JOY JACOB Vs. STATE

JUDGEMENT

(1.) Md. Shajee (hereafter Shajee), Joy Jacob (hereafter Joy) and Abdul Karim (hereafter Karim) were charged with committing offences punishable under sections 376(2)(g)/302/201/34, Indian Penal Code (hereafter the IPC) and tried by the learned Sessions Judge, Andaman and Nicobar Islands. The victim of their lust, according to the prosecution, was a nineteen year old girl who was also their neighbour (hereafter the victim). The learned judge by a common judgment and order dated December 19, 2012 found Shajee, Joy and Karim (hereafter the accused, wherever referred to jointly) not guilty of concealment of evidence, but having found them guilty of the other offences convicted them and sentenced them to life in prison together with fine. The accused feeling aggrieved thereby have preferred separate appeals under section 374(2) of the Code of Criminal Procedure (hereafter the Cr.P.C.), which have been heard by us analogously. All the appeals shall stand disposed of by this common judgment and order.

(2.) There being no direct evidence, guilt of the accused was sought to be established by the prosecution by circumstantial evidence.

(3.) Shorn of unnecessary details, the sequence of events that unfurled before the learned Judge for his consideration from the prosecution side are that, the victim resided with her mother (PW-2), two brothers (PW-7 and PW-1), sister-in-law (PW-7's wife, who passed away before the trial commenced) and two nephews (children of PW-7) under a common roof; that, the victim used to regularly leave her residence at about 13.00 hours for bringing back the younger son of her elder brother (PW-7) from school; that, on the fateful day, i.e. August 13, 1998, the victim had left her residence as usual but did not return till 14.00 hours when Junika, PW-7's wife, got restless and herself left the residence for bringing her son from school; that, on her way, Junika noticed the slippers of the victim lying by the side of a nullah but her son's interest presumably being foremost in her mind, she had proceeded towards the school; that, on reaching the school, Junika came to learn that the victim had not arrived that day to take her son back and, accordingly, she returned home with him; that, thereafter, the victim's mother (PW-2), elder married sister (PW-3) (she was present in her father's residence that day), Junika and a neighbour (PW-4) went out searching for the victim and came to the place where her slippers were lying; that, despite calling the victim by name and conducting search they did not find her but noticed footprints on muddy land going towards a nearby jungle; that, PW-4 proceeded in the direction of the footprints followed by Junika whereupon PW-4 found the dead body of the victim on a tekri (an elevated land); that, the victim was strangulated to death with her dupatta tied round her neck; that, upon a hue and cry being raised, people of the neighbourhood gathered followed by PW-7 and PW-1 (there is some controversy as to whether they arrived at the site with or without the police); that, an FIR (Ext. No.1) was drawn up by PW-16, a policeman, based on the written complaint of PW-1 and Paharganj P.S. FIR No. 145/1998 was registered against unknown persons; that, the police party reached the site with PW-7 and PW-1 together with a photographer (PW- 12); that, a sketch map (Ext. No. 15) was drawn and inquest conducted, whereupon a report (Ext. No.2) was prepared by the first investigating officer of the case viz. Rajeshwar Lall (he too passed away before the trial commenced), signed by the pradhan and the up-sarpanch of the local panchayat (PW-11 and PW-10 respectively), and PW-1, in that order; that, the dead body of the victim was also photographed (the photographs were marked Ext. No.7 series and the negatives marked Mat. Ext. No.XII series) and a pair of slippers, a green hair band, a light blue underwear, a dark blue underwear and soil from the site were seized under seizure memo (Ext. No.5) in the presence of PW-11 and PW-10; that, the dead body of the victim was thereafter shifted to the local hospital, where the post mortem was conducted by a pathologist (PW-20) on August 14, 1998; that, the report prepared by PW-20 (Ext. No.13) revealed death of the victim having occurred due to asphyxia resulting from homicidal strangulation with signs of sexual intercourse; that, Ext. No.13 also revealed contusion and swelling of the upper lip at its centre with lacerated injury and clotted blood, multiple small abrasions with bleeding surfaces over left and right arms posteriorly just above both the elbow joints, and well-defined and depressed ligature mark just below the thyroid cartilage, encircling the neck horizontally and completely, description of the position of wearing apparels, and presence of mud over the back, scapular region of the kameez and both buttock areas of salwar; that, after conducting post mortem, PW-20 handed over 14 (fourteen) belongings (wearing apparel and ornaments) of the victim to the police in the presence of PW-11 and PW-10 vide a seizure memo (Ext. No.6); that, over the next couple of days no arrests could be effected for lack of clues and ultimately on August 18, 1998 the police took the accused, PW-4, another neighbour of the victim having previous history of conviction for trading in illicit liquor (PW-8), and some others to the police station for interrogation and detained them for varying periods; that, the accused were taken to Garacharma Primary Health Centre on August 18, 1998 for examination and upon being examined between 21.00 and 21.40 hours by the doctor posted thereat (PW-17), three reports were prepared by him (Ext. Nos.9, 10 and 11 relating to Shajee, Karim and Joy respectively); that, insofar as the capability of the accused to indulge in sexual intercourse is concerned, PW-17 opined that none of them was able to erect their respective penis by handling it and since further testing facility was not available thereat, second opinion was advised to be obtained; that, during examination PW- 17 collected samples of pubic hair of all the accused and smear on slides from the glans penis of each of them and in six separate sealed cover envelopes handed over the same to the police by a written document (Ext. No.12) which also referred to the accused's identification marks; that, statement under section 164, Cr.P.C. of PW-8 was recorded on August 19, 1998 (Ext. No.4) suggesting that the victim was last seen alive with the accused by PW-8 and that the accused were interfering with her personal liberty and behaving with her in an indecent manner (more about the statement at a later part of this judgment); that, on the same day i.e. August 19, 1998, at about 14.00 hours, the accused were produced for examination before a Special Medical Board comprising of three doctors, viz. PW-18 (Chairman), one Dr. M.B. Goswami (not examined at the trial) and PW-15 (the other member) and upon identification by the said Rajeshwar Lall, the accused were examined; that, the special medical board's report (Ext. No.8) signed by all the members revealed that the accused were capable of sexual intercourse; that, a police constable (PW- 13) had been deputed for carrying the alamats in connection with Pahargaon PS FIR No.145/1998 to the Central Forensic Science Laboratory, Kolkata (hereafter the CFSL) under order of his superior and for that purpose he sailed for Kolkata on September 2, 1998, deposited the alamats with the CFSL on September 6, 1998 and returned by ship on September 27, 1998; that, the Director, CFSL vide letter dated July 12, 1999 (wrongly marked Ext. No.13 once again, since the post mortem report had already been marked Ext. No.13) issued in response to Memo No.474 dated August 28, 1998 of the Superintendent of Police, Andaman District (not produced at the trial), forwarded a laboratory report dated June 10, 1999 (at pages 130-132 of the paperbook) on the exhibits and informed the addressee that the examining officer Dr. R. Trivedi, Assistant Director could be contacted for deposing as an expert in court and further that a messenger, duly authorised, may be deputed for collecting the remnants of the exhibits lying at the office duly packed and sealed; that, vide letter dated November 29, 1999 (Ext. No.14), the Director forwarded to the Superintendent of Police another laboratory report on a few pieces of mosaic floor and a small piece of stone, both stated as soil by the forwarding authority (Exhibit Nos.4 and 6 in the report, respectively), and informed the addressee that the examining officer Mr. B. Manna, Senior Scientific Officer (Physics) could be contacted for deposing as an expert in court and further that a messenger, duly authorised, may be deputed for collecting the remnants of the exhibits lying at the office duly packed and sealed; that, the alamats of the case were brought back from the CFSL by a policeman (PW-21), who had been deputed to reach alamats in respect of another case to the CFSL, but could not remember the quantum of material that was brought back by him; that, the result of forensic examination of the exhibits, inter alia, revealed that Exhibit 2 i.e. a "light blue colour chaddi having a few area of whitish stains" turned out to be "positive for semen tests", Exhibit 11 i.e. "A few small blackish strands (said to be found in the private part of the deceased" turned out to be "Human pubic hair and found to be similar with Ext.12(a) pubic hair of Saji", Exhibit 12(a) i.e. "Some strands of small size blackish strands (said to be pubic hair of accused Saji)" turned out to be "Human pubic hair and found to be similar with Ext. 11 hair strands found in the private part of deceased", and that Exhibits 12(b) and 12(c) being few blackish strands small in size said to be of Joy and Karim respectively bore no similarity with Ext.11; and, that, the 'semen test' was based on "(i) Visual & U.V. Examination, (ii) Acid Phosphates (iii) Microscopic Examination" and the 'hair test' based on "Microscopic Examination". The defence side placed evidence before the learned Judge to the effect that, several convictions were recorded against PW-8 for selling liquor illegally; that, PW-8 had been disowned by his own community and was sort of an outcaste; that, he was detained in custody by the police without being arrested between August 18 and 25, 1998; and, that, PW-8 (during cross-examination) admitted that the police having suspected him as the culprit, badly beat him up and threatened him of arrest for teasing the victim and committing the crime. However, PW-8 was quick to deny suggestions of being beaten up by the police, or being threatened to implicate the accused or face the risk of false implication.