His Intellectual Functioning Fell Under Category Of Mild Mental Disability: Calcutta High Court Commutes Death Sentence Of Man Accused Of Raping 2.5 Yr Old Girl
The Calcutta High Court reiterated that imposition of death penalty should be resorted to if the circumstances of the case and the evidence led therein leave an impression that the option of imposition of any other penalty stands foreclosed.
Justice Debangsu Basak, Justice Md. Shabbar Rashidi, Calcutta High Court
The Calcutta High Court has commuted the death sentence of a man who was accused of raping a 2.5-year-old girl child.
The Court was deciding a Death Reference and the Appeal, assailing the Judgment of conviction and Order of sentence passed by the Chief Judge, City Sessions Court.
A Division Bench comprising Justice Debangsu Basak and Justice Md. Shabbar Rashidi observed, “We have considered the impugned judgment as well as the psychological evaluation report in respect of the appellant. The appellant is 45 years of age. His psychological evaluation report suggests that his current intellectual functioning fell under the category of mild mental disability which could be attributed to his nil education. The socio economic report of the appellant represents that the appellant was the only child of her parents. His father died before his death and was brought up by his mother who worked as agricultural labourer. His life has been reeling under poverty.”
The Bench reiterated that imposition of death penalty should be resorted to if the circumstances of the case and the evidence led therein leave an impression that the option of imposition of any other penalty stands foreclosed.
“Possibility of future reformation is also a relevant factor to be taken into consideration while awarding death sentence to a convict”, it added.
Senior Advocate Kallol Mondal represented the Appellant while Public Prosecutor (PP) Debashish Roy represented the Respondent.
Facts of the Case
As per the prosecution case, the victim was aged about 2.5 years and on the alleged date of incident, she was sleeping with her grandmother (Complainant). In the night when she woke up to feed milk to the victim, she could not be found. The Complainant raised hue and cry and reported the matter to the neighbours. A search operation was conducted by several persons but the victim was not found. On the following morning when the children of the slum went towards Victoria to collect food, they saw a body of the victim lying in the drain. The children reported such recovery to the grandmother of the victim. The Police took the dead body to the hospital where she was declared dead. As per the prosecution, dead body contained bleeding from nostrils and ears and there were other injuries on other parts of the body like chin, head, etc. The autopsy surgeon had found as many as 17 injuries on the victim’s body. The evidence so adduced also suggested that the victim being a child, was subjected to sexual assault before her death and in order to wipe out the evidence of crime, she was killed.
The Appellant was accused of kidnapping her from her residence, committing sexual assault upon her, and murdering her. The Appellant was convicted for the offences punishable under Sections 364, 376A, and 302 of the Indian Penal Code, 1860 (IPC) as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to death for the offence punishable under Section 302 IPC and was also sentenced to suffer rigorous imprisonment of 8 years along with a fine of Rs. 5,000/- for the offence punishable under Section 364 IPC. He was further sentenced to suffer rigorous imprisonment of 20 years and a fine of Rs. 50,000/- and in default of payment of such fine to undergo rigorous imprisonment for a further period of 5 years for the offence punishable under Section 376A IPC. He was also sentenced under the POCSO Act.
Reasoning
The High Court in view of the facts and circumstances of the case, observed, “In the case at hand, as noted hereinbefore, the appellant is aged 45 years and comes from a very poor economic background. He was married but his wife has left the appellant. He used to reside alone in the horse stable. The circumstances of the case do not suggest that the offence committed was preplanned or was an outcome of any rivalry or enmity with the family of the victim. As has been held by the Hon’ble Supreme Court in many cases that every murder is gruesome but does not justify death penalty.”
The Court said that it is not in a position to return a finding that the offence involved in the case at hand falls under the category of “rarest of rare cases” to justify the punishment of death.
“Therefore, taking into consideration the entire facts and circumstances of the case discussed hereinbefore and in consideration of the ratio laid down by the Hon’ble Supreme Court, we are minded to commute the death sentence awarded to the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860, into one of life imprisonment”, it further noted.
Considering the age of the Appellant as well as other circumstances obtaining from the facts of the case, the Court was of the view that the imprisonment of life so awarded to the Appellant shall mean imprisonment for life without remission until 50 years from the date of his arrest.
“The other portions of the sentence imposed by the impugned judgment and order for the offences punishable under Section 376A/364 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 are affirmed”, it concluded.
Accordingly, the High Court disposed of the Death Reference along with the Appeal and commuted the death sentence of the Appellant.
Cause Title- Suresh Paswan v. State of West Bengal (Case Number: Death Reference No. 02 of 2019 With C.R.A. 384 of 2019)
Appearance:
Appellant: Senior Advocate Kallol Mondal, Advocates Krishan Ray, Souvik Das, Anamitra Banerjee, Isita Kundu, and Akbar Laskar.
Respondent: PP Debasish Roy, Advocates Trina Mitra, and Antarikha Basu.
