Balance To Be Struck Between Gravity Of Offence & Quantum Of Punishment: Calcutta High Court Commutes Death Penalty Of Two Men In 5-Yr-Old Girl’s Rape & Murder Case
The Calcutta High Court said that the Trial Judge rightly convicted the Appellants for gang rape, aggravated penetrative sexual assault, murder, kidnapping, abduction of a minor, and destruction of evidence.
Justice Debangsu Basak, Justice Md. Shabbar Rashidi, Calcutta High Court
The Calcutta High Court has commuted the death sentence of two men who were convicted for allegedly raping a five-year-old minor girl in the year 2021.
A Death Reference and a Connected Appeal were heard by the Court arising out of the Judgment of conviction and the Order of sentence passed by the Additional Sessions Judge (ASJ).
A Division Bench of Justice Debangsu Basak and Justice Md. Shabbar Rashidi observed, “Evidence at the trial has established that, the private parts of the victim suffered injuries due to insertion of a bamboo stick therein. The evidence at the trial have also established that, the appellants strangulated the victim to murder her and then, concealed the dead body of the victim. … These conducts of the appellants demonstrate a quality of depravity which shocks the conscience. Balance has to be struck between the gravity of the offence and the quantum of punishment to be imposed.”
The Bench said that the Trial Judge has rightly convicted the Appellants for gang rape, aggravated penetrative sexual assault, murder, kidnapping, abduction of a minor, and destruction of evidence.
Senior Advocate Kallol Mondal represented the Appellants while Public Prosecutor Debasish Roy represented the Respondents.
Case Background
The Trial Judge had convicted the Appellants under Sections 376, 302, 34, 201, 34, 363, and 365 of the Indian Penal Code, 1860 (IPC) and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The victim’s father had lodged a written complaint with the local police stating that her daughter went missing on November 4, 2021, at about 10:00 a.m. from his house. He alleged that the Appellant No. 1 had hidden the victim in some secret place. The local shop owner stated that the said Appellant purchased one packet of biri and a chocolate from his shop.
Subsequently, the father of the victim had come to his shop and asked him about the victim whereupon, he told him that the victim was with the said Appellant. The victim’s uncle stated that the Appellant took the victim towards the paddy field and thereafter, the police recovered the victim in dead condition. His claim with regard to the Appellants raping and murdering the victim was based on hearsay. Allegedly, the victim was assaulted with a bamboo stick which was inserted in the private parts. The Single Judge awarded death penalty to the Appellants and hence, the case was before the High Court.
Reasoning
The High Court in the above context of the case, noted, “Since, we are not in a position to arrive at a conclusive finding that, possibility of reformation of both the appellants stands foreclosed, we are not minded to confirm the death penalty imposed by the learned trial judge, on the appellants.”
The Court enunciated that a Constitutional Court can pass a sentence of imprisonment commuting the death penalty to one for a period which is non remittable, however, the non-remittable portion of the sentence has to be proportionate.
“In the facts and circumstances of the present case, a minor of about 5 years of age was subjected to aggravated penetrative sexual assault by the appellants, after being kidnapped and thereafter murdered. … Although, the report of the State has not foreclosed reformation of the two appellants, at the same time, such report also notes that one of the appellants is undergoing psychological treatment”, it added.
The Court remarked that merely commuting the death penalty to one of life imprisonment simplicitor would not subserve the ends of justice in the facts and circumstances of the case particularly given the nature of the offence committed by the Appellants.
“In such circumstances, taking into consideration the respective age of the two appellants their socio economic background and mental health conditions as also the nature of the crime, we deem it appropriate to impose life sentence on both the appellants without the possibility of remission for a period of 60 years from the date of commission of the offence”, it concluded.
Accordingly, the High Court commuted the death penalty to one of life imprisonment without the possibility of remission for a period of 60 years from the date of commission of the offence.
Cause Title- Fagun Mandi @ Pui and Anr. v. The State of West Bengal and Anr. (Case Number: CRA (DB) 176 of 2024)
Appearance:
Appellants: Senior Advocate Kallol Mondal, Advocates Krishan Ray, Souvik Das, Anamitra Banerjee, and Akbar Laskar.
Respondents: PP Debasish Roy, APP Partha Pratim Das, and Advocate Saryati Datta.
