BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) Challenge in this appeal is to the conviction made and sentence awarded for offences punishable under Sections 302 and 376 read with Section 34 of Indian Penal Code, 1860 (in short, the IPC), by learned Sessions Judge, Palakkad. Appellants are hereinafter referred to as 'accused' by their respective names. A twelve year old girl was the victim of alleged rape and murder. On analysing the evidence, circumstantial in nature, learned trial Judge found the accused guilty of the offences. They were sentenced to undergo imprisonment for life for offence punishable under Section 302 read with Section 34, IPC and seven years for the offence punishable under Section 375 read with Section 34, IPC.

(2.) Prosecution case, in a nutshell, is as follows : On 17-11-1994, at about 2.00 p.m., victim was subjected to rape by first accused inside shrubby bushes near Mangalam Dam in Kizhakkencherry No. II village. After closing her mouth with his hand, she was taken inside the shrubs, and when she refused to yield to the lustrous advances of first accused, he inserted a stick inside the vagina of the girl and threatened her and thereafter committed rape on her. Second accused, who came to the place of occurrence on seeing commission of rape by first accused, also committed rape on her who was lying unconscious. Death was the result of such brutal acts of the accused persons.

(3.) During trial, it was highlighted by prosecution that victim was the elder daughter of Varghese (PW 1). She was studying in 6th standard at Lourd Matha School, Mangalamdam, on the date of occurrence. During November 1994, school authorities fixed an annual excursion programme of the students to Ernakulam and Kochi. Deceased also was to go on the excursion trip. According to the programme arranged by school authorities, excursion party was to start early in the morning at 6.00 a.m. on 18-11-1994 from the school. Since the time of proceeding to destination was fixed as 6.00 a.m., parents of the deceased decided to send her to her maternal grandmother's house at Mangalamdam on 17-11-1994, so that she could stay there on that day and join with the excursion party in the early morning itself by going to the school from her grandmother's house. Idea was that victim could go back to her grandmother's house after the trip and after staying there on the day of return to go back to her house next day. Accordingly, the victim proceeded from her house at about 10.00 a.m. She walked through the Mangalamdam road to reach the house of her grandmother. Since deceased did not return to her house as scheduled, PW 1 set out in search of her. On way to his mother-in-law's house, he met his father-in-law and enquired about his daughter and when he got the information that the deceased had not reached her grandmother's house, naturally he went to the school and made enquiries. School authorities told him that the girl had not reached there and also did not go with the excursion party. Perplexed at this information, PW 1 started making enquiries and also went to the tea shop of Rajan (PW 2). He was told by PW 2 that he had seen the girl walking in front of his tea shop in between 1.00 and 1.30 p.m. of 17-11-1994, towards her grandmother's house. In the light of this information, the search for the girl was intensified. He got information that a dead body was seen near Mangalamdam. On getting this information on 20-11-1994, he immediately rushed to the place where the dead body was found and identified the body to be that of his daughter. Thereafter, he went to the Mangalamdam Police Station and gave first information statement (Ext. P1) and investigation was undertaken by police. V. K. Thomas (PW 3) disclosed, during investigation, that on 17-11-1994 between 1.30 and 1.45 p.m., he and his friend Kuruvilla, who was coming with him saw the first accused walking behind the victim and second accused drying the net used for fishing by sitting on the eastern portion of the upper parapet of Mangalamdam. On getting this information, investigating officer also enquired from other persons and it was gathered that first accused had absconded from his native place. Further enquiry revealed that he had gone for a prayer at Divine Dyanakendra at Muringur. During questioning, first accused confessed to have kept the dress worn by him at the time of commission of crime at his house and on the basis of that information, the wearing apparels were seized. Second accused was also arrested as there were reliable information about his involvement in the crime.