Shocks Conscience Of Society But Not The Rarest Of Rare Case: Chhattisgarh HC Commutes Death Sentence Of Man Convicted For Rape & Murder Case Of 7-Yr-Old Girl
|The Chhattisgarh High Court commuted death sentence imposed upon a man into imprisonment for life in a rape and murder case of a 7-yr-old girl and held that this was not the rarest of rare case in which major penalty of sentence of death awarded had to be confirmed.
The High Court also observed that though it shocks the conscious of the society at large, but considering the young age of the appellant, extreme sentence of death penalty is not warranted in the facts and circumstances of the case.
The Division Bench comprising Chief Justice Ramesh Sinha & Justice Amitendra Kishore Prasad said, “...there is no evidence on record that the appellant cannot be reformed or rehabilitated as at the time of offence he was aged about 29 47 years and he is a member of Other Backward Class, thereby he belongs to backward community and his chances of being reformed or rehabilitated cannot be ruled out.”
Advocate Palash Tiwari represented the Appellant while Deputy Advocate General Shashank Thakur represented the Respondent-State.
The appellant, in this case, had been awarded death sentence by the Additional Sessions Judge (Fast Track Special Court – POCSO) after having found him guilty for offence punishable under Sections 302 of the Indian Penal Code read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 ( POCSO Act) and also under Section 363, 366 and 201 of the IPC. He had been sentenced to death by hanging under sub-section (5) of Section 354 of the CrPC.
The incident is of the year 2021, when the appellant had enticed away the deceased, a 7-yr-old girl along with her brother to attend a function wherein the appellant left the brother at the function. The appellant allegedly took the deceased girl near the railway tracks & committed forceful sexual intercourse rape with the deceased and hit her head with a heavy stone. This led to her death. He threw her body on the nearby railway tracks due to which the body was mutilated. The facts of the case suggested that the appellant used to reside in the maternal home of the deceased as he was a close friend of the maternal uncle of the deceased.
The contention raised by the appellant-accused was that once the prosecution failed to bring home the offences charged to and found proved against the appellant beyond reasonable doubt and there was no direct or indirect evidence to hold him guilty.
Referring to the judgment in Shatrughna Baban Meshram v. State of Maharashtra (2022), it was also submitted that s if the Court found proof that offence against the appellant under Section 302 of the IPC was established, the offence, if any, would be covered by Section 300 Fourthly of the IPC and therefore death sentence could be commuted to life sentence. It was also pleaded that the age of the appellant was about 29 years at the time of the incident and there was every chance of his being reformed and rehabilitated.
The Bench, at the outset, made it clear that the deceased was only 7 years 4 months and 7 days of age on the date of offence and therefore for the purpose of Section 363 of the IPC, she (victim/girl) was a minor below 18 years of age on the date of offence. The theory of last seen together was duly established from the testimonies of mother, brother of the deceased and one Dimple Vishwakarma (PW-11).
As per the Bench, based on appreciation of oral and documentary evidence on record, the trial Court rightly concluded that the prosecution had proved the offence under Section 363 of the IPC against the appellant beyond reasonable doubt. “In the instant case, the appellant had taken away the deceased victim with an intent to commit illicit intercourse with her as the offence of sexual assault has been found proved by the prosecution which satisfies the requirement of Section 366 of the IPC. As such, the prosecution has proved the offences under Sections 363 & 366 of the IPC beyond reasonable doubt…”, it said.
It was the case of the prosecution that the appellant had committed penetrative sexual assault upon the deceased victim as she suffered 4 injuries on her genital area and a total of 16 injuries were found on her whole body. These were proved by the statement of the Doctor. The fact that rape had been committed with the deceased was further corroborated by the DNA report which was proved by the Senior Scientific Officer of the State FSL, Raipur.
“It is well settled law that DNA report deserves to be accepted as bona fide evidence unless it is absolutely dented by defence and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance for the DNA analysis”, it said. It was further noticed that the Scientific Officer had categorically stated before the court that DNA samples as well as report of the DNA profile were prepared with all precautions and with scientific measures and standards. The report in which DNA samples developed through blood samples of the accused were found matching with the DNA profile were developed through the Vaginal Swab and Slide Cervical Swab and Slide and the Nail Clipping of the deceased victim. Not only this but the appellant was also found capable of committing sexual intercourse by the Doctor who had examined the accused.
“The aforesaid medical evidence clearly leads to the conclusion that the appellant had committed sexual intercourse with the deceased victim and is guilty of committing penetrative sexual assault with the minor victim. In view of the provisions contained in Section 42 of the POCSO Act, the appellant has been sentenced to death under Section 6 of the said Act”, it said. It was also duly proved that the death of the deceased was homicidal in nature. The same was also stated by the Doctor who conducted the postmortem of the deceased girl.
The next issue before the Bench was whether the case fell under the category of rarest of rare case justifying capital punishment. The Bench noted that the Supreme Court in umpteen number of judgments have laid down principles for awarding capital punishment for which the balance between aggravating circumstances and mitigating circumstances has to be struck. Seven other factors like, age of the accused, possibility of reformation and lack of intention of murder have also to be gone into the judicial mind.
Further referring to Section 354(3) of the CrPC and the judgment of the Apex Court in Manoj and others v. State of Madhya Pradesh (2022), the Bench observed that the Court is required to hold that it is a case of rarest of rare warranting imposition of only death sentence.
Coming to the facts of the case, the Bench noticed that the trial Court convicted the appellant and sentenced him to death on the same date without taking into consideration the probability of the appellant being reformed and rehabilitated. It was noticed that the Trial Court had only taken into consideration the crime and the manner in which it was committed and had not given effective opportunity of hearing on the question of sentence to the appellant.
Considering the report which was said to be absolutely normal in jail and the fact that his chances of being reformed or rehabilitated couldn’t be ruled out, the Bench said, “Though it shocks the conscious of the society at large, but, yet, in the facts and circumstances of the case, considering the young age of the appellant, upon thoughtful consideration, we are of the view that extreme sentence of death penalty is not warranted in the facts and circumstances of the case. We are of the opinion that this is not the rarest of rare case in which major penalty of sentence of death awarded has to be confirmed. In our view, imprisonment for life would be completely adequate and would meet the ends of justice.”
Thus, partly allowing the appeal, the Bench directed the commutation of death sentence into imprisonment for life and further ordered that the life sentence must extend to the imprisonment for the remainder of the natural life of the appellant.
Cause Title: Dipak Baghel v. State of Chhattisgarh (Neutral Citation: 2024:CGHC:46243-DB)
Appearance:
Appellant: Advocate Palash Tiwari
Respondent/State: Dy. Advocate General Shashank Thakur