Penal Code, 1860 – Ss. 302, 376, 394 r/w 397 & 447 – While the conviction under Section 376 IPC, Section 394 read with Section 397 IPC and Section 447 IPC and the sentences imposed for commission of the said offences are maintained, the conviction under Section 302 IPC is set aside and altered to one under Section 325 IPC. The sentence of death for commission of offence under Section 302 IPC is set aside and instead the accused is sentenced to undergo rigorous imprisonment for seven years. All the sentences imposed shall run concurrently. The order of the learned Trial Court and the High Court is accordingly modified.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(RANJAN GOGOI) (PRAFULLA C. PANT) (UDAY UMESH LALIT) JJJ.
CRIMINAL APPEAL NOS.1584-1585 OF 2014
SEPTEMBER 15, 2016
GOVINDASWAMY …APPELLANT / ACCUSED
STATE OF KERALA …RESPONDENT
For Appellant(s) Mr. B.A. Aloor, Adv. Mr. Prasenjit Sarkar, Adv. Mr. Satheesh K.R. Niar, Adv. Mr. Rahul Gupta,Adv. For Respondent(s) Mr. Nishe Rajen Shonker, Adv. Ms. Anu K. Joy, Adv. Mr. Gajendra Khichi, Adv. Mr. Jogy Scaria,Adv.(NP)
J U D G M E N T
1. The accused appellant has been convicted under
Section 302 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC”) and sentenced to death. He has additionally been convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for life. Besides, he has been found guilty of the offences punishable under Section 394 read with Section 397 IPC as well as under Section 447 of the IPC for which he has been separately sentenced to undergo rigorous imprisonment for seven years and three months respectively. The conviction of the accused appellant and the sentences imposed have been confirmed in appeal by the High Court. Aggrieved, the present appeals have been filed.
2. The case of the prosecution in short is that the deceased/victim girl, aged about 23 years, was working in Ernakulam and was engaged to one Anoop (P.W.76), who also happened to be employed in Ernakulam. Their betrothal ceremony was to be in the house of the deceased at Shornur on 2nd February, 2011. P.W.76 along with his family members were scheduled to visit the house of the deceased on that day. Accordingly, on 1st February, 2011 the deceased boarded the Ernakulam-Shornur Passenger Train at about 5.30 p.m. from Ernakulam Town North Railway Station to go to her home at Shornur. The deceased had boarded the ladies division of the last compartment. There were other passengers in the ladies division of the compartment along with the deceased. When the train reached Mulloorkara, all other lady passengers in the ladies division of the compartment had alighted and, therefore, the deceased also got down along with them and hurriedly entered the ladies coach attached just in front of the last compartment. The train reached Vallathol Nagar Railway Station, where it halted for some time.
3. According to the prosecution, the accused appellant, who is a habitual offender, noticed that the deceased was alone in the ladies compartment. As soon as the train had left Vallathol Nagar Railway Station and moved towards Shornur the accused entered the ladies compartment. The prosecution alleges that inside the compartment the accused had assaulted the deceased and, in fact, repeatedly hit her head on the walls of the compartment. The prosecution has further alleged that the deceased was crying and screaming. It is the case of the prosecution that the victim was dropped/pushed by the accused from the running train to the track and that the side of her face hit on the crossover of the railway line. The accused appellant also jumped down from the other side of the running train and after lifting the victim to another place by the side of the track he sexually assaulted her. Thereafter he ransacked her belongings and went away from the place with her mobile phone.
4. It is the further case of the prosecution that P.W. 4 – Tomy Devassia and P.W. 40 – Abdul Shukkur were also traveling in the general compartment attached in front of the ladies compartment. According to the prosecution, the said witnesses heard the cries of the deceased. P.W. 4 wanted to pull the alarm chain to stop the train but he was dissuaded by a middle-aged man who was standing at the door of the compartment by saying that the girl had jumped out from the train and escaped and that in these circumstances he should not take the matter any further as the same may drag all of them to Court. However, when the train reached Shornur Railway Station within a span of 10 minutes, P.W.4 and P.W.40 rushed to P.W.34 – Joby Skariya, the guard of the train and complained about the incident which triggered a search, both, for the deceased and the accused. Eventually, the deceased was found in a badly injured condition lying by the side of the railway track and the accused was also apprehended soon thereafter in circumstances which need not detain the Court. According to the prosecution, the deceased was removed to the local Hospital whereafter she was taken to the Medical College Hospital, Thrissur where she succumbed to her injuries on 6th February, 2011. It is in these circumstances that the accused was charged with the commission of crimes in question for which he has been found guilty and sentenced, as already noticed.
5. A large number of witnesses (83 in all) had been examined by the prosecution in support of its case and over a hundred documents were exhibited. For the present it would suffice to notice the evidence of P.Ws.4, 40, 64 and 70. The Postmortem report (Exhibit P-69) and D.N.A. Profile (Exhibit P-2) would also require a specific notice and the relevant part thereof may also require to be reproduced.
6. P.W.4 and P.W.40, as already mentioned, were traveling in the general compartment which was attached just in front of the ladies compartment. According to both the witnesses, they heard the sounds of a woman crying and wailing coming from the ladies compartment and though P.W. 4 wanted to pull the alarm chain of the train he was dissuaded by a middle-aged man who reported to them that the issue should not be carried any further as the woman had alighted from the train and had made good her escape. According to P.W. 4 and P.W.40, they brought the matter to the attention of P.W.34, the guard of the train as soon as the train had reached Shornur railway station. The recovery of the deceased and the apprehension of the accused followed thereafter.
7. P.W. 64 – Dr. Sherly Vasu who was then working as Professor and Head of Department of Forensic Medicine, M.C.H. Thrissur conducted the postmortem examination of the deceased with the assistance of five other doctors (who were also examined). According to P.W. 64, he had noted 24 antemortem injuries on the body of the deceased, details of which have been mentioned by him in the postmortem report (Exhibit P-69). While it will not be necessary to notice the details of each of the injuries sustained/suffered by the deceased, the evidence of P.W. 64 so far as the injury Nos.1 and 2 is concerned, being vital, would require specific notice and, therefore, is extracted below: