While upholding the death penalty imposed on the culprit by the Trial Court, the Madurai Bench of the Madras High Court as recently as on January 12, 2022 in a brief, bold, balanced and brilliant judgment titled The State Represented By Deputy Superintendent of Police v. Samivel @ Raja in R.T.(MD)No.2 of 2021 and Crl.A.(MD)No.534 of 2021 in a case arising out of aggravated sexual assault and cruel murder of a 7-year-old child from a marginalized community. A Division Bench of Justice S Vaidyanathan and Justice G Jayachandran confirmed the death sentence of the accused delivered by Mahila Court at Pudukottai. While enumerating the plethora of reasons for confirming the capital punishment that was given to the 26-year-old accused by the trial court, the Bench also made it a point to refer to Adolf Hitler to drive home the point that people can be deceptive and there is no comeback for a person once a line is crossed.

Most strikingly, the Bench minced no words to say that:
....a man cannot be judged by his outer appearance...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.

To start with, this extremely commendable, cogent, courageous and composed judgment authored by Justice S Vaidyanathan for a Madurai Bench of Madras High Court comprising of himself and Justice G Jayachandran sets the ball rolling by first and foremost putting forth in para 1 that:
This case is arising out of murder of a victim child aged about 7 years, who belonged to Scheduled Caste community and was done to death after an aggravated penetrative sexual assault on the deceased victim child (hereinafter referred to as 'the deceased child').

Be it noted, the Bench then observes in para 19 that:
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'.

Tellingly, the Bench then reveals in para 28 that:
The evidence of P.Ws.2 to 5 appears to be very natural and they are not related to each other and independent witnesses. There was a cogency in their statement and the corroboration was also duly proved by the prosecution. The accused, after committing the crime, fled from the village and disappeared, which itself is sufficient at the first instance to infer that he would have committed the offence, as he would be aware that several persons had seen him together with the deceased child and therefore, apprehending arrest at any time, he escaped from the village.

More tellingly, the Bench then points out in para 29 that:
It is equally important to peruse the deposition of the Doctor, who conducted autopsy on the body of the deceased child to bring the act of the accused under the term extreme brutality, which is connoted as the aggravating circumstances in the Bachan's case. Dr. Valliyappan (P.W.13) categorically deposed that injuries found on the private part, cheek, lip, chest, neck, abdomen, left backside and left hand of the body and those injuries could have been caused with a sharp weapon like stick (M.O.6). He further deposed that the death would have occurred on account of the injuries caused on the heart and other limbs of the body or on account of the aggressive penetration.

It is worth noting that the Bench then envisages in para 31 that:
From the above report and deposition, one can easily visualize as to how the victim girl would have undergone sufferings and pain. The accused, after fulfilling his carnal thirst, had brutally attacked the deceased child with Fencing Karuvai Stick (M.O.6) and dashed her head on a tree, so as to pierce her face and neck. The recovery of M.O.6 was witnessed by P.W.9, a Village Administrative Officer and the stick was seized on due identification by the accused himself.

To put things in perspective, the Bench then observes in para 32 that:
In cases of circumstantial evidence, one of the five golden principles enumerated by the Supreme Court in Hanuman Govind Nargudkas vs. State of M.P., reported in AIR 1952 SC 343 was that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused and must show that in all human probability, it must have been done by the accused. As per the circumstantial evidence, otherwise known as last seen together theory, there should be corroborative evidences to connect the accused with the crime and the most important of it is that it can be a conclusive evidence, if the time gap between the accused and the deceased seen together is very minimal. Invariably and obviously, the time gap was too short in this case and P.Ws.2 to 5 had seen both the accused and the deceased together in and around the Kali Temple on 30.06.2020 between 3:00 pm and 6:00 pm.

While referring to another relevant case law, the Bench then states in para 33 that:
In yet another case in State of Haryana vs. Jagbir Singh, reported in AIR 2003 SC 4377, a proposition was laid that there should be no suspicions and conjectures in the minds of court regarding the guilt of the accused, then the person can be convicted on the basis of the circumstantial evidence. Looking at any angle, it could easily be concluded without any suspicion that in all human probability, the accused must have committed the offence. The accused, taking advantage of the solitary of the deceased child and her mother, being a retarded woman, acquainted with the deceased only for the purpose of triggering his subjective feeling and therafter, fearing disclosure of the offence by the deceased, he decided to put a stop to her inhale in a brutal manner, which a normal human being dare not to do so.

Most remarkably, the Bench then hastens to add in para 34 that:
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.

Most significantly, what forms the cornerstone of this judgment is then elaborated upon in para 35 wherein it is stated that:
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.

No less significant is what is then stated in para 37 that:
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.

Finally, the Bench then concludes by holding in para 38 that:
The reference in R.T.(MD) No.2 of 2021, in terms of Section 366 Code of Criminal Procedure for execution, is answered accordingly.

To sum it up, the Division Bench of Justice S Vaidyanathan and Justice G Jayachandran of the Madurai Bench of Madras High Court have sent the right message in awarding death penalty to the culprit in case of an aggravated sexual assault and brutal murder of a 7-year-old girl from a marginalized community! It has also very rightly cautioned that one should not go by just outward appearances alone and cited the most relevant example of German Nazi dictator Adolf Hitler in this regard! It has also sent a clear message that there is no comeback for a person once a line is crossed and who has committed such horrifying act deserves to be awarded the most strictest punishment!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.