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R.Senthil v. The State represented by - Criminal Appeal (MD) No.479 of 2006  RD-TN 95 (5 January 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05/01/2007
THE HONOURABLE MR.JUSTICE D.MURUGESAN
THE HONOURABLE MR.JUSTICE G.RAJASURIA
Criminal Appeal (MD) No.479 of 2006
Referred Trial (MD) No.1 of 2006
R.Senthil ... Appellant
The State represented by
The Inspector of Police,
Keelarajakularaman Police Station,
Crime No.162 of 2003 ... Respondent Prayer
Appeal filed under Section 374(2) of the Code of Criminal Procedure, to set aside the conviction and sentence passed by the Principal Sessions Judge, Virudhunagar District at Srivilliputtur in S.C.NO.22 of 2005, dated 28.09.2006.
For Appellant .. Mr.A.P.Muthupandian
For Respondent .. Mr.P.N.Pandidurai
Additional Public Prosecutor Mr.A.Padmanaban
Amicus Curiae to assist the Court :JUDGMENT
This appeal is directed as against the judgment dated 28.09.2006 in S.C.NO.22 of 2005, the Principal Sessions Judge, Virudhunagar District at Srivilliputtur, wherein the appellant/sole accused was convicted and sentenced capital punishment under Section 302 I.P.C, to undergo rigorous imprisonment for ten years under Section 377 I.P.C (2 counts), to undergo rigorous imprisonment for seven years under Section 362 I.P.C, to undergo rigorous imprisonment for two years under Section 379 I.P.C, to undergo rigorous imprisonment for seven years under Section 201 I.P.C.
2. The facts giving rise to R.T.(MD)No.1 of 2006 and C.A.(MD)No.479 of 2006 as stood exposited from the records filed by the Police under Section 207 of the Code of Criminal Procedure, could be portrayed thus:
(i) Vagaikulampatti is a small village in Ayanavaram Panchayat wherein one Chithraputhiran was living with his wife and three children namely Palani Kumar aged 9 years, Rohini aged 7 years and Sivaraman @ Siva aged 4 years. While so, on 30.11.2003 at about 07.00 p.m., when the said Sivaraman @ Siva, Palani Kumar and Rohini were playing along with other children in S.Ramalingapuram Road in front of one Sankar's house, the accused who is a homosexual enticed Palani Kumar and Sivaraman @ Siva and managed to take them along with him to one Govindampillai's Motor Pump set room near the Kanmai. The accused forcibly subjected the minor child Sivaraman to Sodomy and in that process, murdered him and threw the dead body of Sivaraman in nearby Kanmai of Vagaikulampatti and thereafter, he abducted the minor Palani Kumar to various places and during which time, he subjected several times Palani Kumar also to unnatural sexual intercourse with him and he sodomized him. Thereafter, on 09.12.2003, the Police arrested the accused while he was having in his custody Palani Kumar near Neerkatha Ayyanar temple.
(ii) The accused also handed over a golden ring which he took away from the deceased minor Sivaraman to the police. Initially, on 30.11.2003, when both the boys were missing, their father Chithraputhiran having searched in vain for those boys hither and thither, ultimately, lodged the complaint with the police on the next day i.e, on 01.02.2003 at 15.00 hrs, whereupon the police registered the case in Cr.No.162 of 2003 under the caption 'boys missing'.
(iii) Subsequently, on the informations received by the police, on 31.02.2003, they traced the dead body of Sivaraman from the said Kanmai where chemical water so to say the industrial discharge got pooled and which was not under the use of anyone. Police conducted inquest and sent the body for post- mortem. Viscera was sent for chemical examination. The police also recovered the photo wherein both P.W.4 and Sivaraman were figuring and sent it with the skull of the deceased Sivaraman for Superimperposition Test and got positive opinion that the skull was that of the deceased Sivaraman only. The police also examined various witnesses and ultimately, laid the police report.
3. Based on which the learned Magistrate concerned committed the case to the Court of Sessions which conducted the trial.
4. On the side of the prosecution, P.W.1 to P.W.17 were examined and Exs.P.1 to P.18 were marked along with M.O.1 to 4. No oral or documentary evidence was let in on the side of the accused.
5. The trial Court ultimately found the accused guilty of the offences under Section 362, 377 (2 counts), 379, 302 and 201 I.P.C and imposed various sentences including the sentence of death under Section 302 I.P.C.
6. Being aggrieved by the said conviction and sentence, the appellant preferred this appeal on the following main grounds among others:
(i) Capital punishment imposed was not tenable. In the prosecution case, there is no cogency or coherence and the important links were missing.
(ii) The dead body referred to in the prosecution case, was not properly identified as the one that of the deceased Sivaraman. (iii) The last seen theory which was pressed into service, was turned out to be one which was not proved. The recovery of M.O.1, golden ring was not free from doubt.
(iv) The circumstances under which the accused was arrested, were found to be doubtful. The sniffer dog did not detect any incriminating evidence. (v) The minor boy Palani Kumar was not subjected to medical examination along with the accused. The opinion of the Doctor, P.W.12, was not in any way helpful to the prosecution as the Doctor gave the opinion to the effect that the death was due to suffocation only.
(vi) There was no motive to murder Sivaraman and accordingly, the appellant prayed for his acquittal.
7. Points for consideration are: (i) Whether the evidence of P.W.4, minor victim boy could be relied on along with the last seen theory as pressed into service by the prosecution? (ii) Whether there is any infirmity in the convictions recorded and sentences imposed by the trial Court?
8. Tersely and briefly, quintessentially and succinctly, the case of the prosecution is that the accused who is a homosexual, abducted two minor boys and in the process of having unnatural sexual intercourse with the minor Sivaraman aged 4 years, he murdered the said Sivaraman and secreted his body and thereafter also, the accused so as to satiate and gratify his unnatural lust, abducted further the minor boy Palani Kumar and subjected him to unnatural lust for a few more days in various places.
9. The warp and woof, the gist and kernel of the defence is that the minor boy Sivaraman got himself drowned by accidentally falling into the said pool of water and died and for which unnecessarily, the accused is being harassed.
10. The evidence of P.W.4 deserves deep scrutiny as he being the minor boy who was abducted and sodomized and that the offence of murder of Sivaraman took place in his presence after Sivaraman also was sodomized by the accused. The deposition of P.W.4 was properly recorded by the trial Judge after conducting voire dire. As such the perusal of such questions and answers would be sufficient to satisfy this Court that at the relevant point of time of his deposition, he was a student aged about 11 years who detailed and delineated, expressed and expatiated as to what actually happened. P.W.4 would narrate that on 30.11.2003, while he was playing along with his younger brother deceased Sivaraman and his younger sister Rohini and also with P.W.6, in front of the house of one Sankar, P.W.5, the accused, who was at that time, a bearded man, wearing a black towel around his neck, beckoned P.W.4 and his brother deceased Sivaraman by giving them Chocolates and enticed them to accompany him to Vagaikulampatti kanmai; they were taken to the motor pump set room where both the boys were undressed by him and he penetrated his penis into the anus of P.W.4 and thereafter he also did the same thing with Sivaraman and thereby sodomized the deceased Sivaraman and took Sivaraman away from that room under the pretext of leaving him in the house; he also removed the ring from Sivaraman; after some time, the accused came alone and he took P.W.4, Palani Kumar to Chennai and various places and he repeated the act of Sodomy on P.W.4 and that ultimately, the police arrested him near the temple.
11. In fact, P.W.4 was subjected to excoriating, excruciating and gruelling cross-examination, but he withstood it and he was a witness of truth. Certain contradictions were elicited out by the prosecution. But, those are of no significance. In fact, the cross-examination was on the line that P.W.4 did not state that he was intimidated to remain in the same place till the return of the accused after leaving Sivaraman in his house. P.W.4 pleaded ignorance about the village in which the temple, nearby which place the accused and P.W.4 were taken into custody by the police, is situated.
12. Such discrepancies are adding strength to the prosecution case for the reason that P.W.4 is not at all a tutored witness and he deposed a' naturel. Various suggestions were put to P.W.4 as to why did not raise hue and cry even though he was taken by the accused by commuting public conveyances. Such an approach by the defence is neither here nor there as it is antithetical to the child psychology for the reason that a boy aged about 9 years old cannot be expected to make hue and cry and attract the attention of others and that too when such a minor was subjected to sodomy. In this connection, the decision of the Honourable Apex Court in Madan Gopal Kakkad v. Naval Dubey and another reported in 1992 (3) Supreme Court Cases 204 could rightly be cited. An excerpt from it, would run thus:
"57. Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms."
13. It is also worthwhile to highlight the fact that when minors are subjected to such an unnatural lust, they may not be able to understand even the true purport of the offence committed on them. A deep scientific knowledge about the sexual offences would evince that the minors in such sort of situations would be made to feel as though such nefarious acts are a kind of treating minors. In the case of beating or torturing by causing extraordinary pain, the reaction of the minor would be different as naturally a minor would create alarm. P.W.4 was also subjected to cross-examination as to why he did not complain the matter to the police etc. All those suggestions are not in conformity with the natural conduct of even adults who themselves are not prompt in taking the assistance of police. It is not known as to how the defence could expect the minor boy who was in the custody of the accused and who had been subjected to sodomy, that he should have taken the assistance of the police, voluntarily and independently of his own accord without any one's assistance.
14. The core question arises as to what was the motive for P.W.1 in taking the assistance of P.W.4 his son, for allegedly implicating the accused falsely, for which the question, there is absolute silence on the part of the accused. No doubt, the accused could keep mum. However, during cross-examination of P.W.4, the defence theory was to the effect that while P.W.4 and his brother were playing near that kanmai, the boy fell down accidentally and died and that afflicted and beckoned with fear in his mind, that in his house he would be found fault with by his own family members, he ran away from the village. As has been already highlighted supra, the accused can keep quiet without taking defence, but once the defence has taken a specific stand, it is open for the Court to comment upon it.
15. No doubt, it is a trait proposition of law that flimsy or false defence would not automatically prove the prosecution case. But, the false defence or the flimsy defence could rightly be commented upon so as to highlight certain events and the genuineness of the evidence of the prosecution witnesses. Had really P.W.4, in order to save his own skin, ran away from that village, there would have been no rhyme or reason on the part of P.W.4 to join hands with his father and the police and falsely implicate the accused. In other words, the defence theory would presuppose as though a minor boy of 9 years had successfully hoodwinked the police as well as his father, P.W.1 by giving a story of unnatural lust.
16. It is therefore, crystal clear that the defence theory is nothing but a bare faced lie and that it is too big a pill to swallow. If really, there is any antipathy, animosity, abomination, aversion, abhorrence, detest, dislike, etc., as against the accused so as to wreak vengeance as against him on the part of P.W.1 as well as P.W.4, then in such a case such events might becloud or weaken the prosecution case. But, in this matter, absolutely there is no imputation of such element of personal vendetta, by the defence as against P.W.1 and his family members.
17. P.W.4 as on the date of deposing before the Court during the year 2006, was around 11 years old and in such a case, he cannot be termed also as a child witness of tender years. P.W.4 knew a thing or two, even at the time of the perpetration of the offence on him, during the year 2003 and even while deposing before the Court during the year 2006.
18. On the prosecution side, P.W.6, Manikandan who was 14 years old as on the date of deposing before the Court, would highlight that the accused was in the habit of indulging in sodomy. The defence took exceptions as though for the first time, P.W.6 deposed about the fact of the accused having penetrated his penis into P.W.6's anus. But, that is not so. The 161 statement of P.W.6, is to the effect that the accused had unnatural sexual intercourse i.e, homosexual relationship with him. However, while deposing before the Court, the said witness P.W.6 gave a descriptive version of homosexuality and in such a case, it cannot be taken as contradiction or embellishment.
19. At this juncture, the question might arise as to whether such evidence as put forth through P.W.6 is tenable under the provisions of the Indian Evidence Act. Even a bad man may have a good case. Here, through P.W.6 the prosecution has proved that the accused is an homosexual and such evidence is admissible and it would not amount to projecting the accused as a previous offender or a previous convict. If the prosecution proceeds on the line that the accused is a previous convict or a habitual offender, then such a piece of evidence would fall foul of Section 54 of the Indian Evidence Act. However, here through P.W.6, the prosecution proved only the mental and the physical attitude of the accused and furthermore the conviction is not solely based on the evidence of P.W.6. In such view of the matter, the evidence of P.W.6 cannot be excluded by applying Section 54 of the Indian Evidence Act.
20. The explanation appended to Section 55 of the Indian Evidence Act would run thus:
"Explanation.__ In Sections 52, 53, 54 and 55, the word "character" includes both reputation and disposition; but, [except as provided in section 54,] evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown."
21. As such taking a cue from the said explanation also, the Court could rightly hold that the fact of accused being an homosexual, by virtue of his mental disposition, is quite admissible in evidence. Even though, his previous acts of actual commission of such homosexual acts may not be admissible in evidence in the case at hand, his general disposition of his both mind and body could be understood only from the evidence of those who experienced such homosexuality at his instance. Here, P.W.6 had such experience spoke about it and in such view of the matter, his evidence is admissible.
22. To the risk of repetition, we would like to highlight that the conviction is not solely rested on the evidence of P.W.6, but it was only to buttress other evidence discussed supra.
23. The learned Counsel for the appellant would advance the argument to the effect that neither P.W.4 nor the accused was subjected to medical examination. No doubt, the Investigating Agency by adhering to the sound principles of investigation could have very well obtained the medical opinion from the Government Doctor. But, such non-examination is not turned out to be fatal to the case of the prosecution for the reason that the evidence of P.W.4 is a naturel and free from embellishment. By no stretch of imagination, he could be treated as a tutored witness.
24. The learned Counsel for the accused would cite the following excerpt from Lyon's Medical Jurisprudence and Toxicology, 11th Edition, page 520 which would run thus:
"EXAMINATION OF PASSIVE AGENT WHO IS NOT ACCUSTOMED TO SODOMY OR THE VICTIM The routine medical examination of the passive partner follows a similar pattern as in case of alleged victim of rape. The passive agent might or might not have consented to the act. It is for the investigative agencies to elucidate which of the two applies in a given case. Medical examination has a manifold purpose.
General clinical examination : General examination includes inspection of skin for the injury, areas of soiling and loose hair. Examination of anogenital area : Pubic hair should be examined first, and any area of matting should be noted and cut away close to skin for further laboratory examination.
. Penis should be examined for any swelling, redness and abrasion. . Swabs to be taken from the penile shaft and glans penis for the presence of traces of saliva.
. Examination of perineum is done next with particular attention to anal verge. Swabs are collected from the perineum and anal verge for further laboratory examination.
. Local anal signs -
1. Anal orifice is irritable and tender to touch.
2. Linear abrasions are frequently seen extending from the anal margin to the anus.
. Localised peri-anal haematoma or swelling of entire anal verge is frequently seen in persons suffering from constipation and is produced by the passage of hard stool. It is not seen in cases where an effective lubricant has been used.
. Wedge shaped anal fissure, is usually seen in posterior quadrant with the point of the wedge directed radially towards the anal canal. However, the fissure can be produced by the passage of any object from outside into the anal canal, or due to passage of hard stools.
. Anal sphincter spasm might be present if it is intact. . Tearing of the sphincter ani is commonly seen in young children because of the great disproportion in size of penis and anal canal. There is considerable laxity of anal orifice. It is rare in adults and older children. . Once the examination of anal verge is complete, the internal examination of anal canal and lower rectum should be done using a small and unlubricated proctoscope. If there is severe spasm to anal sphincter then proctoscope can be introduced after administering the anaesthetic agents. . Swabs from lower rectum and anal canal should be taken with protoscope in situ. After this, entire anal canal and lower rectum must be inspected and any area of injury or any change in mucosal lining must be noted."
25. No doubt, the above excerpts would elaborately deal with the method and manner as to how the victim who was sodomized and the accused should be medically dealt with and examined. But, in this case, as has been already highlighted above, the fact that non-subjecting of P.W.4 or accused for medical examination is not fatal to the prosecution case in view of the clear and unambiguous evidence available on record through the depositions of P.W.4 and P.W.6. In fact, the aforesaid decision of the Honourable Apex Court reported in 1992 (3) Supreme Court Cases 204 would also further highlight that the medical evidence alone is not the decisive factor in rape cases and such a dictum of the Honourable Apex Court is also applicable to the cases of unnatural offences. In other words, mere non-availability of medical evidence alone is not fatal to the case of unnatural lust, if the evidence of witnesses including the victim, otherwise withstands judicial scrutiny.
26. The last seen theory as additionally put forth by the prosecution is very much well founded in view of the evidence of P.W.3, Rohini, the sister of deceased Sivaraman and P.W.4, Palani Kumar. She was also subjected to voire dire before recording the evidence by the trial Court, she was aged 9 years as on the date of deposing before the Court during March 2006 and presumably, at the time of the occurrence, she was around 6 years old. Her deposition before the Court would elucidate and evince that on 30.11.2003, during evening time, while she along with the deceased Sivaraman and P.W.4 were playing, the accused came there and took away the deceased Sivaraman and P.W.4. Relating to such a version given by P.W.3, the defence would develop its argument to the effect that the prosecution case is bad for non-conducting of identification parade.
27. It is a trait proposition of law that once, the victim P.W.4 himself who was with the accused from 30.11.2003 till 09.12.2003, and had opportunity of knowing thoroughly the accused and actually identified the accused, the question of conducting identification parade for enabling the other witnesses to identify the accused does not arise. As such in the case of other witnesses, their identification for the first time before the Court would be sufficient. P.W.3 also stated about the fact of the deceased Sivaraman wearing half trouser and T.shirt at the time of missing. In fact, Ex.P.12, the inquest report would reveal that on the dead body, the black colour half trouser and red colour T.Shirt were found. In Ex.P.1, it is found specified that the deceased Sivaraman wearing black colour half trouser and red colour T.shirt and that the versions in both Exs.P.1, the complaint and P.12, the inquest report do tally.
28. Over and above that M.O.1, golden ring weighing one gram so to say small ring, which would be worn by a small child was handed over by the accused himself as revealed by Ex.P.5, the relevant portion of the confession of accused and Ex.P.6, is the Mahazar relating to recovery of M.O.1 from the accused by the police in the presence of the witnesses, Ganesan, P.W.11, the Village Administrative Officer and his assistant, Karupiah. As such nothing has been highlighted so as to doubt the recovery of M.O.1 from the accused in the presence of those witnesses. No doubt, in the F.I.R, there is no reference to the golden ring and at this juncture, it is worthwhile to posit the trait proposition of law that F.I.R is not an encyclopaedia of all informations relating to the crime and also the fact remains that at the time of lodging Ex.P.1, complaint, P.W.1 did not foresee that there would have been a murder for gain and in such a case, non-specification about the golden ring in Ex.P.1 is not fatal to the case of the prosecution.
29. On the side of the appellant, it was argued that P.W.8, Chellappa, whose evidence has been relied on by the prosecution to prove and elucidate, evince and evidence the fact that on the fateful night, so to say on 30.11.2003 around 07.00 p.m., he saw the accused taking P.W.4 and the deceased Sivaraman and when he accosted casually, the accused quipped as though he was taking the minors to the kanmai to attend the calls of nature, and that P.W.8 did not have had any doubt, because the accused was known to the family of P.W.1, was not reliable because he did not inform anyone on 30.11.2003 or immediately thereafter while there may be massive search for the missing boys. Even though at the first blush, such an argument may be attractive, yet P.W.8's explanation that for fear of his own safety and gruelling interrogation by the police, he kept quite till the accused was traced, cannot be phoo-phooed or be little, discarded or despised as such the last seen theory as pressed into service by the prosecution is also turned out to be valid and tenable under the law.
30. Relating to the fact as to whether the accused was known to P.W.1 earlier to the occurrence or not is very much answered by the versions of P.W.5, Sankar, to the effect that the accused beckoned P.W.4 and the deceased by naming them and relating to such fact, there was no cross-examination. Similarly, P.W.8, Chellappa would demonstrate in his deposition that he did not suspect the accused's act of taking those minors, because the accused was known to the family of P.W.1 earlier and such version of P.W.8 was also not challenged during cross-examination. The unassailable and indubitable fact is that the accused belongs to the neighbouring village of P.W.1. P.W.16, the Investigating Officer in his deposition would highlight that it was he who through the Magistrate Court caused the photo of the deceased to be sent along with the skull of the deceased Sivaraman. The available records would reveal that the Magistrate forwarded the photo of the deceased to the expert in which both P.W.4, Palani Kumar and the deceased Sivaraman were found standing together. In such a case, there is no question of any doubt or cloud being created relating to the photo of the deceased. Just for clarification, the Magistrate Court's records could rightly be seen and verified and we could not suspect any photo of somebody else having been sent for getting any favourable opinion in commensurate with the skull recovered from the kanmai.
31. The fact remains that the expert identified the skull recovered as that of the skull of the deceased Sivaraman only. Ex.P.8, is the post-mortem report detailing the observations of the Doctor, P.W.12, who conducted post- mortem. Ex.P.9 is the final report which is to the effect that the deceased died of Asphyxia and suffocation which occurred 82 to 84 hours prior to autopsy. The Doctor could not evaluate the cause of death. The dead body was itself taken from the said kanmai which contains pool of chemical waters as it happened to the discharge from some industries. In view of the decomposed state of the body of the deceased Sivaraman, the Doctor was not in a position to evaluate the cause of death. The deposition of P.W.4 would clearly show that it was the accused who had unnatural sexual relationship with the deceased Sivaraman and thereafter, it was the accused who took that boy away from that motor pump set room. Hence, in these circumstances, it is clear that it was the accused who indulged in unnatural offence and murdered the minor deceased Sivaraman in addition to he having subjected P.W.4 to unnatural sexual intercourse with him.
32. The learned Counsel for the appellant would cite the decision in B.L.Satish v. State of Karnataka reported in 2001 (3) Crimes 182 (SC) which highlights that mere recovery of ornaments would not fasten the accused with guilt concerning the offence of murder and there could be no quarrel over such a proposition. We would observe that this decision was cited out of context as our above discussion would show as to how in this case, there is overwhelming evidence of P.W.4 is available in addition to the evidence of other prosecution witnesses who proved the last seen theory. The decision in Sunny Kapoor v. State (U.T of Chandigarh) reported in AIR 2006 SUPREME COURT 2242 relating to last seen theory has also been cited out of context as in this case, the prosecution relied on the evidence of eye witness-cum-victim. Hence, in this factual matrix and in view of the clinching evidence available on the prosecution side, we would hold that the prosecution has proved its case beyond all reasonable doubts. Accordingly, this point is decided as against the appellant and in favour of the prosecution.
33. The offence committed by the accused is macabre, gruesome, dastardly, horrible, abnormal, unnatural, blood-curdling, hair-raising and unduly, obnoxious, yet this cannot be treated as rarest of rare offence of murder warranting the capital punishment in view of the decision of the Honourable Apex Court in Union of India and others v. Devendra Nath Rai reported in 2006 (2) Supreme Court Cases 243. An excerpt from it, would run thus: "5. In Bachan Singh Case, 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, 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, is a ground among others for rejecting the petitioners' argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologist, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelised through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware - as we shall presently show they were of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before Parliament and presumably considered by it when in 1972-73 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 320, Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19."
6. Similarly in Machhi Singh Case in para 38 the position was summed up as follows: (SCC p.489)
"38. In this background the guidelines indicated in Bachan Singh case will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh Case.
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
7. The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi: (SCC p.271, para 58)
"58. From Bachan Singh v. State of Pujab and Machhi Singh v. State of Punjab the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded, it was observed:
The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. Murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arose social wrath; or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
If upon taking an over all global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so."
The offence of committing sodomy and murdering the victim cannot be termed as rarest of rare crime within the parameters as detailed and delineated by the Honourable Apex Court in the aforesaid decision which itself embodies in it various other decisions of the Honourable Apex Court.
34. Hence, in these view of the matter, the death sentence imposed by the trial Court is not justifiable and accordingly, that the sentence of death is modified into one of imprisonment for life.
35. There is one other technical defect which we notice suo moto in the judgment of the trial Court. The trial Court recorded conviction inter alia under Section 362 I.P.C which is the definition section relating to the offence of abduction.
36. The fact is that both the boys were abducted with the intention to commit sodomy on them and in such a case, the proper penal section is only Section 367 I.P.C and it is quite obvious. Taking recourse to Section 464 Cr.P.C, we could hold that such mere wrong quoting of the provision of law is not fatal to the charge as well as the finding recorded and the sentence imposed by the trial Court.
37. Ultimately, this appeal is partly allowed relating to the modification of sentence of capital punishment to one of life imprisonment under Section 302 I.P.C and relating to rest of the offences, the convictions recorded and the sentences imposed are all upheld and confirmed. Referred Trial is answered accordingly. rsb
1. The Inspector of Police,
Keelarajakularaman Police Station,
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
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