GOVINDAN ALIAS GOVINDASAMY Vs. STATE

JUDGEMENT

(1.) THIS Appeal challenges the judgment of the Additional Sessions Division, Fast Track Court-I, Erode made in S.C. No.18/2007 whereby the Appellant/A1 was stood charged along with A2. A1 was charged for the offence under Sections 376(2) (f) and 302, I.P.C. and A2 was charged for the offence under Section 213, IPC and on trial, A1 was found guilty of both the charges and awarded life imprisonment for both the charges whereas A2 was acquitted of the said charge.

(2.) THE short facts necessary for the disposal of this Appeal can be stated as follows: (i) P.W.1 and P.W.6 are the brothers. THE deceased child Sandhiya is the daughter of P.W.6 and she was under the care and maintenance of P.W.1 during the relevant time. THE victim child was 8 years on the date of occurrence, i.e., 20.11.2005. On the date of occurrence, the victim was playing along with another child/P.W.4 in front of the house of P.W.2. Since the child did not come back home till 5O"clock, P.W.1 me P.W.2. and asked about the child. He replied that at about 3.30 P.m., he saw the child Sandhiya and P.W.4/child Hema playing with the First Accused in front of P.W.1"s house. THEn, both P.Ws.1 and 2 went in search of the child. When they met P.W.3, he told that he saw the child in the Company of the First Accused in front of the house of P.W.12 at about 3.45 p.m. Immediately both of them went and searched in front of P.W.12"s house but they could not find the First Accused or the child Sandhiya. So they went to the house of P.W.4 and asked the child. She replied hat when she along with Sandhya were playing, the First Accused came there and was also playing with them and since she did not like the behavior of First Accused, she returned home leaving Sandhiya along with the First Accused/Appellant. THEreafter, P.W.1 along with other went in search of the child. Information was given to P.W.6, the father of the child. All of them were making search and at that time P.W.5 informed that at about 4.30 p.m., she saw the First Accused washing his face and hands in the Public tap near one Muthusamy"s house. THEn P.W.9 informed that at about 4.30 p.m., she saw the First Accused coming from the house of P.W.12. Immediately, when all of them went inside the house of P.W.12, they found the dead body of the child, Sandhiya. On 20.11.2005 at about 3 O" Clock the Accused had parked the cycle in front of P.W.10"s house and took the cycle at 6.00 p.m. (ii) P.W.1, after ascertaining the above fact, proceeded to the Vellode Police Station and gave Ex.P1-report at 7.00 p.m. P.W.21-Sub-Inspector of Police on receipt of Ex.P1-Complaint registered a case in Crime No.186/2005 under Section 376 and 302, IPC. THE First Information Report-Ex.P17 was dispatched to Court. (iii) On receipt of a copy of the F.I.R., P.W.22 Inspector of Police took up investigation. He proceeded to the spot, made an inspection and prepared the Observation Mahazar-Ex.P2 and also drew a Rough Sketch-Ex.P.18. THE photographs were also taken and M.Os.3 and 4 the series of photographs and negatives. P.W.17 is the photographer. THE Investigating Officer conducted inquest on the dead body of the child Sandhiya in the presence of witnesses and prepared Ex.P19-inquest and he also called for finger print expert and on 21.11.2005, the finger print expert took the finger prints. An empty bottle was also recovered from the place of occurrence. (iv) THE dead body of the child Sandhiya was subjected to post mortem. P.W.15-Doctor attached to Government Hospital, Erode gave opinion in Exs.P4 and P5 wherein he has opined that the child would have died of neurogeric shock due to vaginal and uterus cervix injury, due to sexual assault. Pending investigation, the First Accused was arrested on 23.11.2005. He came forward to give confessional statement which was recorded in the presence of witnesses. THE admissible part of the same was marked as Ex.P8 pursuant to which he produced M.O.5-pant M.O.7-shirt and M.O.6-jatti and they were recovered under a cover of mahazar. M.O.1-cycle was also recovered. THEreafter, the First Accused was sent for Potency test. P.W.16-doctor conducted Potency test and declared that the First Accused was potent. Pending investigation, Second Accused was also arrested. He was identified by the First Accused. He also gave confessional statement and a sum of Rs.50/- was recovered from him under a cover of mahazar. THEreafter, the Accused were sent for judicial remand. All the materials objects were sent for analysis and the reports, Exs.P.23 and 24 Chemical Reports and Exs.P.25 to 30 Serologists Reports were received and placed before the Court. On completion of the investigation, the Investigating Officer filed a final report. (v) THE case was committed to the Court of sessions. Necessary charges were framed. In order to substantiate the charges leveled against the Accused, the prosecution examined 25 Witnesses and relied on 31 Exhibits and 11 Material Objects. On completion of the evidence on the side of the prosecution, the Accused were questioned under Section 313, Cr.P.C. as to the incriminating circumstances found in the prosecution witness and they denied them as false. No defence witness was examined and no diocument was marked on their side. On hearing the arguments advanced on either side, the Trial Court took the view that the prosecution has proved the case beyond reasonable doubt and found the Appellant guilty under Section 376(2)(f) and 302, IPC and awarded the punishment of life imprisonment for both the charges and found A2 not guilty under Section 213, IPC and acquitted A2. Hence, this Appeal at the instant of the Appellant/First Accused.

(3.) LEARNED Counsel would further submit that insofar as the evidence of P.W.6 is concerned, he has categorically stated that the child was playing in front of the house with the Accused at about 5.00 p.m. but according to the prosecution, the occurrence has taken place between 4.00 and 4.30 p.m. Hence, the entire incident could not have taken place at all. Much comment was made by the learned Counsel for the Appellant on the evidence of P.W.9. LEARNED Counsel would submit that P.W.9 has stated when she was standing infront of her house, she saw the Accused coming from the house of P.W.12 and went in the opposite direction but she did not whisper it to any body the very day. The entire village people came to know about the incident but P.W.9 has kept silent throughout the day. Further, the investigating Officer would claim that P.W.9"s statement was recorded on 21.11.2005 but the same has reached the Court only on 24.11.2005. Hence, it is clear that in order to fill up the lacuna in the prosecution case, the statement of P.W.9 was recorded stating as if he saw the Accused coming out from the house of P.W.12 where the occurrence had taken place. Hence, P.W.9 is a planted witness.