IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2-12-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN R.T.No.1 of 2008 and CRL.A.No.399 of 2008 Venkatesan .. Appellant/accused 1 vs State rep. By The Inspector of Police Ambattur Police Station Tiruvallur District .. Respondent/complainant Criminal appeal preferred under Sec.374(2) of Cr.P.C. against judgment of the Additional Sessions Court (Fast Track Court No.II Poonamallee, made in S.C.No.28 of 2008 dated 11.4.2008. For Appellant : Mr.AR.L.Sundaresan Senior Counsel for Mr.N.R.Anantharama- krishnan For Respondent : Mr.P.Kumaresan Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) C.A.No.399 of 2008 challenges a judgment of the Additional Sessi Division, Fast Track Court No.III, Poonamallee, made in S.C.No.28 2008 whereby the appellant shown as A-1 was found guilty under Sec. of IPC while A-2 though charged under Sec.302 read with 109 of IPC, d pending trial. 2.The trial Court has sought for confirmation of the death pena awarded to the appellant. 3.Both the referred trial and the appeal at the instance of A-1 S.C.No.28 of 2008 are taken up for consideration together. 4.Necessary facts for the disposal of this appeal can be stated follows: (a) P.W.1 Sheeba Elizabeth, a resident of Krishnapuram, Ambatt https://hcservices.ecourts.gov.in/hcservices/ is running an orphanage. The deceased Rebecca, a child aged 9, doing her 4th Standard at the time of occurrence. The deceased was daughter of P.W.1, while P.W.4 is her minor son. She was carrying the orphans' home in the ground floor while she was living with children in the first floor. A-2 Shakeela sought help from P. stating that she was deserted, and she was given work in her house a servant maid. A-1 was working as a mason for sometime. P.W.1 searching for a driver for a car. A-1 informed her that he k driving, and hence he was utilized for that purpose. P.W.1 came to k that A-1 and A-2 had developed illicit intimacy, and she found that would not be conducive for the conduct of the orphanage. Then, warned both. At that time, A-2 used to intimidate her telling that did not know about A-1, and he would do the needful. When P.W.1 war her, A-2 was about to start with all her goods. (b) On 28.3.2006 in the morning hours, when A-2 was about to sta P.W.1 informed that her parents have been informed, and she can go o with them. Then, A-2 was waiting. Accordingly, the parents of A-2 c there, and P.W.1 got a statement from the parents of A-2 that custody of A-2 was entrusted with them. When she was about to start, 2 informed P.W.1 "wait and see what A-1 was going to do". At ab 12.15 P.M., Rebecca and P.W.4 Samuel were cycling outside. At t time, A-1 called both Rebecca and Samuel; but, P.W.4 Samuel refused go. But Rebecca accompanied him and in a short distance, A-1 gave lighted candle to her and also poured kerosene over her, and thus was set ablaze. P.W.4 has witnessed the same. On hearing the no "burning, burning", P.W.1 who was actually in the upstairs do household work, came down to see her daughter Rebecca burni Immediately, she took her in a Car. She also gave information to brother. When the child was taken in the Car to Sundaram Foundat Hospital, the child was telling "I did nothing. Why elder brot Venkatesan burnt me." She was given initial treatment at Sunda Foundation. Thereafter, she was taken to Kilpauk Medical College Hospital in an ambulance. The brother of P.W.1 also arrived. It P.W.1's brother who admitted the child at Kilpauk Medical College Hospital, and P.W.3, the Doctor, who was on duty, admitted the chi and he also recorded the statement given by the brother of P.W.1 si the child Rebecca was semi conscious. Ex.P5 is the accident regis copy. Despite treatment, the child died in the hospital. (c) P.W.1 proceeded to the respondent police station where P.W the Inspector of Police, was on duty, and gave Ex.P1, the report. Crime No.571 of 2006 under Sec.302 of IPC, a case came to be register P.W.9 took up investigation, proceeded to the spot, made an inspect and prepared an observation mahazar, Ex.P6, and also a rough sket Ex.P12. The photographs were taken from the place of occurrence. M. series are the photographs along with negatives. He recovered mater objects under a cover of mahazar. Thereafter, he conducted inquest the dead body in the presence of witnesses and panchayatdars prepared an inquest report, Ex.P14. In the meanwhile, the finger pr expert was called, and he took the finger prints from the place and a from the vessel. Thereafter, the dead body was subjected to postmor by P.W.2, the Professor, Department of Forensic Medicine, Governm Kilpauk Medical College, who has issued a postmortem certificate, Ex. with his opinion that the deceased would appear to have died hypovolumic shock due to burns. https://hcservices.ecourts.gov.in/hcservices/ (d) Pending the investigation, A-2 was arrested on 6.4.2006, she gave a confessional statement. The same was recorded. A-1 arrested at 18.00 hours the very day when he came forward to give confessional statement, which was recorded in the presence of witness The admissible part is marked as Ex.P15. Then he produced, M.O. plastic can, M.O.16, diary, and M.O.17, letter, which were recove under a cover of mahazar. Both the accused were sent for judic remand. Finger prints were also taken from them, and they were sent the finger print expert for comparison. After comparison, the fin print expert, P.W.8, also gave a report, Ex.P9, wherein he has sta that the finger prints taken from the vessel when compared, were fo to be that of A-1. The material objects were subjected to chemi analysis which resulted in Ex.P18, the chemical analyst's repo P.W.10, the Inspector of Police, took up further investigation and completion of investigation, filed the final report. 5.The case was committed to Court of Session, and necessary cha was framed. In order to substantiate the charge, the prosecut examined 10 witnesses and also relied on 19 exhibits and 18 mater objects. On completion of the evidence on the side of the prosecuti A-1 was questioned under Sec.313 of Cr.P.C. as to the incriminat circumstances found in the evidence of the prosecution witnesses wh he flatly denied as false. No defence witness was examined. The tr Court after hearing the arguments advanced and scrutinizing materials, found that A-1 was guilty under Sec.302 of IPC and was of opinion that it is a fit case where death penalty should be impos Hence the matter has been placed before this Court for the purpose confirmation, while the appellant/A-1 has brought forth the appe Both were taken up for consideration by this Court. 6.Advancing arguments on behalf of the appellant, the lear Senior Counsel Mr.AR.L.Sundaresan would submit that the case of prosecution was that the occurrence has taken place at 12.15 P.M. 28.3.2006; that the prosecution rested its case on the evidence of P. a child of 4 years old; that according to the prosecution, A-1 illegal intimacy with A-2; that P.W.1 informed the parents of A-2 when they came, she got a written undertaking and allowed A-2 to go o that in the instant case, according to the prosecution, P.W.1 at time of occurrence, was actually in the first floor doing her househ work, and hence she could not have seen the occurrence at all; that was not the evidence of P.W.1 that she saw A-1 moving from the pla and hence she cannot be said to be a competent witness to speak ab the occurrence; that P.W.4 was a minor boy of 6 years old; that in v of the fact that the child was of tender age, the evidence of P. should have been outright rejected by the trial Court; that according P.W.1, when she came down, P.W.4 informed her; but, at the same time, the earliest document Ex.P1, the report, nowhere had she stated t she was informed by P.W.4; that according to her, in the orphanage th were eight children and also four adult members; that even she has ad in her evidence that at the time when the occurrence has taken pla the children were playing; and that though number of persons w actually cited and their statements were also recorded by Investigator at the time of investigation, they were not examined by prosecution for the reasons best known to them. https://hcservices.ecourts.gov.in/hcservices/ 7.Added further the learned Senior Counsel that in the inst case, according to P.W.1, immediately the child with burn injuries taken to Sundaram Foundation Hospital for first-aid; that neither Doctor who gave the treatment was examined, nor the accident regis copy or any document in that regard which should have been the earli document, was filed before the Court; that had it been produced bef the Court, the earliest statement given to the said Medical Person wo have come before the Court; that according to P.W.3, the Doctor, gave treatment at Kilpauk Medical College and Hospital to the ch Rebecca, the child sustained 100% burn injuries, and if to be so, child could not speak; but P.W.1 would claim that when the child taken to the hospital in the car, she was telling that it was A-1 actually set fire on her, and P.W.1 had nowhere stated in the earli report, Ex.P1, also; that under the circumstances, the claim by P. that the child was uttering on the way when she was taken to hospital that it was A-1 who set her ablaze should not be believed si it is highly improbable; that the occurrence has taken place at 12 P.M. and she was immediately taken to Sundaram Foundation Hospital thereafter to Kilpauk Medical College and Hospital, where she was gi treatment at 1.30 P.M.; that even according to P.W.1, her brother available; but, no one approached the police till 5.00 P.M.; that would go to show that there was a delay of five hours in giving report; that in the meanwhile, the case has been developed; that if evidence of P.W.1 is viewed from the earliest statement given by her way of a report to the police under Ex.P1, lot of discrepancies noticed, and they are all subsequent developments which have been m in order to rope in A-1 and A-2; that the lower Court was not prepa to accept the case of the prosecution in respect of A-2 who was actua the servant maid with whom, according to the prosecution, A-1 develo illicit intimacy which was the reason for the whole trouble; that reasons which were adduced by the trial Court for rejecting the case the prosecution in respect of A-2, are equally applicable to A-1 al that under the circumstances, A-1 should have also been acquitted of charge, but not done so; that as far as the claim made by prosecution as if the recovery of the material objects was made pursu to the confessional statement voluntarily given by A-1 to Investigator, was concerned, the only witness examined was P.W.5; t P.W.5 has turned hostile and thus, the prosecution had no evidence offer; that the prosecution cannot claim that the recovery of material objects would prove the nexus between the crime and A-1; t in the instant case, the prosecution had neither direct nor indirect circumstantial evidence to offer, and thus it has miserably failed prove its case, and the appellant is entitled for acquittal. 8.The learned Senior Counsel would further add that in the inst case, the lower Court has awarded the capital punishment of de penalty to the appellant; that even if the Court comes to the conclus that the factual position put forth by the prosecution that it was who set her ablaze and caused her death is proved, it cannot considered as a rarest of rare case; that the Court has to consider b the circumstances namely aggravating and mitigating, and draw a bala sheet between them; that in the instant case, the accused was 24 ye old; that there is no evidence adduced by the prosecution to state t https://hcservices.ecourts.gov.in/hcservices/ he was involved in any criminal case also or his antecedents were b that there is nothing to indicate that he should be wiped off from society since he is a menace to society; that apart from that, he wa poor coolie; that in a case of murder, the rule is to award l imprisonment, and the awarding of death sentence was an exception; that it is not a case where death penalty could be imposed. 9.The learned Senior Counsel would further add that the ab statements are fortified by the decisions of the Apex Court as follows (i)AIR 1983 SC 957 (MACHHI SINGH AND OTHERS V. STATE OF PUNJAB); (ii)AIR 2002 SC 2811 (STATE OF PUNJAB V. GURMEJ SINGH); (iii)2004 AIR SCW 1194 (PRITHVI V. MAM RAJ AND OTHERS); (iv)2004 AIR SCW 5581 (SURENDRA PAL SHIVBALAKPAL V. STATE OF GUJARAT) and (v)(2005) 10 SUPREME COURT CASES 322 (RAHUL ALIAS RAOSAHEB V. STATE OF MAHARASHTRA). 10.The Court heard the learned Additional Public Prosecutor on the above contentions. Apart from answering the contentions put fo by the learned Counsel for the appellant on the factual posit disputing the case of the prosecution that it was A-1 who gave a ligh candle to the child and also poured kerosene and thereby caused death, to affirm the sentence of capital punishment, the lear Additional Public Prosecutor would point out that the act of A-1 was which was actually shocking to the conscience of any one who heard that further in the instant case, it is gruesome and diabolic and a cold blooded murder; that against the child who could not resist same, it is done; and that he could not have any excuse at all. relied upon a case reported in 2008 (3) CRIMES 264 (SC) (BANTU V. STATE OF U.P.) and would submit that it is a rarest of rare case; t the circumstances warrant for imposition of death penalty, and if given, it would not only be inadequate, but also not in any way be answer to the society, and hence what has been done by the trial Co has got to be affirmed. 11.The Court paid its anxious consideration on the submissions m and looked into the materials available in entirety. 12.It is not in controversy that a child of age 9 by name Rebec the daughter of P.W.1, following an incident that took place at 12 P.M. in front of the house of P.W.1 on 28.3.2006, in which she was ablaze, was taken to the hospital, and despite treatment, the child d on the day. Following the case registered by P.W.9, the Inspector Police, on the report of Ex.P1, and following the inquest made by h the dead body was subjected to postmortem. P.W.2, the Doctor, conducted autopsy has given a categorical opinion that the child d due to the burn injuries. The fact that the child died out of b injuries was not a fact disputed by the appellant before the trial Co or in this appeal even, and hence it has got to be recorded factua without any impediment that the child died out of burn injur sustained by it. https://hcservices.ecourts.gov.in/hcservices/ 13.A perusal of the entire materials would clearly indicate that is a case where the prosecution placed before the trial Court suffici materials indicating the guilt of A-1. From the evidence of P.W.1, could be seen that A-1 and A-2 were actually employed under her dur the relevant time; that they developed illicit intimacy; that when took notice of the same, she warned both of them, and despite warning, they continued to have the same. The evidence would further to show that vexed over the situation, P.W.1 who is actually carrying the orphanage, informed to the parents of A-2, and the parents of also arrived there, and she got an undertaking letter from them handed over the custody of A-2 to her parents. It is further seen t when A-2 left the place, she has challenged "wait and see what A-1 going to do", and within a short span of an hour, the occurrence taken place. From the evidence of P.W.1, it would be quite clear t the children were cycling outside the house, and P.W.1 was actua doing her household work in the first floor where she was residi Within a short span of time, she heard the noise "burning, burnin Then, she got down to see her child Rebecca actually burning w flames, and immediately the child was taken to Sundaram Foundat Hospital for first aid. At this juncture, it is pertinent to point that when the child was taken in the car, the child was repeate telling "I did nothing, why the elder brother Venkatesan burnt m This was actually spoken to by P.W.1. The way in which the child o years old was actually telling the happening to the mother is unnatural, but what is expected of a child under the circumstances. learned Senior Counsel for the appellant commented over this by stat that according to P.W.3, the Doctor, the child had 100% burn injuri and hence, the child could not have spoken or uttered these words, apart from that, this utterance claimed to have been made by the ch to P.W.1 was not referred to in the earliest report. This content cannot be countenanced at all. 14.It is true that P.W.3, the Doctor, has noted in the accid register that the child was found with 100% burn injuries and could speak. But, it is pertinent to point out that it was found to be s conscious. The occurrence has taken place at about 12.15 P Immediately the child was taken to Sundaram Foundation Hospital initial treatment, and then it was taken to Kilpauk Medical College Hospital only at 1.30 P.M. It was examined by P.W.3 at about 1.30 P Needless to say that in a given case like this when a person is ablaze, immediately what one would expect from him is a shout as to whom it is done. Naturally, when the child was taken in the car Sundaram Foundation Hospital immediately after the occurrence with b injuries, the child has spoken to the mother P.W.1 that it was A-1 committed the crime. The Court has to give much weight to this part the evidence adduced by the prosecution. The non-mention of those wo uttered by the child to mother P.W.1, in the earliest report, Ex. cannot in any way take away the truth of the case, and hence t contention cannot be countenanced. 15.Above all, it is true that P.W.1 has gone to the police stat to give a report at 5.00 P.M. The occurrence has taken place at 12 P.M. There was an interval of 4 hours and 45 minutes. In https://hcservices.ecourts.gov.in/hcservices/ considered opinion of the Court, this is not a delay at all for simple reason that the aggrieved party was P.W.1, the mother of child, and it was 9 years old child. One can visualize the anxiety the mother to save the child at that juncture and not to go to police station to give a report, and hence this cannot in any considered to be a delay at all. Though she took all steps to save child, she could not; but, the child met its end. Under circumstances, she was frustrated, and there is no fault on her si Only thereafter, she went to the police station. In fact, she was a carrying on an orphanage, and hence it is not a delay at all. 16.Added circumstance was that in the instant case at the time investigation, the appellant/accused has been arrested. The fin print expert has also been called, and he has taken finger prints f the vessel. The finger prints of A-1 and A-2 have also been taken, the finger print expert has also been examined as P.W.8. The ves contained the finger print of A-1 as found in the report given by finger print expert. The case of the prosecution was that it was accused who gave a lighted candle to the child, and then he poured kerosene on her from the vessel. The vessel has also been recove from the place. All would clearly indicate that the scientific evide was also in support of the prosecution. 17.At this juncture, the evidence of P.W.4 has got a vital role play. In the case on hand, it is true that P.W.4 was actually a 6 ye old boy. The trial Court has tested its maturity to give evidence, thereafter, he has been examined. It remains to be stated that A-1 already known to him very well because he was employed therein. Ev place, P.W.4 has mentioned him in whole evidence as elder broth P.W.4 has narrated the whole incident and how it happened. According P.W.4, he was playing with his sister the deceased Rebecca, and when came there, he called both of them; but, he did not go, and it was sister who went with him, and then he was able to see A-1 giving lighted candle to her and also pouring kerosene over her, and he also thrown a burning clothe on him; but, he ran. His evidence found to be natural. The comment made by the learned Senior Counsel that it was a child witness. But, at the same time, even after exerc of the care and caution, the evidence of P.W.4 inspired the confide of the Court. Once this evidence coupled with all the above fact were placed before the trial Court by way of evidence, this Court satisfied that it was A-1 who gave a lighted candle to the child also poured kerosene on her and thereby put an end to the innoc child. Under the circumstances, the contentions all or any one forth by the learned Senior Counsel for the appellant and recor above, do not carry any merit whatsoever, and they are liable to rejected and accordingly, rejected. This Court has to record finding as rightly done by the learned trial Judge, that it was A-1 committed the heinous crime of murdering the child. 18.The next question that would arise for consideration is whet this is a rarest of rare case which would necessitate the imposition death penalty on the appellant. As pointed out earlier, the lear Senior Counsel for the appellant relying on the decisions referred https://hcservices.ecourts.gov.in/hcservices/ above, has submitted that it is not a rarest of rare case in which de penalty could be imposed. On the contrary, much reliance was placed the learned Additional Public Prosecutor on the decision of the A Court reported in 2008(3) CRIMES 264 (SC) (BANTU V. THE STATE OF U. wherein the earlier judgments of the Apex Court in BACHAN SINGH V. ST OF PUNJAB (1980 (2) SCC 684), MACHHI SINGH V. STATE OF PUNJAB (1983 SCC 470) and DEVENDER PAL SINGH V. STATE OF NCT OF DELHI (2002 (5) 234) are referred to. It would be more apt and appropriate to reprod the relevant passages of the said judgment which are hereunder. "32.In Bachan Singh v. State of Punjab, (1980 (2) SCC 684) a Constitution Bench of this Court at para 132 summed up the position as follows: (SCC p.729) "132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302 of the Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue,