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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1287 of 2011

Selvam                                                        …Appellant         

Versus

State Thr. Insp. of Police                                         …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This  appeal  arises  out  of  final  judgment  and  order  dated  

21.9.2010  passed  by  the  High  Court  of  Judicature  at  Madras  in  

Referred Trial No. 1 of 2010 and Criminal Appeal No. 299 of 2010  

confirming the judgment and order of death sentence dated 12.3.2010  

passed by the Additional Sessions Judge,  Salem in S.C.No. 198 of  

2009.

2. The facts and circumstances arising out of this Criminal Appeal  

are that:

A.  Murugesan (PW.1) and his wife Indirani (PW.2) had left for a  

Padayatra  to  Palani  hills  leaving  their  daughter  Palaniammal,  the

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deceased herein, aged 9 years and studying in fourth standard, with  

her grandfather Karnaiyan (PW.3).

B. On 12.2.2009, the deceased had left for her school at 8.30 a.m.  

after informing Valli (PW.4).  Since the deceased did not return from  

the  school  as  usual,  Karnaiyan  (PW.3)  after  making  a  search,  

conveyed  the  message  over  the  phone  to   her  parents  Murugesan  

(PW.1) and Indirani (PW.2).   

C. In early hours of  13.2.2009,  Murugesan (PW.1)  and Indirani  

(PW.2)  returned  home and  after  making  a  search  got  registered  a  

missing complaint of her daughter.   

D. On  the  same  day,  the  accused  Selvam,  appellant  herein,  

appeared before Vijayan (PW.9), the Village Administrative Officer  

(V.A.O) and made a confessional statement. Vijayan (PW.9) produced  

the appellant before the police and another confessional statement was  

recorded  on  the  basis  of  which,  the  case  of  missing  person  was  

converted into one under Sections 302, 376, 379 and 201 of Indian  

Penal Code, 1860 (hereinafter referred to as `the IPC’).   Thereafter,  

the  appellant  took  Shanmugam (PW.16)  I.O.,  Vijayan  (PW.9)  and  

Murugesan  (PW.1) and got recovered the dead body of the deceased.  

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E. A Sessions Case No. 198 of 2009 was instituted, wherein the  

prosecution examined 16 witnesses and relied on various exhibits and  

objects.    The  trial  court  after  hearing  the  parties  convicted  the  

appellant  for  the  charges  framed  and  awarded  death  penalty  vide  

judgment and order dated 12.3.2010.

F. The matter was submitted to the High Court for confirmation of  

death sentence under Section 366 of the Code of Criminal Procedure,  

1973 (hereinafter referred to as `the Cr.P.C.’) and the appellant also  

filed an appeal against the said judgment and order.  The High Court  

vide  its  impugned judgment  and order  dated  21.9.2010 upheld  the  

conviction  as  well  as  the  death  sentence  awarded  by  the  Sessions  

Court.

Hence, this appeal.

3. Mr. Neeraj Kumar Jain,  learned senior counsel  appearing for  

the appellant has submitted that it is a case of circumstantial evidence  

as  there  is  no  eye-witness.  The  depositions  made  by  Marimuthu  

(PW.5) and Amudha (PW.8) cannot be relied upon as their version is  

quite unnatural and no evidence has been produced to corroborate the  

version given by the said witnesses, particularly, about the character  

of the appellant given by Amudha (PW.8). His wife and sister-in-law  

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who alleged to have been mis-behaved with by the appellant had not  

been examined. More so, it was not a case where death sentence could  

have been awarded  

4. Per contra, Mr. M. Yogesh Kanna, learned standing counsel for  

the State of Tamil Nadu has opposed the appeal contending that the  

concurrent findings recorded by the courts below do not warrant any  

interference.  Considering  the  rape  and  murder  of  a  9  years  old  

innocent and defenceless girl and the manner in which the rape and  

murder had been committed, the courts below had rightly awarded the  

death sentence. Thus, no interference is called for.  

5. We have heard learned counsel for the parties and perused the  

record.

Before  we  proceed  further  to  examine  the  case,  it  may  be  

necessary to mention the injuries found on the person of the victim  

and the same are as under:  

“1. Ant  bite  mark  seen  over  the  sides  of  clavicular  

region and lateral and upper of right side of chest and  

flank and lateral  side of  abdomen. Both sides of  inner  

aspect of upper SRD of both thighs, the inner and back of  

left  knee,  bleeding  through  left  ear.  Blood  stained  cut  

fluid oozed out from both nostrils;

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2. Contusion over left neck measuring 3 cms below  

left  mastoid process measuring 6 x 4 cms brownish in  

colour;

3. A laceration over outer aspect of the left ear-lobe  

and pinnae measuring 5.5 x 2.5 x 0.26 cms;

4. Bluish  black  contusion  over  right  infra  scapular  

region measuring 9 x 6 cms and measuring 3 x 2 cms  

over left scapular region;

5. Abrasion measuring 2 x 2 cm over upper part of  

gluteal region;

6. A contused abrasion over at the level of both sides  

of scapular region measuring 16 x 5 cms.

7. Laceration  over  right  side  of  posterior  parital  

region measuring 2.5 x 0.25 x bone deep and it lies 4 cms  

above  occipital  protrudence  and  28  cms  above  the  

glabilla swelling with contusion over both sides of  the  

neck;

8. Curved  linear  abrasion  with  contusion  over  

external genitalia right measuring 7.5 x 0.25 cms and left  

side measuring 2.25 x 2.0 cms; O/D underlying tissue is  

contused;

9. Dark reddish brown abrasion over labia majora on  

both sides measuring 3 x 0.2 cms.”

With respect  to the injuries,  Dr.  Panneerselvam (PW.14) has  

opined as under:

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    “Injuries 8 and 9 may occur when having forcible  

intercourse (with a small girl).

Injury 2 may occur when the neck is pressed hard.”

In  the  post  mortem  certificate,  PW.14  stated  that  the  said  

Palaniammal was raped forcibly, which is confirmed by injuries 8 and  

9.  As regards the absence of spermatozova, PW.14 deposed before  

the court that  when the spermatozova goes into the parts of a person it  

will start to destroy after 24 hours. After 48 hours it will completely  

disintegrate. If the body was in a decomposed condition, then it could  

not be found whether there was any spermatozova in the parts of the  

body or not. PW.14 further opined that the death of the deceased was  

caused due to the injury on the head.  

6. From the statements of Murugesan  (PW.1), Indirani (PW.2),  

Karnaiyan (PW.3), Valli (PW.4) and Arumugam (PW.12), it is clear  

that  the  deceased  had  left  for  the  school  at  around  8.30  a.m.  on  

12.2.2009 but did not reach the school or returned home thereafter.  

Radiokaran (PW.7), who was well known to the accused, deposed that  

while he was proceeding to Chithoor, he passed through the house of  

the appellant and saw that the appellant was washing the floor of his  

house. He questioned the appellant about the same suspecting it to be  

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blood  smell  to  which  the  appellant  responded  that  the  dog  had  

vomited and hence he was cleaning the floor.  Later on, he came to  

know that the deceased was missing.  Marimuthu (PW.5) deposed that  

he had joined the search of the deceased girl on 12.2.2009.  At about  

5.00  a.m.  on  the  next  day,  he  saw the  appellant  going on  a  TVS  

motorcycle with a gunny bag but when the appellant returned after  

half an hour, he did not have any gunny bag with him. Marimuthu  

(PW.5)  identified  the  said  motorcycle  and  the  belongings  of  the  

deceased  girl  as  well  as  the  deceased  itself.   Vijayan  (PW.9)  has  

deposed  about  the  appellant  making  an  extra-judicial  confession  

before  him and that  he  produced  the  said  appellant  before  the  IO  

PW.16.    He further deposed about the appellant making a confession  

before the said IO on the basis of which he alongwith the police went  

to the house of the appellant from where he got recovered a pair of  

silver anklets belonging to the deceased and also pointed out the TVS  

motorcycle.  He further  deposed about  the appellant  taking them to  

Onamparai Thanneer Vaikkal Madhaka from where he got recovered  

the body of the deceased as well as other belongings of the deceased  

from inside the gunny bag.  Shanmugam (PW.16) is the IO and had  

deposed about the disappearance of the deceased and the subsequent  

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investigation including the confession made by the appellant before  

him and the recoveries made thereto.   

7. After relying on the above evidence, the trial court came to the  

following conclusion:

“…the  root-cause  for  the  perpetrator  of  the  heinous  crime, his thirst for lust, his loneliness in his house  and  the fact that the parents of the deceased gone for pilgrim  and  take  days  to  return  back,  though  the  girl  goes  to  school  as  usual  on the fateful  day also,  but  the above  circumstances, which were so conducive for the accused,  who is  a  sex  hunter,  took the  girl  to  his  house  where  nobody was available, raped the girl to fulfill his thirst  for sex and after his fond /desire is over; fear crept in his  mind and hence he killed the girl by attacking with cot- frame (M.O.2) on her head with intention to kill her and  with knowledge that blow by M.O.2 on the head of the  deceased, which is a vulnerable part of the body, would  easily caused death, as she being a small girl at a tender  age of 9, and thereby he had committed the offence of  rape and murder….”  

The  court  after  weighing  the  mitigating  and  aggravating  

circumstances came to the conclusion that the act of the appellant was  

a  violent,  barbaric  and  sinful  sexual  attack  on  the  child  thereby  

awarding death sentence.  

8. On reference being made to the High Court,  the High Court  

carefully examined the evidence on record and came to the conclusion  

that the prosecution has been successful in proving its case.  The court  

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recorded  a  finding  that  the  extra-judicial  confession  made  by  the  

appellant was voluntary and made in a fit state of mind and that the  

appellant  having come to know of  the  ensuing investigation  might  

have come under a grip of fear and, therefore, would have rushed to  

make a judicial confession before PW.9.  The court further came to  

the  conclusion  that  the  evidence  was  marshaled  properly  and  the  

prosecution has without an iota of doubt brought home the guilt of the  

appellant.   Looking at the facts of the case and the manner in which  

the crime was committed, the High Court held that it was a fit case  

where  the  death  sentenced  awarded  by  the  trial  court  should  be  

affirmed.  

9. With the assistance of learned counsel for the parties we have  

perused the judgments of the courts below and the evidence on record.  

In his statement under Section 313 Cr.P.C., the appellant did not plead  

any defence whatsoever. Rather a bald statement had been made that  

he had falsely been implicated and there is no reason on the basis of  

which the evidence of Marimuthu (PW.5) could be disbelieved. More  

so, the appellant had been seen going on the TVS motorcycle with a  

gunny bag and came back without any gunny bag regarding which he  

made the confessional statement before Vijayan (PW.9), V.A.O., the  

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recovery had been made at his instance and the recovery witnesses  

had been examined whose veracity could not be doubted.  

As a result, we do not find any cogent reason to interfere so far  

as the findings of guilt recorded by the courts below are concerned.  

However,  considering  the  facts  and  circumstances  of  the  case  the  

death sentence awarded by the courts below require to be converted  

into life imprisonment but taking note of the diabolic manner in which  

the offence had been committed against a child, it is desirable that the  

appellant should serve minimum sentence of 30 years in jail without  

remission,  though  subject  to  exercise  of  constitutional  power  for  

clemency.  

10. With  the  above  observations,  the  appeal  is  disposed  of  

accordingly.  

            ….....…….……………………..J.    (Dr. B.S. CHAUHAN)

                                 .......……………………………J.                                      (J. CHELAMESWAR)   

                                 .......……………………………J.                                      (M.Y. EQBAL)   

New Delhi, May 2, 2014

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