Madras High Court
- vs - on 18 February, 2021
R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 23.11.2021 Delivered on : 03.12.2021
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
R.T.(MD)No.3 of 2021
and
CRL.A.(MD)No.300 of 2021
R.T.(MD)No.3 of 2021:
State Rep. by
The Inspector of Police,
All Women Police Station,
Keeranur.
(Crime No.11 of 2019) ... Complainant
-vs-
Danish Patel ... Respondent
Referred Trial under Section 366 of the Code of Criminal
Procedure on the judgment of the learned Sessions Judge, (Mahila
Court), Pudukkottai, in Spl.S.C.No.6 of 2020, dated 18.02.2021.
For Complainant :: Mr.Hassan Mohammed Jinnah
State Public Prosecutor
For Respondent :: Mr.N.Pragalathan
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
CRL.A .(MD)No.300 of 2021:
Danish Patel ... Appellant/
Sole Accused
-vs-
State Rep. by
The Inspector of Police,
All Women Police Station,
Pudukkottai District.
(Crime No.11 of 2019) ... Respondent/
Complainant
Criminal Appeal filed under Section 374 (2) of the Code of
Criminal Procedure against the judgment of the learned Sessions Judge,
(Mahila Court), Pudukkottai, in Spl.S.C.No.6 of 2020, dated 18.02.2021.
For Appellant :: Mr.N.Pragalathan
For Respondent :: Mr.Hassan Mohammed Jinnah
State Public Prosecutor
COMMON JUDGMENT
S.VAIDYANATHAN, J.
AND
G.JAYACHANDRAN, J.
The reference in R.T.(MD) No.3 of 2021, is made by the learned
Sessions Judge, (Mahila Court), Pudukkottai, under Section 366 Cr.P.C.,
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seeking confirmation of capital punishment imposed on the accused.
Crl.A.(MD)No.300 of 2021, is filed by the accused challenging the
conviction and sentence imposed on him and both the matters are heard
together and disposed of by this common Judgment.
2.Danish Patel, aged about 32 years (2019), S/o.Amrendra Patel,
who is the sole accused in Spl S.C.No.6 of 2020, on the file of Mahila
Court at Pudukkottai, was found guilty of offences under Sections 363
and 302 of I.P.C. and Sections 5(i) r/w 6(1), 5(j) (iv) r/w 6(1) and 5(k)
r/w 6(1) of the Protection of Children from Sexual Offences Act
[hereinafter referred to as ''the POCSO Act''], vide judgement dated
18.02.2021 by the trial Court.
3.He was sentenced to undergo life imprisonment for the offence
under Section 302 of I.P.C., 7 years rigorous imprisonment for the
offence under Section 363 IPC and death sentence for the offences under
Sections 5(i) r/w 6(1), 5(k) r/w 6(1) and 5(j) (iv) r/w 6(1) of the POCSO
Act, subject to confirmation by this Court in terms of Section 366 Cr.P.C.
Accordingly, the Referred Trial(MD)No.3 of 2021 seeking confirmation
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of the death sentence is before us along with the appeal filed by the sole
accused being aggrieved of the conviction and sentence.
The case of the prosecution:-
4.On 18.12.2019 the de-facto complainant Pugalenthi
(PW-1) came to Keeranur All Women Police Station along with the
accused Danish Patel and a two wheeler bearing Registration No.TN-55-
AV-6568 and gave a complaint (Ex.P-1) alleging that, while he was
standing at the bus stop of the Odukur Bazaar, at about 2.00 p.m. he saw
the accused taking the mentally challenged victim boy aged about 17
years towards Kottapalam Road in the above mentioned two wheeler.
Thereafter, he went to his home to have lunch. At about 2.30 p.m. he
received a call from Chitra (PW-3), wife of Murugesan, that somebody
doing something to the victim boy near the bush. Hearing this, P.W.1
along with the neighboring residents Selvaraj and Manikandan rushed to
the place where Chitra was gracing her cattle. On the information of
Chitra, they went to the graveyard area and inside Kaliyaperumal Dhoor
Dal field, they saw the victim boy lying face down and the accused near
the victim boy. On seeing them, the accused tried to flee. They caught
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hold of the accused. On examining the victim, they found injuries all
over his body and he was not conscious. After sometime, the boy
regained conscious and started weeping showing his bleeding anus and
the accused. The injured boy was taken to the hospital. They brought the
accused and his two wheeler to the Police Station for action against the
accused person, who had committed penetrative sexual assault on a
mentally challenged minor boy.
5.Smt.Sumaiyabanu, (P.W.15) Sub-Inspector of Police attached to
All Women Police Station, Keeranur, received the complaint and
registered F.I.R. (Ex.P.20) in Crime No.11 of 2019 under Section 363
and 5(k) r/w 6 of the POCSO Act, 2012 on 18.12.2019 at 18.00 hours.
The investigation of the case was taken up by Smt.Kavitha, Inspector of
Police (P.W.16). The confession statement of the accused was recorded.
His clothe were seized under Mahazar. She arrested the accused and
produced him before the learned Judicial Magistrate for remand.
6.In the hospital, the Investigation Officer recorded the statement
of the victim and same was video-graphed by P.W.14. While the
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investigation was underway, the victim boy died in the hospital on
06.01.2020 at 15.10 hours. Hence, the Sections were altered to Sections
363 and 302 IPC and Section 5(i) r/w 6(1), 5(j)(iv) r/w 6 (1) and Section
5(k) r/w 6(1) of the POCSO Act. On the request by the Investigation
Officer, the learned Judicial Magistrate recorded the statements of Chitra,
Pugazhendhi and the father of the victim boy under Section 164 of
Cr.P.C. on 08.01.2020 (Ex.P.2 to Ex.P.5). The statements of other
witnesses were recorded under Section 161 of Cr.P.C. The accident report
from Keeranur Government Hospital (Ex.P.11) and the postmortem
report from Pudukkottai Government Hospital (Ex.P.14 and Ex.P.15). On
completion of the investigation, final report against the accused filed.
7.After serving copies of document relied by the prosecution, the
below charges were framed by the Special Court against the accused.
Charge 1: For kidnapping the victim minor boy on
18.12.2019 from lawful guardianship with intention to commit
sexual offence, thereby, committed offence under Section 363
of I.P.C.
Charge 2: For committing aggravated penetrative sexual
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assault on the victim boy by inserting a stick into the anus of
the victim boy and penis into the anus of the victim boy, thus,
caused injury to the sexual organ of the victim boy, thereby,
committed offence under Section 5(i) r/w. Section 6 (1) of the
POCSO Act.
Charge 3: For committing aggravated penetrative sexual
assault on the victim boy knowing well he is mentally
challenged, by inserting a stick into the anus of the victim boy
and penis into the anus of the victim boy, thus, caused injury to
the sexual organ of the victim boy, thereby, committed offence
under Section 5(k) r/w Section 6 (1) of the POCSO Act.
Charge 4: In continuation of the above charges, for
causing the death of the victim boy on 06.01.2020 due to the
injuries caused by committing aggravated penetrative sexual
assault on the victim boy, thereby, committed offence under
Section 5(j)(iv) r/w. Section 6 (1) of the POCSO Act.
Charge 5: For causing death of the victim boy in the
manner stated as above, thereby, committed an offence under
Section 302 of IPC.
8.The accused denied the charges and claimed to be tried. The
prosecution to prove the charges had examined 16 witnesses. Marked 32
exhibits and 10 Material Objects. No witness and no exhibits on behalf
of the defence.
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9.The trial Court after considering the evidence before it had
concluded that the accused in guilty of the above charges and for the
proven charges under the POCSO Act, the accused has to be hanged till
death, subject to confirmation of this Court. Insofar as the I.P.C. offences
are concerned, life sentence and fine of Rs 20,000/-, in default, 2 years
simple imprisonment under Section 302 of I.P.C. and 7 years rigorous
imprisonment and fine of Rs.10,000/-, in default, 2 months simple
imprisonment under Section 363 of I.P.C., were imposed.
10.Thus, the judgment of the trial Court imposing death sentence is
before this Court for confirmation and to test whether the prosecution has
proved the guilt of the charges framed and if so whether the death
penalty is the appropriate sentence.
11.The State through the learned Public Prosecutor, submitted that,
it is a case of aggravated penetrative assault and murder of a mentally
challenged minor boy. The accused taking advantage of the victim's
incapacity of understanding, had committed the crime to satisfy his
sexual lust contrary to nature. The victim was seen with the accused by
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P.W.1 when the accused was taking the victim boy in the two wheeler.
Subsequently, P.W.3 had seen them together while she was gracing cattle
near the graveyard. In her testimony, P,W,3 has vividly deposed that
suspecting the accused, a Hindi speaking man, bring the mentally
challenged boy of that locality to the secluded place, she enquired the
accused. Not being satisfied with his reply and sensing danger to the
victim boy, she called P.W.1 over her cellphone and informed about this.
Soon thereafter, P.W.1 and others rushed to the spot. They saw the boy
lying unconscious with bleeding from his anus and the accused trying to
fled on seeing them. The accused was apprehended, the victim was taken
to the hospital. P.W.9 the duty doctor. who medically examined the victim
boy at Keeranur Government Hospital. has deposed that she saw injury in
the anus and it was bleeding. The Accident Register [Ex.P.11], which is
the contemporaneous document maintained by the Hospital, reveals that
nail scratches on the face of the boy and bleeding from the anus. The
victim boy was referred to Pudukkottai Government Hospital for further
treatment and P.W.12, who admitted him as inpatient had clearly deposed
that the boy did not answer to his questions and he was mentally
challenged person. That apart, the boy was referred to the Department of
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Psychiatry in Pudukkottai Hospital and on examination of the victim boy
on 24.12.2019, P.W.8 has certified that the victim boy is having
intellectual disability (severe) and its percentage is 80. Through Ex.P.12
and the testimony of the School Headmistress (P.W.10) the age of the
victim boy was proved as 17 years at the time of incident and his date of
birth is 14.11.2002.
12.Therefore, the learned State Public Prosecutor submitted that
the prosecution has proved its case beyond doubt through ocular
evidence and medical evidence that the accused kidnapped the minor
from the lawful guardian to the field of P.W.6, near the graveyard and
committed aggravated penetrative sexual offence. The evidence of P.W.1
and P.W.3 is cogent and stands un-impeached. The accused was caught
red handed at the place of occurrence and handed over to the Police. The
Doctor has opined that the injury found in the anus has caused
septicemia. Due to anal canal perforation Septicemia has occurred and
due to Septicemia, the victim had died. There is clear nexus to cause –
anal canal perforation and the effect – death. The trial Court has rightly
held that the accused has committed the act of aggravated penetrative
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sexual offence leading to death of the victim boy. Hence, submitted that
the finding of the trial Court that the accused committed murder of the
mentally challenged boy, aged about 17 years, is well founded and to be
confirmed. The learned Public Prosecutor submitted that the crime
committed by the accused is grave and crude, therefore, proportionate to
the gravity of the crime, the accused has to be punished and the
punishment must be not only be retributive and reformative, but also
have a deterrent effect.
13.The learned State Public Prosecutor, Mr.Hasan Mohammed
Jinnah besides submitting the facts of the case, also fairly placed the
sentencing policy evolved through Indian and Foreign case laws
regarding capital sentence vis-a-vis offence against children and the
litmus test laid to identify rarest of the rare case.
14.The learned counsel appearing for the accused / appellant
submitted that the trial Court erred in not properly appreciating the
contradictions in the ocular evidence and the medical evidence regarding
the injuries found on the body of the victim. The trial Court ignored to
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consider the fact that the victim boy died 19 days after the alleged
incident. The final opinion (Ex.P.15) of the postmortem Doctor says that,
''the death is due to septicemia following anal perforation consequent
upon Injury No.2, which is sufficient to cause death in ordinary course of
nature''. The Injury No.2 as found in the postmortem certificate Ex.P.14 is
a laceration of size 7 x 0.25 cm present over six 'o' clock position of anal
canal with yellowish fowl smelling pus oozing out through anal canal,
margins of injuries are irregular with contusion present beneath injury
along pelvic floor muscles. In the cross-examination, the postmortem
Doctor (P.W.13) admits that a person may die in ordinary course due to
septicemia. Therefore, the learned counsel for the accused would summit
that, the cause of death is not the injuries alleged to have caused by the
accused, but due to septicemia caused due to medical negligence. The
trial Court erred in ignoring 19 days interval between the date of
occurrence and the date of death.
15.The learned counsel for the accused/appellant submitted that
the trial Court in its judgment holding the accused guilty for the grave
offence of committing aggravated penetrative sexual assault and murder
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is without adequate evidence and in any event, the case does not fall
within the meaning of rarest of the rare case to impose capital
punishment.
16.The submissions made by the learned Public Prosecutor and the
learned counsel for the accused heard. The impugned judgment of the
trial Court together with the depositions of P.W.1 to P.W.16 and Ex.P.1 to
Ex.P.32 perused.
17.This is a case of direct evidence and the accused being caught
red handed at the place of crime, where the victim boy was lying
unconscious with bleeding in anus. The duty of the Court is to
meticulously scrutinize the evidence of the alleged eyewitnesses to rule
out any falsification or embellishment. In the instant case, the accused is
from North India and the witnesses for the prosecution have any prior
animosity or enmity with the accused to depose falsely against him.
The gist and the assessment of evidence:
18.The prosecution witness P.W.11 - Kannaiyan has deposed that
he know the accused. At the time of occurrence, the accused was working
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in his crusher company (Velan Crusher ) as Ittachi Operator. The accused
hails from Gujarat. He is working in Tamil Nadu for nearly 10 and 12
years. So, the accused can talk Tamil. Karuppaiah (P.W.7) had deposed
that he know the accused and he is working in the crusher at Kullathur
along with him. He had deposed that on the fateful day, the accused
borrowed his two wheeler bearing Registration No.TN-55-AU-6568
Hero Splender (M.O.1) and left the working place at about 12.30 hours.
In or around 2.00 p.m. P.W.1 had seen the accused near Keeranur Bazaar
taking the victim in the two wheeler. About 2.30 p.m., Smt. Chitra
[P.W.3] on seeing the accused with the victim, had enquired the accused.
Having not satisfied in his response and getting suspicion about him, she
has informed the same to P.W.1.
19.The evidence of P.W.1 de-facto complainant, who set the law
into motion reveals that when P.W.1 went to the spot along with P.W.3,
he saw the victim boy lying unconscious, his pant removed and sweater
buttons unfastened. The accused was standing near the victim boy and
the two wheeler (M.O.1) parked nearby. On seeing them, the accused to
fled, but they caught him. After regaining conscious, the victim had
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started weeping showing his anus and the accused. P.W.1 has noticed
bleeding in the anus of the victim boy. P.W.1 has identified the dress of
the accused as well the dress of the victim boy and they are marked as
M.O.2 to M.O.5.
20.This witness has given statement before the learned Judicial
Magistrate under Section 164 Cr.P.C. and same is marked as Ex.P.2.
Under Section 157 of the Evidence Act, the previous statement of the
witness to the Magistrate is admissible in evidence for corroboration or
contradictions of the later testimony. In this case, the previous statement
of P.W.1 (Ex.P.2) recorded by the learned Judicial Magistrate under
Section 164 of the Cr.P.C. substantially in corroboration to the
subsequent testimony. The witness was subjected to cross-examination
and the testimony of this witness stay unassailed.
21.The testimony of P.W.3 Chitra substantially synchronizes with
the testimony of P.W.1. She has alerted the Villagers immediately on
suspecting the accused taking the mentally challenged boy with him to a
secluded place. She is a cattle gracer, native of that village. Her
testimony is natural and inspires the confidence of the Court without an
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iota of doubt. The testimony of P.W.1 and P.W.3, who are the star
witnesses to the crime in this case, had deposed naturally and cogently,
corroborating each other.
22.To rule out any false implication of the accused in this case, the
testimony of P.W.7 and P.W.11 is taken for consideration. The
employment of the accused in the Crusher Company is spoken by P.W.7
and P.W.11. Lending the two wheeler M.O.1 to the accused on the day of
occurrence, is spoken by P.W.7. The evidence of these two witnesses read
along with the testimony of P.W.1 and P.W.3, lead to the irresistible
conclusion that the act of aggravated penetrative sexual assault, by the
accused, causing bodily harm to the sexual organ of the victim boy is the
cause for the death of the mentally challenged minor boy, the son of
P.W.2.
23.In the instant case, it is essential to take note of the fact that the
date of occurrence is 18.12.2019 about 2.30 p.m. and the date of death is
06.01.2020 about 1.30 p.m. Therefore, to hold the accused guilty of
committing culpable homicide amounting to murder or otherwise, the
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medical records and the testimony of the Doctors, who treated or
clinically examined the victim is crucial.
24.On examining, we find the Accident Register maintained at
Keeranur Hospital is marked as Ex.P.11 and the Doctor, who recorded
Ex.P.11, is examined as P.W.9. From the said exhibit and the testimony
related to the Accident Register, it is sufficient to hold that the victim was
conscious when brought to the Hospital for treatment and he was not
responding to the command. Nail mark on his face and external anal
injury with bleeding noticed. Since there was no adequate equipments
in the said Hospital to treat the victim, he was referred to Pudukkottai
Government Hospital. At Pudukkottai Hospital on 23.12.2019, the
statement of the victim boy recorded and videographed. On 24.12.2019,
during the course of the treatment, the victim boy was clinically
examined by the Psychiatry Doctor Elamaran (P.W.8). He on clinically
examining the victim had certified that the boy suffers 80% intellectual
disability (Ex.P.9). The victim boy had responded to the questions of
P.W.8 through sign language. The boy died on 06.01.2020. The
Postmortem Certificate (Ex.P.14) discloses the following antemortem
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external and internal injuries:-
''External Examination (Injuries):-
1. A black scabbed linear abrasion of size 10
cm. present over back of left thigh lower one third.
2.Laceration of size 7 x 0.25 cm present over
six 'o' clock position of anal canal with yellowish
fowl smelling pus oozing out through the anal canal,
margins of injury are irregular with contusion
present beneath injury along pelvic floor muscles.
Anal swab collected and sent for bacteriological
analysis.
Internal Examination:-
Scalp : Unremarkable.
Skull : Unremarkable.
Brain and Meninges : Unremarkable.
Mouth, Pharynx and Esophagus :
Unremarkable.
Neck : Hyoid bone intact.
Thorax : Chest wall, Ribs/Sternum and
Cartilage, Lungs:- Bilateral lung adherent to chest
wall. There was greenish yellow pus flaks around
bilateral lungs and interlobar fissures. Each Lung
weights 720 and 600 gms. On cut section, there was
postero basal bronchopneumic consolidation with
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exudation of yellowish green pus pockets. Thoracic
cavity contains 500 ml of straw colored fluid,
portion of lungs send for histopathology
examination report.
Heart : Unremarkable, uncut heart sent for
histopathology examination.
Peritoneum: Contains 1.5 L of greenish
yellow fluid mixed with greenish yellowish fowl
smelling pus present over all organs of abdomen,
swab collected and sent for bacteriological analysis.
Liver : Yellowish green pus present over
surface, on cut section congested, portion sent for
chemical analysis, portion sent for histopathology
examination.
Stomach : Contains 500 ml of yellowish fluid,
stomach with its contents sent for chemical analysis.
Spleen : Unremarkable.
Intestine : Portion of small intestine with its
contents send for chemical analysis, perforation of
size 0.5 x 0.5 c.m. present over posterior wall of
anal canal 7 c.m. above anal orifice corresponding
to injury No.2.
Kidneys: Congested, Half of each kidney send
for chemical analysis and portion for histopathology
examination.
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Bladder : Empty, Walls Unremarkable.
Spinal Column and Cord : Not Exposed.
Opinion:
The cause of death in this case would
be given after receipt of chemical, histopathology
examination and bacteriological study reports.''
Thus, from the medical records, it is clear that the perforation of size 0.5
x 0.5 cm present over the posterior wall of anal canal 7 cm above anal
orifice is the cause for septicemia. The said perforation is consequent
upon the lacerated wound size 7 x 0.25 cm. present over six 'o' clock
position of anal canal. The said lacerated wound and perforation is
caused by the accused by inserting the Thuvarai stalk [M.O.8]. The
insertion of Thuvarai stalk into the anal of the victim boy is spoken by
P.W.1and P.W.3. This Court finds no reason to disbelieve the evidence of
these two witnesses. Therefore, though there is interval of 19 days from
the date of commission of crime and the death, as pointed out by the
learned Public Prosecutor, the link between the cause and the effect is
without any intervention. Septicemia due to the perforation cannot in this
case be taken as an independent intervening factor or aggravating factor.
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25.It is evident that the perforation in the intestine found 7 cms.
above anal orifice is due to forcible insertion of the stalk [M.O.8] into the
anal of the victim boy by the accused.
26.The trial Court taking into consideration the evidence regarding
the mental disability of the victim, his age and the nature of injury caused
to the victim, has held that in view of the dual presumptions under
Sections 29 and 30 of the POCSO Act in respect of act and culpable
mental state, the accused is liable to be punished with death sentence.
27.That apart, the trial Court has concluded that the case fall under
Section 300(3) of I.P.C. hence it is culpable homicide amounting to
murder punishable under Section 302 of I.P.C. Accordingly, the trial
Court has imposed life sentence to the accused. To arrive at the said
conclusion, the trial Court has relied upon the four-point test laid by the
Hon'ble Apex Court in Virsa Singh vs. State of Punjab [AIR 1958 SC
465], followed in Rajwant Singh vs. State of Kerala [AIR 1966 SC
1874].
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28.The finding of the trial Court that the death caused by the
accused is a culpable homicide amounting to murder is assailed in the
appeal filed by the accused and the learned counsel for the accused
contented that the trial Court has drawn the presumption clauses under
the POCSO Act to the I.P.C. offence (Section 302 of I.P.C.) and erred in
holding it is culpable homicide amounting to murder, ignoring the failure
of the prosecution to positively prove the intention to cause death or the
intention of causing such bodily injury as is likely to cause death or
sufficient in the ordinary course of nature to cause death or the said
injury was caused by the accused knowingly it will cause death. P.W.13,
the postmortem Doctor has categorically stated that the cause of death
was septicemia, therefore, imposition of life sentence for offence under
Section 302 IPC is legally and factually incorrect.
29.To appreciate the above submission, it is necessary to read
Section 299 of I.P.C., which explains what is culpable homicide.
''299.Culpable homicide.-
Whoever causes death by doing an act
with the intention of causing death, or with the
intention of causing such bodily injury as is likely to
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cause death, or with the knowledge that he is likely
by such act to cause death, commits the offence of
culpable homicide.
Explanation 1.—A person who causes bodily
injury, to another who is labouring under a disorder,
disease or bodily infirmity, and thereby accelerates
the death of that other, shall be deemed to have
caused his death.
Explanation 2.—Where death is caused by
bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death,
although by resorting to proper remedies and skilful
treatment the death might have been prevented.
Explanation 3.—The causing of the death of a
child in the mother's womb is not homicide. But it
may amount to culpable homicide to cause the death
of a living child, if any part of that child has been
brought forth, though the child may not have
breathed or been completely born.''
30.Section 300 of I.P.C. says culpable homicide is murder, if the
act by which the death is caused is done with the intention of causing
death, or
Secondly, if it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the person
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to whom the harm is caused, or
Thirdly, if it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death, or
Fourthly, if the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death or such
bodily injury as is likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or such injury as
aforesaid.
31.The trial Court has brought the case under Section 300(3) of
I.P.C. Therefore, for more clarity and brevity to understand when Section
300(3) of I.P.C. gets attracted, this Court wish to rely upon the following
passage in the subsequent judgment of the Hon'ble Apex Court rendered
in Kikar Singh vs. State of Rajasthan [1993 AIR 2426], which covers
the two judgments relied by the trial Court.
32.In Virsa Singh vs. State of Punjab [AIR 1958 SC 465], a
leading forerunner on the point, the Hon'ble Apex Court held that the
prosecution must prove that bodily injury is present. The nature of the
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
injury must be proved. Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury, that is to say, that it was
not accidental or unintentional, or that some other kind of injury was
intended. Once these three elements are proved to be present, the Court
must further proceed with the enquiry and find that the prosecution has
proved that the injury described is sufficient to cause death in the
ordinary course of nature. This part of the enquiry is purely objective and
inferential and has nothing to do with the intention of the offender. Once
these four elements are established by the prosecution the offence of
murder falls under clause thirdly of Section 300 of I.P.C. It matters not
that there was no intention to cause death or that there was no intention
even to cause death in the ordinary course of nature. Once it is proved
that the intention to cause the bodily injury actually found to be present,
the rest of the enquiry is purely objective to be deduced by inference. But
where no evidence or explanation is given about why the accused thrust a
spear into the abdomen of the decease with such force that it penetrated
the bowels and three coils of the intestines came out of the wound and
that digested food oozed out from cuts in three places, it would be
perverse to conclude that he did not intend to inflict the injury that he
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
did. The question whether there is intention or not is one of fact and not
one of law. Whether the wound is serious or otherwise, and if serious,
how serious, is a totally separate and distinct question and has nothing to
do with the question whether the accused intended to inflict the injury in
question. It was held in that case that the offence was one of murder
falling under clause thirdly of Section 302 of I.P.C. In Rajwant Singh v.
State of Kerala [AIR 1996 SC 1874], the bodily injury consisted of
tying up the hands and the feet of the victim, closing the mouth with
adhesive plaster and plugging the nostrils with cotton soaked in
chloroform. All these acts were deliberate acts which had been pre-
planned and, therefore, this Court held that the acts satisfied the objective
tests of clause 3 of Section 300 of I.P.C. and were held to be sufficient in
the ordinary course to cause death. Accordingly, it was one punishable
under Section 302 of I.P.C.
33.With the above clarity on Section 302 (3) of I.P.C., if the facts
of the instant case is put to the four point test enunciated by the Hon'ble
Apex Court in Virsa Singh case [cited supra], the prosecution has
proved the first two tests namely, the bodily injury and the nature of
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
injury. The third test whether the accused intend to cause that particular
injury namely, perforation of size 0.5 x 0.5 cm. present over posterior
wall of anal canal 7 cm. above anal orifice corresponding to the lacerated
wound of size 7 x 0.25 cm. present over 6 'o' clock position of anal canal,
the Doctor who conducted postmortem has opined that the septicemia is
cause for death. The postmortem certificate and the explanation given by
the witness indicates that septicemia occurred due to the perforation on
the posterior wall of the anal canal 7 cm. above anal orifice consequent
to the lacerated wound on the orifice. Thus, it is clearly said that the
cause of death is septicemia and septicemia was due to the injuries noted
externally and internally on the anal canal. P.W.13 the postmortem
Doctor has further deposed that, the tissues near the anal canal are very
soft and easily tearable. So, it is possible for perforation of intestine if
any foreign body is inserted into anal canal.
34.The trial Court, referring the opinion of the postmortem Doctor
had concluded that death would not have occurred, but for Injury No.2
caused to the deceased victim boy which had developed complications,
like, infection and eventually resulting in death.
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
35.The evidence before the Court if tested for offence of murder in
isolation, the explanation given by the Doctor indicates that the external
and internal injuries by itself not sufficient to cause death, but for
septicemia. The accused's intention to cause the said bodily injuries was
not to cause death, but to satisfy his lust. The death was after 19 days and
it was due to septicemia. But, then, insertion of a foreign body [M.O.8]
into the anal canal which has caused the lacerated wound of size 7 cm. in
6 'o' clock position at orifice and a perforated wound of size 0.5 x 0.5 cm.
about 7 cm. above orifice of anal canal is the cause for septicemia which
is sufficient in the ordinary course of nature to cause the death.
36.Thus, the prosecution able to establish that the death was
caused due to the injury, but failed to prove that the particular injury was
intended by the accused.
37.Clause 3 of Section 300 of I.P.C. as explained by the Hon'ble
Apex Court to punish under Section 302 of I.P.C. the bodily injury
caused must be the injury intended to be inflicted. Whereas, to punish
under Section 304 (i) of I.P.C., it is sufficient to prove intention to cause
such bodily injury as is likely to cause death. (Emphasis added)
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
38.In this case, the insertion of stalk into the anal canal is the
intentional act and such act is likely to cause death if septicemia develops
as in this case. The prosecution though able to prove that the victim died
due to septicemia and septicemia is sufficient in the ordinary course of
nature to cause the death, it has failed to prove that the injury caused to
the victim with the intention to cause that particular injury.
39.To attract Clause 3 of Section 300 of I.P.C., the act must be
done with the intention to cause bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course
of nature to cause the death.
40.The trial Court erred in misinterpreting the testimony of the
Postmortem Doctor [P.W.13], who has explained in his deposition that
the septicemia is sufficient in the ordinary course of nature to cause
death. The Doctor has not opined that lacerated wound or the perforation
in the anal canal is sufficient in the ordinary course of nature to cause
death.
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
41.Therefore, we hold that the death of the victim fall under the
definition of culpable homicide not amounting to murder and deserve
punishment under Section 304 (ii) of I.P.C., since the death is caused
without any intention to cause death and such bodily injury is not likely
to cause the death per se but for the infection caused.
42.Yet another reason for this Court to arrive at this conclusion is
the Videograph [M.O.10] recorded on 20.12.2019 while the statement of
the victim boy was recorded. In the said Video, we see the boy sitting
between his father and mother on the hospital bed and answering the
questions through sign whenever he is able to understand the question or
else keeping quiet. When asked to walk, he was able to walk few steps
very slowly. The boy was able to sit on his back comfortable on
20.12.2019 i.e., two days after the occurrence. Therefore, the yellowish
fowl smelling pus oozing out through anal canal and septicemia noticed
during postmortem must have been the cause of infection developed
later. Hence, it is held that the death of the victim is culpable homicide
not amounting to murder.
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
43.We hasten to add and make it clear that, we hold it is not a
culpable homicide amounting to murder only for the restricted purpose of
deciding the charge for offence under Section 302 of I.P.C. Whereas, in
respect of the POCSO Act, the legislatures in Section 5(j)(iv) of the
POCSO Act have consciously not used the expression 'murder' but had
used the expression 'death'. Therefore, it is clear from the language
employed in the special Act, namely, the POCSO Act, to prove the charge
under Section 5(j)(iv) of the POCSO Act, it is sufficient for the
prosecution to prove that the accused had committed penetrative sexual
assault on a child, which caused death of the child. It is not material
whether such death is culpable homicide amounting to murder or not
amounting to murder.
44.In this case, as discussed earlier, the prosecution has proved
beyond doubt that the victim child was subjected to aggravated
penetrative sexual assault by causing hurt in the sexual organ, the said
hurt in turn, has caused the death of the victim child. Also, the witness
for prosecution has categorically proved the mental disability of the
victim child. Thus, the act of the accused falls under three different
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
categories of aggravated penetrative sexual assault enlisted under Section
5 of the POCSO Act, the punishment for all these categories is prescribed
under Section 6 (1) of the Act, as ''Rigorous imprisonment for a term
which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the remainder
of natural life of that person, and shall also be liable to fine, or with
death''.
45.The scheme of the POCSO Act is to protect children from
sexual offence and to punish the perpetrator of the crime against the
children. The act has categorized five kinds of sexual offences against
children. They are listed below in the descending order, based on the
gravity of crime:
(i) Aggravated penetrative sexual assault,
(ii) Penetrative sexual assault,
(iii) Aggravated sexual assault,
(iv) Sexual assault, and
(v) Sexual harassment.
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
46.Section 5 (a) to 5 (u) of the POCSO Act enlists 21 forms of
aggravated sexual assault and Section 6 prescribes the following 3 kinds
of punishment for aggravated sexual assault.
(i) Rigorous Imprisonment for a term of not less than 20 years.
(ii) Imprisonment for life.
(iii) Death.
47.In the instant case, the accused had caused,
(1) Bodily injury to the sexual organ of the victim child. The same
is proved through the eyewitnesses and medical records, such as,
Accident Register [Ex.P.11] and Postmortem certificate [Ex.P.14].
(2) Committed the crime taking advantage of the child's mental
disability. The same is proved through P.W.1 to P.W.5, P.W.8 to P.W.10
and P.W.12 and the mental ability certificate [Ex.P.9] issued by P.W.8.
(3) The penetrative sexual assault has caused the death of the
victim child. The same is proved through the evidence of P.W.13 and the
Postmortem Certificate [Ex.P.14].
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
48.The trial Court has drawn a balance sheet to compare the
aggravating circumstances and mitigating circumstances to justify the
death sentence. The aggravating circumstances to impose death sentence
as shown in the said table are:
Sl.No. Aggravating circumstances
1. The Diabolic nature of the crime, the manner of committing the
crime, the aggravated penetrative sexual assault (homosex) on
the mentally retarded boy child and the causing the injuries on
the anus and body of the deceased using Thuvarai stalk which
had punctured the intestine resulting in septicemia. The accused
having committed the brutality after previous planning.
2. The horrific act reflecting the inhuman extent to which the
accused had gone to satisfy his lust.
3. The incident having shooked the conscience of the society at
large. (committing homosex with a mentally retarded boy child).
4. The Injury No.2 and the injury in the intestine of the victim boy
child, shows the suffering of the helpless and mentally retarded
boy child and the accused having had a mental culpable state of
mind had kidnapped the victim boy child and had executed the
crime.
5. If the accused is given less sentence, he would be a threat to the
Society. There is no probability of the accused that he would
not commit criminal acts of violence and there is no probability
of the accused being reformed and rehabilitated. If lesser
punishment is given, it would shake the confidence of the public
in the administration of criminal justice system and the Society
would lose faith in the rule of law.
6. The prosecution evidence is cogent, corroborative reliable,
trustworthy and not shaken during cross-examination and there
is no residual doubt in the prosecution case.
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
49.The sole mitigating circumstance shown in favour of the
accused by the learned Trial Judge is, the age of the accused who was
running 32 years then. Whereas the trial Court while drawing balance
sheet has miserably failed to add two more factors under the head
'mitigating circumstances', namely, (a) the death of the victim child was
after 19 days due to septicemia, and (b) the prosecution failed to prove
that the accused caused that particular injury (perforation in intestine –
anal canal) with intention to cause death. If these two factors are added
in the balance sheet under the head 'mitigating circumstances', it would
have overweighed the aggravated circumstances and needle of the
balance will turn towards the scale of mitigating circumstances.
50.In the result, the judgment of the trial Court is interfered and
modified as below:-
Offence Conviction and sentence Conviction and sentence
by the trial Court by this Court
302 of Life imprisonment and Modified.
I.P.C. fine of Rs 20,000/-, in Convicted and sentenced under
default, simple Section 304 (ii) of I.P.C.
imprisonment for 2 Sentenced to undergo 10 years
months. rigorous imprisonment and pay a
fine of Rs 20,000/-, in default, to
undergo simple imprisonment for
2 months.
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
363 of Rigorous imprisonment
I.P.C. of 7 years and fine of
Rs.10,000/-, in default, Confirmed.
to undergo simple
imprisonment for 2
months.
5(i) r/w Sentenced to death and Modified.
6(1) of be hanged by neck till Rigorous imprisonment for a
the his death. term of twenty years and pay a
POCSO fine of Rs 10,000/- in default, to
Act undergo 6 months simple
imprisonment.
5(j)(iv) Sentenced to death and Modified.
r/w 6(1) be hanged by neck till Rigorous imprisonment for a
of the his death. term of twenty years and pay a
POCSO fine of Rs 10,000/- in default, to
Act undergo 6 months simple
imprisonment.
5(k) r/w Sentenced to death and Modified.
6(1) of be hanged by neck till Rigorous Imprisonment for a
the his death. term of twenty years and pay a
POCSO fine of Rs 10,000/- in default, to
Act undergo 6 months simple
imprisonment.
51.Taking note of the gravity of the offence, this Court orders the
period sentence in respect of offence under the POCSO Act together shall
run concurrently (Rigorous Imprisonment for 20 years) and the offence
under the I.P.C. (10 years for 304 (ii) of I.P.C. and 7 years for 363 of
I.P.C.) shall together run concurrently, the period of sentence for offence
under the POCSO Act and period of sentence for the offence under the
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
I.P.C. (20 years + 10 years) shall run consecutively. The period of
sentence already undergone shall stand set off under Section 428 of
Cr.P.C.
52.In respect of disposal of the material objects, the trial Court
order stands confirmed. The order of the trial Court regarding
compensation to the victim family also shall stand confirmed.
53.With the above modification, Crl.A.(MD)No.300 of 2021 is
partly allowed and the reference in R.T.(MD) No.3 of 2021 is answered
accordingly.
(S.V.N., J.) (G.J., J.)
03.12.2021
Internet: Yes
Index : Yes/No
smn2
To
1. The Sessions Judge,
Mahila Court, Pudukkottai.
2. The Inspector of Police,
All Women Police Station, Keeranur.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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R.T.(MD) No.3 of 2021 and Crl.A.(MD) No.300 of 2021
S.VAIDYANATHAN, J.
and
G.JAYACHANDRAN, J.
smn2
Copy to:-
The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court,
Madurai.
Pre-delivery common Judgment in
R.T.(MD) No.3 of 2021 and
Criminal Appeal (MD) No.300 of 2021
Delivered on
03.12.2021
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