Commuted Death sentence to life - Apex court held that the death sentence awarded by the courts below require to be converted into life imprisonment but taking note of the diabolic manner in which the offence had been committed against a child, it is desirable that the appellant should serve minimum sentence of 30 years in jail without remission, though subject to exercise of constitutional power for clemency.=
“…the root-cause for the perpetrator of the heinous crime, his
thirst for lust, his loneliness in his house and the fact that
the parents of the deceased gone for pilgrim and take days to
return back, though the girl goes to school as usual on the
fateful day also, but the above circumstances, which were so
conducive for the accused, who is a sex hunter, took the girl to
his house where nobody was available, raped the girl to fulfill
his thirst for sex and after his fond /desire is over; fear
crept in his mind and hence he killed the girl by attacking with
cot-frame (M.O.2) on her head with intention to kill her and
with knowledge that blow by M.O.2 on the head of the deceased,
which is a vulnerable part of the body, would easily caused
death, as she being a small girl at a tender age of 9, and
thereby he had committed the offence of rape and murder….”
The court after weighing the mitigating and aggravating
circumstances came to the conclusion that the act of the appellant was
a violent, barbaric and sinful sexual attack on the child thereby
awarding death sentence.=
As a result, we do not find any cogent reason to interfere so
far as the findings of guilt recorded by the courts below are
concerned.
However, considering the facts and circumstances of the
case the death sentence awarded by the courts below require to be
converted into life imprisonment but taking note of the diabolic
manner in which the offence had been committed against a child, it is
desirable that the appellant should serve minimum sentence of 30 years
in jail without remission, though subject to exercise of
constitutional power for clemency.
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41499
B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1287 of 2011
Selvam
…Appellant
Versus
State Thr. Insp. of Police
…Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal arises out of final judgment and order dated
21.9.2010 passed by the High Court of Judicature at Madras in Referred
Trial No. 1 of 2010 and Criminal Appeal No. 299 of 2010 confirming the
judgment and order of death sentence dated 12.3.2010 passed by the
Additional Sessions Judge, Salem in S.C.No. 198 of 2009.
2. The facts and circumstances arising out of this Criminal Appeal
are that:
A. Murugesan (PW.1) and his wife Indirani (PW.2) had left for a
Padayatra to Palani hills leaving their daughter Palaniammal, the
deceased herein, aged 9 years and studying in fourth standard, with
her grandfather Karnaiyan (PW.3).
B. On 12.2.2009, the deceased had left for her school at 8.30 a.m.
after informing Valli (PW.4). Since the deceased did not return from
the school as usual, Karnaiyan (PW.3) after making a search, conveyed
the message over the phone to her parents Murugesan (PW.1) and
Indirani (PW.2).
C. In early hours of 13.2.2009, Murugesan (PW.1) and Indirani
(PW.2) returned home and after making a search got registered a
missing complaint of her daughter.
D. On the same day, the accused Selvam, appellant herein, appeared
before Vijayan (PW.9), the Village Administrative Officer (V.A.O) and
made a confessional statement. Vijayan (PW.9) produced the appellant
before the police and another confessional statement was recorded on
the basis of which, the case of missing person was converted into one
under Sections 302, 376, 379 and 201 of Indian Penal Code, 1860
(hereinafter referred to as `the IPC’). Thereafter, the appellant
took Shanmugam (PW.16) I.O., Vijayan (PW.9) and Murugesan (PW.1) and
got recovered the dead body of the deceased.
E. A Sessions Case No. 198 of 2009 was instituted, wherein the
prosecution examined 16 witnesses and relied on various exhibits and
objects. The trial court after hearing the parties convicted the
appellant for the charges framed and awarded death penalty vide
judgment and order dated 12.3.2010.
F. The matter was submitted to the High Court for confirmation of
death sentence under Section 366 of the Code of Criminal Procedure,
1973 (hereinafter referred to as `the Cr.P.C.’) and the appellant also
filed an appeal against the said judgment and order. The High Court
vide its impugned judgment and order dated 21.9.2010 upheld the
conviction as well as the death sentence awarded by the Sessions
Court.
Hence, this appeal.
3. Mr. Neeraj Kumar Jain, learned senior counsel appearing for the
appellant has submitted that it is a case of circumstantial evidence
as there is no eye-witness. The depositions made by Marimuthu (PW.5)
and Amudha (PW.8) cannot be relied upon as their version is quite
unnatural and no evidence has been produced to corroborate the version
given by the said witnesses, particularly, about the character of the
appellant given by Amudha (PW.8). His wife and sister-in-law who
alleged to have been mis-behaved with by the appellant had not been
examined. More so, it was not a case where death sentence could have
been awarded
4. Per contra, Mr. M. Yogesh Kanna, learned standing counsel for
the State of Tamil Nadu has opposed the appeal contending that the
concurrent findings recorded by the courts below do not warrant any
interference. Considering the rape and murder of a 9 years old
innocent and defenceless girl and the manner in which the rape and
murder had been committed, the courts below had rightly awarded the
death sentence. Thus, no interference is called for.
5. We have heard learned counsel for the parties and perused the
record.
Before we proceed further to examine the case, it may be
necessary to mention the injuries found on the person of the victim
and the same are as under:
“1. Ant bite mark seen over the sides of clavicular region and
lateral and upper of right side of chest and flank and lateral
side of abdomen. Both sides of inner aspect of upper SRD of both
thighs, the inner and back of left knee, bleeding through left
ear. Blood stained cut fluid oozed out from both nostrils;
2. Contusion over left neck measuring 3 cms below left
mastoid process measuring 6 x 4 cms brownish in colour;
3. A laceration over outer aspect of the left ear-lobe and
pinnae measuring 5.5 x 2.5 x 0.26 cms;
4. Bluish black contusion over right infra scapular region
measuring 9 x 6 cms and measuring 3 x 2 cms over left scapular
region;
5. Abrasion measuring 2 x 2 cm over upper part of gluteal
region;
6. A contused abrasion over at the level of both sides of
scapular region measuring 16 x 5 cms.
7. Laceration over right side of posterior parital region
measuring 2.5 x 0.25 x bone deep and it lies 4 cms above
occipital protrudence and 28 cms above the glabilla swelling
with contusion over both sides of the neck;
8. Curved linear abrasion with contusion over external
genitalia right measuring 7.5 x 0.25 cms and left side measuring
2.25 x 2.0 cms; O/D underlying tissue is contused;
9. Dark reddish brown abrasion over labia majora on both
sides measuring 3 x 0.2 cms.”
With respect to the injuries, Dr. Panneerselvam (PW.14) has
opined as under:
“Injuries 8 and 9 may occur when having forcible
intercourse (with a small girl).
Injury 2 may occur when the neck is pressed hard.”
In the post mortem certificate, PW.14 stated that the said
Palaniammal was raped forcibly, which is confirmed by injuries 8 and
9. As regards the absence of spermatozova, PW.14 deposed before the
court that when the spermatozova goes into the parts of a person it
will start to destroy after 24 hours. After 48 hours it will
completely disintegrate. If the body was in a decomposed condition,
then it could not be found whether there was any spermatozova in the
parts of the body or not. PW.14 further opined that the death of the
deceased was caused due to the injury on the head.
6. From the statements of Murugesan (PW.1), Indirani (PW.2),
Karnaiyan (PW.3), Valli (PW.4) and Arumugam (PW.12), it is clear that
the deceased had left for the school at around 8.30 a.m. on 12.2.2009
but did not reach the school or returned home thereafter. Radiokaran
(PW.7), who was well known to the accused, deposed that while he was
proceeding to Chithoor, he passed through the house of the appellant
and saw that the appellant was washing the floor of his house. He
questioned the appellant about the same suspecting it to be blood
smell to which the appellant responded that the dog had vomited and
hence he was cleaning the floor. Later on, he came to know that the
deceased was missing. Marimuthu (PW.5) deposed that he had joined the
search of the deceased girl on 12.2.2009. At about 5.00 a.m. on the
next day, he saw the appellant going on a TVS motorcycle with a gunny
bag but when the appellant returned after half an hour, he did not
have any gunny bag with him. Marimuthu (PW.5) identified the said
motorcycle and the belongings of the deceased girl as well as the
deceased itself. Vijayan (PW.9) has deposed about the appellant
making an extra-judicial confession before him and that he produced
the said appellant before the IO PW.16. He further deposed about
the appellant making a confession before the said IO on the basis of
which he alongwith the police went to the house of the appellant from
where he got recovered a pair of silver anklets belonging to the
deceased and also pointed out the TVS motorcycle. He further deposed
about the appellant taking them to Onamparai Thanneer Vaikkal Madhaka
from where he got recovered the body of the deceased as well as other
belongings of the deceased from inside the gunny bag. Shanmugam
(PW.16) is the IO and had deposed about the disappearance of the
deceased and the subsequent investigation including the confession
made by the appellant before him and the recoveries made thereto.
7. After relying on the above evidence, the trial court came to the
following conclusion:
?“…the root-cause for the perpetrator of the heinous crime, his
thirst for lust, his loneliness in his house and the fact that
the parents of the deceased gone for pilgrim and take days to
return back, though the girl goes to school as usual on the
fateful day also, but the above circumstances, which were so
conducive for the accused, who is a sex hunter, took the girl to
his house where nobody was available, raped the girl to fulfill
his thirst for sex and after his fond /desire is over; fear
crept in his mind and hence he killed the girl by attacking with
cot-frame (M.O.2) on her head with intention to kill her and
with knowledge that blow by M.O.2 on the head of the deceased,
which is a vulnerable part of the body, would easily caused
death, as she being a small girl at a tender age of 9, and
thereby he had committed the offence of rape and murder….”
The court after weighing the mitigating and aggravating
circumstances came to the conclusion that the act of the appellant was
a violent, barbaric and sinful sexual attack on the child thereby
awarding death sentence.
8. On reference being made to the High Court, the High Court
carefully examined the evidence on record and came to the conclusion
that the prosecution has been successful in proving its case. The
court recorded a finding that the extra-judicial confession made by
the appellant was voluntary and made in a fit state of mind and that
the appellant having come to know of the ensuing investigation might
have come under a grip of fear and, therefore, would have rushed to
make a judicial confession before PW.9. The court further came to the
conclusion that the evidence was marshaled properly and the
prosecution has without an iota of doubt brought home the guilt of the
appellant. Looking at the facts of the case and the manner in which
the crime was committed, the High Court held that it was a fit case
where the death sentenced awarded by the trial court should be
affirmed.
9. With the assistance of learned counsel for the parties we have
perused the judgments of the courts below and the evidence on record.
In his statement under Section 313 Cr.P.C., the appellant did not
plead any defence whatsoever. Rather a bald statement had been made
that he had falsely been implicated and there is no reason on the
basis of which the evidence of Marimuthu (PW.5) could be disbelieved.
More so, the appellant had been seen going on the TVS motorcycle with
a gunny bag and came back without any gunny bag regarding which he
made the confessional statement before Vijayan (PW.9), V.A.O., the
recovery had been made at his instance and the recovery witnesses had
been examined whose veracity could not be doubted.
As a result, we do not find any cogent reason to interfere so
far as the findings of guilt recorded by the courts below are
concerned. However, considering the facts and circumstances of the
case the death sentence awarded by the courts below require to be
converted into life imprisonment but taking note of the diabolic
manner in which the offence had been committed against a child, it is
desirable that the appellant should serve minimum sentence of 30 years
in jail without remission, though subject to exercise of
constitutional power for clemency.
10. With the above observations, the appeal is disposed of
accordingly.
….....…….……………………..J.
(Dr. B.S. CHAUHAN)
.......……………………………J.
(J. CHELAMESWAR)
.......……………………………J.
(M.Y. EQBAL)
New Delhi,
May 2, 2014
“…the root-cause for the perpetrator of the heinous crime, his
thirst for lust, his loneliness in his house and the fact that
the parents of the deceased gone for pilgrim and take days to
return back, though the girl goes to school as usual on the
fateful day also, but the above circumstances, which were so
conducive for the accused, who is a sex hunter, took the girl to
his house where nobody was available, raped the girl to fulfill
his thirst for sex and after his fond /desire is over; fear
crept in his mind and hence he killed the girl by attacking with
cot-frame (M.O.2) on her head with intention to kill her and
with knowledge that blow by M.O.2 on the head of the deceased,
which is a vulnerable part of the body, would easily caused
death, as she being a small girl at a tender age of 9, and
thereby he had committed the offence of rape and murder….”
The court after weighing the mitigating and aggravating
circumstances came to the conclusion that the act of the appellant was
a violent, barbaric and sinful sexual attack on the child thereby
awarding death sentence.=
As a result, we do not find any cogent reason to interfere so
far as the findings of guilt recorded by the courts below are
concerned.
However, considering the facts and circumstances of the
case the death sentence awarded by the courts below require to be
converted into life imprisonment but taking note of the diabolic
manner in which the offence had been committed against a child, it is
desirable that the appellant should serve minimum sentence of 30 years
in jail without remission, though subject to exercise of
constitutional power for clemency.
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41499
B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1287 of 2011
Selvam
…Appellant
Versus
State Thr. Insp. of Police
…Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal arises out of final judgment and order dated
21.9.2010 passed by the High Court of Judicature at Madras in Referred
Trial No. 1 of 2010 and Criminal Appeal No. 299 of 2010 confirming the
judgment and order of death sentence dated 12.3.2010 passed by the
Additional Sessions Judge, Salem in S.C.No. 198 of 2009.
2. The facts and circumstances arising out of this Criminal Appeal
are that:
A. Murugesan (PW.1) and his wife Indirani (PW.2) had left for a
Padayatra to Palani hills leaving their daughter Palaniammal, the
deceased herein, aged 9 years and studying in fourth standard, with
her grandfather Karnaiyan (PW.3).
B. On 12.2.2009, the deceased had left for her school at 8.30 a.m.
after informing Valli (PW.4). Since the deceased did not return from
the school as usual, Karnaiyan (PW.3) after making a search, conveyed
the message over the phone to her parents Murugesan (PW.1) and
Indirani (PW.2).
C. In early hours of 13.2.2009, Murugesan (PW.1) and Indirani
(PW.2) returned home and after making a search got registered a
missing complaint of her daughter.
D. On the same day, the accused Selvam, appellant herein, appeared
before Vijayan (PW.9), the Village Administrative Officer (V.A.O) and
made a confessional statement. Vijayan (PW.9) produced the appellant
before the police and another confessional statement was recorded on
the basis of which, the case of missing person was converted into one
under Sections 302, 376, 379 and 201 of Indian Penal Code, 1860
(hereinafter referred to as `the IPC’). Thereafter, the appellant
took Shanmugam (PW.16) I.O., Vijayan (PW.9) and Murugesan (PW.1) and
got recovered the dead body of the deceased.
E. A Sessions Case No. 198 of 2009 was instituted, wherein the
prosecution examined 16 witnesses and relied on various exhibits and
objects. The trial court after hearing the parties convicted the
appellant for the charges framed and awarded death penalty vide
judgment and order dated 12.3.2010.
F. The matter was submitted to the High Court for confirmation of
death sentence under Section 366 of the Code of Criminal Procedure,
1973 (hereinafter referred to as `the Cr.P.C.’) and the appellant also
filed an appeal against the said judgment and order. The High Court
vide its impugned judgment and order dated 21.9.2010 upheld the
conviction as well as the death sentence awarded by the Sessions
Court.
Hence, this appeal.
3. Mr. Neeraj Kumar Jain, learned senior counsel appearing for the
appellant has submitted that it is a case of circumstantial evidence
as there is no eye-witness. The depositions made by Marimuthu (PW.5)
and Amudha (PW.8) cannot be relied upon as their version is quite
unnatural and no evidence has been produced to corroborate the version
given by the said witnesses, particularly, about the character of the
appellant given by Amudha (PW.8). His wife and sister-in-law who
alleged to have been mis-behaved with by the appellant had not been
examined. More so, it was not a case where death sentence could have
been awarded
4. Per contra, Mr. M. Yogesh Kanna, learned standing counsel for
the State of Tamil Nadu has opposed the appeal contending that the
concurrent findings recorded by the courts below do not warrant any
interference. Considering the rape and murder of a 9 years old
innocent and defenceless girl and the manner in which the rape and
murder had been committed, the courts below had rightly awarded the
death sentence. Thus, no interference is called for.
5. We have heard learned counsel for the parties and perused the
record.
Before we proceed further to examine the case, it may be
necessary to mention the injuries found on the person of the victim
and the same are as under:
“1. Ant bite mark seen over the sides of clavicular region and
lateral and upper of right side of chest and flank and lateral
side of abdomen. Both sides of inner aspect of upper SRD of both
thighs, the inner and back of left knee, bleeding through left
ear. Blood stained cut fluid oozed out from both nostrils;
2. Contusion over left neck measuring 3 cms below left
mastoid process measuring 6 x 4 cms brownish in colour;
3. A laceration over outer aspect of the left ear-lobe and
pinnae measuring 5.5 x 2.5 x 0.26 cms;
4. Bluish black contusion over right infra scapular region
measuring 9 x 6 cms and measuring 3 x 2 cms over left scapular
region;
5. Abrasion measuring 2 x 2 cm over upper part of gluteal
region;
6. A contused abrasion over at the level of both sides of
scapular region measuring 16 x 5 cms.
7. Laceration over right side of posterior parital region
measuring 2.5 x 0.25 x bone deep and it lies 4 cms above
occipital protrudence and 28 cms above the glabilla swelling
with contusion over both sides of the neck;
8. Curved linear abrasion with contusion over external
genitalia right measuring 7.5 x 0.25 cms and left side measuring
2.25 x 2.0 cms; O/D underlying tissue is contused;
9. Dark reddish brown abrasion over labia majora on both
sides measuring 3 x 0.2 cms.”
With respect to the injuries, Dr. Panneerselvam (PW.14) has
opined as under:
“Injuries 8 and 9 may occur when having forcible
intercourse (with a small girl).
Injury 2 may occur when the neck is pressed hard.”
In the post mortem certificate, PW.14 stated that the said
Palaniammal was raped forcibly, which is confirmed by injuries 8 and
9. As regards the absence of spermatozova, PW.14 deposed before the
court that when the spermatozova goes into the parts of a person it
will start to destroy after 24 hours. After 48 hours it will
completely disintegrate. If the body was in a decomposed condition,
then it could not be found whether there was any spermatozova in the
parts of the body or not. PW.14 further opined that the death of the
deceased was caused due to the injury on the head.
6. From the statements of Murugesan (PW.1), Indirani (PW.2),
Karnaiyan (PW.3), Valli (PW.4) and Arumugam (PW.12), it is clear that
the deceased had left for the school at around 8.30 a.m. on 12.2.2009
but did not reach the school or returned home thereafter. Radiokaran
(PW.7), who was well known to the accused, deposed that while he was
proceeding to Chithoor, he passed through the house of the appellant
and saw that the appellant was washing the floor of his house. He
questioned the appellant about the same suspecting it to be blood
smell to which the appellant responded that the dog had vomited and
hence he was cleaning the floor. Later on, he came to know that the
deceased was missing. Marimuthu (PW.5) deposed that he had joined the
search of the deceased girl on 12.2.2009. At about 5.00 a.m. on the
next day, he saw the appellant going on a TVS motorcycle with a gunny
bag but when the appellant returned after half an hour, he did not
have any gunny bag with him. Marimuthu (PW.5) identified the said
motorcycle and the belongings of the deceased girl as well as the
deceased itself. Vijayan (PW.9) has deposed about the appellant
making an extra-judicial confession before him and that he produced
the said appellant before the IO PW.16. He further deposed about
the appellant making a confession before the said IO on the basis of
which he alongwith the police went to the house of the appellant from
where he got recovered a pair of silver anklets belonging to the
deceased and also pointed out the TVS motorcycle. He further deposed
about the appellant taking them to Onamparai Thanneer Vaikkal Madhaka
from where he got recovered the body of the deceased as well as other
belongings of the deceased from inside the gunny bag. Shanmugam
(PW.16) is the IO and had deposed about the disappearance of the
deceased and the subsequent investigation including the confession
made by the appellant before him and the recoveries made thereto.
7. After relying on the above evidence, the trial court came to the
following conclusion:
?“…the root-cause for the perpetrator of the heinous crime, his
thirst for lust, his loneliness in his house and the fact that
the parents of the deceased gone for pilgrim and take days to
return back, though the girl goes to school as usual on the
fateful day also, but the above circumstances, which were so
conducive for the accused, who is a sex hunter, took the girl to
his house where nobody was available, raped the girl to fulfill
his thirst for sex and after his fond /desire is over; fear
crept in his mind and hence he killed the girl by attacking with
cot-frame (M.O.2) on her head with intention to kill her and
with knowledge that blow by M.O.2 on the head of the deceased,
which is a vulnerable part of the body, would easily caused
death, as she being a small girl at a tender age of 9, and
thereby he had committed the offence of rape and murder….”
The court after weighing the mitigating and aggravating
circumstances came to the conclusion that the act of the appellant was
a violent, barbaric and sinful sexual attack on the child thereby
awarding death sentence.
8. On reference being made to the High Court, the High Court
carefully examined the evidence on record and came to the conclusion
that the prosecution has been successful in proving its case. The
court recorded a finding that the extra-judicial confession made by
the appellant was voluntary and made in a fit state of mind and that
the appellant having come to know of the ensuing investigation might
have come under a grip of fear and, therefore, would have rushed to
make a judicial confession before PW.9. The court further came to the
conclusion that the evidence was marshaled properly and the
prosecution has without an iota of doubt brought home the guilt of the
appellant. Looking at the facts of the case and the manner in which
the crime was committed, the High Court held that it was a fit case
where the death sentenced awarded by the trial court should be
affirmed.
9. With the assistance of learned counsel for the parties we have
perused the judgments of the courts below and the evidence on record.
In his statement under Section 313 Cr.P.C., the appellant did not
plead any defence whatsoever. Rather a bald statement had been made
that he had falsely been implicated and there is no reason on the
basis of which the evidence of Marimuthu (PW.5) could be disbelieved.
More so, the appellant had been seen going on the TVS motorcycle with
a gunny bag and came back without any gunny bag regarding which he
made the confessional statement before Vijayan (PW.9), V.A.O., the
recovery had been made at his instance and the recovery witnesses had
been examined whose veracity could not be doubted.
As a result, we do not find any cogent reason to interfere so
far as the findings of guilt recorded by the courts below are
concerned. However, considering the facts and circumstances of the
case the death sentence awarded by the courts below require to be
converted into life imprisonment but taking note of the diabolic
manner in which the offence had been committed against a child, it is
desirable that the appellant should serve minimum sentence of 30 years
in jail without remission, though subject to exercise of
constitutional power for clemency.
10. With the above observations, the appeal is disposed of
accordingly.
….....…….……………………..J.
(Dr. B.S. CHAUHAN)
.......……………………………J.
(J. CHELAMESWAR)
.......……………………………J.
(M.Y. EQBAL)
New Delhi,
May 2, 2014
