Adolf Hitler Was A Vegetarian, Hated Animal Cruelty; Man Can't Be Judged By Outer Appearance : Madras High Court While Upholding Death Penalty

A Division Bench of Justice S. Vaidyanathan and Justice G. Jayachandran confirmed the death sentence of the accused made by Mahila Court, Pudukottai.

While giving reasons for confirming the capital punishment given to the 26-year-old accused by the trial court, the bench also made a reference 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.

"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."

The bench, therefore, held that the brutality of the attack, the barbaric manner in which the deceased child was murdered and the mental agony undergone by the parents makes it one of the 'rarest of rare' cases. The court added that it necessitates the imposition of death sentence, since no other sentence including life imprisonment will be adequate.

The accused was booked for offences under Sections 364, 376, 302, 201 IPC r/w 5(m), 5(j)(iv) and 6 (1) of POCSO Act as well as 3(2)(V) of SC/ ST Act. The case of the prosecution was that the accused developed a friendship with the child belonging to the Scheduled Castes Community and used it to fulfil his sexual desires.

Upholding the guilt of the accused in the case at hand, the court observed that:

"…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."

The court also remarked that they were hesitant at first to take away the life of another person via a judicial order. However, the bench noted that they were reminded of the preaching of Lord Krishna to Arjuna in the battle field that 'everyone is going to disappear from the World, even if he (Arjuna) does not shoot the enemies with arrows, even though they are relatives / known persons'. The bench also quotes poet Tiruvalluvar, Bible, Holy Quran and even a 1964 Sivaji Ganesan starrer film song by Seergazhi S.Govindarajan to philosophically elucidate on the propriety of imposing death sentence in this case.

Relying on Ramnaresh & Ors. vs. State of Chhattisgarh and Bacchan Singh's case, the court observed that the prosecution witness statements, deposition of doctor who conducted autopsy and postmortem certificate reveal the barbaric nature of the act committed by the accused.

"...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."

Placing reliance on Hanuman Govind Nargudkas v. State of M.P, AIR 1952 SC 343, the court also added that the chain of evidence in the present was complete enough not to leave any reasonable ground for the conclusion consistent with innocence of 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 3:00pm and 6:00pm", the court concluded.

Background & Arguments Raised 

The case of the prosecution was based on circumstantial evidence. After sexual assault, the girl child, a daughter of an intellectually disabled mother, was brutally murdered and her body hidden so as to prevent her from telling the truth to a third party, this was the case of the prosecution. Initially, a Girl Missing case under Section 174 CrPC, the accused was arrested based on the witness statements about the former taking the girl child to a temple and the recovery of blood-stained objects used for the murder. The post-mortem report also indicated that the victim child's genitalia was ravished by penetrative sexual assault committed by the accused. The case was investigated by Deputy Superintendent of Police thereafter since the victim child belonged to Scheduled Caste Community.

Noting that the chain of link has been sufficiently proved by the prosecution from the time the child went missing till her dead body was found in the dried pond, the court noted:

"…The victim child is aged 7 years and the accused is aged 26 years and the accused being in the stage of father of child had brutally and inhumanly sexually assaulted the victim child and had caused various injuries on the body of the child and had murdered the victim child and the beastly behaviour of the accused is against nature and human conduct and the case falls within the ambit of rare of the rarest case."

The court concurred with the trial court's analysis of aggravating circumstances to impose death penalty in this case, in terms of Section 354(3) of Cr.P.C., in consonance with the judgment of the Apex Court in the case of Ramnaresh and others vs. State of Chhattisgarh, (2012) 4 SCC 257. The prosecution had particularly relied on the aggravating two circumstance clauses listed in the said case, which are as below:

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

(10)"When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person."

The counsel for the accused contended that the chain of link was not complete, the witness statements were not reliable and contradictory, there was delay in filing FIR, it cannot be counted as 'rarest of rare case' that warrants death penalty and the aggravating circumstances are absent when r/w if tested in the light of the judgment of the Supreme Court in Bachan Singh Vs. State of Punjab, 1980 (2) SCC 684.

Other Findings Of Court

Concurring with the trial court's observation that the five point test of circumstantial evidence Supreme Court has been duly met in this case, the court observed:

"The chain of circumstances, last seen together by three independent witnesses (P.W.2, 3 and 5), his(accused) conduct after occurrence as spoken by P.W.4 and P.W.7, the recovery of bloodstained clothes of the accused in the presence of P.W.9, the matching of the blood group of the victim and the blood found in the accused dress are the links in the chain of circumstances to indicate the guilt towards the accused and the accused alone…"

Noting that Section 29 of the POSCO Act mentions statutory presumption against the accused person and the reverse burden is on the accused, the court added that the accused was not able to destroy the credibility of key prosecution witnesses despite giving a chance for cross-examination twice.

The court also underscored that if the delay in registering the F.I.R. is satisfactorily explained, the credibility of the complaint need not be suspected as laid down by SC in Mahendran v. State of Tamil Nadu reported in 2019 (5) SCC 67. The court also dismissed arguments levelled by Samivel based on minor discrepancies which were inconsequential to establish/ not establish the guilt of the accused.

On the question of deciding the extent of sentence since the guilt of the accused is proved, the court noted as below:

"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… 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'."

The court noted at the outset that there was cogency and independence in the statements given by PW 2 to PW5. Since the accused, after committing the crime, fleed from the village and disappeared, the court also made an inference that "it 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."

The cause of death specified in the Postmortem report was as follows:

"Cause of death: In our considered opinion, death was due to cumulative effect of damage for the heart and multiple injuries over the body of the victim following aggressive penetrative sexual assault, which was fatal in the ordinary course of nature and was fresh at time death, ante mortem in nature."

The court also pointed out the extreme brutality of the murder, which is an aggravating circumstance as laid down in Bacchan's case, as deposed by the Doctor who conducted the autopsy of the victim child as well as the medical evidence in the postmortem certificate.

Therefore, the criminal appeal by the accused under Section 374 CrPC was dismissed and the Referred Trial was answered accordingly. In essence, the sentencing of the accused to be hanged till death for offences punishable under Section 302 IPC, Section 5(m) r/w 6(1) and Section 5(j)(iv) r/w 6(1) of POCSO Act, along with other terms of imprisonment prescribed for the connected offences committed, were confirmed and upheld by the High Court.

Case Title: The State Represented By Deputy Superintendent of Police v. Samivel @ Raja

Case No: R.T.(MD)No.2 of 2021 & Crl.A.(MD)No.534 of 2021