MALAI SUBRAMANIAN, J. - (1.)THE. appellant in Crl.A. No. 528 of 2002 (who will hereinafter be called "the accused") stands convicted by the Additional Sessions Judge-cum-Chief Judicial Magistrate, Thoothukudi in S.C. No.91 of 2000 for offences under Secs.366(A), 376(2)(f) and 302, I.P.C and was sentenced to undergo R.I. for 7 years, imprisonment for life and death respectively. THE learned Sessions Judge, after sentencing him to death, has forwarded the judgment under Sec. 366(1), Crl.P.C. for confirmation. Since the criminal appeal and the referred trial relate to the same single judgment, the following common judgment is passed.
(2.)P.W.1 Mariappan is a resident of Thangammalpuram. P.W.2 is his wife. The deceased Indumathi was his daughter. The deceased was then aged about 8 years and she was studying in "Balar Palli". P.W.1 was working as a fitter in Rotomax Company. P.W.2, wife of P.W. 1 was working in salt quaters. P.W. 1 used to return home after the day's work at about 9 p.m. and P.W.2 used to go home at 6 p.m.. On 31.1.1998, at about 6 p.m., P.W.2 came home after her day's work and found her daughter not available in the house. When, at about 9 p.m., P.W. 1 returned home, she informed P.W. 1 about the missing of their daughter. Thereafter, P.Ws. 1 and 2 searched for their daughter and on the way, they went to the northern side of the village where circus was going on. There, they met P.W. 5 Periyasamy, who informed them that the deceased was playing with P.W. 3 Karpagavalli alias Sakthigani, P.W.4 Muthumari and other children, and he had also seen the accused playing with them. Taking this clue, they went to the house of the accused Chelladurai at about 12 midnight. Since the accused was not available in his house, they questioned the wife of the accused, who replied that her husband had not returned home. Thereafter, they searched at several places.
When P.W.1 questioned P.Ws.3 and 4, they informed P.W.1 that the accused, on a promise to give a green vegetable eatable "Sodakku Thakkali" took the deceased in a cycle. The next day, P.W.1 questioned the accused who denied having seen the deceased. Therefore, he entertained a suspicion and went straight to Muthiapuram Police Station at about 1.45 p.m. and lodged Ex.P-1 report.

P.W. 17, the Sub-Inspector of Police at the Muthiapuram Police Station, received Ex.P-1 and registered the case in Crime No.30 of 1998 under the caption "Girl Missing". The printed First Information Report is Ex.P-23. He took up investigation, examined P.Ws. 1 and 2 and recorded their statements under Sec. 161, Crl.P.C. He also searched for the accused and the deceased. In the meantime, P.W. 10 Nattamai alias Aasirvadham, who was working along with P.W.1 received information from a person at Muthiapuram at about 6 p.m. on 1.2.1998 that a child was lying dead. Therefore, he suspected that the said child could be the child of P.W.1 and informed P.W.1 at about 6.30 p.m. Both of them went in search of the child and found Indumathi dead in Kakkaset Road at a distance of 3/4 kms. P.W.10 instructed P.W.1 to go and inform the matter to the Police. P.W.1 accordingly reported the same to the Police and thereafter, P.W.17 altered the crime to one under Secs. 376 and 302, I.P.C and prepared Ex.P-24, the express report and the investigation was taken up by the Inspector of Police Mr.Syed Mohammed Ibrahim.

The Inspector, along with P.W. 17, took up investigation and caused the scene of crime to be photographed. Since it was night time and the place of occurrence was surrounded with thick wood, he could not continue his investigation and the next morning, i.e., on 2.2.1998, at about 6 a.m., he observed the scene of crime and prepared Ex.P-19 Observation Mahazar and also drew the sketch Ex.P-26. He also seized M.O.6 blood-stained earth and M.O.7 sample earth under a mahazar. He then held inquest over the body of Indumathi and prepared Ex.P-27, the inquest report. He examined witnesses and thereafter, he forwarded the body of the deceased for post-mortem.

P.W.12, Dr.Manjula, attached to the Government Hospital, Thoothukudi received the body of the deceased Indumathi, aged about 8 years with a requisition Ex.P-3 and commenced postmortem at about 2 p.m. on 2.2.1998. She found the following symptoms: "Eye balls were swollen; tongue was protruding; whole body was swollen; bleeding all over the body; Vagina was swollen; small bowel was seen protruding through the vaginal orifice; Anal orifice was also swollen and bowels seen protruding; There was an irregular lacerated wound about 3 cm " 3 cm on the posterior vaginal wall; Similar lacerated wound 3 " 3 cm was present over the anterior rectal wall. Another lacerated wound about 4 " 3 cm in the posterior aspect of left elbow joint exposing the under-lying bones and muscles; There was a fracture of 4th, 5th, 6th and 7th ribs on both sides; Partially digested food particles about 100 ml in the stomach was also noticed". She preserved the viscera and sent it for analysis and after looking at the analysis report, she gave her final opinion Ex.P-5.

(3.)THE Inspector continued his investigation, examined other witnesses and at about 5 p.m. on 2.2.1998, arrested the accused, recorded his statement and at his instance, recovered M.O.3 cycle, M.O.4 shirt stained with blood and M.O.5 lungi stained with blood. THEreafter, on 3.2.1998, he forwarded the accused for remand with a requisition to subject him to medical examination to ascertain his potency.
P.W.11 Dr.Velmurugan, examined the accused and found that he had well-developed secondary sexual characters. He did not notice any external injury on the body or on the genitals and issued a certificate Ex.P-2. On 20.2.1998, the Inspector examined Dr.Velmurugan P.W. 11 and also Dr. Manjula - P.W.12 and after completing his investigation, laid the final report against the accused for offences under Secs. 366(A), 376(2)(f) and 302, I.P.C.

When the accused was questioned under Sec. 313, Crl.P.C. regarding the incriminating circumstances available in evidence against him, he denied having committed the offence and he did not make any plea except a bare denial and no witnesses were examined on his side.