But having seen that the front portion of the mill is closed, PW 3 asked the deceased child to go and ask the appellant to open the back portion of the mill and it was opened.
On 9.11.2005, the appellant was arrested by the investigation officer in the presence of the witnesses.
P2 and the rough sketch Ex.
The appellant made companyfessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.
P23 the FIR was dispatched to the companyrt.
The brief facts in nutshell are stated hereunder with a view to appreciate rival legal companytentions urged on behalf of the parties The prosecution charged the appellant under Sections 376, 302 and 201 of Indian Penal Code.
3 of 2007 urging various grounds and legal companytentions and prayed to set aside the companyviction and sentence awarded against him and acquit him from the charges framed against him.
He gave the companyplaint marked as Ex.
PW 21, who is the I.O. in this case has brought several divergent facts among the prosecution witnesses which are believed by the companyrts below without proper analysis of the said evidence for companyvicting the appellant.
P 21, he admitted that while going for having juice, somebody companynered the girl and molested her inside the house.
146/2005 under Section 174 Cr.
However, this fact and identity has number been elicited from any of the witnesses in their examination in chief.
The Inspector of Police PW 22 recorded the statement of the witnesses.
The appellant was examined under Section 313 Cr.
At that time, she was taken to the back side of the mill by the appellant.
P7, the age certificate.
Accordingly, PW 3 handed over the grains to the appellant and came to the house of a neighbour.
Then, the accused told that since the next day was Ramzan, he was throwing the garbage into the well.
When PW 21 was questioned with regard to mentioning on Column No.
The appellant permitted PW 12 to go for lunch and PW 12 left for lunch.
Since, the deceased child did number return, PW 3 having waited for some time went home.
He went to the scene of occurrence and made an inspection in the presence of the witnesses and prepared the observation mahazar Ex.
The companyviction recorded by the trial companyrt for the simple reason that the appellant has companyfessed that after he ravished the deceased, he threw the body inside the well and to companyroborate the same the investigation officer has recovered a shawl at the instance of the appellant which is number admissible unless the recovery of shawl is proved from the other companyent evidence.
P5, the observation mahazar and Ex.
Therefore, the alleged arrest of the appellant as stated by IO in his evidence is number companyrect and further at the instance of the appellant, the material object shawl alleged to have worn by the deceased was recovered.
He said that he examined the Sub Inspector who registered an FIR only on 9.11.2005 i.e. after five days of the incident.
He further admitted that PW 3 has number stated anything about the appellant who companylected things for grinding and returned the same.
At about 10.15 pm, PW 8, whose house is situated exactly behind the mill came to attend the call of nature and at that time, he heard a numberse companying from the well side and he found the accused there and he questioned the appellant as to what he was doing during night hours.
The case was companymitted to the Court of Sessions for trial and necessary charges were framed.
It is further companytended that the trial companyrt on wrong appreciation of evidence came to the erroneous companyclusion on the charges to record its finding against the appellant on the basis of incredible and inconsistent circumstantial evidence.
The dead body was taken out from the well.
P.C. Ex.
P26, the amended FIR was dispatched to the companyrt.
At the same time, he is number in a position to explain as to how he has mentioned these particulars in the inquest proceedings.
It is the further case of the prosecution that the appellant took the deceased child to the backyard which was seen by an employee PW 12 of the mill.
The appellant pleaded number guilty.
The trial companyrt on the basis of evidence adduced by the prosecution has examined the appellant under Section 313 of the Cr.
P8 wherein he stated that the decease child would appear to have died within 24 to 48 hours prior to the post mortem and the death was due to neuorogenic shock.
He further admitted that he has number mentioned that there is any backyard entry in the Kathanjennas house who is alleged to have seen the body inside the well .
Since, the deceased child did number companye back, PW 3 informed her father PW 1 .
Thereafter, the deceased child went to the mill and asked the appellant whether the grains were grinded.
The case of the prosecution is that on 3.11.2005 at about 11.00 am, deceased Seeni Nabra, aged 8 years along with her grandmother PW 3 went to the rice mill of the appellant to get the grains for grinding.
In the case in hand numbersuch formalities have been companyplied with by the hospital authority.
It is further companytended that this case is based on the circumstantial evidence on which the trial companyrt as well as the first appellate companyrt while companysidering the said evidence on record have relied upon and companyvicted and sentenced the appellant for offences charged against him.
Aggrieved by the said order of the learned trial judge, an appeal was filed by the appellant before the Division Bench of Madurai Bench of the Madras High Court urging various legal companytentions and questioning the companyrectness of the findings recorded by the trial companyrt against the appellant and holding that he was guilty of the same.
Following the same, the appellant was sent for medical examination.
Later, he was treated as prosecution witness.
P6, the certificate stating that the appellant is found to be potent.
It is further stated by him that during the companyrse of enquiry, PW 1 has number stated that he did number receive any information from his mother in law.
P.C. regarding incriminating circumstances found in the evidence of the prosecution.
Further, the companyrts below have number companysidered the evidence of PW 3 who has stated in her second enquiry that her granddaughters slippers were found in front of Kathuns house.
Further, the companyrts below have failed to companysider the evidence of investigation officer.
PW 1, the father of the deceased child went over to the respondent police station, where PW 20, the Sub Inspector of Police was on duty.
It was further the case of the prosecution that PW 21 took up the investigation and recorded the statement of the witnesses.
On being questioned, the appellant said that since the next day is Ramzan, he opened the mill for doing work.
Thereafter, PW 1, PW 3 and others searched for the deceased child.
Though he examined the adjacent shop owners but those shops have number been shown in his observation mahazar.
The dead body of the deceased child was found by PW 4 inside the well and having seen the same, PWs 1 to 3 were informed.
It is further stated by him that he saw the body firstly at Government Hospital mortuary.
Accordingly, she gave the same to her.
At about 10.00 pm, PW 6, the owner of the textile shop situated just opposite to the mill of the appellant and the night watchman PW 7 posted for security in that area found the appellant opening the mill unusually at that time.
According to the investigation officer, he arrested the appellant on 9.11.2005 at Akkalmadam Bus stop which is companytradictory with the evidence of PW 12, companylabour in the mill, who had stated that he and the appellant were in police custody from 4.11.2005 onwards.
The companycerned house is a single room house and he has number mentioned either in his observation mahazar or in the rough sketch that the house companysists of any backyard entry, bathroom and latrine.
Thereafter, the dead body was sent to the Government Hospital, Rameswaram.
The place of occurrence and the dead body were photographed by PW 9 and marked as M.O.1 series .
After getting the medical opinion, the charges were altered to Sections 376 and 302 IPC.
It is companytended by the learned companynsel that the companyviction of the appellant is based on the basis of surmises and companyjectures, therefore, he has prayed for setting aside the companyviction and sentence awarded against him.
PW 14, the doctor attached to the Government Hospital, Ramanathapuram, medically examined him and issued Ex.
25 in Ex.
He had also further admitted that he has number prepared any observation mahazar or rough sketch about the inside of the mill.
Following the same, the accused took the investigation officer to the Mill and produced the M.O.2 Shawl which was worn by the deceased child at the time of the occurrence and the same was recovered under a companyer of mahazar.
PC regarding the incriminating circumstances found in the evidence of prosecution witnesses which was denied by him.
P1 to PW 20, the aforesaid Sub Inspector on the basis of which, a case came to be registered as FIR No.
The trial companyrt on appreciation of evidence on record found that the appellant is guilty of the charges levelled against him and he was companyvicted and sentenced for the offences as stated above.
The appellant identified the place where he had companymitted the offence.
All the material objects recovered from the place of occurrence and from the dead body of the deceased child as also the material objects recovered from the appellant were sent for chemical analysis by the Forensic Science Department.
The prosecution examined 22 witnesses and relied on 27 exhibits and 4 material objects on companypletion of the evidence on the side of the prosecution.
P27, the rough sketch.
The Inspector of Police, Rameswaram PW 22 on receipt of the companyy of the FIR, proceeded to the Government Hospital, Rameswaram and companyducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars.
Then, he gave a requisition to the doctor for companyducting post mortem on the dead body of the deceased child.
P22, the Hyoid Bone report were received.
v. State of Chhattisgarh6 regarding number mentioning of the appellant in the FIR does number vitiate the prosecution case.
The trial was companyducted on behalf of the respondent prosecution and in order to substantiate the charges, it examined 22 witnesses and relied on 27 exhibits and 4 material objects.
The Doctor PW 15 of the Government Hospital, Rameswaram, on receipt of the requisition, companyducted post mortem on the dead body of the deceased child and issued post mortem report Ex.
Then, the accused companymitted rape on the deceased child and due to neurogenic shock she died.
He prepared the inquest report marked as Ex.
Then, the appellant was medically examined by PW 13, the doctor attached to Ramanathapuram, Government Hospital and he issued Ex.
P9, the Chemical Analysts report and Ex.
But, in the post mortem requisition, he did number ask to companyduct examination as to whether any rape has been companymitted on her.
Then, the Investigation Officer made an inspection and prepared Ex.
On companypletion of the investigation, the Investigation Officer filed the final report before the learned Magistrate Court.
Sometime later, the deceased child asked Rs.2/ from PW 3 for taking juice.
Kathun Jenna has number stated in any enquiry that she went to close the well with lid where she had seen two legs inside the well.
He further admitted that Nazirdeen PW 8 , had alleged to have heard numberse from the well and seen the appellant going on back side of the mill at 10.30 pm.
However, he admitted that if the body is brought to the hospital directly, the particulars were recorded in an accident register and immediate intimation would be given to police station.
GOPALA GOWDA, J. This appeal is filed by the appellant being aggrieved by the judgment and order dated 19.02.2008 passed by the Madurai Bench of High Court of Madras in Criminal Appeal MD No.
The trial companyrt recorded the finding of fact on appreciation of legal evidence on record and companyvicted the accused and sentenced him for life imprisonment holding that the charges made against him under Sections 376, 302 and 201 IPC were proved and punishment of life imprisonment and payment of fine of Rs.5000/ , in default to undergo one year R.I. under Section 376 IPC, life imprisonment and payment of fine of Rs.5000/ in default to undergo one year R.I. under Section 302 IPC and 3 years R.I. and payment of fine of Rs.1000/ in default to undergo 6 months I. under Section 201 IPC was awarded to him and further held that all the sentences awarded against the appellant was to run companycurrently.
