JUDGMENT :

(Prayer: Referred Trial under Section 366 of the Code of Criminal Procedure on the judgment of the learned Sessions Judge, Mahila Court, Tirunelveli in S.C.No.555 of 2015 dated 12.02.2020.

Criminal Appeals filed under Section 374(2) of the Code of Criminal Procedure against the judgment of the learned Sessions Judge, Mahila Court, Tirunelveli in S.C.No.555 of 2015 dated 12.02.2020.)

1. The reference in R.T.(MD) No.1 of 2020, is made by the learned Additional District and Sessions Judge, Mahila Court, Tirunelveli, under Section 366 Cr.P.C., seeking confirmation of capital punishment imposed on A3 and A4/respondents. Crl.A.(MD) Nos.319 and 323 of 2021 have been filed by A3 and A4, respectively, challenging the conviction and sentence imposed on them, both the matters are heard together and disposed of by this common judgment.

2. Totally there are six accused in this case. A1 to A4 stood charged for the offences under Sections 449, 376, 302 and 397 I.P.C., while A5 stood charged for the offence under Section 212 I.P.C. and A6 stood charged for the offences under Sections 411 and 201 I.P.C. The trial Court, while acquitting the other accused against the respective charges framed against them, convicted A3 and A4 alone, under Sections 449, 376 and 302 I.P.C. and sentenced them to undergo Life Imprisonment for the offence under Section 449 I.P.C., further sentenced them to undergo 10 years Rigorous Imprisonment for the offence under Section 376 I.P.C. and also sentenced them with the capital punishment of hanging till death for the offence under Section 302 I.P.C. However, the trial Court acquitted A3 and A4 for the offence under Section 397 I.P.C. The trial Court referred the matter to this Court seeking confirmation of death sentence, and the appellants challenging the conviction and sentence, filed Crl.A.(MD) Nos.319 and 323 of 2021.

3. The case of the prosecution in brief is as follows:

A1 to A4 belongs to Ayan Singampatti village, and they are all friends. The deceased in this case, namely, Tamilselvi, a widow, was working as Village Health Nurse, in the Government Primary Health Centre, Manimutharu. She was staying alone in a rented house in Ayan Singampatti, her son Rajesh Kannan (P.W.6) was doing his Engineering Course at Coimbatore. A1 to A4 were known to the deceased. On 29.09.2008, at about 9.15 p.m., A1 to A4 went into the house of the deceased and all the accused committed rape of the deceased, then, A2 strangulated the deceased with the shawl worn by her, A1 has smothered her with a towel, A2 strangulated the deceased with nylon rope and A3 and A4 punched her on the ribs and kicked her on the chest with knee, thereby, all the four accused caused the death of the deceased. Thereafter, A1 has stolen two cell phones belonged to the deceased, A2 has stolen her gold chain, A3 broke opened the steel bero and stolen the gold chain weighing 20 grams and A4 has stolen 7 grams of golden ring belonged to the deceased and escaped from the scene of occurrence.

4. On the next day morning, at about 10.30 A.M., P.W.1, neighbour of the deceased, found the deceased dead. He immediately informed the same to his father P.W.3, then, the message was passed on to the brother of the deceased, one Ilayaraja (not examined). Then, Ilayaraja appeared before P.W.18, Sub-Inspector of Police, attached to the respondent Police, filed a complaint (Ex.P.1) at about 12.30 p.m. Based on that complaint, P.W.18, Sub-Inspector of Police, registered a criminal case in Crime No.203 of 2008 under Sections 302, 380 I.P.C. and sent the F.I.R. (Ex.P.18) to the Judicial Magistrate, Ambasamuthiram, and copies to the investigating officer and other higher officials.

5. P.W.19, Inspector of Police, on receipt of the F.I.R., commenced the investigation, proceeded to the scene of occurrence, prepared Observation Mahazar (P.W.19) and Rough Sketch (P.W.20) and recovered bloodstained marble floor (M.O.13) and sample marble floor (M.O.14). Thereafter, he conducted inqu