Kochi: The Supreme Court, while convicting Govindachamy for rape of Soumya, has concluded that the prosecution was unable to prove that he alone was responsible for her fall from the train.
Extracts from the judgment:
It is the further case of the prosecution that prosecution witness (PW) 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.
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. 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 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.
The opinion of P.W. 64 ( forensic expert Dr Shirly Vasu) as to the cause of death mentioned in the postmortem report is as follows: "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.
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.
So far as the offence under Section 376 IPC is concerned, from a consideration of the postmortem report, D.N.A. profile 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.
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 complications arising there from 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 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.
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. 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 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. 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 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. 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 therefore. 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.
Consequently and in the light of the above discussions, we partially allow the appeals filed by the accused appellant. 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.
