Convict Must Stay Inside Prison Until Closer To Sunset Of His Virility: Punjab & Haryana High Court Commutes Death Sentence In 5-Yr-Old’s Rape & Murder Case

The Punjab and Haryana High Court has commuted the death sentence of a man in a case involving rape and murder of a 5-year-old minor girl in the year 2018.

The convict had filed Criminal Appeals, challenging his conviction and the Trial Court had sent the Reference to the Court, seeking confirmation of the death sentence.

A Division Bench comprising Justice Anoop Chitkara and Justice Sukhvinder Kaur remarked, “The relevant facts proved and established on the record indicate the gruesome crime because Laado was walking with the convict, swaying her one hand and letting the convict hold her other hand in absolute trust, without the mental age or information to suspect the probable evil of a devil. However, the convict has no criminal antecedents, and his conduct in prison is not violative, which makes reformation possible. To save the other kids and females, the convict must stay inside the four walls of the prison until he is closer to the Sunset of his virility.”

The Bench emphasised that any sentence to be proportionate must be stable and balanced like a table, and for any table to be stable, all its legs must be comparable.

Advocate Hoshiar Singh Jaswal appeared for the Appellant/Convict, while Addl. AG Rahul Mohan appeared for the Respondent/State.

Facts of the Case

The victim was a girl child aged 5 years and in the afternoon of May 31, 2018, she was raped and murdered allegedly by her father’s employee i.e., the Appellant (convict). The victim’s father worked as a small-time tent installer, and convict had been working with him for about 5-6 years. In the morning of the incident, victim’s father along with convict had gone to install a tent. They returned around noon, and convict went to victim’s father’s home to bring his lunch. While bringing lunch, the victim also accompanied him and given the simmering hot summers, after taking food, victim’s father fell asleep at the workplace itself. Taking advantage, the convict allegedly took hold of the victim’s hand and led her to his home, where he raped her and thereafter killed her with a kitchen knife, and hid her body in a big kitchen container wherein his mother used to store flour (Atta), after emptying it. At that time, convict’s mother had gone out for duty. When victim’s father questioned the convict, he claimed that the girl had accompanied him only to the workplace. Some villagers pointed out that they had seen the victim with convict, and he was taking her towards his home.

There was a private school in the vicinity, where CCTV cameras had been installed. The school's owner was contacted, who, along with the technician, played the video recordings from the Digital Video Recorder [DVR], and all of them saw the convict taking the victim by holding her hand. On this, the family members, along with others, reached convict’s home, where his mother, convict Kamla Devi, was present. When they enquired about victim and convict, she denied their presence. In response, the people forced their way into her house and on opening the lid of the container, victim’s body was concealed in it. Resultantly, an FIR was registered and the Trial Court held both the convict and his mother guilty. The Appellant was convicted under Sections 302, 376 AB, 120-B, 366, and 201 of the Indian Penal Code, 1860 (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to death along with a fine of Rs. 10,000/-. His mother was convicted under Sections 120-B and 201 of IPC. Hence, the case was before the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, observed, “Although there are precedents awarding death sentences, imprisonment for life specifying that it shall continue until the end of natural life, life imprisonment without specifying a minimum mandatory incarceration, and life imprisonment specifying a minimum mandatory incarceration, a large number of these cases were based on various factors and circumstances peculiar to the facts of those cases. As such, the Courts have to form their independent opinion after considering all available aggravating and mitigating factors primafacie proved or not disputed in a given case.”

The Court said that the Courts, while awarding a sentence, are under an obligation to consider the (a) Crime, (b) Victim, (c) Criminal and his family, and (d) Society and the State.

“… the death sentence is commuted to the rigorous imprisonment for life; however, considering the victim's age to be 5 years and 7 months, we are convinced to impose a sentence of 30 years, without remission, which, in the peculiar facts and circumstances, would be justified and would also safeguard the other girls on the street from the pervertedness of the convict. Further, the fine amount is enhanced to Rs. 30,00,000/-”, it held.

The Court directed that fine, whatever is recovered, shall be paid to the victim’s parents and siblings in equal shares, and the concerned Court shall take steps to disburse the fine, and all the Authorities concerned shall fully cooperate in tracing the victim’s parents and siblings, so that the fine can be distributed evenly to all who are surviving at the time of disbursement.

“The Trial Court to order the destruction of all other case property in accordance with rules, notifications, and office orders, if any, after six months of the pronouncement of this Judgement, and if any SLP/Appeal/Review/Curative Petition is filed before the Hon’ble Supreme Court of India, then as per their directions, if made qua the case property, and if no such directions are made, then after six months of the final order of the Hon’ble Supreme Court”, it concluded.

The Court, therefore, commuted the death sentence to rigorous imprisonment for life and imposed a sentence of 30 years on the Appellant, without remission. It also enhanced the fine amount to Rs. 30 lakhs.

Accordingly, the High Court partly allowed the Appeal, commuted the death sentence of the Appellant, and acquitted his mother.

Cause Title- State of Haryana v. Virender @ Bholu (Case Number: MRC-2-2020)

Appearance:

Appellant: Advocate Hoshiar Singh Jaswal

Respondent: Addl. AG Rahul Mohan, DAGs Karan Sharma, Shiva Khurmi, Yuvraj Shandilya, Advocates Bhimsham Kumar Majoka, and Mansi.

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