MOORTHY Vs. STATE

JUDGEMENT

(1.) THIS Referred Trial case has arisen from the judgment of the Court of Session, Coimbatore Division, seeking confirmation of the death sentence awarded in S.C.No.258 of 2005, whereby the accused/appellant in Crl.Appeal No.128 of 2009 stood charged, tried and found guilty as follows: TABLE The sentences imposed on the accused were ordered to run concurrently and in case of death sentence being confirmed, the sentence of imprisonment would get terminated. Aggrieved over the said judgment of the trial court, the accused/appellant has preferred Criminal Appeal No.128 of 2009.

(2.) BOTH the referred trial case and the appeal at the instance of the accused in S.C.No.258 of 2005 are taken up for consideration together.

(3.) ADVANCING arguments on behalf of the appellant/accused, the learned counsel would submit that in the instant case, the case of the prosecution was that on 02.06.2005 at about 8.00 PM, the child, aged 13 years, was taken from the place where she was playing in front of the house of P.W.18, and she was sexually assaulted and on that spot, he gagged her mouth and pressed her nose and thereafter, he threw the child in a well situate at about 1/2 km from there; that in order to substantiate of the charges, the prosecution had no direct evidence to offer; that it relied on the evidence of P.Ws.2, 19 and 20 for the purpose of speaking the last seen theory; that in so far as the those witnesses are concerned, their evidence got to be rejected; that according to P.W.2, he saw the accused having the child at about 8.00 PM from the place where she was playing in the night hours and if P.W.2 has seen the child being taken by the accused, naturally one would expect immediately to question the accused or at least inform the same to her parents; hence the evidence of P.W.2 is highly doubtful; that in so far as the evidence of P.W.19 is concerned, according to him, he saw both together; that had it been true, his evidence would have got to be rejected, for the same reason which could be attributable to P.W.2; hence the evidence of P.W.19 cannot be accepted; that according to P.W.20, he has seen the accused alone and even assuming that P.Ws.2 and 19 have seen the accused with the company of the child, it cannot be presumed that he who committed either the rape or he murdered the child.