R. Balasubramanian, J. - (1.) THE appellants are A1 and A2 in S.C.No.82/1999 on the file of the Additional Court of Sessions (Fast Track Court) Vellore at Tiruppattur. Two more persons were tried in that sessions case along with the appellants for offences under sections 376(2)(g) 302 and 201 I.P.C. THE learned trial Judge acquitted A3 and A4 and the State had not challenged that judgment in a manner known to law. By the same judgment, the learned trial Judge convicted A1 and A2 under all the charges and accordingly, sentenced the appellants to undergo imprisonment for life together with a fine of Rs.5,000/-, carrying a default sentence, for the offence of murder 10 years rigorous imprisonment together with a fine of Rs.5,000/-, carrying a default sentence, for the offence of gang rape and 3 years rigorous imprisonment together with a fine of Rs.2,000/-, carrying a default sentence, for screening the offence. Hence they are before this court in this appeal. Heard Mr.AR.L. Sundaresan learned senior counsel appearing for the appellants and Mr. N.R. Elango learned Additional Public Prosecutor appearing for the State.
(2.) THE prosecution case is that at about 7.00 p.m on 21.10.1995, by force, all the four accused took the victim girl to a secluded place, where, she was raped and in the course of the same transaction, A1, by throttling the neck of the victim, caused her death. According to the prosecution, after committing the crime as referred to above and with a view to screen the offence, all of them took the dead body to the agricultural land of one Jayaraman left it there and therefore punishable under the various sections as referred to earlier. To prove their case, the prosecution examined P.Ws.1 to 26, besides marking Exs.P.1 to P.43 and M.Os.1 to 16. THE defence did not let in any oral evidence but marked Ex.D.1, the acknowledgement due, containing the signature of P.W.10. Admittedly, there are no eye witnesses to the occurrence. THE entire prosecution case revolves around Ex.P.7, the extra judicial confession, stated to have been given by A1 on 25.11.1995 to P.W.10 witnessed by P.W.11 and Ex.P.11, the extra judicial confession stated to have been given by A2 on 26.11.1995 to P.W.13 witnessed by P.W.14. P.W.1 is the elder brother of the deceased. He had only deposed on the educational qualification of his sister her employment details and as to how she used to go for work and come back home. He would then state that his sister, who left the house at 8.15 a.m. on 21.10.1995 for her work, did not return even by 6.30 p.m. on that day and therefore he went in search of her. All enquiries made by him did not yield any result. In the course of such search, they found a lady's bicycle abandoned and finding that the said bicycle belongs to his sister, they tried to pursue the matter further. But however, as it was very late in the night, they did not do anything else on that night. At 6.00 a.m. the following morning, they continued their search and en route, they found two hawai slippers belonging to his sister on the ground and a further search made, resulted in locating the dead body of the victim. P.W.1 noticed external injuries on his sister. P.W.1 gave a complaint to the police, which is marked as Ex.P.1. M.O.1 is the lady's bicycle and M.O.2 is the pair of slippers which his sister was wearing. P.W.2 only observed the dead body on the morning of 22.10.1995 when he came to know about it. P.W.3 also knows P.W.1 and his family. He observed the dead body of the victim in this case. He also noticed the injuries. P.W.4 is related to P.W.1. P.W.4 also observed the dead body on the next day. P.W.24 is the Sub-Inspector of Police in the Investigating Police Station. At 9.30 a.m. on 22.10.1995, P.W.1 appeared before him and gave a complaint, which he registered as Ex.P.1 in his police station crime No.622/1995 under section 302 I.P.C. Ex.P.39 is the printed first information report. Then he sent the express records to the court as well as to the higher officials through P.W.23. P.W.23 accordingly carried the express records to the court as well as to the higher officials. P.W.25 is the Investigating Officer. At 11.00 a.m. on 22.10.1995, he collected the express records in this case and commenced the investigation. He reached the crime scene at 11.30 a.m. and in the presence of P.W.5 and another, he prepared Ex.P.3, the observation mahazar and Ex.P.36, the rough sketch. P.W.25 caused the crime scene and the dead body to be photographed. He sent for the finger print expert and dog squad. At 12.30 in the afternoon, he conducted inquest over the dead body in the presence of panchayatdars and witnesses and prepared Ex.P.37, the inquest report. Finger print expert arrived at the crime scene at 4.00 p.m. and examined the crime scene. No clue was available. From near the crime scene, he recovered a pair of hawai slippers and some sample earth under a mahazar. P.W.5 witnessed the preparation of Ex.P.3, the observation mahazar and recovery of M.O.2 (pair of hawai slippers) M.O.4 (sample earth) M.O.5 (the purse) M.O.6 (pen) and M.O.7 (some cash) under Exs.P.4 and P.5. P.W.25 sent the dead body with a requisition for post mortem to the Government Hospital at Tiruppattur. P.W.21 is the Photographer, who photographed the crime scene and the dead body. M.Os.8 and 9 series are the photographs and negatives. P.W.20 is the duty Doctor in the Government Hospital at Tiruppattur. On receipt of the dead body and the requisition, he commenced post mortem on the dead body at 12.45 p.m. on 23.10.1995. During post mortem, he found various symptoms as noted by him in Ex.P.20, the post mortem report. Ex.P.19 is the requisition received by him for conducting post mortem. The symptoms noted by him in Ex.P.20 are as follows: "Eye balls protruded out. Fluids coming from both ends of both eyes. Tongue in between the teeth and protruded out. R.M mildly present in upper limbs. Moderately present in lower limbs. External Injuries: 1) An abrasion on right fore arm 2 cm x 3 mm (nail marks). 2) An abrasion on left fore arm 2 cm x 3 mm (nail marks). 3) Abrasion on right clavicle. 4) Abrasion on left breast. 5) Abrasion on left side of neck. 6) Abrasion on front of neck and contusion around the area. 7) Bleeding from both the ears. 8) Vaginal rupture with bleeding. On Dissection: Skull - Intact. No fracture. Brain - Congested and becomes liquefied. Hyoid bone - Hyoid bone fractured on left side (left corn of hyoid bone). Chest - 2nd and 3rd ribs fractured on right side. Heart - Congested. Lungs - Congested. Liver - Congested. Kidney - Congested. Stomach - Undigested food particle. Small intestine - Empty. Vaginal torn is present with bleeding hymen. Public hair already shaven. Uterus - Normal in size. White fluid seen in uterus and vaginal canal." The viscera was preserved for examination. Vaginal smear was also taken. Ex.P.21 is the report on the examination of vaginal smear and scalp hair. The report shows that no semen was detected in the vaginal smear and no blood was detected in the scalp hair. Ex.P.22 is the report on the viscera, which shows that no poison was detected in the viscera. Based on Exs.P.21 and P.22, the Doctor opined that death would have occurred 36 to 42 hours prior to autopsy due to strangulation. P.W.25 continued his investigation further. Ex.P.38 is the rough sketch prepared by him for the place where the cycle recovered in this case was found parked. Examination of the cycle did not result in lifting any finger prints. P.W.25 sent the case properties to the court with a request to subject the same for chemical examination. P.W.25 continued his investigation by examining further witnesses and recording their statements. No clue was forthcoming. He recovered the articles removed from the dead body and handed over to him by the constable, who was present during post mortem, under Form 95. Those articles were produced before him by the constable present during post mortem with his special report - Ex.P.39. The investigation conducted till 24.10.1995 did not give any clue at all about the culprits. All the witnesses examined till 24.11.1995 did not give any clue about any suspected culprit. P.W.6 is employed in rolling beedi. He knows P.W.1's family. The victim in this case is working in a silk factory. The deceased, to board the bus to go to her place of employment, must come to the intersection of Nariyaneri Road and to go back home also, she must only board the bus there. On a particular day, the victim was travelling with him in the bus, which was over crowded. P.W.6 and the victim alighted at Nariyaneri. On the next day, he came to know that the victim died. P.W.7 is the Contractor in the Silk Factory and the victim was working under him on a monthly salary of Rs.800/-. The working hours for the victim is from 8.00 a.m. to 5.00 p.m. P.W.7 was informed by his friend that the victim in this case died. P.W.8 knows P.W.1's family. On a day prior to the death of the victim in this case, the victim came to his shop and asked him whether her brother had come and gone? Then she left the place in a cycle. Following her, P.W.1 came to the shop and enquired about his sister and he was informed that ten minutes before that, his sister left in the cycle. P.W.9 is working under P.W.7 on a monthly salary of Rs.1,300/-. The deceased was working with him at that time. The deceased was working as a technical assistant. The deceased was initially a Hindu but later on converted into Christianity. P.W.9 is a Hindu and he proposed to the victim that he would marry her. The victim used to come to the office between 8.30 and 9.00 a.m. and leave for home between 5.00 and 5.30 p.m. everyday. Coming to know that the victim is dead, he went and observed the dead body.
(3.) P.W.10 is the Village Administrative Officer of Kadhili Village. At about 9.00 a.m. on 25.11.1995 when he was in his office talking with his friend (P.W.11), A1 came there and confessed that he along with Kumar (A4), Ravichandran (A2) and Jinnah (A3), murdered the victim girl after raping her and wanted to surrender. A1 was narrating the events, which P.W.10 reduced into writing. A1 made a disclosure that at about 8.00 p.m. on 21.11.1995, the victim girl was murdered and when P.W.10 asked him as to why he murdered, he answered that "he was possessive of the victim girl they used to travel in the same bus the victim girl refused the proposal when they were travelling in the bus, the accused pressed her legs, for which, she removed her slippers and showed angered at that, he conspired with his friends and at about 7.00 p.m. on 21.11.1995, when all the four were in the road, they saw the victim girl going in a cycle they intercepted her and bodily lifted her to a secluded place, where she was raped and fearing that she may expose the accused, she was murdered and then her body was thrown in a different place". As already stated, P.W.10 reduced into writing the narration of A1 and he had taken the signature of A1 in it. P.W.11 witnessed the preparation of the said statement by signing it. P.W.10 then took A1 to the Investigating Police Station and surrendered him along with his statement before the Inspector of Police. Ex.P.7 is the said statement. Later on, the Investigating Officer took this witness to the crime scene where, some sample earth was recovered under Ex.P.8 (mahazar). At that stage, he was treated as hostile. P.W.11 would state that when he went to see P.W.10, he found A1 talking with him about the murder of the victim girl. He would state that he does not know the full details. P.W.11 admitted his signature in Ex.P.7 and then P.W.11, P.W.10, A1 and others went to the Investigating Police Station where, P.W.11's signature was taken. At that stage, he was treated as hostile. P.W.25 was informed at 10.30 a.m on 25.11.1995 by the Sub-Inspector of Police in the Investigating Police Station that P.W.10 appeared before him along with A1 and accordingly, P.W.25 reached the police station at 11.15 a.m. where, he found A1 and P.W.10. He verified the statements made by them. A1 gave a voluntary confession statement, the admissible portion of which is Ex.P.40. Pursuant to the same, A1 took the police party to the crime scene and pointed out the place, for which, Ex.P.41, the rough sketch, was prepared. At 12.45 p.m., from the crime scene, some sample earth was recovered under Ex.P.42. At 1.45 p.m. A1 led the police party to his house, from where, he produced M.O.3 (diary) under a mahazar. At 2.45 p.m., A1 identified A4 and accordingly, A4 was also arrested and examined. A4 also gave a voluntary confession statement. P.W.25 examined P.Ws.10 and 11 by recording their statements. The recovered incriminating objects were sent to the court. P.W.12 would state that he was proceeding to the bus stop to board a bus on 21.10.1995. Near a cinema theatre, he noticed two persons passing him he asked them as to from where they are coming however he did not know them both went without answering and on the next day morning, he came to know about the death of the victim in this case. At that stage, he was treated as hostile. P.W.13 is the Village Administrative Officer of Sundarampalli Village. At 9.30 a.m. on 26.11.1995 when he was in his office talking with his friend (P.W.14), A2 appeared before him and confessed about the crime stating that, since two of his friends had already been arrested, he was fearing that he may also be arrested and having that fear in his mind, he confessed to P.W.13, who reduced into writing the narration of A2. In his confession statement, he gave the details as to how the crime came to be committed. Ex.P.11 is the said statement, which was attested by P.W.14. At that stage, he was treated as hostile. P.W.14 would state that on 26.11.1995 at 9.15 a.m., when he went to see P.W.13 in his office, he found A2 already there talking with P.W.13. They were talking about the death of a girl belonging to Kondappanaickenpatty. A2 confessed of his involvement in the crime and his statement was reduced into writing by P.W.13. P.W.14 signed in that statement as a witness. At that stage, he was treated as hostile. P.W.15, examined to prove the arrest of A3 and A4, turned hostile. P.W.16, examined to prove that on the occurrence day evening the accused purchased some short eats from his shop, turned hostile. As noted earlier, P.W.24 is the Sub-Inspector of Police in the Investigating Police Station. At 11.00 a.m. on 26.11.1995, when he was in the police station, P.Ws.13 and 14 appeared before him along with A2 and his statement. P.W.25, on receipt of the information from P.W.24, reached the police station at 12.15 p.m where, he went through the statement given by A2. A2 was arrested and examined and he gave a voluntary confession statement, the admissible portion of which is Ex.P.43. In the presence of P.Ws.13 and 14, Ex.P.6 (letter) came to be recovered under Ex.P.44 (recovery mahazar) attested by P.Ws.13 and 14. On A2 identifying A3, he was arrested at 2.00 p.m on the same day and examined. A3 also gave a voluntary confession statement. The arrested accused and the incriminating objects recovered were brought to the police station and the accused was sent for judicial remand. The case properties were sent to the court. P.W.25 examined further witnesses on the next day by recording their statements. P.W.25 referred A1 to A3 for medical examination. ;