S. VIMALA, J.

“Not all scars show

Not all wounds heal

Not all illness can be seen

Not all pain is obvious

Remember this before passing Judgment on another”,

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

2. Gruesome, brutal and inhumane murder of the child, whose ambitions have been aborted and life a flamed, for which the accused has been made responsible by the trial court by imposing death penalty. The justifiability or otherwise of the death penalty has to be tested by this Court as per the mandate of Section 366 of the Code of Criminal Procedure.

3. Criminal Appeal No.234 of 2018 is filed by the accused/appellant in S.C. No.133 of 2018 challenging the conviction and sentence imposed upon him, while R.T. No.1 of 2018 is made by the learned Sessions Judge Mahila Court, Chengalpet, seeking confirmation of the death sentence.

4. The appeal as well as the reference are disposed of by this common judgment.

5. The accused was tried before the learned Sessions Judge on the allegation that on 05.02.2017, at about 06.00 p.m., when the deceased, who was aged about 7 years, was playing in the ground floor along with other children, the accused kidnapped the deceased and took her to his flat with the intention to commit sexual assault on the deceased and in furtherance of the said intention, the accused took the deceased to the bedroom, molested and killed her. Later, the accused burnt the body of the deceased using petrol, in order to erase the evidence and to escape from the clutches of law.

6. The accused faced trial in respect of charges under Sections 363, 366, 354-B, 302 and 201 IPC and Sections 8 r/w 7 and 6 r/w 5 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). On being found guilty, the accused was convicted and sentenced as under:-

Section of Offence	Sentence- Imprisonment
U/s 363 IPC	7 years
U/s 366 IPC	10 Years
U/s 354-B IPC	7 Years
U/s 201 IPC	7 Years
U/s 6 r/w 5 of POCSO Act	10 Years
U/s 8 r/w 7 of POCSO Act	5 Years
U/s 302 IPC	Death

      The prosecution case in nutshell:

7. The parents of the deceased, Babu and Sridevi, believing in human beings, left their girl child just outside their flat and went for shopping on 5.2.2017 at about 6.00 pm. After returning back, their voices for their daughter did not get any response. Without realizing that they are going to see only the skeletal remains of their dear and beloved child, they searched frantically for their daughter. The initial search for their daughter along with their neighbours, including the accused, thereafter, with the aid of the police machinery, yielded no results. The passion driven father, frantic in his efforts to find a clue as to the whereabouts of his daughter, searched through the video footage available with the nearby Temple, which ultimately bore fruit in the form of a lead as to the mode by which the girl might have been whisked out of the place. The clueless police, till then, took the clue furnished by the frantic father, but nearly after 40 hours, browsed through the video footage and the repeated viewing enabled them to have a clue regarding the involvement of the accused in the crime which ultimately led to finding out the burnt body of the deceased on the dawn of the gloomy day of 8.2.2017.

8. P.W.s 1 and 2 are the father and mother of the deceased. On the fateful day, i.e., 05.02.2017, the case of the prosecution unfolds that, after giving milk