5.2. After the autopsy the dress taken from the body of the deceased and the hair collected from the body of the deceased had been submitted by P.W.14 through special report and the accused on arrest had volunteered to give confession, which had been recorded in the presence of P.W.9 VAO and on the basis of the admissible portion of the confession Ex.P.11, M.O.6 the fencing karuvai stick and the dress worn by the accused on the occurrence day had been recovered by P.W.10 Inspector.
5.4. The prosecution had proved that on 30.06.2020, the deceased victim girl was missing and was not found in spite of due search and a complaint was lodged by P.W.1 on 01.07.2020 at 10.00 am and through P.W. 5 evidence, it is proved that on 30.06.2020 the accused had taken along with him the victim child at 3.00p.m. while taking flowers to Kali Temple.
5.6. Through P.W.13 the post-mortem Doctor and Ex.P15, it is proved that the victim child has been subjected to aggravated penetrative sexual assault and the cause of death of the victim child.
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11. The accused was arrested on 02.07.2020 at about 12:00 noon. Based on his confession, the Velikaruvai stick (M.O.6), the blood stained half sleeves green colour shirt (M.O.2) and lungi (M.O.3) which was worn by the accused at the time of occurrence were recovered, under mahazars Ex.P.9 and Ex.P.10 in the presence of P.W.9 Krishnan VAO. The green colour half sleeves shirt and lungi was identified by P.W.2, who saw the accused and the deceased together at about 3.45pm on 30.06.2020. P.W.3 also has identified the shirt and lungi as the dress of the accused when he saw the accused and the deceased together at about 3.30pm on 30.06.2020.
12. The wooden log (M.O.6), shirt of the accused (M.O.2), lungi of the accused (M.O.3) frock of the victim girl (M.O.1) were sent to forensic lab and detected human blood group ‘A’. Same is testified by the I.O. P.W.17 supported by biological and serology report marked as Ex.P.27 and Ex.P.28.
13. The accused has cross-examined the key witnesses P.W.1 to P.W.9 twice, but had not been able to impeach their credibility. Particularly, P.W.2, P.W.3 and P.W.5 are the witnesses, who had seen the victim and the accused together. Their testimony stand solid and unassailable. Minor discrepancies regarding the time of missing as informed by P.W.1 cannot be taken serious note in this case, since the witness is a rustic villager and his complaint after searching his daughter whole night of 30.06.2020, not specifically mentioning the time of missing, does not go to the root of the case.
17. At this juncture, it is appropriate to refer to the judgment of the Hon’ble Supreme Court rendered in Mahendran Vs. State of Tamil Nadu reported in 2019 (5) SCC 67, wherein the Hon’ble Supreme Court has observed that if the delay in registering the F.I.R. is satisfactorily explained, the credibility of the complaint need not be suspected. Similarly, contradictions, inconsistencies, exaggerations or embellishments if minor in nature and inconsequential, the same will not discredit the credibility of the witnesses. This case squarely falls within the said category. Therefore, this Court has no hesitation or doubt to hold that it is a case of homicide death caused by the accused Samivel @ Raja after committing aggravated penetrative sexual offence.
18. Now passing on to the question of sentence, I am impelled to remind the below quote of Hon’ble Justice V.R.Krishna Iyer in Srirangan vs. State of Tamil Nadu (AIR 1978 SC 274):
“In the agonisingly sensitive area of sentencing, especially in the choice between life term and death penalty, a wide spectrum of circumstances attracts judicial attention, since they are all inarticulately implied in the penological part of Section 302 IPC read with Section 354(3) Cr.P.C. The plurality of factors bearing on the crime and the doer of the crime must carefully enter the judicial verdict.”
19. In the instant case, the crime is aggravated penetrative sexual offence coupled with murder. The victim is a 7 years old daughter of a mentally retarded mother, who incidentally also from suppressed community. The doer of the crime is a 26 years old male of the same village and he has committed the crime exploiting the trust of the innocent girl. The accused, in order to satisfy his sexual algolagnia and abnormal sexual desire, had deprived the life of a minor girl even at the bud. The Trial Court, finding all the factors and circumstances against the accused had imposed death penalty, recording special reasons as mandated under Section 354 (3) of the Code of Criminal Procedure. This Court, having held that the guilt of the accused proved, has to necessarily see whether death sentence is appropriate for the crime committed by the accused. Though Section 6 of the POCSO Act, 2012 and Section 302 IPC contemplate death or life imprisonment, the alternate sentence of death can be imposed for ‘special reasons’.
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21. The Supreme Court has drawn certain principles to determine the question, relating to sentencing policy in Ramnaresh and others vs. State of Chhattisgarh (supra), which reads as follows:
(1) The Court has to apply the test to determine, if it was the rarest of rare case for imposition of a death sentence.
(2) In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.
22. Bearing in mind the above principles coupled with the guidelines given by the Supreme Court in Bachan’s case, the evidence in this instant case is to be re-assessed and re-considered, so as to come to a definite conclusion to ensure whether there was a balance consideration of aggravating and mitigating circumstances by the trial Court. Therefore, at the risk of repetition, the relevant evidence are recollected and analyzed again.
REASON FOR CONFIRMING DEATH SENTENCE: 34. It is pertinent to mention here that everyone’s mind contains a liar, a cheat and a sinner and a man cannot be judged by his outer appearance, as Adolf Hitler, who ordered the execution of some eight million people and was responsible for the deaths of many millions more, hated cruelty to animals and was a vegetarian. If a person like the accused herein is allowed to survive in this world, he will definitely pollute the mind of other co-prisoners, who will be at the verge of release from jail in which he is confined. When the attitude of a man turns into the one of a beast having no mercy over other creatures, he should be punished and sent to the eternal world.
35. In all fairness, we find that the judgment of the Trial Court fulfilled all the touchstone to determine that it is one of the rarest of rare cases for imposition of death sentence, as imposition of any other punishment much less life imprisonment is completely insufficient and inadequate and would not meet the ends of justice. Taking into consideration the brutality of attack, the barbaric manner in which the deceased child was murdered and the mental agony undergone by the parents, we find that except death sentence, no other sentence will be adequate. We have examined this case more carefully and having given our anxious thought to the facts, we have found that the mitigating circumstances in favour of the accused herein is no match to the aggravating circumstances.
After quoting a song a Tamil Movie Karnan released in the year 1964 acted by Sivaji Ganesan and quoting verses from Thirukkural the Hon’ble High Court has held as follows:
37. In the result, Crl.A.(MD)No.534 of 2021 is dismissed. The judgment of the learned Sessions Judge, (Mahila Court), Pudukkottai, sentencing the accused to hang till death for the offence punishable under Section 302 IPC, Section 5(m) r/w 6(1) and Section 5(j)(iv) r/w 6(1) of POCSO Act and imprisonment for a term of seven years R.I with fine of Rs. 5,000/- in default to undergo two months S.I. for each offences under Sections 363, 201 IPC and imprisonment for life for offence under Section 3(2)(V) of SC/ST (POA) Act with fine of Rs.5,000/-in default to undergo two months S.I., passed in Spl.S.C.No.28 of 2020 dated 29.12.2020 is hereby confirmed and upheld.
PARTY: State Rep. by The Deputy Superintendent of Police, Embal Police Station, udukkottai District. (Crime No.119 of 2020) vs Samivel @ Raja – R.T.(MD)No.2 of 2021 and Crl.A.(MD)No.534 of 2021; R.T.(MD)No.2 of 2021 – 12.01.2022.
