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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.1584-1585 OF 2014

GOVINDASWAMY       ...APPELLANT VERSUS

STATE OF KERALA       ...RESPONDENT

J U D G M E N T  

RANJAN GOGOI,J.

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

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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

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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

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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

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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

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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

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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

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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:

“Injury  No.1 is  sufficient  to render  her  dazed  and insensitive.  It is capable of creating  dazeness  to  head  and rendering incapable to respond. These wounds may not be of the nature  of  exclusive  cause  of death.  This  injury  will  be caused  only  if  the  head  is forcefully  hit  to  backward  and forward  against  a  hard  flat surface.  Need not become total unconscious.   But  can  do nothing. The injury described in No.1  is  caused  by  hitting  4-5 times  against  a  flat  surface

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holding the hair from back with a right hand. These injuries are photographed  in  detail  in  Ext. P.70. CD. This is my independent findings.  I have also checked the  matters  listed  in  the requisition from an independent evaluation what I understand is that after hitting the head on a flat and hard substance several times and rendering insensitive dropped.  (Q) If hit against the wall  (of  train)  holding  hair from behind it will occur? (A) Yes. It will occur so. Injury No.2.  It is the injury sustained from beneath the left eye  upto  chin  bone.  Further below  and  on  lips.  There  are fractures  on  maxilla  and mandible.  About 13 teeth have gone  severed.   The  left  cheek bone  is  pulverized.   A vertically long mark of rubbing chin bone and cheek is seen.  So it is added in remarks that fall on to smooth surface of a rail and  gliding  forward  (upward) (gliding).  The  gliding  mark  on lower  chin  is  seen  5  cm. (Gliding  movement)  In  post mortem request it is pushed down from running train.  So though it  was  a  running  train  it  had only  negligible  speed.   In inflicting this injury the speed of  the  train  had  only  a negligible  role.   The  speed ignorable.   Since  she  was rendered insensitive as a result of injury No.1 in the absence of natural reflex the face had to bear  the  full  force  of  the

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descent,  it  is  seen.   In  case she was not dazed and had alert reflexes  and  fallen  in  such  a condition  she  would  have  moved hands  forward  and  the  hands would have showed the force of the fall to some extent.  There was  no  injuries  of  fall  on elbows,  wrists  and  inner boarders  of  fore  arms.   There was  no  reflexes  in  this  fall. No.2 are injuries that may have been caused by fall of a person having the weight of this person (42 kg.) from a height of 5 to 8 feet.   These  injuries  will  be sustained if this portion (left cheek  bone  crosswise)  hits against  train  tract.  I  have visited  this  scene  on  9-2-2011 with C.I. Chelakkara.

These  5  tracks  were  seen. They  are  seen  as  intercoin (cross).  So understood that it can  happen  when  fallen  from  a moving train into the next near cross tract. Usually two tracks go Parallel. This is not such a place. Left cheek bone has been thoroughly pulverized. The bone was pulverized as there are air cells  inside  maxilla.   By  the force of the fall as there are air cells inside maxilla.  

8. The opinion of P.W. 64 as to the cause of death mentioned in the postmortem report is as follows:

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“The  decedent  had  died  due  to blunt injuries sustained to head as a result of blunt impact and fall  and  their  complications including  aspiration  of  blood into  air  passages  (during unprotected  unconscious  state following head trauma) resulting in anoxic brain damage. She also showed injuries as a result of assault  and  forceful  sexual intercourse.  She had features of multiple organ disfunction at the time of death.

9. P.W.64  in  his  evidence  had  also explained  that  the  aspiration  of  blood into the air passage could have been due to  the  victim  being  kept  in  a  supine position, probably, for sexual intercourse which  may  have  resulted  in  anoxic  brain damage.  

10. There  are  other  parts  of  the postmortem report and the evidence of P.W. 64  which  would  also  require  a  specific notice  insofar  as  the  offence  under Section  376  IPC  alleged  against  the accused  appellant  is  concerned.  The relevant part of the postmortem report is

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extracted below: “Pelvic  Structures:  Urinary bladder was empty.  Uterus and its  appendages  appeared  normal, the  cavity  was  empty; endometrium  showed  congestion and  the  cervical  os  was circular.   The  right  ovary showed  polycystic  changes. Spine was intact.  

Vaginal  introitus  and  wall showed  contusion  all  around, most  prominent  just  behind urethral meatus.  Hymen showed a recent  complete  tear  at  about 5'O  clock  position  and  partial recent tear at about 7'O clock positions (as suggested by edema and  hyperemia  of  edges)  and  a natural indentation at 1'O clock position.   (Remark  –  recent  sexual intercourse)”

11. The evidence of P.W. 70 – Dr. R. Sreekumar,  Joint  Director  (Research) holding  charge  of  Assistant  Director, D.N.A. in the Forensic Science Laboratory, Trivandrum and the report of examination (Exhibit P-2) may now be noticed.    12. P.W.  70  in  his  deposition  has stated  that  after  examination  following

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results were recorded at pages No.19 and 20 of Exhibit P-2:

Item 1(a) and 2(b) contain the vagina swabs of the victim whereas Item 2(a) is vaginal smear collected from the victim. Item 3(a) is a cut open garment (M.O.1) and Item 18 is a torn lunky (M.O.5).  Item No.8 is the blood sample of the accused.   

According to P.W. 70, as per the DNA typing  the  seminal  stains  on  Item  No. 1(1), 2(a), 2(b), 3(a) and 18 belonged to the accused to whom the blood sample in Item No.8 belongs.

Furthermore, from the evidence of P.W. 70 it is evident that the blood of the victim  [Item  1(b)]  was  found  in  the clothing of the accused i.e. pants [Item No.13  (M.O.8)],  underwear  [Item  No.14 (M.O.21)]; Shirt [Item No.17 (M.O.6)].

13. So  far  as  the  offence  under Section  376  IPC  is  concerned,  from  a consideration  of  the  postmortem  report

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(Exhibit  P-69)  D.N.A.  Profile  (Exhibit P-2) and the evidence of P.W. 64 and P.W. 70, there can be no manner of doubt that it  is  the  accused  appellant  who  had committed  the  said  offence.  The  D.N.A. profile,  extracted  above,  clinches  the issue  and  makes  the  liability  of  the accused explicit leaving no scope for any doubt  or  debate  in  the  matter.   We, therefore,  will  find  no  difficulty  in confirming the conviction of the accused under Section 376 IPC.  Having regard to the  fact  that  the  said  offence  was committed on the deceased who had already suffered extreme injuries on her body, we are of the view that not only the offence under Section 376 IPC was committed by the accused, the same was so committed in a most  brutal  and  grotesque  manner  which would  justify  the  imposition  of  life sentence as awarded by the learned trial Court and confirmed by the High Court.

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14. Insofar  as  the  offence  under Section 394 read with Section 397 IPC is concerned, there is also adequate evidence on record to show that the accused after committing the offence had taken away the mobile phone of the deceased and had, in fact, sold the same to P.W.7 – Manikyan who again sold the same to P.W.10 – Baby Varghese  from  whom  the  mobile  phone  was seized by the Police.   

15. This  will  bring  the  Court  to  a consideration  of  the  culpability  of  the accused for the offence punishable under Section 302 IPC and if the accused is to be  held  so  liable  what  would  be  the appropriate  punishment  that  should  be awarded to him. The evidence of P.W. 64, particularly, with reference to the injury No. 1 and 2, details of which have been extracted above, would go to show that the death of the deceased was occasioned by a combination  of  injury  no.1  and  2,  and

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complications arising therefrom including aspiration of blood into the air passages resulting  in  anoxic  brain  damage.  The same,  in  the  opinion  of  the  doctor (P.W.64),  had  occurred  due  to  the  fact that  the  deceased  was  kept  in  a  supine position  for  the  purpose  of  sexual assault.  In  a  situation  where  death  had been  certified  and  accepted  to  have occurred on account of injury Nos. 1 and 2 and  aspiration  of  blood  into  the  air passages  on  account  of  the  position  in which  the  deceased  was  kept,  the  first vital  fact  that  would  require consideration  is  whether  the  accused  is responsible  for  injury  No.2  which apparently was occasioned by the fall of the  deceased  from  the  running  train. Before dealing with Injury No.2 we would like to observe that we are of the opinion that  the  liability  of  the  accused  for Injury  No.1  would  not  require  a

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redetermination in view of the evidence of P.W.4 and P.W.40 as to what had happened in the ladies compartment coupled with the evidence  of  P.W.64  and  the  Postmortem report (Exhibit P-69). However, so far as Injury No.2 is concerned, unless the fall from  the  train  can  be  ascribed  to  the accused  on  the  basis  of  the  cogent  and reliable  evidence,  meaning  thereby,  that the accused had pushed the deceased out of the  train  and  the  possibility  of  the deceased herself jumping out of train is ruled  out,  the  liability  of  the  accused for  the  said  injury  may  not  necessary follow.  16.   In this regard, the learned counsel for the State has referred to injury No.1 sustained by the deceased, as deposed to by P.W.64, and has contended that in view of the impaired mental reflexes that the deceased had at that point of time it may not have been possible for her to take a

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decision to jump out of the train.  While the said proposition need not necessarily be incorrect what cannot also be ignored is the evidence of P.W. 4 and P.W. 40 in this regard which is to the effect that they  were  told  by  the  middle  aged  man, standing at the door of the compartment, that the girl had jumped out of the train and  had  made  good  her  escape.   The circumstances  appearing  against  the accused has to be weighed against the oral evidence on record and the conclusion that would follow must necessarily be the only possible conclusion admitting of no other possibility.   Such  a  conclusion  to  the exclusion of any other, in our considered view, cannot be reached in the light of the facts noted above.  17. Keeping of the deceased in a supine position for commission of sexual assault has been deposed to by P.W. 64 as having a bearing  on  the  cause  of  death  of  the

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deceased.  However,  to  hold  that  the accused  is  liable  under  Section  302  IPC what is required is an intention to cause death  or  knowledge  that  the  act  of  the accused  is  likely  to  cause  death.   The intention  of  the  accused  in  keeping  the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual  assault.  The  requisite  knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge  and  information  is,  in  fact, parted with in the course of training of medical and para-medical staff. The fact that the deceased survived for a couple of days  after  the  incident  and  eventually died  in  Hospital  would  also  clearly militate  against  any  intention  of  the accused  to  cause  death  by  the  act  of keeping the deceased in a supine position.

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Therefore,  in  the  totality  of  the  facts discussed  above,  the  accused  cannot  be held liable for injury no.2.  Similarly, in  keeping  the  deceased  in  a  supine position,  intention  to  cause  death  or knowledge that such act may cause death, cannot  be  attributed  to  the  accused.  We are,  accordingly,  of  the  view  that  the offence  under  Section  302  IPC  cannot  be held to be made out against the accused so as to make him liable therefor.  Rather, we  are  of  the  view  that  the  acts  of assault, etc. attributable to the accused would  more  appropriately  attract  the offence  under  Section  325  IPC.   We accordingly  find  the  accused  appellant guilty  of  the  said  offence  and  sentence him to undergo rigorous imprisonment for seven years for commission of the same. 18. Consequently and in the light of the above discussions, we partially allow the appeals  filed  by  the  accused  appellant.

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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.  

....................,J.           (RANJAN GOGOI)

....................,J.     (PRAFULLA C. PANT)

....................,J.     (UDAY UMESH LALIT)

NEW DELHI SEPTEMBER 15, 2016