of remission.

¶235

In the case on hand, after considering the nature of crime, we are of the view that the accused should not be given any remission for a period of 25 years.

¶236

In the light of the above findings, we dispose of the Death Sentence Reference and Criminal Appeal with the following directions:-

¶237

(i) Conviction of the appellant/accused under Section 302 IPC is confirmed. We set aside the death sentence imposed on him and modify the sentence to imprisonment for life. We further direct that the accused shall not be released from prison till he completes an actual period of 25 (Twenty five) years of rigorous imprisonment.

¶238

(ii) The conviction and sentence of the accused u/s 376 r/w S.511 of I.P.C. is confirmed and the sentence shall run concurrently with the sentence u/s 302 I.P.C.

¶239

Sd/-

¶240

A.M. SHAFFIQUE, JUDGE

¶241

Sd/-

¶242

P.SOMARAJAN, JUDGE

¶243

State v. Viswarajan @ Podi @ Karumadi

Case brief

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State v. Viswarajan @ Podi @ Karumadi

Case brief

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