- (1.)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. 3 of 2007 urging various grounds and legal contentions and prayed to set aside the conviction and sentence awarded against him and acquit him from the charges framed against him.
(2.)The brief facts in nutshell are stated hereunder with a view to appreciate rival legal contentions urged on behalf of the parties:-
The prosecution charged the appellant under Sections 376, 302 and 201 of Indian Penal Code. The appellant pleaded not guilty. The trial was conducted 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 trial court on the basis of evidence adduced by the prosecution has examined the appellant under Section 313 of the Cr.P.C. regarding incriminating circumstances found in the evidence of the prosecution. The trial court recorded the finding of fact on appreciation of legal evidence on record and convicted 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 R.I. under Section 201 IPC was awarded to him and further held that all the sentences awarded against the appellant was to run concurrently.

(3.)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. 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. Accordingly, PW-3 handed over the grains to the appellant and came to the house of a neighbour. Sometime later, the deceased-child asked Rs.2/- from PW-3 for taking juice. Accordingly, she gave the same to her. Thereafter, the deceased-child went to the mill and asked the appellant whether the grains were grinded. At that time, she was taken to the back side of the mill by the appellant. Since, the deceased- child did not return, PW-3 having waited for some time went home. 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 permitted PW-12 to go for lunch and PW-12 left for lunch.

Then, the accused committed rape on the deceased-child and due to neurogenic shock she died. Since, the deceased-child did not come back, PW- 3 informed her father (PW-1). Thereafter, PW-1, PW-3 and others searched for the deceased-child. 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. On being questioned, the appellant said that since the next day is Ramzan, he opened the mill for doing work.

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 noise coming from the well side and he found the accused there and he questioned the appellant as to what he was doing during night hours. Then, the accused told that since the next day was Ramzan, he was throwing the garbage into the well. 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. 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. He gave the complaint (marked as Ex.-P1) to PW-20, the aforesaid Sub-Inspector on the basis of which, a case came to be registered as FIR No. 146/2005 under Section 174 Cr.P.C. Ex.-P23 (the FIR) was dispatched to the court. The dead body was taken out from the well. The place of occurrence and the dead body were photographed by PW-9 and marked as M.O.1 (series). Thereafter, the dead body was sent to the Government Hospital, Rameswaram. The Inspector of Police, Rameswaram (PW-22) on receipt of the copy of the FIR, proceeded to the Government Hospital, Rameswaram and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars. He prepared the inquest report marked as Ex.-P24. Then, he gave a requisition to the doctor for conducting post-mortem on the dead body of the deceased- child. The Doctor (PW-15) of the Government Hospital, Rameswaram, on receipt of the requisition, conducted post-mortem on the dead body of the deceased-child and issued post-mortem report(Ex.-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. It was further the case of the prosecution that PW-21 took up the investigation and recorded the statement of the witnesses. He went to the scene of occurrence and made an inspection in the presence of the witnesses and prepared the observation mahazar (Ex.-P2) and the rough sketch (Ex.-P25). After getting the medical opinion, the charges were altered to Sections 376 and 302 IPC.

Ex.-P26, the amended FIR was dispatched to the court. On 9.11.2005, the appellant was arrested by the investigation officer in the presence of the witnesses. The appellant made confessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.-P3. 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 cover of mahazar.