Hovering Vultures - Analysis Of Saumya Verdict
The scene is laid in the ladies compartment of a local passenger train in Kerala.
Time - 8 pm on 1st February, 2012
Victim - 23-year-old Sowmya, lone passenger in the said bogie
Accused- Govindachami, 30 years, a habitual offender belonging to Tamil Nadu.
Nature of offences - Sec 302, 376, 394, 397 and 447 of Indian Penal Code
Verdict of Sessions Court: Capital punishment, life imprisonment, 7 years and 3 months
Verdict of High Court of Kerala: Confirmed the punishment
Verdict of Supreme Court: set aside capital punishment. Awarded life imprisonment
Sowmya was the only daughter of a poor widow living at Shornur, a small town in Thrissur district of Kerala. She was good at her studies; but owing to financial constraints, could not purse her studies beyond Plus Two. Her brother was also working as a driver after passing SSLC examination. Luckily, she got the job of a sales girl in a company in Ernakulam. Even though the salary was meagre, the management provided free accommodation and food. She used to go to her native place once in a while by the Ernakulam-Shornur passenger train, which leaves Ernakulam at 5 pm. Her brother would come to Shornur railway station in the night to pick her up.
While she was working in that company, she got acquainted with Ravi, a co-worker’s brother. When Ravi proposed to her, she told him to inform her mother and other relatives his intention to marry her. Things progressed fast and the betrothal was fixed on 2nd February, 2012, at her house. In order to participate in the function, Sowmya boarded the Shornur train at 5 pm on 1st February, 2012, from Ernakulam North Railway station. Most of the passengers got down at Thrissur, a major station on the way. There were only three ladies left in the bogie, a middle-aged woman, her daughter and grandchild. They also got down at Mulloorkkara, the next station. As there were no passengers in that bogie, Sowmya also got down and boarded the bogie in front, the ladies’ compartment. Unfortunately, it was also empty. The train stopped next at Vallathol Nagar station and remained there for some time. When it started moving, the accused Govindachami got into the ladies’ compartment where Sowmya was sitting alone. The accused tried to sexually assault her and she fought back. She cried and screamed loudly for help. During the scuffle, he caught her head and forcibly hit it against the wall of the bogie. The blunt impact might have dazed her. She was pushed/ dropped from the train. One side of her face hit against the rails of the adjacent track.
The accused, who is used to boarding and alighting from moving trains, immediately jumped out and went to the place where Sowmya had fallen. He carried her to a bushy area beyond the multiple tracks and laid her down. He then tore off her pyjama and brief and ravished her. She was then bleeding due to the injuries sustained to her head and face.
After satisfying his lust, he rummaged through her handbag and took away her cell phone. Two passengers (PW 4 and 40) in the adjacent compartment in front of the ladies’ compartment had heard the screams of a woman from that compartment. A middle-aged man was standing near the door. PW 4 wanted to pull the chain. But the other man objected to it (This person could not be traced). He told PW 4 and 40 that a girl had jumped out. Then they saw the accused (later identified as Govindachami) jumping out of the ladies’ compartment and moving towards south where the girl had fallen. The train was nearing the last station Shornur and was moving at a slow speed when he jumped.
Two women staying near the railway track had also heard a girl’s screams coming from the train about 8.30 pm on 1st February, 2012.
In 10 minutes, the train reached Shornur railway station. PW 4 and 40 rushed to the Guard and informed him about the incident. The RPF was also informed. The gangman of the station and some local people went to the site of the scene and they discovered the mutilated naked body of Sowmya. Some local inhabitants had already reached the scene. Though unconscious, she was moving her right hand and leg. There was difficulty in breathing, which was raucous. They covered her up and carried her to the main road near the railway track. They took the victim to the nearest taluk hospital in a police jeep that was passing by then. The doctor referred the victim to Thrissur Medical College Hospital immediately, as her condition was very critical. She was taken to the casualty of the Medical College Hospital in the same police jeep. The doctors there, immediately, started necessary treatment and conducted a gynaecology examination.
On examination, the victim was unconscious. (Glasgow Coma Scale was 4 - normal 15) This would indicate that there was no response to external stimulus. The pupils were dilated and not reacting to light. She had ‘black eye’ on both sides. There was bleeding from mouth and nostrils. Contusions were present on the left side of the face and jaw. According to the doctor, there were signs of serious head injury. Blood pressure was low. The doctor did a tracheostomy operation. This is making an opening in the windpipe for smooth respiration and sucking out the aspirated blood and secretions. She was connected to the ventilator for assisted respiration. A CT scan revealed fractures of skull and bleeding in the substance of brain. Neurosurgeons performed surgery, removed a portion of her skull and removed blood clots from the brain. According to the doctors, the injuries sustained were sufficient to cause death in the ordinary course.
The gynaecologist examined the victim and noted matting of pubic hair. Hymen showed recent tears at the 4 o’clock and 7 o’clock positions. There was mucoid fluid in the vagina. The doctor took samples of pubic hair, nail clippings and vaginal swabs and smears.
The identity of the victim was not known to the doctors or the rescuers until Sowmya’s brother came to the hospital and identified her. As Sowmya did not reach the Shornur railway station, he made enquiries and came to know that a girl had fallen from the train and was taken to the Medical College Hospital. He came to the hospital to check whether it was Sowmya. Based on his complaint, a case was registered in the nearest police station at 3.30 pm on 2 February, 2012. The Circle Inspector took up the investigation.
The Ernakulum-Shornur passenger train was parked at Shornur Railway station. The ladies compartment in which Sowmya had travelled was examined thoroughly at 4 am on 2nd February, 2012. A broken hair clip, a key chain, glass beads, and broken button of a shirt were found on the floor of the bogie.
The forensic scientist visited the scene of occurrence and collected trace evidence such as hair, blood stained pebbles etc. Blood stains with splatter patterns were seen on the pebbles, indicating that the blood drops had fallen from a height. This would indicate that the accused had carried the victim from the place of fall to the secondary crime scene.
In the meantime, the Deputy Superintendent of Police, Railways, Palakkad, got a lookout notice from the investigating officer. The notice contained a good description of the person who jumped from the train, a man without left hand. The DySP conducted searches and ultimately found the accused near the bus stand. He was taken into custody and produced before the investigating officer. PW 4 and 40 were summoned to the police station and they positively identified the accused. Some local youth also identified him as the person who came to the main road from the scene of occurrence. They took him for a beggar as he was not having a hand and was wearing shabby clothes.
The doctors at the Medical College Hospital, who examined the victim, stated that the deceased was dangerously ill and her life could not be extended without medical support when she was brought to the casualty. The neurosurgeon, who treated the victim, said she was continuously on medical support and only on that account, she survived till 6th February, 2012. Even when she was brought to the casualty, she was in a vegetative state and her blood pressure was very low. She was fully unconscious and was on ventilator. Even after surgery, her condition continued to be worse.
She expired at 3 pm on 6th February, 2012. An autopsy was conducted by the police surgeon, Thrissur, the next morning assisted by five doctors. There were 24 external injuries. Majority were contusions and abrasions, consistent with blunt impact and contact with a blunt and rough surface. Some abrasions on the chest and neck resembled nail marks. There were contusions and lacerations on the forehead and face. The facial bones and skull bones were found fractured at multiple sites. Many teeth in both the jaws were dislocated and lost. There was bleeding in the brain substance at various places. The pituitary gland situated at the base of brain was disrupted. There was bleeding under the coverings of brain. Hymen showed recent tears at two places.
Sowmya’s death was due to blunt injuries sustained to the head. The doctor had also added her opinion as to the manner and mechanism of death in the post-mortem certificate. The police surgeon has stated that the injuries were as a result of blunt impact and fall, and the death was due to complications, including aspiration of blood into the air passages, resulting in anoxic brain damage. In the meanwhile, a deputy police surgeon claimed that it was he who conducted the post-mortem. The defence cited him as a witness and he gave evidence accordingly. The trial court found that the autopsy was conducted under the supervision of the police surgeon. The claim of the deputy police surgeon was false and unbelievable. The trial court filed a complaint before the magistrate court against the deputy police surgeon u/s 193 of IPC. The deputy police surgeon filed a petition before the Kerala High Court to expunge the remarks passed by the trial court. The high court refused to do so, on the ground that the remarks and observations made by the trial court were required for adjudication of the matter and to enter on a correct finding, those remarks and observations become an integral part of the judgement, and the same cannot be expunged.
The accused was arrested at 2 am on 4th February, 2012. He was medically examined on the same day by a deputy police surgeon in Thrissur, as requested by the investigating officer. The accused told the doctor that he entered into the ladies’ compartment of a passenger train on the night of 1st February, 2012, and attempted robbery on a woman and pushed her out of the running train. After that, he jumped out and assaulted her and had sexual intercourse with her. The injuries on his body were made by the victim. After the incident, he went to Palakkad. There were 21 abrasions covered with reddish brown scabs on his neck, right shoulder and chest. His nail clippings, hair samples from the pubic area and scalp, sample of blood and penile swabs were collected and preserved for examination. The doctor had opined that there was nothing to suggest that the accused was incapable of performing sexual intercourse. Out of 21 injuries, injuries one to 18 were consistent with nail marks. Recent injuries were seen on the back of his right elbow, front of his right knee, right leg and foot. His muscle power was also tested. Even the amputated stump of left upper limb had good muscle power.
The extrajudicial confession made to the doctor was accepted by the trial court as no policemen were present when the accused made the confessional statements to the doctor.
The said extra-judicial confession made by the accused to PW 47 is clearly admissible 1. The doctor also stated that the nail marks on the body of the accused indicated that the victim had resisted the assault.
It was found out that Sowmya’s stolen LG mobile phone was being used in Wayanad district. A sub-inspector went to Wayanad and located the person (PW 7) using the mobile phone. When questioned, he said he had purchased it from another person (PW 10) for Rs 300. PW 10 revealed that he had purchased it from a person in Palakkad. When he was waiting in front of a mobile shop to get his old phone repaired, a person (the accused) came there to sell his mobile phone for Rs 300. PW 10 purchased the phone from him. Later, PW 10 identified the accused at the police station as well as in the court. Other witnesses also identified the mobile phone as having belonged to deceased Sowmya.
Forensic Scientists of the State FSL had performed tests of the material objects collected from (1) the ladies’ compartment where the assault occurred (primary crime scene) , (2) the place beyond the railway tracks where the sexual assault occurred (secondary crime scene) (3) the body of the victim and (4) the body of the accused. The results are enumerated below:-
- The vaginal swabs and smear taken from the victim contained spermatozoa and semen which were identified as that of the accused by DNA typing
- The underclothes of the victim also contained semen and spermatozoa which belong to the accused.
- The nail clippings of the victim contained blood and epithelial cells of the accused in DNA typing.
- The pieces of the buttons recovered from the primary scene of occurrence, i.e., the railway compartment were similar to the buttons found fixed to the MO shirt worn by the accused at the time of committing the crime. Three buttons were missing from the MO shirt. These detachments were recent. A thread attached to a piece of the button was similar to the thread used for stitching the other buttons of the MO shirt.
- The shirt of the accused was found to be stained by the blood of the victim in DNA typing.
From the above findings, it is evident that:-
- The victim was alone in the ladies compartment of the Ernakulam-Shornur passenger train at the material time i.e. at 8.30 pm on 1st February, 2012.
- When the train moved from Vallathol Nagar railway station, the accused got into the compartment and started molesting and assaulting the victim who cried aloud. Witnesses PW 4 and 40 had heard the screams. The screams did not continue for long. This would indicate that she might have become dazed or unconscious after sustaining blunt impact on her head as evidenced by four blunt injuries on her head (under caption injury no.1).
- The broken button of the shirt of the accused recovered from the same bogie proves the presence of the accused in the bogie and also a scuffle with the victim.
- The nail marks found on the body of the accused indicate that the victim had defended the attack of the accused. The nail clippings contained the DNA of the accused.
- A middle-aged person standing near the door of the general compartment told PW 4 and 40 that a girl jumped/fell from ladies compartment. He prevented them from pulling the chain to stop the train.
- PW 4 saw the accused jumping from the left side door of the said ladies compartment. He might have chosen that door because he has no left hand to catch hold of the handle of the exit of the said compartment for jumping out.
- The victim had sustained fatal head injuries due to assault by the accused and subsequent pushing out her from the moving train, the victim’s head striking the adjacent cross over rail.
- The accused carried the bleeding unconscious victim to the other side of the rails, disrobed her and had forcible sexual intercourse with her.
- He stole the mobile phone of the moribund victim, thereby, causing theft of property of the victim and sold it to PW 7.
- The extrajudicial confession made to the doctor who examined the accused after his arrest. There were no police officials with the doctor when he made the confession.
The past criminal records reveal that the accused is a habitual offender. He has been convicted eight times for various offences in various courts in Tamil Nadu. He is a habitual offender, who has a violent behaviour as reported by the jail authorities. He cannot be handcuffed as he has no left hand.
Based on the above findings which connect the accused with the crime, the Sessions Court awarded capital punishment to the accused. The verdict was confirmed by the High Court.
The accused preferred an appeal before the Supreme court, which set aside the capital punishment and awarded life imprisonment to the accused.
What were the findings which made the Supreme Court to arrive at a decision like the one mentioned above?
A three-judge Bench of the Hon Supreme court found out that the accused is liable only for the offences u/s 376, 394 and 397.
The accused is not liable for the offence u/s 302 IPC, murder of the victim because of the following reasons:
- This will bring the court to a consideration of the culpability of the accused for the offence punishable u/s 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 PW 64(PM doctor), 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 nos 1 and 2 and the 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 (PW 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 no. 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 the PW 4 and PW 40 as to what had happened in the ladies’ compartment coupled with the evidence of PW 64 and the post-mortem report (Exbt 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 the 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 by PW 64 (PM doctor) 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 PW 4 and 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 circumstance appearing against the accused has to be weighed against the oral evidence on record and the conclusion that follows 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 PW 64 (PM doctor) as having a bearing on the cause of death of the deceased. However to hold that the accused is liable under Sec 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 PW 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, in as much as the evidence of PW 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of medical and paramedical staff. The fact that the deceased survived for a couple of days after the accident 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 u/s 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 u/s 325 IPC. We, accordingly, find the accused appellant guilty of the said offence and sentence him to undergo rigorous imprisonment for seven years of commission of the same.
- Consequently and in the light of the above discussion, we, partially allow the appeal filed by the accused appellant. While the conviction u/s 376 IPC, Sec 394 read with Sec 397 IPC and Sec 447 IPC and the sentence imposed for the commission of the said offence are maintained, the conviction u/s 302 IPC is set aside and altered to one u/s 325 IPC. The sentence of death for the commission of offence u/s 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.
Analysis of the judgment
It seems the Supreme Court relied on the hearsay testimony of “a middle-aged man” standing near the door of the general compartment of the train adjacent to the ladies compartment, which was the primary crime scene. According to PW 4 and PW 40, they heard cries of the girl from the ladies compartment. They wanted to pull the chain to stop the train. This ghost of a ‘gentleman’ (he could not be traced) dissuaded them to do so. After sometime, he told PW 4 and 40 that the girl had “jumped out of the train and had made good her escape”.
This statement could only be an utter lie, because Sowmya was assaulted by the accused in the compartment itself, thereby, sustaining injury no. 1. She would have, in all probability, become concussed. Any heavy impact on her head can result in concussion and unconsciousness. This is supported by the fact that the screams of Sowmya were not continuous. She could have stopped screaming when she became concussed. Sowmya, in a concussed state, would not have jumped from the train and escaped like an acrobat. She could not have escaped because she was lying unconscious where she fell. The middle-aged fellow was clever and did not mention to PW 4 and 40 that the victim fell down from the train and was lying in the place where she fell, as in that case, PW 4 and 40 would have pulled the chain to stop the train. In the extrajudicial confession, the accused has stated that he pushed her out of the train.
The second point the Supreme Court gives unnecessary importance to a deduction made by the postmortem doctor. The doctor has stated in the post-mortem certificate that the accused had placed the victim in a supine position on the ground for performing the sexual act. In that posture blood from the fractured facial bones had gravitated into the air passages thereby causing death due to anoxic brain damage. This inference is written under the caption “opinion as to the cause of death. When a doctor performs an autopsy, he acts as an eye witness. He records the various changes seen on the body, describes the injuries, notes the changes in the internal organs. Based on those observations, the cause of death is recorded in morbid anatomical terms. This is an inference based on scientific reasoning. Deductions have no place in the autopsy certificate which is a documentary evidence , which is later proved in the court.
In this case, the victim had sustained two external injuries on the head. The scalp and skull protects the important organ brain situated inside the skull cavity. The force of the external injuries are transmitted internally and can affect the brain resulting in various types of damages to the substance of brain. Brain will be contused or lacerated. There can be bleeding under the coverings of Brain or substance of the brain. The important centres which control the functions of the brain will be affected. When the brain is injured the person will become unconscious. If the injury is minor, like a concussion, the unconsciousness will be of a short duration. In the case of Sowmya, the injuries to the Brain were very serious. When she was admitted in the Medical College Hospital, Glasgow Coma Scale was only 3 (Normal 15).
When there are two external injuries on the head (injuries 1 and 2), it is not possible to say which was individually responsible for the brain damage. Actually there were seven external injuries on the head. Under caption “injury no. 1’, there were four injuries, and under caption ‘injury no. 2’, there were three injuries. It is to be presumed that all these seven injuries contributed to the many fractures of skull, facial bones and brain damage. The cause of the death should be expressed in morbid anatomical terms and should have been “injuries involving the skull and brain” or simply head injury.
The aspiration of blood into the air passages, thereby causing anoxic damage to brain, is one of the mechanisms of death. There can be many mechanisms of death in head injury. In this case, there was bleeding in the substance and under the coverings of brain. Pituitary gland was torn. Brain was swollen (cerebral oedema). This could have produced increased tension inside the skull cavity. This increased pressure could affect the vital centres of brain that control circulation and respiration. There were multiple areas of bleeding in the substance of the brain, suggestive of a diffuse head injury.
Law need be bothered about the cause of death only. and not the several mechanisms of death. Sowmya was a normal human being till the accused inflicted 4 injuries described under caption injury no. 1 and threw her out of the running train thereby causing the 3 injuries described under caption injury no. 2 and other injuries on various parts of her body. The head impacts have resulted in serious brain damage. This is the cause of death. These actions of the accused prove the ‘mens rea’. He follows the victim after inflicting the fatal injuries and commits rape on the dying victim. Even though the two acts, murder and rape are legally two offences, these two acts of the accused make it the most heinous and rarest of the rare.
The victim was alive when the rescuers saw her. The doctors in the casualty of Medical College Hospital stated that she was alive and breathing, though she was deeply unconscious.
The Supreme Court found that what is required to hold the accused liable under Sec 302 IPC is an intention to cause death or knowledge that the act of the accused is likely to cause death. The accused had no intention or knowledge to cause death when he placed the victim in a supine position. It was only for performing the sexual act!!!
Hon Supreme Court states that the accused had no intention or knowledge that when he placed Sowmya in a supine position to perform sexual intercourse because he had no idea that bleeding into the air passages will cause anoxic brain damage. Hon. Apex court is placing undue importance on the inference of the postmortem doctor.
Intention and knowledge are evident when he inflicted head injuries to the victim when he hit her head forcibly against the wall of the compartment 4 times and then threw her body out of the train. He found her unconscious body on the adjacent track and carried it to the other side of the tracks. Again his knowledge and intention are proved. He is ravishing a moribund victim. It is incorrect to observe that the accused had no knowledge or intention to cause death when he was penetrating the virgin girl’s vagina, with the lust of a wild animal, tearing its walls and pouring his dirty seeds into it.
The upshot of the above observations is that the apex court should have held the accused liable for all the offences, including murder. My humble view is that the apex court erred in evaluating the evidence.
Dr. B. Umadethan is a Former Director of Medical Education, Kerala State, Medico-legal Adviser to Kerala Police, State Medico-legal Expert and Consultant, Director of State Medico-legal Institute, Principal Medical College, Thiruvananthapuram, Professor and Head of the Dept of Forensic Medicine of Medical Colleges of Thiruvananthapuram, Kottayam, Alappuzha and Thrissur.