Research › Search › Judgment

Kerala High Court · body

2012 DIGILAW 30 (KER)

Krishna Pillai @ Krishnan Nair v. State of Kerala

2012-01-06

R.BASANT, V.CHITAMBARESH

body2012
Judgment CHITAMBARESH, J. 1. Nomads wander from place to place in search of greener pastures and the boundaries of States present no barriers to them [See Lakshman v. State of Madhya Pradesh, (1983 (3) SCC 275)]. The victim in the instant case is a 31/2 year old girl by name Nallaka who belonged to a nomadic family from Tamilnadu and strayed to Kerala. She went to sleep with her siblings and parents in the central room of the comfort station in a Private Bus Stand at Adoor on the night of 2.12.2005. Her further woke up at 1.00 A.M. past mid night to find his daughter missing from the place of sleep. A person sleeping in the same room of the comfort station who was heavily drunk blurted out that he saw the girl walking away. The search for the missing girl ended when she was found dead in a property few meters away from the bus stand on the morning of 7.12.2005. The suspicion centered around the person who was also sleeping in the room as he was seen loitering around the bus stand in the recent past. He was arrested on 8.12.2005 and a sordid story of rape and murder of the minor girl was thus unfolded. The girl was allegedly abducted, raped and murdered and her body concealed underneath a heap of granite powder in a plot of land. 2. The accused was charge sheeted for offence punishable under Sections 366, 376 and 302 of the Indian Penal Code (‘the Code’ for short). The court below convicted the accused under Section 366 of the Code and sentenced him to undergo rigorous imprisonment for six years. He was also directed to pay a fine of Rs.10,000/- on that court and in default to undergo rigorous imprisonment for six months. The court below convicted the accused under Section 376 of the Code and sentenced him to undergo rigorous imprisonment for 10 years. He was also directed to pay a fine of Rs.15,000/- on that count and in default to undergo rigorous imprisonment for six months. The court below further convicted the accused under Section 302 of the Code and sentenced him to undergo imprisonment for life. The accused has come up in appeal seriously assailing the judgment of conviction and the sentence imposed on him on various counts. 3. The court below further convicted the accused under Section 302 of the Code and sentenced him to undergo imprisonment for life. The accused has come up in appeal seriously assailing the judgment of conviction and the sentence imposed on him on various counts. 3. The owner of the property where the dead body of the girl was found and who lodged Ext.P1 First Information Statement was examined as PW.1. The mother who went to sleep along with the girl and other family members was examined as PW.2. She identified the dead body and the dress (M.O.1), the hair band (M.O.2) and the bead chain (M.O.3) worn by the deceased. A shop keeper nearby selling audio cassettes and a coconut vendor in the bus stand were examined as PWs.3 and 4 respectively. They testified that the parents of the girl had come in search of the girl and had made queries about her whereabouts on the morning of 3.12.2005. Pws.3 and 4 were attesting witnesses to Ext.P2 inquest report and PW.3 was an attesting witness to Ext.P3 scene mahazar as well. 4. The wife of the tea shop licensee was examined as PW.5 who testified that the accused had come to her shop on the evening of 2.12.2005 to take food. The licensee of the tea shop who was an attesting witness to Ext.P4 scene mahazar of the comfort station was examined as PW.6. The doctor who conducted the postmortem on the body of the deceased was examined as PW.7. He had issued Ext.P5 postmortem certificate which reflected that there were seven ante mortem injuries on the body. He had opined that the cause of death was due to injuries sustained to genitalia, abdomen and neck of the victim. The doctor who examined the accused and issued Ext.P6 wound certificate and Ext.P7 certificate (after conducting the potency test) was examined as PW.8. 5. The Scientist at Rajeev Gandhi Centre for Bio-Technology, Thiruvananthapuram who conducted the DNA (Deoxyribo-nucleic Acid) Finger Printing Test was examined as PW.9. He testified that Ext.P8 DNA Profile Test report of the accused matched exactly with that found on the vaginal swabs of the girl. He proved Ext.P9 Allelic Profile in the crime which showed that the alleles of the suspect were identified in the original vaginal swabs. The Village Officer who prepared Ext.P10 site plan Ext.P11 site plan of the comfort station was examined as PW.10. He proved Ext.P9 Allelic Profile in the crime which showed that the alleles of the suspect were identified in the original vaginal swabs. The Village Officer who prepared Ext.P10 site plan Ext.P11 site plan of the comfort station was examined as PW.10. An official of the Planning Board who is alleged to have noticed the obnoxious behaviour of the accused was examined as PW.11. He testified that he had preferred Ext.P12 complaint to the police when he had seen the accused troubling another girl earlier. 6. The police constable who prepared Ext.P13 mahazar seizing the shirt (M.O.5) and lungi (M.O.6) worn by the accused was examined as PW.12. He had also prepared Ext.P14 mahazar where under Ext.P12 complaint preferred by PW.11 was seized. The Scientific Assistant at the District Police Office, Pathanamthitta who took into custody M.Os.1 to 3 was examined as PW.13. He had also taken into custody a gunny bag (M.O.4) found at the scene of occurrence in the property of PW.1. The Sub Inspector of Police who registered Ext.P1(a) First Information Report on receipt of Ext.P1 was examined as PW.14. He had filed Ext.P15 report in court incorporating Sections 366, 376 and 302 after deleting Section 174 of the Code in the crime. He proved Ext.P16 property list and Ext.P17 remand report and testified that he had arrested the accused at 4.00 P.M. on 8.12.2005. 7. The Circle Inspector of Police who conducted the investigation and proved the charge sheet filed by his successor-in-office was examined as PW.15. The doctor who had conducted a psychiatric examination of the accused was examined on the side of the defence as DW.1. She had issued Ext.D1 certificate to the effect that the accused did not have any diagnosable psychiatric disorder. She also testified that the accused had been referred to the Medical College for re-assessment and psychological evaluation. The accused when questioned under Section 313 of the Code of Criminal Procedure denied all the circumstances that appeared in evidence against him. 8. The case rests entirely on circumstantial evidence which should satisfy the following three tests:- i) The circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. ii) The circumstances so proved must unerringly point towards the guilt of the accused. 8. The case rests entirely on circumstantial evidence which should satisfy the following three tests:- i) The circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. ii) The circumstances so proved must unerringly point towards the guilt of the accused. iii) The circumstances should form a chain so complete, then there is no escape from the conclusion that the crime was committed by the accused and none else. The circumstances should not only be consistent with the guilt of the accused but inconsistent with his innocence as held even recently in Sudam v. State of Maharashtra (2011 (7) SCC 125) 9. The first parameter of the prosecution case is that the girl was missing from the bus stand and was found raped and murdered in the property of another. The evidence of the mother (PW.2) and that of the cassette shop keeper (PW.3) and coconut vendor (PW.4) proves the missing of the girl. The evidence of the doctor PW.7 who conducted the postmortem examination on the body clinches that the girl was raped and murdered. The second parameter of the prosecution case is that the accused was found sleeping nearby after the event. The evidence of the mother (PW.2) indicates that the accused even attempted to mislead her by stating that that the girl walked away on her own. The father of the girl had died before the commencement of the trial of the case and the testimony of her mother is entitled to credence. The third parameter of the prosecution case is that the accused was found wandering in the precincts of the bus stand earlier. The evidence of the wife of the licensee of tea shop (PW.5) indicates that the accused had consumed food at her joint the previous day. Added to this is the evidence of the official of the Planning Board (PW.11) who had allegedly preferred Ext.P12 complaint. We are not attaching much significance to his evidence as the same pertain to the character of the accused. At best that evidence can only explain why the needle of suspicion was pointed convincingly at the accused. 10. The fourth parameter of the prosecution case is that there were as many as four injuries on the accused which have not been attempted to be explained. At best that evidence can only explain why the needle of suspicion was pointed convincingly at the accused. 10. The fourth parameter of the prosecution case is that there were as many as four injuries on the accused which have not been attempted to be explained. True it is that he is alleged to have confessed to the doctor (PW.8) that it was caused while having forcible intercourse with a child. We do not want to rely on that confession made by him when he was admittedly in the custody of the police. But Ext.P6 wound certificate issued by him itself reveals that the abrasions on the body of the accused were recent and not explained. The injuries are possible when a victim of rape attempts to resist such attempt of rape. The fifth and final parameter of the prosecution case is the matching of DNA Profile in the DNA Finger Printing Test. The Scientist (PW.9) had conducted a DNA Finger Printing Test and had issued Ext.P8 DNA Profile Report and Ext.P9 Allelic Profile Report. He had categorically deposed that the DNA Profile of the accused matched exactly with that found in the Vaginal Swabs. 11. The counsel for the accused has raised an ingenious argument that Exts.P8 and P9 reports dated 26.10.2006 cannot be safely relied on. He contends that about 10 months had elapsed since the date of collection of vaginal swabs and the date of the result. It is his contention that DNA degrades in a couple of days and vaginal swabs even in a few hours and decomposition of biological material sets in. he relies on a few excerpts from the books – Principles of Practice of Forensic Medice by Dr.Umadethan and Modi’s Medical Jurisprudence & Toxicology. It is apposite in this context to note the dictum laid down in Selvi and Others v. State of Karnataka (2010 (7) SCC 263). It was held in paragraph 220 thereof as follows:- “We must stress that the DNA Profiling Technique has been expressly included among the various forms of medical examination in the amended Explanation to Section 53 Cr.P.C. It must also be clarified that a ‘DNA Profile’ is different from a DNA Sample which can be obtained from bodily substances. A DNA Profile is a record created on the basis of DNA samples made available to the forensic experts. A DNA Profile is a record created on the basis of DNA samples made available to the forensic experts. Creating and maintaining DNA Profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law enforcement agencies. The matching DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.” (emphasis supplied) It is thus evident that the DNA Profile is a record created on the basis of DNA samples and could be relied on at any time for the purpose of matching it with new profiles. It is a sort of genetic finger printing and identification of an individual is done akin to identification of fingerprints of offenders and is undoubtedly an exact science. The case on hand reveals that the DNA Profile of the DNA samples found in the vaginal swabs was made available to the forensic expert. The evidence of the Scientist (PW.9) is categoric that the blood of the accused was taken in the Institute itself for DNA Finger Printing. 12. Yet another plea of the accused is that the vaginal swabs taken from the dead body at the time of the postmortem were not properly sealed and would have been tampered with. Not a single question was put about the accuracy of the methodology or the procedure followed for DNA profiling while the Doctor and Scientist were in the box to tender evidence. A similar plea under identical circumstances was held to be rather farfetched in Santhosh Kumar Singh v. State (2010 (9) SCC 747). The Apex Court therein following the dictum in Bhagwan Das v. State of Rajasthan (AIR 1957 SC 589) observed as follows:- “It would be a dangerous doctrine to lay down that the report of an expert witness could be brushed aside by making reference to some text on that subject without such text being put to the expert.” We accept the scientific reports to hold that the DNA Profile of the accused matched with that found in the vaginal swabs of the girl. It is safe to rely on such scientific data as has been reiterated in Surendra Koli v. State of Uttar Pradesh (2011 (4) SCC 80). 13. It is safe to rely on such scientific data as has been reiterated in Surendra Koli v. State of Uttar Pradesh (2011 (4) SCC 80). 13. We are satisfied that the entire chain of circumstances connecting the accused with the crime has been established by the prosecution beyond doubt. 14. Though an attempt appears to have been made before the court below to make it appear that the appellant is entitled to the protection of Section 84 of the Indian Penal Code, such attempt is not pressed and is given up before me. There is not a semblance of data available which can create any dissatisfaction in our mind against the soundness of mind of the appellant. That court below was justified in not accepting the plea of legal insanity under Section 84 of the Indian Penal Code. 15. The appeal is therefore dismissed confirming the judgment of conviction and the sentence imposed by the court below.