IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN REFERRED TRIAL NO.2 OF 2008 AND CRIMINAL APPEAL NO.487 OF 2008 Senthilkumar .. Accused in R.T. and Appellant in CA Vs. State by Inspector of Police, Perumanallur Police Station, Coimbatore District (Crime No.55/2007) .. Complainant in R.T. and Respondent in CA This Referred trial has been preferred seeking confirmation of the sentence passed by the learned Sessions Judge, Magalir Neethimandram, Coimbatore and criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the said Court made in S.C.No.155 of 2007, dated 10.06.2008. For Appellant : Mr.A.K.Kumaraswamy For Respondent : Mr.P.Kumaresan, APP Mr.C.Ramkumar to assist the APP - - - - COMMON JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This Referred Trial No.2 of 2008 has arisen from the judgment of the Court of Sessions, Coimbatore Division made in S.C.No.155 of 2007, whereby the sole accused therein stood charged under Sections 363, 364, 376(1) and 302 IPC, tried and found guilty as per the charges and awarded capital punishment of death sentence under Section 302 IPC, 3 years R.I. and to pay a fine of Rs.500/-, in default to undergo 3 months S.I. under Section 363 IPC, life https://hcservices.ecourts.gov.in/hcservices/ imprisonment each under Sections 364 and 376(1) IPC and the sentences of imprisonment under Sections 363, 364 and 376(1) IPC were ordered to run concurrently. Aggrieved against the conviction and sentence, the appellant has brought forth Criminal Appeal No.487 of 2008. 2.Both the Referred Trial, seeking confirmation of the sentence made by the Sessions Court and also the Criminal Appeal filed at the instance of the appellant/accused are taken up together for consideration this day. 3.Necessary facts for the disposal of the same can be stated as follows: a)P.W.1 is the father of the victim Sandhya aged 13 years, who was doing her school education and she was the only daughter of P.W.1 and his wife Subbulakshmi. The accused/appellant was his neighbour and he was doing electrical works occasionally, but he was addicted to bad habits of smoking ganja and also taking tablets for stimulating the intercourse. One month prior to the occurrence, when the deceased Sandhya was taking bath, the accused saw her. It was informed by Sandhya to P.W.1 and in turn, P.W.1 abused him in filthy language in the presence of the others. Aggrieved over the same, the accused developed grudge and in order to take revenge, he was waiting for an opportunity. b)On 24.3.2007 at about 18.30 hours, when Sandhya was returning from tuition, the accused intercepted her and informed that her Aunt was in the farm and she wanted to meet her immediately. Believing the misrepresentation, Sandhya accompanied him as a pillion rider in TVS XL Super moped, bearing registration No.TN-39/AC 6428, which belonged to the accused. The accused took her to Paraikattuthottam with an intention to rape her. When they were proceeding, P.Ws.2 and 3 and one Kannammal asked the accused as to why he was taking the minor girl. He replied that she was invited by her Aunt and she was also waiting for her and hence, he was taking her. P.Ws.2 and 3 and the said Kannammal met P.W.1 and informed the same. c)The accused, who took Sandhya to Paraikattuthottam, forcibly raped her, despite resistance put forth by the victim. When she bagan to shout, he also intimidated her that she should not report the incident to the villagers. The accused got afraid of the situation and felt that if the deceased was left free, it will lead to serious consequences. Immediately, it passed in the mind of the accused that it would be better to finish her off. The accused pressed her neck and the deceased became unconscious. Immediately, he took the sickle from his moped and cut her repeatedly. When Sandhya ragained conscious and tried to wake up, the accused pressed her head on the floor and he inflicted injuries over the forehead, left eye brows, right side nose, upper lip, etc. The accused not satisfied with the same, chopped her head with the sickle, as a result of which the https://hcservices.ecourts.gov.in/hcservices/ deceased succumbed to injuries. Immediately, leaving the dead body, the accused proceeded to change the dress, which he kept in the Moped. He took M.O.4, sickle and proceeded in his Moped. d)P.W.6 and one Selvaraj, who found the accused on the way, asked him to attend electrical work, but he did not answer. The accused was found to be nervous and he escaped from the place. Meanwhile, P.W.1 on information by P.Ws.2 and 3, proceeded to the house of P.W.5, who is his sister, in order to verify whether Sandhya came there. But on receiving reply in negative, immediately, he made a search. He asked all his relatives. At about 22.30 hours, he found the dead body of Sandhya in the garden of the accused, which is situated at Paraikattuthottam. e)Immediately, P.W.1 proceeded to the respondent police station and lodged Ex.P.1 complaint at about 00.30 hours on 25.3.2007. P.W.16, the Special Sub Inspector of Police received the same. On the strength of Ex.P.1, P.W.18, the Sub Inspector of Police, registered a case in Crime No.55 of 2007 under Sections 366A and 302 IPC. Ex.P.25, the FIR was despatched to the Court. f)P.W.19, the Inspector of Police, on receipt of the copy of the FIR, took up the investigation, proceeded to the house of P.W.1 and the accused and made an inspection in the presence of the witnesses. He prepared Ex.P.4, the observation mahazar and Ex.P.26, the rough sketch. Then he proceeded to the place of occurrence and prepared Ex.P.3, the observation mahazar and Ex.P.27, the rough sketch. He also conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.28, the inquest report. Then, the dead body was sent to the hospital for the purpose of autopsy. P.W.19 recovered bloodstained earth and sample earth from the place of occurrence under a cover of mahazar. g)P.W.12, the Doctor attached to the Government Hospital, Tiruppur, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and noted the following injuries: External injuries over the dead body of Sandhya: i)1 cm x 0.5 cm stab injury near left eye brow. ii)1 x 0.5 cm stab injury just below to left eye. iii)1 x 0.5 cm stab injury over the right nose. iv)1 x 0.5 cm stab injury over the right upper lip. v)5 cm long x 1 cm breadth x 0.5 depth from the above downwards over the scalp edge. Lacerated injury on the right temporal region. vi)0.5 cm x 2 cm x 0.1 clear edges lacerated injury over occipital region. vii)Contusion well developed over left occipital region measuring 4 x 2 cms. viii)7 cm x 1 cm x 1 cm deep injury (Skull) questionable scull fracture. https://hcservices.ecourts.gov.in/hcservices/ ix)2 x 0.5 cm x 0.5 cm lacerated injury extending to the face. x)2 cm x 0.5 cm x 6.5 cm another lacerated injury over the frontal region. xi)Lacerated injury on right fore arm measuring 1 cm x 0.5 cm. xii)Multiple abrasion over right shoulder, right ankle and right breast. xiii)Teeth stained with blood. xiv)Lower lip torned. External injuries over genitals: i)Airus dilated and ruptured. ii)Vulva blood stained. iii)Questionable semen in the vaginal introitus. iv)Bilateral injury on the thigh creases. Irregular margined and serrated and multiple lacerations. v)Multiple lacerated abrasion over the right shoulder, right side of the neck right side of axilla, breast and bilateral upperback and over the bilateral upper back and over the bilateral lower lumbar region innumerable mud and blood stained abrasions." P.W.12 has issued Ex.P.14, the post-mortem certificate and Ex.P.16, final opinion, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the head injury 18 to 24 hours prior to autopsy. h)P.W.13, the Doctor, who assisted P.W.12, also found injuries on the internal genitals of the deceased and the injuries were also noted. On 28.3.2007, P.W.19 arrested the accused when he was proceeding in his TVS XL Super. When the accused was interrogated, he came forward to give confessional statement and the same was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.5. The accused was also medically examined in order to find out the potency. P.W.14, the Doctor, examined the accused and has given his certificate in this regard and also found him potent. All the material objects recovered were sent for chemical analysis and the reports were received. The blood group found to be tallied. Thereafter, in order to fix the age of the victim, Ex.P.9, Transfer certificate was obtained from the School. All the witnesses were examined and their statements were recorded. On 21.6.2007, P.W.19 completed the investigation and filed the final report under Sections 363, 364, 366 and 376(1) and 302 IPC. 4.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution marched 19 witnesses and also relied on 28 exhibits and 14 M.Os. On completion of the evidence on https://hcservices.ecourts.gov.in/hcservices/ the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and was of the view that it is one of the rarest of rare cases, which requires the capital punishment of death sentence and accordingly, it was awarded along with the other punishments, as referred to above. For the purpose of confirmation of the death sentence, the matter has been referred to this court. The accused aggrieved over the said conviction and sentence has also preferred the criminal appeal. 5.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution had no direct evidence to offer; that according to the prosecution, the motive attributed to the accused for committing the crime was that actually one month prior to the occurrence, 13 years old Sandhya, the school going girl, was actually taking bath and the same was witnessed by the accused stealthily and it was reported to P.W.1, her father, who in turn abused the accused in a filthy language in the presence of the others; that the learned counsel would submit that it cannot be the motive, because the said incident had taken place one month prior to the occurrence and this would not have any continuity; that had it been the real intention of the appellant to do anything, he would have done it earlier and that after one month, such a thing could not have been happened at all. 6.The learned counsel would add that so far as P.Ws.2 and 3 were concerned, their evidence was as if they found the accused taking Sandhya in TVS XL Super, but their evidence cannot be believed in view of the discrepancies found in their testimony; that in the instant case, nobody has actually spoken about the occurrence; that from the evidence of P.W.6, he has seen the accused just proceeding and not near the place of occurrence, but away and hence with the said evidence, it cannot be stated that the prosecution has fixed the culprit; that even if it is taken that the commission of rape and also the murder is found to be correct, so long as the prosecution was unable to prove the nexus of the accused with the crime, he should not have been found guilty. 7.Added further the learned counsel that insofar as the recovery of TVS XL Super and the knife from him on arrest is concerned, they are all nothing, but planted; that even as per the witnesses, he was found in the police station on the evening and hence the claim of the Investigator that the accused was arrested on 28.3.2007 and following the confessional statement, recovery was made, was nothing, but false and under these circumstances, that part of the evidence adduced by the prosecution for the recovery of weapon of crime and also TVS XL Super have got to be rejected; that the lower court has actually https://hcservices.ecourts.gov.in/hcservices/ carried away that the girl aged 13 years was raped and murdered and has found him guilty and hence the prosecution has not proved the case beyond reasonable doubt. 8.The learned counsel would further add that it is not a case where the court could award capital punishment of death penalty; that even assuming that the factual position of the prosecution is taken to have been proved, there is nothing to show that the crime noticed is a heinous crime; that it cannot be stated that it requires capital punishment; that the prosecution had not placed anything before the court that he was involved in any criminal case or his continuity in society would be menace; and that it is true, he has committed the offence, but no circumstance was brought to the notice of the court that it is a fit case where death penalty has got to be awarded. The learned counsel, in order to sustain his plea, has relied on the decisions of the Apex Court reported in 2001 CRL. L.J. 725 (MOHD. CHAMAN VS. STATE(N.C.T. OF DELHI)) and also 2004 AIR SCW 5581 (SURENDRA PAL SHIVBALAKPAL VS. STATE OF GUJARAT). The learned counsel would further add that in the instant case, since the prosecution has not produced any material to show that he was involved in any other criminal case and his presence is menace to the society, it cannot be termed as rarest of rare case and hence the judgment of the trial court awarding capital punishment has got to be set aside. 9.The court heard the learned Additional Public Prosecutor on the above contentions. Apart from putting forth his contentions on the factual positions, the learned Additional Public Prosecutor relied on two decisions of the Apex Court reported in 2006 (13) SCALE 467 (ALOKE NATH DUTTA AND OTHERS VS. STATE OF WEST BENGAL) and also 1983 (3) SCC 470 (MACHI SINGH VS. STATE OF PUNJAB). He would further add that the Apex Court has given illustrations of murders which would fall within the category of "Rarest of Rare cases"; that in the instant case, it would be clear that the act of the accused was brutal, gruesome, diabolical and revolting or dastardly manner; that the accused has committed rape and murder of 13 years old girl, who could not have even any resistance and the way in which the accused has committed rape and also murder would be pointing to the fact that an innocent child, who was helpless, was raped and murdered by the appellant, who was in a dominant position and under these circumstances, the act of the accused was naturally a shock to the society and hence it is a fit case to award death penalty and hence the judgment of the trial court has got to be affirmed. 10.The court has paid its anxious consideration on the submissions made and has also looked into the materials available. 11.It is not in controversy that Sandhya, a girl aged 13 years, the daughter of P.W.1 was subjected to rape and also murdered. The occurrence has taken place on the night hours on 24.3.2007 at the time and place of occurrence as put forth by the prosecution. https://hcservices.ecourts.gov.in/hcservices/ Following the inquest made by the Investigating Officer and the preparation of the inquest report, the dead body was subjected to post-mortem by P.W.12, the Doctor, who has given his categorical opinion that she died out of shock and haemorrhage due to the injuries sustained. Apart from that, P.W.13, the Doctor, who assisted P.W.12, also medically examined internal genitals of the deceased Sandhya and she has also given certificate in that regard. Further, the post-mortem certificate and the evidence of the Doctor would clearly indicate that the deceased died out of shock and haemorrhage due to the injuries sustained and also the corresponding internal injuries. The fact that Sandhya was raped and also was done to death was never a subject matter of dispute by the appellant and hence no impediment is felt in recording so factually. 12.In order to substantiate the charges levelled against the appellant that he has committed rape and also murder of Sandhya, the prosecution had no direct evidence to offer, but the court is able to see sufficient circumstances, on careful scrutiny of the materials available, pointing to the complicity of the assailant, namely the appelant in the said crime. The prosecution, in the considered opinion of the court, was able to prove the motive. The accused, who remained unemployed, was doing some electrical works occasionally and was addicted to bad habits of smoking ganja and also became addicted to take tables for stimulating the intercourse. From the evidence of P.W.1, it could be seen that one month prior to the occurrence, when Sandhya was taking bath, he stealthily witnessed the same and on report by Sandhya, it was P.W.1 who abused him in filthy language in the presence of the others. Hence, he was disturbed and it was actually passing in his mind and he was waiting for a time to take revenge. So far as this first part of the evidence of P.W.1 is concerned, it leaves no doubt in the mind of the court. 13.On 24.3.2007 at about 18.30 hours when Sandhya was returning from tuition, the accused intercepted and misrepresented that her Aunt was in the farm and was waiting for her and that he took her in his TVS XL Super. When the minor girl was taken by the accused/appellant, he was intercepted by P.Ws.2 and 3 and they asked him as to why he took the minor girl and the accused gave a very same reply and took her. Following the same, the accused took her to his garden situated at Paraikattuthottam. At this juncture, it is pertinent to point out that the occurrence has taken place in the garden of the accused. The contents of the observation mahazar and the rough sketch in this regard were not in dispute. The bloodstained earth and sample earth were all subjected to chemical analysis along with the material objects recovered from the dead body and also the material objects recovered from the accused and they were found to be the same blood group. At the place of occurrence, the accused forcibly pushed her down and had intercourse and thereafter, the accused thought that if his act was brought to the notice of others, it will lead to serious consequences and hence he has pressed her https://hcservices.ecourts.gov.in/hcservices/ neck and when she became unconscious, he inflicted cut injury over her head and when Sandhya regained conscious and tried to wake up, the accused immediately chopped her head and thereafter, he moved from the place. When he was moving from that place, it was P.W.6, who intercepted the accused and found that the accused was nervous. The place where P.W.6 found the accused was also near the place of occurrence, as could be seen from the evidence. Thus, when the deceased was taken by the accused in his TVS XL Super, it was witnessed by P.Ws.2 and 3 and immediately after the occurrence, P.W.6 has also seen him and thus, it would be quite clear that the accused took 13 years old minor girl and after committing the offence, he escaped from the place. 14.It is pertinent to point out that pending investigation, the accused was arrested on 28.3.2007 and he also produced the TVS XL Super, in which he was travelling with the deceased. Further, he has also produced the sickle pursuant to his confessional statement. The witnesses examined as to the arrest, confessional statement and the recovery of M.Os., have given categorical evidence, despite cross examination in full. Thus, this part of the evidence would clearly prove the nexus of the accused with the crime. Further, the Doctor has also been examined and the potency test of the accused has been proved to be positive. In the instant case, P.W.13, the Doctor was pressed into service for the purpose of the injuries on the internal genitals of the deceased Sandhya and she has categorically opined in Ex.P.17 that Sandhya was subjected to rape prior to murder. All the material objects recovered from the place of occurrence, from the dead body of the deceased and also the M.os recovered from the accused, on production pursuant to the confessional statement, were all subjected to chemical analysis and they were found to be the same blood group. Thus, the prosecution has brought forth necessary evidence pointing to the guilt of the accused, who has actually taken the minor girl and committed rape and not satisfied with the same, he has also caused murder. The contentions put forth by the learned counsel for the appellant do not carry any merit whatsoever and they did not stand even for a moment for consideration. The trial court has marshalled the evidence, considered the same and took a correct conclusion on the available evidence that it was the accused who caused rape of minor and murdered her also. Thus, the findings of the lower court under the above stated provisions are found to be correct factually and legally and this court is unable to notice anything to disturb the same. 15.Coming to the second line of contentions put forth by the learned counsel for the appellant that it is not the rarest of rare case for awarding capital punishment of death penalty, this court has appraised the contentions put forth by the learned counsel for the appellant and also for the State. After considering the same and evaluating the circumstances under which the crime was committed, the court is of the considered opinion that it is not a fit case where https://hcservices.ecourts.gov.in/hcservices/ death penalty could be awarded. This court is able to see that the girl who was murdered and raped was 13 years old and also on the misrepresentation, she was taken from the place and after committing rape, the accused also murdered her. 16.Needless to say that the act of the accused was undoubtedly serious and also heinous and the conduct of the appellant is reprehensible and it reveals a dirty and perverted mind of a human being, who has no control over his carnal desires. At the same time, the Court has to look into the other mitigating circumstances. In the instant case, there was an incident that had taken place one month prior to the occurrence, which was actually provoked him and was in his mind. Apart from that, in the instant case, there was nothing to show that he was involved in any other criminal case or he is menace to the society. In the absence of the same, it is highly difficult to record a finding that it is one of the rarest of rare case. The court is of the considered opinion that it would be apt and appropriate to reproduce paragraph 24 of the judgment of the Apex Court reported in 2001 CRL. L.J. 725, which reads as follows: "24.Coming to the case in hand, the crime committed is undoubtedly serious and heinous and the conduct of the appellant is reprehensible. It reveals a dirty and perverted mind of a human-being who has no control over his carnal desires. Then the question is whether the case can be classified as of a 'rarest of rare' category justifying the severest punishment of death. Testing the case on touchstone of the guidelines laid down in Bachan Singh (AIR 1980 SC 898 : 1980 Cri.L.J 636)(supra), Machhi Singh (AIR 1983