Allahabad High Court Commutes Death Penalty To Life Term For Not Less Than 25 Yrs Sans Remission In Minor Cousin's Rape-Murder Case

The Court modified the sentence while observing that the offence was of a heinous and diabolic nature, but it may not be said that brutality was committed against the victim for causing her death.

The Court also took into account that the accused was not a man of criminal antecedents, and it couldn't be said that he is incorrigible or a menace to society, and he cannot be reformed or rehabilitated.

However, a bench of Justice Rajiv Gupta and Justice Ram Manohar Narayan Mishra upheld the judgment of conviction, noting that the circumstances proved in the case unerringly point towards the accused's guilt, and he had been rightly convicted for offences under Sections 376 AB and 302 IPC as well as Section 5 / 6 POCSO Act.

The case in brief

As per the FIR lodged in the case, on March 17, 2019, 17.03.2019 the 8-year-old victim had gone to her neighbourhood and thereafter, she went missing. The victim's mother was informed by her villagers that they had seen her daughter together with the accused.

The next morning, the girl's body was spotted in a wheat field with marks of strangulation. In the FIR, it was specifically alleged that the accused had committed rape and murder of the minor girl.

Based on the evidence led in the matter, the trial court in December 2020 concluded that it was a horrifying incident in which a girl child 8 years of tender age was allured by the accused, who is her relative.

Importantly, the Court noted that the accused had lured the victim on the pretext of getting her biscuit and took her away to a field and committed rape on her.

Thus, the Court found him guilty of committing rape on her and subsequently smothered her to death by gagging her mouth and was sentenced to the death penalty.

Arguments advanced before the HC

Arguing against the conviction of the accused, the counsel for the appellant submitted that the investigation was faulty and tainted; the samples taken from dead body for DNA examination were never sent for Forensic Examination.

It was also contended that no medical examination was done when the accused was arrested, and no sample was taken from his person for DNA examination, and since the victim was her cousin sister, there was no occasion for him to commit such a dastardly act against her.

Lastly, it was argued that only evidence appearing against the accused is that of the last seen together with the victim, which is not conclusive to convict an accused.

On the other hand, the counsel for the state contended that as the victim was last seen together with the accused, the accused was obligated under Section 106 of the Evidence Act to explain what happened to the victim thereafter, which he failed to do and thus, it was a proper case of conviction.

High Court's observations

Hearing the death reference as well as the appeal filed by the accused, the Court, after taking into account the submissions made by the parties as well as the judgment of the trial court, found the following circumstances to be going against the accused:

• The four witnesses of last seen were not manufactured, but natural, they were examined by the Investigating Officer on the next day of lodging of FIR, who clearly deposed that they had seen the victim with the accused;
• Description of wearing apparel of the victim given by her mother corresponded to those recovered from her person at the postmortem report;
• While no internal or external injury was found on private part of the victim in her postmortem report, yet the report stated that blood was oozing out from her private parts and her clothes were smeared with blood;
• Accused admitted in his statement under Section 313 CrPC that had given Rs.10/- note to the victim to bring tobacco and thereafter followed her and took her alongwith him to a secluded place; and
• It is proved by medical evidence that the death of the victim was homicidal.

Importantly, the Court stressed that once the factum of last seen was proved by evidence of witnesses of facts, the burden was upon the accused to explain that when did he leave the company of the victim.

The Court noted that since he failed to discharge his burden under Section 106 Evidence Act, there was no factual or legal error in the trial court's findings, and the accused was convicted of a charge under Sections 376 AB and 302 IPC.

So far as the death penalty was concerned, the Court observed thus:

"…we find aggravating circumstance such as the tender age of the victim, her helpless situation, the relationship of the victim with the accused due to which she reposed trust in her, when he took her alongwith him the gruesome crime of child rape and subsequent murder of the victim by pressing her mouth by asphyxiating her by smothering and leaving the dead body on the place of incident. The mitigating circumstances are that, the accused was a young man of tender age, the offence is mainly based on circumstantial evidence of last seen together. The offence although being of heinous and diabolic nature, but even then on the facts of the case, it may not be said that brutality was committed against the victim for causing her death. The appellant is not a man of criminal antecedents and is a common villager, he is in jail custody since inception of the case, which took place in the year 2019. It cannot be said that appellant is incorrigible or he is a menace to society and he cannot be reformed or rehabilitated".

Considering the facts of the instant case, the Court concluded that the appellant must undergo life imprisonment for not less than 25 years without remission of sentence for the charge under Section 302 IPC.

The Court also commuted the death sentence awarded for charge under Section 376 AB IPC to 20 years rigorous imprisonment and directed that all the sentences shall run concurrently.

With the aforesaid modification, the appeal qua conviction was dismissed. However, the appeal qua sentence was partly allowed and the sentence was modified to the aforesaid extent.

Appearances

Senior Advocate and Amicus Curiae Vinay Saran, assisted by Advocates Pradeep Kumar Mishra and Amicus Curiae Beena Mishra, appeared for the appellant.

AGA AN Mulla, AGA Arun Kumar Pandey, and AGA SS Tiwary, appeared for the State.