'Grotesque' rapist taken off gallows -Kerala govt to submit review petition

Ananthakrishnan G., TT, Sept. 15: The Supreme Court today set aside the death sentence on an alleged vagabond who was accused of attacking a 23-year-old girl inside a moving train in Kerala, pushing her off the ladies' compartment and raping her near the tracks, following which she died five days later in 2011.

HOW DO YOU MAKE A HEARTBROKEN MOTHER UNDERSTAND THIS?

The accused entered the ladies’ compartment  Established  He attacked the girl, 23, whose betrothal was to take place the next day  Established  He repeatedly hit her head on the walls of the compartment  Established The girl was crying and screaming  Established  The girl was dropped/pushed out  Not established  The girl fell on the tracks and was grievously wounded  Established  He jumped from the train, lifted her, took her to the side of the tracks and raped her in a most brutal and grotesque manner  Established  He ransacked her belongings, took her mobile phone and went away  Established  The girl died five days later  Established

THE SUPREME COURT CONCLUDES  

The intention of the accused in keeping the deceased in a supine position (which may have caused aspiration of blood into the air passage), according to Witness 64 (a doctor), 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…. The fact that the deceased survived for a couple of days... 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…. We are... of the view that the offence under Section 302 IPC (punishment for murder) cannot be held to be made out against the accused.

The apex court accepted all the charges except two - that Govindaswamy a.k.a. Govindachaami pushed the salesgirl out of the train and he knew that his action (in this case, rape) might cause death.

The court then converted the death sentence, imposed by a lower court and upheld by the high court, to seven years' rigorous imprisonment for causing grievous hurt. It also upheld the life imprisonment on the accused for the offence of rape. The one-armed Govindaswamy has a criminal past.

The mother of the girl said it was "heartbreaking" and expressed anguish at the "failure" of the state prosecutor to "properly" present the case.

Many in Kerala expressed outrage and disbelief, although there were indications during the hearing in the apex court that the prosecution and investigators were on a sticky wicket because they could not track down and question a mysterious "middle-aged" man whose purported conversation with two witnesses proved decisive.

The Supreme Court bench of Justices Ranjan Gogoi, Prafulla C. Pant and U.U. Lalit listed the legal reasons for the judgment. In order "to hold that the accused is liable under Section 302 IPC (punishment for murder) what is required is an intention to cause death or knowledge that the act of the accused is likely to cause death", the bench said.

The court concluded that such an intention could not be established although the accused had lifted the girl from the tracks, taken her to a place nearby and sexually assaulted her.

The court accepted that the offence was committed on the girl "who had already suffered extreme injuries on her body" and that it was done in a "most brutal and grotesque manner".

The court felt that the key question was whether the two lethal injuries were caused by the accused or not. The first was inflicted when her head was banged against the compartment and the second when she fell on the tracks.

The court concluded, on the basis of the medical report, that the combination of the two injuries caused the death.

But the court did not agree with the prosecution that the second injury was also caused by the accused. The court said the deposition of two witnesses 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" could not be ignored.

According to the prosecution, the two witnesses had heard the cries of the girl and one had wanted to pull the chain to stop the train but was dissuaded by the middle-aged man.

The identity of the middle-aged man has not been established even after all these years - a crucial failure of the investigators. In essence, the accused has escaped the gallows mainly on the reported version of a person who has yet to depose and who has not been questioned.

The Left government in Kerala has vowed to move a review petition.

Additional reporting by R Balaji