State Of Tamilnadu Rep By In vs Anandhasekar
- Court
- Madras High Court
RT(MD) No.4 of 2026 and
Crl. A(MD)No.616 of 2026
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 24.06.2026
Pronounced on : 30.06.2026
CORAM:
THE HONOURABLE Mr. JUSTICE N.ANAND VENKATESH
AND
THE HONOURABLE Mr. JUSTICE K.K.RAMAKRISHNAN
RT (MD)No.4 of 2026
and Crl.A(MD) No.616 of 2026
State of Tamil Nadu
rep. by the Inspector of Police,
AWPS Palayamkottai
Tirunelveli District
Crime No.7 of 2023 .. Complainant/Petitioner
Vs.
Anandhasekar .. Respondent/sole accused
Referred trial filed by the State under Section 407 of BNSS
(Section 366 of Cr.P.C.), to confirm the judgment and order dated
09.03.2026 passed in S.C.No.97 of 2023 on the file of the Sessions Judge
for POCSO Act cases, Tirunelveli District.
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For Appellant : Mr.John Sathyan
State Public Prosecutor
assisted by
Mr.G.Karuppasamy pandian
Counsel for State
For Respondent : Mr.V.Kathirvelu
Senior counsel for
Mr.K.Prabhu
Crl.A(MD) No.616 of 2026
Anandhasekar .. Appellant/sole accused
v.
State of Tamil Nadu
rep. by the Inspector of Police,
AWPS Palayamkottai
Tirunelveli District
Crime No.7 of 2023 .. Respondent/Complainant
Appeal filed under Section 415(2) of BNSS (Section 374(2) of
Cr.P.C.), against the judgment and order dated 09.03.2026 in S.C.No.97
of 2023 on the file of the Sessions Judge for POCSO Act cases,
Tirunelveli District.
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For Appellant : Mr.V.Kathirvelu
Senior counsel for
Mr.K.Prabhu
For Respondent : Mr.John Sathyan
State Public Prosecutor
assisted by Mr.G.Karuppasamy pandian
Counsel for State
COMMON JUDGMENT
(Judgment of the Court was delivered by N.ANAND VENKATESH, J)
For the sake of anonymity, the victim girls in this case are referred
to as “x, y and z”.
2. Death sentence awarded to Anantha Sekar / the sole accused in
Spl. SC No.97 of 2023 on the file of the Sessions Judge, Special Court
for POCSO Act cases, Tirunelveli, dated 09.03.2026 is now before this
Court for confirmation under Section 407 of BNSS 2023 (Sec. 366
Cr.P.C) in RT No.4 of 2026.
3. The sole accused has also filed an appeal in Crl.A.No.616 of
2026 challenging the conviction and sentence imposed by the trial court
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in the following manner:
Offences for which convicted (IPC) Sentenced to undergo
450 IPC 10 years rigorous imprisonment
with fine of Rs.5,000/- in default to
undergo simple imprisonment for
six months
366 IPC (3 counts) 10 years rigorous imprisonment
each with fine of Rs.5,000/- for
each count and in default to
undergo simple imprisonment for
six months for each count.
342 IPC (3 counts) One year rigorous imprisonment for
each count with fine of Rs.1,000/-
for each count and in default to
undergo simple imprisonment for
one month for each count.
506(II) (3 counts) One year rigorous imprisonment for
each count with fine of Rs.1,000/-
for each count and in default to
undergo simple imprisonment for
one month for each count.
5(l), 5(m) read with Section 6 of
POCSO Act 2012
Sentenced to death and to pay a fine
of Rs.10,000/- for each count and
since death sentence can be
executed only once, sentence of
death imposed on three counts shall
merge for the purpose of execution
4. The case of the prosecution is that the accused person is a
neighbor to the three minor victim girls (x – 6 years) (y – 8 years) and
(z – 7 years). The parents of the victim girl are daily wage labourers,
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who leave their children in the residential area and go for work in the
early morning and return back late in the evening in order to eke their
livelihood. During week ends, the three victim girls used to play in front
of the house of x's grandmother (PW6). It is alleged that the accused
person used to take these three children inside the house of PW6 and
would lock the door and had committed aggravated penetrative sexual
assault on them. The accused person is said to have threatened and
intimidated the three children not to reveal about the same to their
parents. These incidents are said to have taken place over a period of
nearly one year.
5. On 26.02.2023, at about 10.00 a.m. when PW4 (mother of x),
was folding clothes in the house, x and y were playing and on seeing the
accused person coming out of his house, x rushed into her house. One
Preeth, who was playing with x and y, asked x as to why she ran after
seeing the accused, for which, y stated that the accused person would ask
to remove the undergarments. This was overheard by PW4 and she
immediately asked x and y and they informed PW4 that the accused
person takes them and removes their undergarments and commits sexual
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assault. PW4 became aware of the fact that z was also subjected to
sexual assault. When enquired z also stated about the conduct of the
accused person. PW4 informed the same to the mother of z. It was
decided to set the criminal law in motion.
6. PW4 gave the complaint Ex.P4 to PW19, who registered the
FIR (Ex.P34) in Crime No.7 of 2023. The FIR was registered on
26.02.2023 for offences under Sections 5(l), 5(m) read with 6 of POCSO
Act 2012 (hereinafter referred to as 'the Act'), 342 and 506(II) IPC.
7. The investigation was taken over by PW20. PW20 inspected the
scene of crime in the presence of witnesses Eswaran and Perumal (PW10
and PW11) and the officer prepared the observation mahazar (Ex.P16)
and rough sketch (Ex.P34a). The investigating officer examined the
three victim girls and their parents and recorded their statements under
Section 161(3) Cr.P.C. On 27.02.2023 at about 8.00 a.m., the accused
person was arrested in the presence of witnesses and he was sent to
judicial custody.
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8. The three victim girls were sent to Tirunelveli Government
Medical College and Hospital for conducting medical examination
through PW17, who is the Head Constable. PW17 produced the victim
girls for medical examination before the Doctor PW18.
9. PW18 conducted the medical examination on x and prepared the
accident register (Ex.P27) and the report Ex.P28. Similarly for y, the
accident register was prepared under Ex.P30 and report was prepared
under Ex.P31. For z, the accident register was prepared under Ex.P32
and the report was prepared under Ex.P33. PW20 recorded the
statements of PW19, PW15, PW14 and PW17 under Section 161(3)
Cr.P.C.
10. The further investigation was taken over by PW21. On
01.03.2023, PW21 gave a requisition letter (Ex.P37) to send the accused
person for medical examination and Ex.P38 to record the statement under
Section 164(5) Cr.P.C., from the victim girls. The accused person was
examined by a Doctor and a certificate was issued (Ex.P42). Similarly
the statement of the three victim girls were recorded under Section
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164(5) Cr.P.C. and they have been marked as Ex.P1 to Ex.P3.
11. PW21 gave a requisition for issuance of certificate with regard
to the age of the three victim girls and the certificate regarding age proof
was issued (Ex.P10, Ex.P12 and Ex.P13).
12. After the completion of recording of the statements of
witnesses under Section 161(3) Cr.P.C., and after collecting all the
relevant reports and on completion of investigation, the final report was
laid before the special Court.
13. The trial Court framed charges against the accused person for
offence under Section 450 IPC, 366 (3 counts), 342 (3 counts), 506(II) (3
counts) and Section 5(l), 5(m) read with Section 6 of the POCSO Act
(three counts). The accused person when questioned denied the charges
and refused to plead guilty.
14. The prosecution examined PW1 to PW21 and marked Ex.P1 to
Ex.P42 and relied upon MO1. The court documents Ex.C1 to Ex.C4 were
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also marked.
15. The incriminating circumstances and evidence were put to the
accused person when he was questioned under Section 313(i)(b) of
Cr.P.C., and he denied the same as false.
16. The accused person neither examined any witnesses nor relied
upon any documents.
17. The trial Court, on considering the facts and circumstances of
the case and on appreciation of oral and documentary evidence, came to a
conclusion that the prosecution has sufficiently established the
foundational facts and the accused person was not able to discharge the
reverse burden under Sections 29 and 30 of the POCSO Act and
accordingly convicted and sentenced the accused person in the manner
stated supra. Under such circumstances, the referred trial case and the
criminal appeal have been placed before this court for consideration.
18. The learned Senior counsel appearing on behalf of the
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appellant/accused made the following submissions:
The evidence of PW1 to PW3 is unnatural and at every stage,
●
there is an improvement in the version and it is quite evident that
the victim girls have been tutored;
The alleged occurrence is said to have taken place one year
●
before the complaint was given and for such a serious allegation
made against the accused, the delay is enormous and there is
absolutely no explanation to justify the delay;
● The statements given by the victim girls as if an aggravated
penetrative sexual assault was committed by the accused person is
not corroborated by the medical evidence since PW18, who is the
Doctor who treated the victim girls, did not find any internal injury
in the private parts and the hymen was intact. Therefore, the charge
under Section 5(l), 5(m) read with Section 6 of the POCSO Act has
not been proved by the prosecution;
The statement of all the witnesses recorded under Section 161 (3)
●
Cr.P.C., reached the Court only on 10.05.2023 at the time of filing
the police report and there is absolutely no explanation as to why
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those statements never reached the Court at the earliest point of
time. Insofar as the sentencing is concerned, the trial court did not
appreciate the exaggerated version given by the victim girls and
had relied upon the report of the probation officer, which was not
even shown to the accused person and the questioning was not
done in accordance with Section 235(2) Cr.P.C.;
Even assuming without admitting that the prosecution has made
●
out a case against the accused person, at the best, only the offence
of aggravated sexual assault under Section 9(l), 9(m) read with
Section 10 has been made out and it only attracts a maximum
punishment of seven years.
● The learned Senior counsel for the appellant has relied upon the
judgment of this Court in State v. Murugan (RT(MD) No.2 of
2026 dated 07.04.2026) reported in 2026 (2) MLJ Crl. 556 .
19. Per contra, the learned State Public Prosecutor made the
following submissions:
In a case of sexual assault against children, complaints are not
●
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given immediately and many a times the families are hesitant to
even give a complaint and therefore, the delay in lodging the
complaint can never be a determining factor for an offence under
the POCSO Act;
● The victim girls were hardly 6 to 8 years and it is not within their
mental faculty to explain the incident like how an adult explains
the same and in the instant case, they have given the explanation
by using the words and language to which they have been exposed.
If there are any discrepancies, that will not discredit their
statements and the Court has to necessarily consider their age and
the trauma undergone by the victim girls;
The prosecution has clearly laid the foundational facts and
●
hence, presumption under Sections 29 and 30 to the Act comes into
play and the accused has not discharged his burden;
There was no reason for the three victim girls and their
●
respective mothers to give a false complaint against the accused
person and nowhere the accused person established that there was
an ill motive against him either by putting appropriate questions
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during cross-examination or by providing the necessary
explanation when questioned under Section 313(i)(b) of Cr.P.C.;
In a case of penetrative sexual assault, even the definition under
●
section 3 of the Act makes it clear that such penetration need not
always be with the penis and it includes insertion to any extent
with any object or part of the body not being the penis into the
vagina, urethra or anus of the child and it even extends to applying
mouth to any of these parts of the child. Therefore, the Court has to
take into consideration the manner in which the victim girls have
explained the incident and their explanation clearly brings this case
within the scope of aggravated penetrative sexual assault;
The opinion given by the Doctor is only a relevant fact and it is
●
not necessary that in every case the statement made by the victim
girl must be necessarily corroborated by medical evidence unless
the Court finds the version given by the victim girl to be
completely unnatural and unbelievable;
● Insofar as the sentence is concerned, the trial Court itself has
considered nearly nine aggravating circumstances and found that
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the so called mitigating circumstances does not in any way
outweigh the aggravating circumstances and therefore considering
the heinous crime committed by the accused person, the death
sentence imposed by the trial Court is justifiable. Only if the
extreme punishment of death is imposed in this case, the same will
act as a deterrent for others in the Society who will fear to commit
such offences and face such consequences.
The learned State Public Prosecutor relied upon the judgment of
●
the Apex Court in Manoj and others v. State of Madhyapradesh
reported in 2023(2) SCC 353 .
20. This Court has carefully considered the submissions made on
either side and the materials available on record.
21. This Court has been given an arduous task of dealing with the
heinous crime said to have been committed on three innocent children
inflicting deep emotional and psychological harm during their formative
years and on the other hand to see if the offence has been made out and
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it warrants death sentence to the accused person, whose life is now
hanging in a balance by virtue of the judgment of the trial Court. In view
of the same, this Court will carefully analyze the entire evidence in this
case and first determine as to whether the offence has been made out
against the accused person. Thereafter if the offence has been made out,
this Court will venture into the sentence that has been imposed against
the accused person by the trial Court and take a decision as to whether
the case warrants death sentence or any modification of sentence is to be
granted to the accused person.
22. X was examined as PW1. Her age was six years when she was
examined in Court. After the Court ascertained that she is capable of
understanding the questions and giving reply for the same, recorded the
evidence of PW1. She has stated that she is studying in third standard
and she knows the accused person and he was also identified in the
Court. she has stated that the accused is living in the opposite house and
she used to call him as 'uncle' ( khkh ). She further stated that she along
with y and z used to play near the house of PW6 every Saturday. At that
point of time, the accused person used to drag all three victim girls inside
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the house. Instead of translating the version given by PW1 in the manner
in which the sexual assault took place, it will be appropriate to extract the
same hereunder:
“ ...mg;Gwk; mtq;fSf;F efk; tsu;e;jpUf;Fk;
mij tr;R mtq;f ehd; xd;Df;F NghFk; ,lj;jpy;
nrhuz;Lthq;f. mg;Gwk; vq;f NkNy vy;yhk;
gLg;ghq;f. mLj;J mtq;f mq;Nf> ,q;Nf vy;yhk;
njhLthq;f. mLj;J mtq;f xd;D Nghw ,lj;ij
vq;f xd;D Nghw ,lj;jpy; tr;R gz;Zthq;f
mLj;J vq;f nu];l; &k; NghFk; ,lj;ij ehf;F
tr;R ef;Fthq;f. mLj;J mtq;f ,J gz;Zw
NghyNt vq;fisAk; gz;zr; nrhy;Ythq;f. mg;Gwk;
mtq;f ehd; gz;Zw khjpup vy;yhj;ijAk; gz;Z>
gz;Zd;D nrhy;Ythq;f. mg;Gwk; mDg;gpupah XXXXXXXX XX
[l;bia fow;Wthq;f. mt NkNy vy;yhk; gLg;ghq;f.
mg;Gwk; mt xd;Df;F Nghw ,lj;ij mtq;f ,J
gz;Zthq;f
”
PW1 also states that the accused person used to show a knife and keep it
in her neck and threatened that she should not say it to anyone. The knife
with which the accused used to threaten has been marked as MO1.
23. Y was examined as PW2. Her age was eight years when she
was examined in the Court. After the Court ascertained that she is
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capable of understanding the questions and giving reply for the same,
recorded the evidence of PW2. She has stated that she is studying in
third standard and she knows the accused person and he was also
identified in the Court. she has stated that the accused is related to her
mother. She also has an younger brother. She further stated that she
along with x and z used to play near the house of PW6 every Saturday.
PW2 has explained the sexual assault in the following manner:
“...mg;Gwk; Nrfu; khkh mtq;f bu]; [l;b
vy;yhj;ijAk; fol;blhq;f. vd;Ndhl bu];i]
fol;b vd;Ndhl xd;Df;F Nghw ,lj;Jy mtq;f
xd;Df;F Nghw ,lj;j tr;rp Njr;rhq;f. mg;Gwk;
(ju;d XXXp) itAk; ,Nj khjpup gz;zpdhq;f> mg;Gwk;
(nku XXXp) itAk; ,Nj khjpup gz;Zthq;f”
PW2 has further stated that the accused person used to threaten by saying
that he will strangulate her if the same is informed to the parents. PW2
further states that on a Sunday, she spoke about this to PW1 and another
friend on seeing the accused person and running away from that place
and this was heard by PW4. The entire incident was explained to PW4.
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24. Z was examined as PW3. Her age was seven years, when she
was examined in Court. After the Court ascertained that she is capable of
understanding the questions and giving reply for the same, recorded the
evidence of PW3. She has stated that she is studying in third standard
and she knows the accused person and he was also identified in the
Court. She has stated that she used to address the accused person as
'uncle' ( rpj;jg;gh ). She further stated that she along with x and y used to
play near the house of PW6 every Saturday. At that point of time, the
accused person used to drag all the three victim girls inside the house.
Instead of translating the version given by PW3 in the manner in which
the sexual assault took place, it will be appropriate to extract the same
hereunder:
“Nrfu; rpj;jg;gh te;jhq;f.. vq;fs; (ju;d XXXp)
Mr;rp tPl;Lf;Fs;s $l;bl;L Nghapl;lhq;f. mg;Gwk;
fjt %bl;L vd;Ndhl iel;ba J}f;fpdhq;f.
vd;Ndhl neQ;Ry tha tr;R mOj;jpdhq;f.
vd;Ndhl [l;b fol;b ehd; A+upd; Nghw ,lj;Jy
mtq;f A+upd; Nghw ,lj;j tr;rhq;f. mNj Nghy
(mD XXX) itAk; (ju;d XXXp) Nrfu; rpj;jg;gh ,g;gb
gz;zpdhq;f. mg;Gwk; ehq;f rj;jk; Nghl;Nlhk;.”
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PW3 has stated that the accused person showed the knife and threatened
her stating that the incident should not be told to the parents. She further
states that the accused used to repeat this act every Saturday. At one
point of time, PW4 met the mother of z and thereafter the police
complaint was given.
25. PW4 is the mother of PW1. She has deposed that PW1 is her
elder daughter and that she used to go for work every day at 7 a.m. and
return back at 6.00 p.m. On 26.02.2023, which was a Sunday, when PW4
was folding the clothes, PW1 saw the accused person and ran inside her
house and at that point of time, she informed one Preeth, who was
another friend that the accused person used to commit sexual assault.
PW4 enquired about the same and the sexual assault committed by the
accused person on the three victim girls came to light. It was PW4 who
gave the complaint, Ex.P1, which set the criminal law in motion.
26. PW5 is the mother of PW3. She has stated that PW4 met her
and explained about the incident and when she enquired her daughter
(PW3), she stated that she did not inform about the same due to the threat
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exerted by the accused person. She also speaks about the manner in
which the children used to be sexually abused and also the fact that the
complaint was given to the police by PW4.
27. PW6 is the grandmother of PW1. She has deposed that PW1 is
th
studying in the 4 standard and she complained that she is experiencing
pain in her private parts. Only after she tried to run away on seeing the
accused person and she was enquired, PW6 became aware of the fact that
the accused person had committed sexual assault in her house. She has
stated that she has to go for job at 6.00 a.m. in the morning and returns
back only 4 or 5 p.m. in the evening. She also talks about the threat
exerted by the accused person on the victim girls not to reveal about the
same to anyone.
28. PW7 is the mother of PW2. She has stated that PW3 (z) is her
brother's daughter and that she used to go for work at 6.30 a.m. in the
morning and return back only at 6.00 p.m. She came to know about the
sexual abuse committed on PW2 (y) only when PW2 complained that she
is experiencing pain in her private parts. On enquiry, PW2 has explained
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about the manner in which the accused person had sexually abused the
three victim girls. She reiterates the fact that the accused person used to
repeatedly commit the crime every Saturday.
29. PW8 is the Headmaster, who speaks about the requisition
received from the All Women Police Station, Palayamkottai and the
issuance of certificate for PW2 and PW3 (y and z), which were marked
as Ex.P12 to Ex.P15. The certificates also established the date of birth of
'y' as 23.12.2014 and 'z' as 17.03.2015.
30. PW9 is the father of PW3. He states that PW7 is his sister and
PW4 is his neighbour. He also reiterates whatever was stated by PW4
and PW7.
31. PW10 and PW11 are mahazar witnesses. PW11 turned hostile.
32. PW12 is the witness for the arrest of the accused person, which
took place on 27.02.2023 at 8.00 a.m. and his signature was obtained in
the confession statement given by the accused person which was marked
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as Ex.P19.
33. PW13 is the Headmistress of the School in which PW1 (x) was
studying. Based on the request made by the All Women Police Station,
Palayamkottai, she issued the certificate (Ex.P21 and Ex.P22). That
confirms the date of birth of PW1 as 04.07.2016.
34. PW14 is the Head Constable, who produced the accused
person before the Court on 27.02.2023 and thereafter took the accused
person to the Central Prison, Palayamkottai, when he was remanded to
judicial custody. PW14 also produced the accused person for medical
examination along with PW16 and the requisition letter given to the
hospital was marked as Ex.P25.
35. PW15 and PW16 accompanied PW14, who produced the
accused person before the Court and subjected him to medical
examination.
36. PW17 is the Head Constable, who produced the victim girls x,
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y and z before the Tirunelveli Medical College Hospital on 27.02.2023
for medical examination.
37. PW18 is the Doctor, who conducted medical examination for
PW1, PW2 and PW3 (x,y and z). Insofar as PW1 is concerned, the
accident register copy was marked as Ex.P27 and the medical report was
marked as Ex.P28. In the report, it is mentioned that there were no
external injuries found and the hymen was intact. Vaginal examination
was not conducted, since the mother of PW1 did not give consent.
38. Insofar as PW2 (y) is concerned, the Accident Register copy
was marked as Ex.P30 and the medical report was marked as Ex.P31. It
is mentioned in the report that there were no external injuries and the
hymen was intact. No vaginal examination was conducted since the
mother of the victim did not give consent.
39. Insofar as PW3 (z) is concerned, the accident register copy was
marked as Ex.P32 and the medical report was marked as Ex.P33. On
examination, no external injuries were found and hymen was intact.
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However, redness was noted in the labia majora, urethra and fourchette.
The vaginal examination was not conducted, since the mother did not
give consent.
40. PW19 is the Special Sub Inspector of Police, who received the
complaint (Ex.P1) from PW4 and registered the FIR (Ex.P34) in Crime
No.7 of 2023.
41. PW20 and PW21 are the Investigating Officers, who conducted
the investigation and filed the final report and the procedure adopted by
them in the course of investigation has already been explained supra.
42. The primary contention that was put forth on the side of the
appellant is that the statement of the victim girls is unnatural, suffers with
contradictions and they have improved their version at every stage since
they have been tutored.
43. The rough sketch has been marked as Ex.P34a. In the rough
sketch, it is seen that the house of PW6 is shown as Sl.No.2 and that is
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where the accused person is said to have committed sexual assault on x,y
and z every Saturday. The house of the accused person is right adjacent
to the compound wall and shown as Sl.No.5 in the rough sketch. The
learned senior counsel appearing on behalf of the appellant submitted
that the house of y and z is conspicuously missing and it is not shown as
to how they were present inside the house of PW6.
44. The above contention only deserves to be rejected since the
consistent statement given by the three victim girls is that all of them
used to play during Saturdays near the house of PW6. As already stated
PW6 is none other than the grandmother of x (PW1). The manner in
which these three girls addressed the accused person as ' khkh and
rpj;jg;gh ' shows the proximity of the victim girls to the accused person
and without any doubt he is a known person, who was residing right next
to the compound wall.
45. When the Court appreciates the evidence of children, the Court
should not understand or view it from the perspective of an adult. The
Court has to put itself in the shoes of the victim girl and try to understand
what the victim girl is actually attempting to explain/express. The
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language employed, the expressions used and the slight deviations that
naturally takes place when every time the same incident is spoken by a
victim child, has to be appreciated from the stand point view of the
victim child. The yardstick that is used while appreciating the evidence
of an adult can never be used while appreciating the evidence of a child.
46. A Judge who deals with a case pertaining to sexual abuse
undergone by a child should comprehend the same from the child's
perspective. Hence, a Judge has to show a lot of sensitivity to what the
child is attempting to explain with a caveat ensuring that the child is not
tutored by someone and the child is not telling what someone has already
tutored the child. A focussed understanding of the statement of the child
will clearly reveal as to whether the child is actually speaking or the child
is speaking what it has been tutored. The words used, the language
employed and the way in which the child explains the incident will
enable the Court to appreciate the genuineness of the statement made by
the child. In other words, a professionally and a legally trained mind can
certainly differentiate between a natural statement given by a child and a
statement given after the child has been tutored.
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47. As stated supra, the children in this case were aged about 6 to 8
years. The way they described the incident has already been extracted
supra and this Court consciously decided not to translate what the
children said to comprehend it in the language that was employed by the
children.
48. The conspectus of the statement made before the Court by
PW1 to PW3 (x, y and z) makes it clear that these children used to play
near the house of PW6 every Saturday and the accused person used to
come there and take them inside the house of PW6 and committed sexual
assault on these children. Each child also talks about what was done to
the other two children by the accused person. What has been explained
by PW1 to PW3 cannot be a figment of imagination since at that age no
child gets exposed to such detailed sexual contents. There is consistency
in the statements made by PW1 to PW3 in the manner in which the
accused person used to abuse them on a regular basis over a period of
time. The complaint itself was given after one year and during the
interregnum period, these children have been subjected to sexual assault
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on a regular basis. Therefore, it is not a single incident, which is
attempted to be projected by the children and it is a phenomenon
undergone by them atleast over a period of one year.
49. The learned senior counsel appearing on behalf of the appellant
submitted that the statements of the victim girls recorded under Section
164(5) Cr.P.C. and the statements that were made by the victim girl
before the Court differ and it has been improved at a later point of time.
50. To appreciate the above contention raised by the learned senior
counsel, this Court carefully went through Ex.P1 to Ex.P3.
50.1. Ex.P1 is the statement that was recorded from x and she has
stated as follows:
...ehd; rdpf;fpoik md;W tPl;by;
“
5 ,Uf;Fk;NghJ vq;fs; tPl;bw;F mUfpy; cs;s
vdJ Mr;rp tPl;bw;F nrd;W ehDk; nkh;r XXXXp.
mDg;gpupah XXXXXXXX MfpNahu; tpisahLNthk;. mg;NghJ
Nrfu; khkh Mr;rp tPl;bw;F te;J vq;fs; %d;W
NgiuAk; mtuJ tPl;bw;F $l;br; nrd;whu;.
vd;Dila [l;bia fol;bdhu;. ehd; xd; ghj;&k;
NghFk; ,lj;jpy; mtuJ thia itj;jhu;. gpd;du;
mtUila xd; ghj;&k; nry;Yk; gFjpia
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vd;Dila thapy; itj;jhu;. NkYk; mtUila
nry;iy fhz;gpj;J vd;id gLf;fg;Nghl;L ehd; xd;
ghj;&k; NghFk; ,lj;ij njhl;Lf;
nfhz;Nl ,Ue;jhu;. mjd; gpwF vd;id ntspNa
mDg;gptpl;lhu;. nku;r XXXXp kw;Wk; mDg;gpupah XXXXXXXXit
tPl;bw;Fs;NsNa itj;Jf; nfhz;lhu;. mjd; gpwF
nku;r XXXXp ntspNa te;jhs;. nku;r XXXXpAk; ehDk; mtu;fsJ
tPl;bw;F nrd;W tPl;il G+l;bf; nfhz;Nlhk;.
mDg;gpupah XXXXXXXXTk; ehDk; gpUj;jpfh XXXXXXXTk; Ngrpf;
nfhz;bUe;jNghJ vdJ jhahu; Nfl;Ltpl;lhu;. MfNt
vdJ jhahu; fk;g;sa;z;l; nfhLj;jhu;. ”
50.2. Ex.P2 is the statement recorded from y and she has stated as
follows:
“ ehDk;> jupzpfh> nku;rp XXXXXXXXXXX MfpNahu; tpisahbf;
nfhz;bUe;jNghJ mg;NghJ mq;F te;j Nrfu;
ngupag;gh vq;fis $g;gpl;lhu;. ehq;fs; tukhl;Nlhk;
vd;W nrhd;Ndhk;. mg;NghJ vq;fs; ifia gpbj;J
jupzpfhtp XXXXXXXd; Mr;rp tPl;bw;F ,Oj;Jr; nrd;whu;.
mq;F itj;J vdJ [l;bia fol;lr; nrhd;dhu;.
vd; kPJ gpLj;jhu;. vdJ neQ;rpYk;> fPo;gFjpapYk;
njhl;lhu;. ehd; ,J gw;wp vdJ mk;khtplk;
nrhy;yg;NghfpNwd; vd;gjw;F vdJ rq;if gpbj;J
J}f;fpdhu;. jupzpfht XXXXXXXplk; fj;jpia fhl;b kpul;bdhu;.
Nrfu; ngupag;gh tPl;by; nrhy;yf;$lhJ vd
mbj;jhu;. ehDk;> jupzhfhTk; gpUj;jpfhtplk XXXXXXXXXXXXXXXXXXX; Nrfiu
gw;wp nrhy;ypf; nfhz;bUe;Njhk;. mg;NghJ
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jupzpfht XXXXXXXpd; mk;kh ahu; [l;bia fol;lr; nrhd;dhu;
vdf; Nfl;lhu;. Nrfu; ngupag;gh vq;fsplk; ele;J
nfhz;lij gw;wp tupirahf nrhd;Ndhk;
”
50.3. Ex.P3 is the statement recorded from z and she has stated as
follows:
“...vq;fs; njUtpy; Nrfu; khkh trpj;J
tUfpwhu;. mtUf;F Rgpf;\h XXXXXX vd;w Foe;ij cs;sJ.
ehq;fs; gs;sp tpLKiw ehshd rdpf;fpoik
jpdj;jpy; ehDk;> jupzpfh XXXXXX mDg;gpupah XXXXXXXX MfpNahu;
tpisahLNthk;. me;j rkaj;jpy; Nrfu; khkh te;J
vq;fs; %tiuAk; jupdpfhtpd XXXXXXXX; Mr;rptPl;bw;Fs;
mioj;Jr; nry;thu;. tPl;bw;Fs; nrd;wTld; vq;fsJ
%tiuAk; [l;bia fol;lr; nrhy;Ythu;. ehq;fs;
fol;lhtpl;lhy; fj;jpia fhl;b nfhd;WtpLtjhf
kpul;Lthu;. ehd; [l;bia fol;baTld; A+upd; NghFk;
,lj;jpy; mtuJ ifia itj;J Ruz;Lthu;.
neQ;rpy; ifia itj;J mKf;Fthu;. vdJ
mk;khtplk; ,J gw;wp nrhy;YNtd; vd;wNghJ
vd;id fj;jpahy; Fj;jp nfhd;Wtpl;L rhf;F
%l;ilapy; milj;J tPrptpLNtd; vd;W kpul;bdhu;.
vd;Dld; te;j kw;w gps;isfisAk; mNj Nghy;
jhd; nra;thu;. xt;nthU rdpf;fpoikAk; vq;fis
$l;br; nrd;W neQ;R gFjpapy; thia itg;ghu;.
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mjd; gpwF mtq;f Aupd; NghFk; ,lj;ijAk; ehd;
A+upd; NghFk; ,lj;ijAk; xd;whf itg;ghu;. clk;G
KOtijAk; njhl;L eRf;Fthu;. vd; mk;khtplk;
nrhd;dhy; fj;jpahy; Fj;jptpLNtd; vd;W nrhd;dhu;.
vdJ jhahUf;F jupzpfh XXXXXX mk;kh jhd;
nrhy;ypAs;shh;...”
51. The above statements were recorded from PW1 to PW3 on
17.03.2023. PW1 was examined in the Court on 24.07.2023. PW2 was
examined in the Court on 11.12.2013 and PW3 was examined in the
Court on 11.12.2013. Thus, there was a time gap between the statement
recorded under Section 164(5) and the statement that was recorded
before the Court as evidence. During this period, these children would
have had the unfortunate experience of explaining this incident to the
close family members, police, Public Prosecutor etc. and there would
have been some response from them and as a result, a child's mind would
have grasped it and as a consequence, the subsequent statements made by
them is bound to have some exaggerations and embellishments.
Therefore, what is expected of a Court while appreciating the evidence of
a child witness is to see whether the substratum of the allegations made
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by the child touching upon the sexual abuse/assault undergone by the
child is consistent in every statement. In short, the Court has to separate
the chaff from the grain.
52. This Court, on carefully reading the evidence of PW1 to PW3
and the statements recorded from them under Section 164(5) Cr.P.C.,
finds that the sexual assault underwent by them over a period of time and
the threat that was exerted on them not to reveal it to anyone is
consistent. In fact, it was PW4, who is the mother of PW1, who
overheard what her daughter (PW1) said to one Preeth. That day
(26.02.2023) brought the entire incident to light. This evidence of PW4
is natural and cogent and there is no element of exaggeration. She found
PW1 running into the house on seeing the accused person and she heard
what PW1 told to Preeth and only thereafter she became aware of what
happened to the three victim girls. She thereafter follows up with the
families of PW2 and PW3 and the criminal law is set in motion. This is
perfectly in line with the statement made by the victim girls to the effect
that they were subjected to threat by the accused person not to reveal it to
anyone. If PW4 had not overheard what PW1 informed to Preeth,
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probably the sexual abuse would have continued for some more time,
since PW1 to PW3 did not inform the parents about the abuse suffered by
them in the hands of the accused person due to fear.
53. Insofar as the sense of fear is concerned, again the Court has to
look at it from the stand point view of a child. What may cause fear to a
child may not have the same impact on an adult. Therefore, the fear has
to be understood by the Court from the perspective of the child.
Applying the same to the facts of the present case, this Court finds that
the children have been subjected to threat and fearing the same, these
children have not informed anything to their parents.
54. The next logical question that a Court has to put to itself is as
to why these three children must pin point the accused person and state
that they were subjected to sexual assault by him. To start with, it is not a
natural conduct for a child to make an allegation of sexual assault on any
person since a child may not even know at that age what a sexual assault
is all about. If any such allegation is made by a child, the only plausible
defence on the side of the accused person would be that there is a motive
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behind such allegations. In such an event, it is for the accused person to
establish what that motive is by either putting suggestions during cross-
examination of the witnesses or explaining the same when questioned
under Section 313(i)(b) of Cr.P.C. or by examining defence witness. If
that is not done, the statement made by the victim girls will remain intact
without being controverted. In the case in hand, the accused person
nowhere has explained or established as to what is the motive against
him for giving such a serious complaint of sexual assault.
55. This Court carefully went through the cross-examination of
PW1 to PW7 and PW9 and it is seen that their evidence in chief remains
unshaken and it has not been discredited. Even though it looks like a
detailed cross-examination, most of the questions were irrelevant and
unwarranted.
56. A lot of hue and cry is made about the delay in lodging the
complaint. In a case of this nature, the families are very hesitant to lodge
a complaint and prosecute a criminal case considering the impact it
would have from the Society. Any parent would want to avoid Court
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proceedings since they may not want their child to undergo the trauma of
facing Court proceedings at that age and facing unpalatable questions
during trial, which will further aggravate their agony. In reality, there
may be many such sexual abuses taking place and only a few reaches the
Court and the rest suffer the agony silently. Therefore, the delay in
lodging the complaint can never be a defence when it comes to sexual
offences and particularly when it pertains to a child. Even if delay is
raised as a defence, it is for the accused person to establish as to how that
delay itself is a result of some motive to give a false complaint against
the accused person. Therefore, the contention raised regarding delay in
lodging the complaint stands rejected.
57. The next issue is regarding the delay in the statement recorded
under Section 161(3) Cr.P.C. In a case involving an offence under the
Act, the investigation process is expedited and it is completed within a
very short time and therefore, in many cases, the statement recorded, the
reports collected etc. are filed along with the police report. In the case in
hand, the FIR was registered on 26.02.2023 and the final report had been
taken on file on 09.05.2023. Therefore, the investigating officer was
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focussing on completing the investigation on time and it was over within
three months. In view of the same, the statements recorded from
witnesses reaching the Court at the time of filing the final report does not
in any way vitiated the case of the prosecution. Ultimately the Court has
to see whether the evidence let in before the Court gets weakened due to
such delay caused in sending statements under Section 161(3) Cr.P.C. to
Court. All those procedural infirmities that are flagged in traditional
penal offences, cannot be blindly followed in a case of this nature. This is
in view of the fact that the statement of the victim girl, if found entirely
reliable, is enough for the Court to convict and sentence a person and all
the other procedural formalities and the so called contradictions will take
a back seat. Hence, the contention made on the side of the appellant in
this regard stands rejected.
58. The prosecution has proved the foundational facts in this case.
Once that is done, Sections 29 and 30 of the POCSO Act comes into play.
Thereafter the principle of reverse burden gets triggered and it is for the
accused person to rebut the legal presumption failing which the Court
shall presume that the person has committed the offence and he had the
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mental state to commit such offence. In the case in hand, the accused
person did not rebut this legal presumption by even remotely establishing
that there was an ill-will or motive in giving the complaint against him
and prosecuting the case before the Court of law. In view of the same,
the offence under the POCSO Act stands proved.
59. The next issue to be gone into is as to whether the materials
placed before the Court makes out a case for aggravated penetrative
sexual assault or it only makes out a case for aggravated sexual assault.
60. Section 3 of the Act defines penetrative sexual assault and for
proper appreciation, the same is extracted hereunder:
“3. Penetrative sexual assault.—A person is said
to commit “penetrative sexual assault” if—
(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes the
child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part
of the body, not being the penis, into the vagina, the
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urethra or anus of the child or makes the child to do so
with him or any other person; or
(c) he manipulates any part of the body of the
child so as to cause penetration into the vagina, urethra,
anus or any part of body of the child or makes the child
to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina,
anus, urethra of the child or makes the child to do so to
such person or any other person”
61. The legislature has thought it fit to provide exhaustive
definition for this expression. Sub clause (a) contemplates penetration
with penis. Sub clause (b) contemplates insertion to any extent any object
or a part of the body not being the penis. Sub clause (c) deals with
manipulation of any part of the body of the child so as to cause
penetration. Sub clause (d) visualizes a situation where the mouth is
applied on the various parts of the body of the child and this is
considered as penetrative sexual assault by the legislature. Such an
exhaustive definition has been given only to ensure that no one escapes
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by taking a technical plea that the prosecution has not made out a case of
penetration with penis. This exhaustive definition was required
considering the fact that the Act itself applies only to a child whose
genitals are not fully grown like an adult. Therefore penetration as is
understood for an adult cannot be made applicable to a child and
therefore, the legislature has consciously given an exhaustive definition
for the term penetrative sexual assault.
62. Section 4 of the Act provides for punishment for penetrative
sexual assault.
63. Having understood the definition of penetrative sexual assault,
this Court must now analyse the materials and see if it satisfies the
requirement of Section 3 of the Act. If it satisfies the requirements of
Section 3, this Court must take the next step of seeing if the given
materials also satisfy the requirement of Section 5(l) and 5(m) of the Act,
which is punishable under Section 6 of the Act.
64. One of the main contention that was raised on the side of the
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appellant is that the medical reports marked as Ex.P28, Ex.P31 and
Ex.P33 show that the hymen was intact and there were no external
injuries since insofar as x and y are concerned, the genital was also found
normal and insofar as z is concerned, the genital was found with redness.
None of the mother permitted PW18 to conduct vaginal examination for
x,y and z. Therefore, according to the learned Senior Counsel appearing
on behalf of the appellant, there is no material to show that the accused
person committed penetrative sexual assault.
65. The relevant portion in the depositions of PW1 to PW3 have
been extracted supra. PW1 specifically talks about the accused person
using his fingers and stroke the vagina. Apart from that he also kept his
penis over the vagina of PW1. He has also used his tongue over the
vagina.
66. Insofar as PW2 is concerned, she states that the accused person
kept his penis on her vagina.
67. Insofar as PW3 is concerned, she has stated about that the
accused person keeping his penis on the vagina. These depositions are
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further corroborated by the statements recorded under Section 164(5)
Cr.P.C. which have been marked as Ex.P1 to Ex.P3.
68. The description given by PW1 to PW3 on the sexual act
committed by the accused person clearly brings it within the definition of
penetrative sexual assault since it satisfies sub clause (a), sub clause (b)
and sub clause (d).
69. In the light of the above finding, this Court must go into the
next issue as to whether the requirement under Section 5(l) and 5(m) are
satisfied. Without any doubt, the requirements are satisfied since the
accused person has committed the offence of penetrative sexual assault
repeatedly over a period of time and such assault was made on children
who were all below 12 years.
70. As a consequence of the above finding, the accused person
becomes liable for punishment under Section 6 of the Act.
71. In the light of the above finding, it is not necessary for this
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Court to deal with the scope of sexual assault and aggravated sexual
assault.
72. As far as the charge under Section 450 IPC is concerned, the
accused person is said to have trespassed into the house of PW6 in order
to commit the offence of penetrative sexual assault. PW6 has confirmed
that the house where the offence was committed is her house. The
evidence of PW1 to PW3 confirms that they were playing in front of the
house of PW6 and the accused person got into the house and thereafter
dragged the three children. PW6 also explains that the accused person
was aware as to where the key was kept and made PW1 bring the key and
had opened the house and thereby got access to the house of PW6. This
evidence clearly establishes that the ingredients of Section 442 of IPC
has been satisfied since upon trespass an offence has also been
committed which is punishable for imprisonment for life. Thus, the
ingredients of Section 450 IPC is also made out.
73. Insofar as charge under Section 366 IPC is concerned, the
evidence of PW1 to PW3 and PW6 makes it clear that the accused person
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had the intention to remove the victim girls from the place where they
were playing to the house of PW6 for the purpose of committing
penetrative sexual assault on all the three victim girls over a period of
time. Thus, the charge under Section 366 IPC has also been proved by
the prosecution.
74. The charge under Section 342 IPC is also clearly proved since
PW1 to PW3 were confined in the house of PW6 and the door was
locked from inside and the children were prevented from moving out of
the house.
75. Insofar as the charge under Section 506(II) IPC is concerned,
the evidence of PW1 to PW3 clearly demonstrates the fact that the
accused person had criminally intimidated the children by showing the
knife and threatening them with dire consequences.
76. In the light of the above discussion, insofar as the offence
under Section 5(l), 5(m) read with Section 6 of the Act, the prosecution
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has proved the foundational facts beyond reasonable doubts and the
accused person has failed to rebut the reverse burden. Insofar as IPC
offences are concerned, the prosecution has proved the case beyond
reasonable doubts.
77. This Court has to now venture into the correctness or otherwise
of the sentence that has been imposed by the trial court and more
particularly the capital sentence imposed on the accused person for the
charge under Sections 5(l), 5(m) read with Section 6 of the Act.
78. The trial Court has considered the nature and gravity of the
offence and whether it falls within the category of rarest of rare cases.
Thereafter, it has drawn up the balance between the aggravating
circumstances and the mitigating circumstances.
79. There cannot be any iota of doubt that the case in hand by its
very nature and gravity is very serious and it deserves a stringent
punishment. When it comes to an offence like murder, the life of a
person/persons is taken away. In a case involving sexual offence and
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more particularly the offence committed on a child under the POCSO
Act, the dignity and the soul of the child is destroyed. Atleast in a case
of murder, the life is lost and thereafter nothing remains. However, in a
case of this nature, the life continues but the soul is lost. It results in the
trauma carried by the child throughout the life and in many cases it
makes the existence in this world very painful. Therefore in the
considered view of this Court, cases of this nature deserves more
stringent punishment than cases involving murder, dacoity etc. In a case
of this nature, the dignity and soul is butchered and without that it
becomes a bare existence in this planet and therefore, it has to be
considered to be even more heinous than an offence committed on the
body of the person. Subtle is stronger than the gross and it has more
impact on a person. In offences against human body, the impact is more
on the gross and in an offence of sexual assault on a child, it is an offence
on the dignity and soul of the child and its impact is severe at multi fold
levels.
80. The trial court has taken the following aggravating
circumstances:
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(a) The three victim girls are aged from 6 to 8 years and at that age,
their childhood innocence and future has been destroyed;
(b) The life of three children has become entirely vulnerable and it
is an age where they are dependant on elders for protection and it is an
elder person, who has committed the offence and therefore it shocks the
collective conscience of the community;
(c) The offence has been committed every Saturday over a period
of one year in a systematic and premeditated manner which demonstrates
deep rooted depravity and complete lack of remorse;
(d) the children were looking at the accused person as their uncle
( khkh and rpj;jg;gh ) and were carrying the love and respect for this
person and the accused person has exploited this trust and committed the
most heinous crime betraying the trust;
(e) There is extreme depravity and planning on the part of the
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accused person to commit the offence, whereby he makes PW1 bring the
key and opens the door of the house of PW6 and commits the offence
inside the house. On the one hand, the accused person has exploited the
innocence of children and on the other, it expose the animal inside him,
which was looking for an opportunity to exploit the children;
(f) The accused person was repeatedly threatening the children by
placing the knife in the neck or attempting to strangulate or threatening
the children stating that he will kill them and their parents, if they
disclose about the incident;
(g) the children were dragged into the house and the door was
locked from inside and the children were not allowed to move out of the
house and the accused person commits the offence against one girl in the
presence of the other two and the innocent child apart from suffering the
assault is also witnessing the assault suffered by the other two children;
(h) The amount of threat exhibited by the accused person is
evident from the fact that PW1 on seeing the accused person runs inside
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the house and tells about the incident to her friend and that shows the
deleterious impact created and which has already embedded in the minds
of three innocent children. These are all symptoms of deep
psychological trauma and these are scars which these children will be
carrying for the rest of their life. In most cases this psychological harm
becomes irreversible;
(i) The report of the probation officer marked as Ex.C1 which
shows that the accused person is a habitual criminal against whom many
cases have been registered and some of the cases were pending;
81. The mitigating circumstances that were taken into
consideration by the trial Court are the age of the accused person, who
was 38 years at the time of incident, the financial status and the
background of the accused person, who claims to be a coolie worker and
the sole breadwinner of his family comprising of his wife and children
and the possibility of reformation of the accused person.
82. We had an opportunity to deal with the scope of the various
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punishments that have been provided under Section 6 of the Act and how
to determine the quantum of punishment in a given case. The relevant
case is State v. Murugan reported in 2026 (2) MLJ (Crl.) 556 and the
relevant portions are extracted hereunder:
“8.Principles Laid Down by the Hon’ble Supreme
Court: The law on the scope of confirmation proceedings is
no longer res integra. It is well settled that, in a reference
under Sections 407 to 412 of the BNSS, 2023, which
correspond to Sections 366 to 371 of the CrPC, 1973, and
earlier to Sections 374 to 381 of the CrPC, 1898, the High
Court has a statutory as well as constitutional obligation to
scrutinize the entire material, both on facts and law,
uninfluenced by the conclusions of the trial Court, and to
satisfy itself whether the conviction is sustainable and
whether the case falls within the category of the “rarest of
rare” warranting imposition of capital punishment.
8.1.In the case of Masalti v. State of Uttar Pradesh, a
Bench of Four Judges of the Hon’ble Supreme Court and a
bench of three Judges the Hon’ble Supreme Court in the case
of State of T.N. v. Rajendran, (1999) 8 SCC 679 and AIR 1977
SC 2046, have held as follows:
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AIR 1965 SC 202 8. ...Section 374 provides that the
sentence of death shall not be
executed unless it is confirmed by
the High Court. In other words,
the sentence of death imposed by
the Court of Sessions is not
effective until and unless it is
confirmed by the High Court. It is
only when the High Court
confirms the sentence of death that
it is capable of execution. That is
why this Court emphasised the
solemnity of the proceedings
brought before the High Court
under Section 374, and it pointed
out that under Section 375, the
High Court is given the power to
admit additional evidence if it
thinks necessary to do so.
Proceedings brought before the
High Court for confirmation of a
death sentence give a right to the
condemned prisoner to be heard
on the merits and to require the
High Court to consider the matter
for itself without being influenced
by the conclusions recorded by the
Court of Session. The conclusions
of the High Court on the merits in
such proceedings must be
independent, and so, the High
Court inevitably has to go into the
whole of the evidence, consider all
the pros and cons of the case and
satisfy itself that the offence
charged under Section 302 IPC is
established beyond reasonable
doubt and the sentence of death
submitted to it for its confirmation
is fully justified.
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State of T.N. v. Rajendran, (1999) 8
SCC 679
5...... When a reference is made to the
High Court under Section 366 of the
Code of Criminal Procedure by the
learned Sessions Judge on passing a
sentence of death, the High Court
has to satisfy itself whether a case
beyond reasonable doubt has been
made out against the accused for
infliction of the extreme penalty of
death. The proceedings before the
High Court in such a case require a
reappraisal and reassessment of the
entire facts and law so that it can
come to its independent conclusion
but while so doing, the High Court
cannot also totally overlook the
conclusion arrived at by the learned
Sessions Judge. In performing its
duty, the High Court is of necessity
bound to consider the merits of the
case itself and has to examine the
entire evidence on record. The
legislature having provided in the
confirmation proceedings, a final
safeguard of the life and liberty of the
subject in cases of capital sentences,
the duty of the High Court becomes
more onerous to consider
independently the matter carefully
and examine all relevant material
evidence and come to a conclusion
one way or the other. It is, therefore,
the duty of the High Court in a death
reference to consider the evidence
afresh. If the impugned judgment of
the High Court is scrutinised bearing
in mind the aforesaid parameters, the
conclusion becomes irresistible that
the High Court as a court of appeal
has failed to exercise its power under
Section 386 of the Code of Criminal
Procedure and instead of discharging
its bounden duty to examine the
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8.2.From the above reading of the provisions and
reiterated principles of Hon’ble Supreme Court the
confirmation proceedings of death sentence impose a dual
and heightened responsibility upon the High Court and the
High Court must independently examine whether the guilt of
the accused has been proved beyond reasonable doubt, based
on the entire evidence on record and only upon being fully
satisfied about the correctness of the conviction, the Court
must further to determine whether the present case falls
within the category warranting extreme penalty of death. This
Court went through principles governing capital punishment
in the following cases:
Sl.
No
Case Laws Citations
1 Bachan Singh v. State
of Punjab,
(1980) 2 SCC 684
2 Machhi singh vs, State
of Punjab
(1983) 3 SCC 470
3 Bhagwani v. State of
M.P.,
(2022) 13 SCC 365
4 Hari v. State of U.P., (2021) 17 SCC 111
5 Ravishankar v. State of
M.P.,
(2019) 9 SCC 689
6 Shatrughna Baban
Meshram v. State of
Maharashtra,
(2021) 1 SCC 596
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7 Shiva Kumar v. State
of Karnataka,
(2023) 9 SCC 817
8 Rajendra Pralhadrao
Wasnik v. State of
Maharashtra,
(2012) 4 SCC 37
9 Shankar Kisanrao
Khade v. State of
Maharashtra,
(2013) 5 SCC 546
10 Rajendra Pralhadrao
Wasnik v. State of
Maharashtra,
(2019) 12 SCC 460
11 Sangeet v. State of
Haryana,
(2013) 2 SCC 452
12 Harendra Rai v. State
of Bihar,
(2023) 13 SCC 563
13 Manoj Pratap Singh v.
State of Rajasthan,
(2022) 9 SCC 81
14 Bhagchandra v. State
of M.P.,
(2021) 18 SCC 274
15 Mohd. Mannan v. State
of Bihar,
(2019) 16 SCC 584
16 State of T.N. v.
Rajendran,
(1999) 8 SCC 679
17 Ram Deo Prasad v.
State of Bihar,
(2013) 7 SCC 725
18 Masalti v. State of U.P., 1964 SCC OnLine SC
30
19 Mohd. Arif vs Supreme
Court of India
2014 9 SCC 737
20 Ram Deo Prasad v.
State of Bihar,
(2013) 7 SCC 725
21 Bhagwani v. State of
M.P.,
(2022) 13 SCC 365
22 Mohd. Mannan v. State
of Bihar,
(2019) 16 SCC 584
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23 Ravishankar v. State of
M.P.,
(2019) 9 SCC 689
24 Rajendra Pralhadrao
Wasnik v. State of
Maharashtra,
(2019) 12 SCC 460
25 Swamy Shraddananda
(2) v. State of
Karnataka,
(2008) 13 SCC 767
26 Union of India v. V.
Sriharan,
(2016) 7 SCC 1
27 Shatrughna Baban
Meshram v. State of
Maharashtra,
(2021) 1 SCC 596
28 Sandesh v. State of
Maharashtra,
(2013) 2 SCC 479
29 Sangeet v. State of
Haryana,
(2013) 2 SCC 452
30 Ramnaresh v. State of
Chhattisgarh,
(2012) 4 SCC 257
9.Apart from the reference, this Court is also required
to adjudicate upon the appeal preferred by the appellant
under Section 427 BNSS(386 Cr.P.C.) Thus, in exercise of its
appellate as well as confirmatory jurisdiction, this Court is
duty-bound to independently evaluate the evidence and
determine:
(i) whether the prosecution has proved the charges
framed against the accused beyond reasonable doubt; and
(ii) whether the sentence of death imposed by the trial
Court is justified in law.
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10.Having regard to the irreversible nature of the
death penalty and its direct bearing on the fundamental right
to life and personal liberty, this Court is required to bestow
proper and meticulous appreciation while considering the
evidence and law.
...
18. It is true that the statutory framework under the
Protection of Children from Sexual Offences Act, 2012, as
amended in 2019 permits imposition of the death penalty in
appropriate cases of aggravated penetrative sexual assault.
However, such statutory permissibility is subject to the
constitutional limitations and judicially evolved principles
governing capital sentencing. Therefore it is necessary to
recapitulate the settled principles governing the award of
death penalty as laid down by the Hon’ble Supreme Court In
Bachan Singh v. State of Punjab, The Constitution Bench
authoritatively held that death penalty can be imposed only in
the “rarest of rare” cases, where the alternative option of life
imprisonment is unquestionably foreclosed. The Apex Court
emphasized that life imprisonment is the rule and death
penalty is an exception, to be resorted to only when the
circumstances of the crime are so exceptional that no other
punishment would suffice. The said principle was further
elaborated in Machhi Singh v. State of Punjab, wherein the
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Hon’ble Supreme Court laid down broad categories and
guiding factors for identifying cases that may fall within the
“rarest of rare” doctrine, including the manner of
commission of the crime, the motive, the magnitude of the
offence, and the personality of the victim. In subsequent
decisions, the Hon’ble Supreme Court has consistently
reiterated the necessity of a balanced consideration of
aggravating and mitigating circumstances, and has cautioned
against mechanical imposition of the death penalty. The
jurisprudence has progressively evolved to mandate a
principled sentencing inquiry, often referred to as the “crime
test” and the “criminal test”, followed by the “rarest of rare”
test.
18.1.Recent pronouncements after Mohd. Arif vs
Supreme Court of India. have further emphasized a more
cautious and restrained approach in awarding capital
punishment, particularly requiring courts to consider the
possibility of reformation and rehabilitation of the accused, as
well as the adequacy of alternative punishments such as life
imprisonment for the remainder of natural life. It is also
pertinent to note that even in cases involving offences under
the POCSO Act, including those coupled with extreme
aggravating factors, the Hon’ble Supreme Court has, in
appropriate cases, commuted the death sentence to
imprisonment for life till the end of natural life, upon finding
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that the case did not satisfy the stringent threshold of the
“rarest of rare” category.
18.2. Under the amended provisions of Section 5 of the
Protection of Children from Sexual Offences Act, the
legislature has expansively enumerated more than twenty-six
categories of aggravated penetrative sexual assault, with a
view to comprehensively addressing and curbing the manifold
forms of sexual exploitation of children. The provision is thus
deliberately structured to capture not merely conventional
forms of abuse, but also those aggravated situations arising
out of relationship, authority, vulnerability, and circumstances
of the victim. Correspondingly, Section 6 of the Act prescribes
a graded, three-tier sentencing framework, thereby equipping
the Court with the discretion to impose punishment
proportionate to the gravity and particularities of the offence.
Broadly, cases falling under Section 6 of the Act may be
classified into three categories:
Category (A) — cases warranting minimum sentence of
twenty years
Category (B) — cases justifying rigorous imprisonment
for life, including imprisonment for the remainder of the
natural life of the convict; and
Category (C) — the exceptional class of cases falling
within the “rarest of rare” doctrine, where the death penalty
alone would meet the ends of justice.
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18.3.The statutory framework provides for death
penalty across multiple categories without the
accompaniment of sufficiently crystallised statutory
guidelines and the application of capital punishment under
the POCSO regime has not yet been comprehensively guided
by authoritative pronouncements of the Apex Court. In this
backdrop, this Court makes a conscious and cautious
endeavour to delineate the circumstances under which capital
punishment may justifiably be imposed.
18.4.The statutory scheme itself reflects a graded
sentencing structure —beginning with a minimum sentence of
twenty years, extending to imprisonment for the remainder of
the natural life of the offender, and, in the rarest cases,
culminating in the death penalty. This hierarchy unmistakably
positions capital punishment as a measure of last resort.
Therefore, the imposition of the death penalty cannot be
mechanical or routine. It must be reserved for the gravest and
most exceptional cases where the alternative punishments are
unquestionably inadequate. The difficulty in formulating rigid
sentencing guidelines has already been underscored by the
Constitution Bench in Bachan Singh v. State of Punjab
reported in (1980) 2 SCC 684, as well as in subsequent
decisions, which caution against straitjacket formulae in
matters involving the ultimate death penalty.
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18.5.It is true that a three-Judge Bench of the
Honourable Supreme Court, in Sandurguna Baban Meshram
v. State of Maharashtra reported in (2021) 1 SCC 596,
undertook a detailed consideration of the amended provisions
and held that the application of Section 376A, even from the
date of the Ordinance, does not offend Article 20(3) of the
Constitution. Honourable Supreme Court has collated the
total number of death penalty cases of 40 years and observed
as follows;
35.1.Out of these 67 cases, this Court affirmed
the award of death sentence to the accused in 15
cases. In three (at Sl. Nos. 26 A, 33-A and 41-A) out
of said 15 cases, the death sentence was commuted to
life sentence by this Court in review petitions. Out of
remaining 12 cases, in two cases (where review
petitions were heard in open court in terms of law
laid down in Mohd. Arif v.Supreme Court of
India[Mohd. Arif v. Supreme Court of India, (2014) 9
SCC 737 : (2014) 5 SCC (Cri) 408] ), namely, in
cases at Sl. Nos. 51-A and 65-A, the death sentence
was confirmed by this Court and the review petitions
were dismissed. Thus, as on date, the death sentence
stands confirmed in 12 out of 67 cases where the
principal offences allegedly committed were under
Sections 376 and 302 IPC and where the victims were
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aged about 16 years or below
35.2.Out of these 67 cases, at least in 51 cases
the victims were aged below 12 years. In 12 out of
those 51 cases, the death sentence was initially
awarded. However, in 3 cases (at Sl. Nos. 26-A, 33-A
and 41-A) the death sentence was commuted to life
sentence in review.
35.3.In 2 out of aforesaid 67 cases (at Sl. Nos.
58 and 67), the offences were committed on
23-2-2015 and 22-5-2015 respectively i.e. after the
Amendment Act received the assent of the President
and was published on 2-4-2013 (but given
retrospective effect from 3-2-2013). The conviction
was also under Section 376 A IPC and the evidence
showed specific acts such as drowning the victim or
throttling her. In the first case, the age of the victim
was 5 years while in the second case the victim was
aged 13 years. In the first case the sentence imposed
by this Court was 25 years of imprisonment without
remission while in the second, the life sentence for the
remainder of the life of the accused, was imposed.
19. Finally in that case, the Hon'ble Court ultimately
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commuted the sentence from death to life imprisonment by
applying the settled principles governing sentencing under the
pre-amended legal framework. Interestingly in the case of
Manoharan v. State, reported in (2020) 5 SCC 782, the
Hon'ble Supreme Court has taken the amendment 2019 to
confirm the death penalty. 20.Criminal adjudication involving
the Capital punishment contemplates two stages VIZ: the
stage of conviction and the stage of sentencing. At the stage of
conviction, the prosecution bears the heavy burden of proving
guilt beyond reasonable doubt. At the stage of sentencing the
burden assumes an even graver dimension. It is a settled
principle that before imposing the death penalty, the Court
must arrive at a clear and unequivocal conclusion that life
imprisonment is manifestly inadequate.In this regard, the
Constitution Bench in Union of India v. V. Sriharan @
Murugan authoritatively recognised the Court’s power to
impose a modified form of life imprisonment—either for a
fixed term beyond remission or extending till the end of the
natural life of the convict. This doctrinal development
provides courts with a constitutionally sound alternative
between standard life imprisonment and capital punishment.
In this context, a meaningful jurisprudential distinction must
be drawn between the death penalty and imprisonment for
the remainder of natural life :
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Death penalty Life imprisonment till natural
Death
Death penalty as a final act —
immediate, absolute, and
irreversible. It ends not just the
person’s life, but also any future
moral evolution: no repentance,
no remorse, no transformation.
Life imprisonment (till natural
death) as a process — ongoing,
reflective, and psychologically
enduring. It forces the
individual to live with what
they’ve done, potentially
experiencing guilt, regret, or
even moral awakening over
time.
From above, it is clear that the death penalty is final,
immediate, and irreversible. It extinguishes not only life but
also the possibility of repentance, remorse, or moral
transformation. It brings certainty, but at the cost of
foreclosing any future reckoning. By contrast,life
imprisonment till the end of natural life is a different
jurisprudential instrument. It is a living punishment and
sterner justice and a continuing process of accountability.
Furthermore, where the death penalty closes the book, life
imprisonment forces the offender to read every page, again
and again, for the rest of their natural existence. .It is a
condition and a continuum. It allows for the slow-burning fire
of realisation, where guilt may deepen, remorse may emerge,
and the weight of one s actions may be felt with increasing
intensity.It condemns the convict to a ceaseless confrontation
with his crime, a lifelong dialogue with his own conscience,
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an unending expiation in the solitude of incarceration. It
compels the offender to live with the consequences of his
actions, to endure the passage of time within the confines of
incarceration, and to confront, day after day, the weight of his
crime and simultaneously ensuring that the offender remains
permanently excluded from society and resultanely, within the
solitude of incarceration, time itself becomes the medium of
punishment, stretching endlessly and compelling reflection.
Therefore, this Court is persuaded to observe that this living
punishment of Life imprisonment till natural Death to
consider an alternative sentencing philosophy rooted in what
may be described as the enduring retributive effect of
punishment as such a sentence is not a lenient alternative, but
punishment with
rather a more enduring and severe form of
following intensity of suffering:
(i) ensures prolonged deprivation of liberty and
compels the offender to endure the consequences of his
actions every single day.
(ii) imposes a continuous psychological burden,
forcing the convict to live with the weight of his crime
throughout his lifetime
(iii) remains alive to reckon with their past
20.1.Therefore the legislature in its wisdom prescribed
the punishment of imprisonment for life for the remainder of
natural life in a case which warrants punishment more severe
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than the statutory minimum, yet does not satisfy the rigorous
threshold of the “rarest of rare” doctrine as a calibrated
sentencing structure by the way amendment 2019 to Section 6
of Protection of Children from Sexual Offences Act, 2012.
Section 6 prescribes a minimum sentence of twenty years’
rigorous imprisonment, extends to imprisonment for life
(which may mean incarceration for the remainder of natural
life), and reserves the death penalty for the most extreme
cases. This tripartite structure demonstrates that capital
punishment is intended not as a norm, but as a measure of last
resort.In adjudicating offences under the POCSO Act, the
Court must proceed with heightened sensitivity. The crime is
abhorrent, the victim vulnerable, and societal outrage intense.
Yet, justice cannot be allowed to award of death sentencing
mechanical manner. In the absence of specific post-
amendment guidelines from the Honourable Supreme Court,
and having regard to the legislative intent underlying the
Protection of Children from Sexual Offences Act, this Court
has undertaken an exercise to analyse the various categories
of offences enumerated under Section 5 of the Act. Based on
such analysis, this Court has endeavoured to identify, within
the framework of the statute, the circumstances under which
(i) the minimum fixed term of 20 years ought to be imposed,
(ii) the sentence of life imprisonment extending to the
remainder of natural life would be warranted, and (iii) the
extreme penalty of death may be justified.
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...
28.Discussion on section 5(l) pertaining to penetrative
sexual assault on a child more than once or repeatedly: (l)
whoever commits penetrative sexual assault on the child more
than once or repeatedly; or Honourable supreme court in this
type of numerous cases including “Bhanei Prasad alias Raju”
case reported in 2025 SCC Online SC 1636 has awarded life
sentence till the natural death and this court holds that other
punishment of either 20 years or death sentence is not
advisable for the reason that this Court is duty bound to
follow the foot steps of the Hon'ble Supreme Court to
commute the death penalty into life imprisonment till the
natural death.
29.Discussion on section 5(m) pertaining to
penetrative sexual assault on a child below twelve years:
1. whoever commits penetrative sexual assault on a
child below twelve years;
29.1.Children under the age of twelve are at a critical
stage of physical and psychological development. Their
bodies are not equipped to endure penetrative acts, which can
result in severe and often irreversible internal injuries. At the
same time, their minds lack the cognitive maturity to
comprehend or process such trauma, leaving deep and lasting
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psychological harm. The younger the child, the more
devastating and permanent the impact, both physically and
emotionally. Recognizing this heightened vulnerability, the
law treats such offences with utmost severity. The 2019
amendment specifically emphasized this age group,
prescribing the maximum penalty as a deterrent, in
acknowledgment of the extreme gravity and moral
reprehensibility of such acts. In the case of offence committed
after the victim has attained puberty without causing injuries
only one time, 20 years RI and with injury and repeated times
without causing injuries, life imprisonment till natural death
and in the case where victim has not attained puberty, offence
has been committed only one time and there are no injuries,
life imprisonment and with injury and repeatedly, punishment
is death penalty.”
83. The trial court, upon weighing the aggravating circumstances
and mitigating circumstances and also after considering the probation
officer's report, came to a conclusion that the aggravating circumstances
outweighed the mitigating circumstances and there was no justification
for leniency and consequently the case falls under the category of rarest
of rare cases and since the sentencing must reflect both the harm caused
to the children and also the societal expectation that the children safety is
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paramount and the sentence must convey a strong message to society and
serve as a deterrent to persons, who exploit children particularly holding
the position of trust, the trial Court thought it fit to impose the maximum
punishment of death penalty.
84. In the case in hand, the accused person is a married person and
he has children. In his age, the mental faculty is fully developed and he
knows what is right and what is wrong. All the aggravating factors
against the accused person has already been pointed out supra. The so
called mitigating factors does not in any way outweigh the aggravating
factors. In the confirmation proceedings of death sentence, there is a
dual and heightened responsibility upon the high Court since the high
court has to independently examine the judgment and order of the trial
Court and see to it that the prosecution has established the case beyond
reasonable doubts and satisfy itself on the correctness of the conviction
and thereafter determine whether the case falls within the category of
rarest of rare cases warranting extreme penalty of death.
85. The Apex Court has repeatedly emphasized that life
imprisonment is a rule and death penalty can only be an exception and it
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has to be resorted to only when the circumstances of the crime are so
exceptional that no other punishment would suffice.
86. In the above judgment, at Paragraph Nos.28 and 29, we have
dealt with the nature of punishment to be awarded where the offence falls
under Sections 5(l) and 5(m) of the Act. On analyzing the various
judgments of the Apex Court, we find that where the cases falls under
Section 5(l), the maximum punishment that has been awarded is life
sentence till the natural death. However, when it comes to the charge
under Section 5(m), this Court took into consideration the fact that
children under the age of 12 are at a critical stage of physical and
psychological development and their bodies are not equipped to endure
penetrative acts. This Court also took into consideration the fact that the
minds of such children lack the cognitive maturity to comprehend such
trauma that leaves deep and lasting psychological harm. The younger the
child, it causes more devastation both physically and emotionally. In
these cases, the Court has to recognize the vulnerability of the children
on the one hand and the extreme gravity and moral reprehensibility of
such acts. The Courts must also inform the society that such acts will not
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be tolerated and imposing death sentence in such cases alone will send a
strong message to the Society and serve as a deterrent to prevent such
heinous crimes from being committed in future. The system has to ensure
to every child that they are growing in a society which will take care of
them and will ensure safe passage into their adulthood. In the absence of
this assurance, every child will grow up in a vulnerable atmosphere and
culprits with deprived minds will get an impression that they can get
away by committing such crimes by comfortably staying inside the jail.
87. In the case in hand, not one but three children have been
subjected to aggravated penetrative sexual assault repeatedly over a
period of one year and all these children are in the age group of 6 to 8
years. The modus operandi adopted by the accused person has been
discussed in detail. The accused person does not deserve any leniency
and any punishment less than death sentence will fall short of the societal
expectation that the children safety is paramount. The accused person,
who has destroyed the soul and dignity of three children, is not fit to live
in the society and for the heinous crime committed by him, he has to
necessarily lose his life.
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Epilogue:
88. The measure of a society’s civilization is found in how it
protects its most vulnerable and no one is more vulnerable than a child
trusting the sanctity of a home. The accused before us did not merely
commit a crime against the physical body; he executed a calculated,
systematic campaign of terror that shattered the innocence of three young
souls. By weaponizing fear, wielding threats of death, and forcing these
children to witness the violation of one another, he did not just break the
law but he extinguished the light of their childhood and left in its place a
lifetime of haunting shadows.
89. A crime so grotesque, so utterly devoid of a shred of human
conscience, demands a judicial response that mirrors society’s collective
abhorrence. To spare the life of a perpetrator who showed such cold-
blooded, protracted cruelty would be an act of misplaced mercy,
rendering the law a silent spectator to the destruction of the innocent. It
would send a devastating message to the community: that the soul of a
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child is cheap, and that a monster may trade the lifelong peace of his
victims for the comfort of a prison cell.
90. We are acutely aware that the death penalty is an extraordinary
measure, reserved exclusively for the "rarest of rare" cases where the
alternative is unquestionably foreclosed. This case stands as the tragic
epitome of that exception. The law must possess a spine of steel when
dealing with those who prey on children to satisfy their darkest instincts.
Let this judgment serve as a stark, unyielding warning to any who
believe they can manipulate, terrorize, and destroy the youth of our
nation with impunity.
91. By confirming this sentence, this Court does not act out of
vengeance, but out of a solemn duty to justice, deterrence, and the
restoration of the moral order. For actions that have effectively slain the
souls of three innocent children, the law can offer no sanctuary. The
prisoner has forfeited his right to walk among humanity.
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92. We are reminded of the judgment of the Apex court in
Madangopal Kakkad v. Naval Dubey and another reported in 1992(3)
SCC 204 where the Apex court held thus:
“Judges who bear the sword of justice should not
hesitate to use that sword with utmost severity to the full
and to the end if gravity of the offence so demands”.
The case in hand demands wielding that sword with utmost severity since
gravity of the case so demands.
93. In the light of the above discussion, the conviction and
sentence imposed by the trial court is confirmed. Consequently, RT(MD)
NO.4 of 2026 is answered by confirming the death sentence imposed by
the trial Court in Spl. SC No.97 of 2023 dated 09.03.2026 for the charge
under Section 5(l), 5(m) read with Section 6 of the Act. The conviction
and sentence imposed for the other charges also stand confirmed.
Consequently, Crl.A(MD) No.616 of 2026 is dismissed.
94.(a) The Registry is directed to communicate this order forthwith
to the trial Court;
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(b) There shall be further direction to the Registry to redact the
names of the victim girls from all the trial court records including the
reference made in the judgment of the trial court;
(c) The Registry is also directed to serve a copy of this judgment to
the appellant, who is confined at Central Prison, Palayamkottai, free of
cost and
(d) the jail authorities are also directed to provide necessary legal
assistance to the appellant to prefer appeal against this judgment, if the
appellant so desires.
[N.A.V, J.] & [K.K.R.K, J.]
30.06.2026
NCC : Yes
Index : Yes
RR
To
1.The Registrar (Judicial)
Madurai Bench of Madras High Court,
Madurai.
2.The Sessions Judge for POCSO Act cases,
Tirunelveli District.
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3.The Inspector of Police,
AWPS Palayamkottai Police Station,
Tirunelveli District.
4The Superintendent of Prisons
Central Prison
Palayamkottai.
5.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
6.The Section officer (English Records)
Madurai Bench of Madras High Court,
Madurai.
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N.ANAND VENKATESH, J
AND
K.K.RAMAKRISHNAN, J.
RR
Judgment made in
RT(MD) No.4 of 2026 and
Crl. A. (MD)No.616 of 2026
30.06.2026
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