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Madras HC Upholds Death Penalty to Techie Youth For Rape & Murder of Seven Year Old [Read Judgment]

“If the punishment of an innocent person is a mistake of justice administration, failure to punish a criminal indicates that the absence of justice, which is a worse mistake.”, Justice Dr.S.Vimala observed  quoting Immanuel Kant

 The Madras High Court has upheld death penalty awarded to  Daswanth, a 23-year-old techie, for rape and murder of a seven-year-old girl in his neighborhood. The dastardly act took place during February 2017. Daswanth is alleged to have committed yet another grievous crime during December 2017, that of murdering his own mother and running away with valuables from house, when he was out on bail in the case. On February 19, 2018, the Sessions Court of Chengalpet held Daswanth guilty for commission of offences under Sections 363, 366, 354-B, 302 and 201 IPC and Sections 8 r/w 7 and 6 r/w 5 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’)and awarded him death penalty.

The Death Sentence Reference under Section 366 of Code of Criminal Procedure, along with Daswanth’s appeal challenging trial court’s judgment were jointly considered and dismissed by a division bench of Justice Dr. S. Vimala and Justice S. Ramathilagam. Justice Vimala, who authored the main judgment, expressed strong grief and pain at the sufferings of the girl child by beginning the judgment as follows :

“Not all scars show;
 Not all wounds heal;
 Not all illness can be seen;
Not all pain is obvious;

Remember this before passing Judgment on another”, so said David Avocado Wolfe. This quote applies not only while judging the accused, but also while judging the plight of the victim, if we take into account, the innocence ignorance and inexpressiveness of child. That is why it is said though “silent” and “listen” are words spelled with the same letters, but for listening to the silent cry of the child, justice would be an impossibility. This is all the more true in the case of child sexual abuse, which itself is a silent crime.

The prosecution case was that the victim-girl went missing from her residential building on at 6 PM on February 5, 2017. After frantic search by parents and police, her burnt dead body was found during the dawn of February 8, 2017. The investigation revealed the involvement of Daswanth and he was arrested on the same day. He made an extra-judicial confession to the Village Administrative Officer about the crime.

In order to enlarge the probability of the occurrence, the prosecution relied upon the habit of the accused in viewing the obscene sexual videos in the cell phone and submitted that the said act should have been a compelling and impulsive emotion for him to have committed this kind of offence. The examination of the mobile phone of the accused revealed that he was in the habit of browsing obscene videos and storing them.

Regarding the relevance of motive, the Court stated, “motive, though maybe an attributing factor, nevertheless, it is not a relevant or a determining factor, which the prosecution needs to establish to take the chain of circumstance forward. The motive only heightens the probability that the offence was committed by the person who was impelled by that motive and if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive

The Court found that the motive alleged by the prosecution was probable, and that the accused can be presumed to be having the peculiar mental state as per  Section 30 of POCSO Act.

The Court noted that there was evidence to the effect that Daswanth and the victim was last seen together”. One of the witnesses, Prosecution Witness No.3, stated that he had seen the accused, his dog and the victim together at about 6.15 PM on February 5.  The accused challenged the testimony of PW3 on the ground that he had not mentioned the fact of victim last seen in the company of accused to initial statement given to police. But this argument was rejected by Court, stating that PW3 statement before the Court was clear and categorical, and the same was not impeached in cross examination. “The evidence given before the court alone is the substantive evidence”, the Court said, relying on Mohd. Farooq Abdul Gafur – Vs – State Of Maharashtra (2010 (14) SCC 641) The Court said that the statement of PW3 stood corroborated by following circumstances:-

  1. the accused joining with the police for some time in tracing out the victim and thereafter absconding
  2. ]he accused making a confession as well as pointing out the place where the burnt dead body was there
  3.  confession of the accused and based on that the accused showing the place where the occurrence of sexual assault took place and also the recovery of anklet and ear-rings of the deceased from the accused and
  4. the purchase of petrol ( for burning the body of victim) using credit card in the bottles and not in the vehicle

The Court also found that the confession made by the accused led to recovery of the dead body and the belongings of the victim, and therefore it became admissible as per Section 27 of the Evidence Act.

“The fact that there had been a dead body in a bush, which had been burnt, had been within the knowledge of the accused, which after confession had been proved to be true and correct by the recovery of the burnt dead body”, said the Court.

Whether accused can be held guilty of murder if cause of death is not conclusively established.

The Court had to deal with the difficult issue of ascertaining the cause of death and establishing its link to the accused.  The burning has been to such an extent that the whole body tissues of the deceased have been burnt to ashes and have started crumbling, except for a small area on the body, where skin was found. Hence, medical examination could not give any definite explanation regarding cause of death. The main contention raised by the learned counsel for the accused was that when there is no medical evidence to conclusively establish the cause of death or indicate the probable cause of death, the accused cannot be held guilty of murder.

However, the post-mortem evidence showed loosening of teeth, and bruises on lips, which were ante-mortem injuries. The doctor had stated that chances of smothering could not be ruled out.

“The circumstances narrated above shows that the links are all in place and that the probability of the accused committing the crime assumes moral certainty on a construction of the crime scene. The construction of the crime scene at the time of occurrence would only have been to the effect that in order to mute the cry of the child from reaching the ears of the neighbours, the accused had closed her mouth by applying pressure over the mouth of the deceased, which alone could have caused the injury on the inner lip of the deceased. Fortunately for the prosecution, the portion of the lip, which remains intact, has supported the theory that the deceased would have died of smothering, which stands proved by the medical evidence. Apart from that, the loosening of the lower central incisors and surrounding bruising would only go to show that death should have been only on account of smothering and that the smothering is at the time of causing sexual assault. When the child is aged about 7 years, the murder could be either for gain or for causing sexual abuse. From the materials recovered, viz., one ear ring and one anklet from the accused, it could easily be inferred that murder could not have been for gain. Then naturally the other reason is that it should be for causing sexual abuse.”, the Court held.The   Court also held that the offences under Sections 3 and 7 of the POCSO Act stood proved by the recovery of the innerwear of the deceased (M.O.1) and the presence of semen on the innerwear, apart from other circumstances leading to the inference that the accused should have committed the offence of sexual assault (Section 7) and penetrative sexual assault (Section 3).

Constitution has envisaged a happy and healthy childhood for children, which is free from abuse and exploitation

Referring to Article 45 of the Constitution of India, the Court observed :-Constitution has envisaged a happy and healthy childhood for children, which is free from abuse and exploitation. But we live in a society where the safety and security of children remains an unfulfilled promise.

Justifying death penalty to the accused,the Court observed as follows :-

The case of the prosecution reveals neither any provocation nor pressure on the accused, but only the sense of physical pleasure from women folk, which led to the pressure on the vocal cord of the deceased cutting off not only her voice to the outside world, but also severing her continuance in the material world. The further act of the accused in trying to screen the offence is more gruesome than the act of commission of death itself. The diabolical ingenuity with which the body has been disposed off by the accused to ward of any attraction to him has led to the budding flower being reduced to ashes even before blossoming. The mindset of the accused to commit such a heinous act is more cruel than the act itself. The brutality and the beastly act of the accused cannot be described in words. The evidence on record clearly show not only the mindset of the accused, while trying to satisfy his sexual urge, but also the diabolic planning to dispose of the body and screen the offence in order to close the eyes of justice. In this context, we agree with Immanuel Kant when he declares “If the punishment of an innocent person is a mistake of justice administration, failure to punish a criminal indicates that the absence of justice, which is a worse mistake.”

“The gruesome offence was committed with highest viciousness. Human lust was allowed to take such a demonic form. The accused may not be a hardened criminal; but the faith imposed by the young child on the accused, has been shattered to pieces when the child had been lured as a puppet to satisfy the sexual lust of the criminal mind and her existence in the world had, not only, been put to rest by the iron hands of the accused but even the parents have been deprived of having a last look at their daughter having been lost due to the barbaric act of the accused in incinerating the body of the deceased to ashes with diabolic ingenuity which collectively shocked the conscience of the society”, said the Court concluding the judgment.

Justice Ramathilagam also wrote a short separate judgment, explicitly expressing his approval of death penalty in the case.

Read the Judgment Here

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