Himachal Pradesh High Court
State Of H.P vs Akash on 30 December, 2022
Bench: Sabina, Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
DSR No. 1 of 2022 a/w Cr. Appeal No. 219 of 2022 Reserved on: 05.12.2022 Decided on: 30.12.2022 ___________________________________________________________ DSR No. 1 of 2022 State of H.P. ....Appellant Versus Akash ....Respondent Cr. Appeal No. 219 of 2022 Akash ....Appellant Versus State of H.P. ....Respondent Coram The Hon'ble Ms. Justice Sabina, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? Yes. For the appellant(s) : Mr. Vikrant Chandel, Deputy Advocate General, for the appellant/State in DSR No.1 of 2022.
Mr. Sahil Malhotra, Advocate, for the appellant in Cr. Appeal No. 219 of 2022.
For the respondent(s) : Mr. Sahil Malhotra, Advocate, for the respondent in DSR No.1 of 2022.
Mr. Vikrant Chandel, Deputy ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 2 Advocate General, for the respondent/State in Cr. Appeal .
No. 219 of 2022.
Sushil Kukreja, Judge Accused Akash, was tried by the learned Additional District & Sessions Judge, Fast Track, Special Court (POCSO), Solan, District Solan, H.P., in Sessions Trial No. 93S/7 of 2020/2017, under Sections 376 & 302 of the Indian Penal Code (hereinafter referred to as "IPC") and Sections 6 & 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act"), in case FIR No. 03/2017, dated 21.02.2017, registered at Women Police Station, Baddi, District Solan, H.P.
2. The learned Special Judge, Fast Track, Special Court (POCSO) (hereinafter referred to as the "trial Court"), vide judgment/order of conviction/sentence, dated 14.01.2022/17.02.2022, convicted and sentenced the accused as under: "(a) The convict Akash is sentenced to death for offence punishable under Section 302 of IPC. The convict is also sentenced to pay fine of Rs. 25,000/ under Section 302 of IPC and in default ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 3 of payment of fine, to undergo simple imprisonment for a period of six months. The .
convict is directed to be hanged by neck till he is dead.
(b) With regard to the commission of offence under Section 6 of POCSO Act read with Section 376 of IPC, I am of the considered view that ends of justice would be met by sentencing the convict to undergo rigorous imprisonment for life and also to pay fine of Rs. 25,000/ and in default of payment of fine to further undergo simple imprisonment for a period of six months."
3. Being r aggrieved and dissatisfied with the judgment of conviction and order of sentence, passed by the learned trial Court, accused Akash has preferred Criminal Appeal No. 219 of 2022, praying therein for his acquittal after setting aside the aforesaid judgment of conviction and order of sentence.
4. Death Sentence Reference No.1 of 2022 arises out of the Reference made by the learned trial Court under Section 366 (1) of the Code of Criminal Procedure, 1973 to this Court for confirmation of the death sentence of accused Akash.
5. Since the above captioned Death Sentence Reference and Criminal Appeal arise out of a common ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 4 factual matrix and impugned judgment/order dated .
14.01.2022/17.02.2022, this Court proceeds to decide the same by the common judgment.
6. The case of the prosecution, in brief, is that on 21.02.2017, the complainant (name withheld) moved a written complaint at Women Police Station, Baddi, District Solan, wherein it has been alleged that he is resident of Bengal and is residing alongwith his family at a place (name withheld) as a tenant and his wife is serving in a company. On 20.02.2017, when he and his wife returned home in the evening after their duty, they found that their daughter was not at home and they could not trace her. It has been further alleged in the complaint that on 21.02.2017, his son (name withheld) told him that on 20.02.2017, at 3:00 p.m., he had seen the accused taking the victim (name withheld) (hereinafter referred to as "the victim") by her hands towards the road. The complainant also alleged in the complaint that accused is resident of U.P., but he is residing in a rented accommodation at some distance from his house. During investigation of the case, ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 5 search of victim was conducted in the forest of Judi Khurd.
.
The father of the victim and one Rakesh Singh were associated in the search. When police entered the forest, they found one slipper and after 10 feet ahead, one chatai (mat) alongwith disposable glasses and an empty packet of Kurkure. After moving 80 feet ahead, body of a girl was found in the bushes. The body was in a semi naked condition and the complainant identified the body to be of his missing daughter. The inspection of the body revealed that the victim was wearing a TShirt alongwith a black coloured thread, while her payjami was found hanging down near left foot. There was a blue colour mark on the right side of the neck of the victim and a wooden piece was found inserted in her private part. A part of the intestine was found coming out from the private part. The photographs of the body of the victim were clicked. Inquest report was filledin and the body was preserved. Spot map was prepared. The other part of yellow coloured slipper was found near body of the victim. The sample of blood stained soil was preserved from the spot alongwith the control ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 6 sample. One packet of Potato Wafers Easy Fun (green in .
colour), in which there were some chips, was also preserved. The wooden piece found inserted in the private part of the victim was taken out and preserved in a cloth parcel and sealed with seal 'A'. The part of intestine was also preserved in a plastic jar and sealed. One red and black coloured chatai alongwith piece disposable glasses, empty wrapper of Kurkure, half filled r of bidi, two liquor bottle of 'Rasila Santra' alongwith cap were preserved from the spot and sealed in a parcel.
7. The body of the victim was initially sent to CHC, Nalagarh, for postmortem, but thereafter the same was referred to IGMC, Shimla for postmortem and forensic examination and as per postmortem report Ex PW17/B, antemortem injuries were observed and it has been opined by the Doctor that victim died as a result of manual strangulation in a case of gross perineal tear and foreign body insertion into genitals reaching upto abdominal wall, and the death was Homicidal in nature.
::: Downloaded on - 02/01/2023 20:32:29 :::CIS 78. The accused was arrested on 22.02.2017 and .
report of his medical examination was obtained. The accused made a disclosure statement under Section 27 of Indian Evidence Act and as such, red coloured shirt and blue coloured jeans were recovered from his home, which he was wearing on 20.02.2017. The said recovery was
9. to preserved and sealed in a parcel with seal impression 'H'.
As regards scientific reports, fourteen sealed samples were sent to SFSL, Junga, for chemical analysis and as per its report, human blood of group 'A' was detected on the blood stained soil and leaves, blood stained wooden piece, sacred thread worn by the victim and in the blood samples of the deceased. Human blood of group 'A' was detected on the underwear of the accused and human semen was also detected on the same. Human blood was also detected on the pubic hair of the accused, payjami of the victim, but the result was inconclusive with respect to the blood group. Human blood of group 'A' was also detected on the underwear and the TShirt of the victim.
Human blood was also detected on the wooden stick ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 8 recovered from the abdomen of the victim and parts of .
intestine preserved from the body, but was inconclusive in respect of blood group. Human blood was also detected on the anal and perianal swab, vaginal swab of the victim, but was insufficient for blood grouping. Similarly, human hair was found on the jeans and shirt of the accused. As per another report of SFSL, Junga, the blood stained soil was found consistent with the control sample of the soil. The torn wrapper piece was found to be part of torn Masala Munch Kurkure Wrapper before tearing.
10. As per report of DNA Division of SFSL, Junga, the DNA profile pertaining to a female individual was obtained from the pants of the accused, which completely matched with the DNA profile obtained from blood samples of the victim. A mixed DNA profile was obtained from the pubic hair of the accused, from which, two DNA profiles could be identified, one of which matched with the DNA profile obtained from the blood sample of the victim and the other one matched with the DNA profile obtained from the blood samples of the accused. The DNA profile ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 9 obtained from the part of intestine preserved from the body .
of the victim completely matched with the DNA profile obtained from her blood sample. As per report, no alcohol/poison was detected in the viscera preserved from the body of the victim.
11. After completion of investigation, it was revealed that on 20.02.2017, the accused enticed away the victim and took her to his room, however, he could not succeed in sexually assaulting her and as such, he took her to a lonely place at Judi Khurd forest, where he had committed penetrative sexual assault on the victim and then murdered her by strangulation and also inserted a wooden piece in her private parts. The accused was chargesheeted for the commission of offence punishable under Sections 302 & 376 of IPC and Sections 6 & 10 of POCSO Act.
12. Charges were framed by the learned trial Court against the accused, vide order dated 15.12.2017, wherein, he did not plead guilty of the charges framed against him and claimed to be tried.
::: Downloaded on - 02/01/2023 20:32:29 :::CIS 1013. In order to prove its case, the prosecution .
examined as many as 19 witnesses. Statement of the accused was recorded under Section 313 Cr. P.C., wherein he denied the prosecution case. However, he did not lead any evidence in his defence.
14. On the basis of evidence led on record by the prosecution, the learned trial Court held the accused guilty of his having committed offence punishable under Sections 302 & 376 of IPC and Section 6 of the POCSO Act and sentenced him as per description given hereinabove.
15. We have heard the learned Legal Aid counsel for the accused/convict and learned Deputy Advocate General for the State and also gone through the records carefully.
16. The learned legal aid counsel for the accused has submitted that the "last seen theory" is not applicable to the instant case. He has further submitted that the circumstances relied upon by the prosecution are not firmly established and the circumstances do not form a complete chain establishing the guilt of the accused.
::: Downloaded on - 02/01/2023 20:32:29 :::CIS 1117. On the other hand, learned Deputy Advocate .
General has contended that there is ample evidence available on record to prove that the deceased was seen lastly with the accused and the scientific evidence as well as the recovery at the instance of the accused was also proved beyond any reasonable doubt, therefore, the trial Court was right in convicting and sentencing the accused appellant. He, therefore, contended that there is no merit in the appeal filed by the accused and the same is liable to be dismissed by this Court.
18. The accused has been charged for the commission of offence of rape & aggravated penetrative sexual assault on the minor child and thereafter for committing her murder, who was aged about 7 years. Now let us examine as to whether the prosecution has been able to establish the guilt of the accused by leading convincing and cogent evidence on record. At the very outset it may be noted here that there is no eyewitness to the incident in question. PW7, who is the father of the victim has specifically deposed that on 20.02.2017, when he ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 12 alongwith his wife came back to his rented accommodation .
after doing job in the company, they found their daughter missing. They searched her in the locality, but could not find her anywhere. He further deposed that on 21.02.2017 his son disclosed that on 20.02.2017 at 3:00 p.m., accused Akash, who was residing in a rented room, took his daughter towards jungle and thereafter he moved an application, Ext. PW7/A to Women Police Station, Baddi.
He further deposed that after arrival of the police on the spot, he alongwith one Rakesh and some other persons went to search his daughter and during search, right foot chappal of his daughter was found near Temple towards Gas Plant and after moving slightly ahead, one chatai (mat) was also found in the bushes alongwith two plastic glasses, one empty liquor bottle of 350 ml and its cap, empty wrapper of Kurkure and two Bidi butts. On further moving ahead, dead body of his daughter was found lying half naked. A wooden piece was found inserted in her private part and intestine was also found coming out of her private part.
::: Downloaded on - 02/01/2023 20:32:29 :::CIS 1319. PW1 Rakesh Singh Bhadauria, corroborated .
the statement of PW7 and deposed that on 21.02.2017, he alongwith the complainant and the police went in search of the victim and found her dead body lying half naked with a wooden piece inserted in her private part and her intestine was also found coming out of her private part. He further deposed that body of the victim was identified by her father and articles recovered near the dead body were also taken into possession.
20. PW18, Inspector Bhadur Singh, has deposed that during investigation, he alongwith other police officials, witness Rakesh Singh Bhadauria and the complainant went in search of the victim and found her half naked dead body in the forest with a wooden piece inserted in her private part and her intestine was also found coming out of the private part. He further deposed that articles lying near the dead body of the victim were also taken into possession.
21. Thus, from the perusal of the statements of the complainant PW7, who is father of the victim and PW1 ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 14 Rakesh Singh Bhadauria, who is an independent witness .
and their statements being duly corroborated by the statement of PW18, who is Investigating Officer in the present case, it has been duly established on record that the victim had gone missing on 20.02.2017 and her dead body was recovered from the forest on 21.02.2017, with a wooden piece inserted in her private part and part of her intestine was also found coming out therefrom. From the testimonies of the aforesaid witnesses, it has also been proved on record that the dead body of the victim was identified by her father and the articles which were found lying near the dead body were also taken into possession by the police.
22. Thereafter, the postmortem on the body of the victim was conducted. PW18, Investigating Officer, has specifically deposed that the body of the victim was sent to CHC Nalagarh for conducting the postmortem from where the Medical Officer had referred the body of the victim for postmortem to IGMC, Forensic Department, Shimla.
::: Downloaded on - 02/01/2023 20:32:29 :::CIS 1523. So far as the homicidal death of the deceased is .
concerned, suffice it to say that through the evidence of PW17, Dr. Piyush Kapila, Associate Professor, Forensic Medicine, IGMC Shimla, H.P., the prosecution has succeeded in establishing that the death of the child victim was a homicidal one. He had performed post mortem on the dead body of the deceased and submitted his report Ext. PW17/B as under: "List of Antemortem Injuries
1. Multiple abraded contusions was present in an area of 7x5 cm over left side of face, preauricular area, ear and temporal region. On reflection of scalp left temporalis muscle contused. No under lying fracture of skull or facial bones.
On opening the skull cap no extradural haemorrhage present, but on opening dura gross subdural bleed present over frontal temporal area of left side and also on medial aspect of right hemisphere around falx cerebri.
2. 5X5 cm abraded (pressure) contusion present over right side of neck just below angle of mandible resembling finger like pattern with gross contusion below after opening skin and subcutaneous tissue, deep up to muscles. Linear abraded contusion 2 x0.5 cm on Helix of right pinna also present.
3. 6X7 cm abraded, pressure contusion present just below injury No.2 on right side of neck, reddish. After opening skin there is gross ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 16 extravasation of blood in sub cutaneous tissue and muscles. The hematoma around thyroid .
gland present and extending upto upper mediastinum.
4. 2x2 cm, round contusion, reddish present over right submandibular area with gross contusion in subcutaneous tissue and submandibular gland after opening the skin.
5. Gross contusion over clavicular area of both sides with multiple abrasion reddish. On opening gross contusion present below the skin.
6. 2 cm long oblique red scratch abrasion on posterior aspect of right arm in lower 1/3 rd alongwith ½ cm abrasion just blow & distal to injury explained earlier in the para.
7. Multiple small, dotted pressure abrasions of various sizes and shapes present over posterior /extensor aspect of left forearm in an area of 17cm x 3 cm.
8. Gross third degree perineal tear in vaginal canal, perineal skin perineal muscles extending into anal canal. Walls of vaginal and anal canal are ruptured and forming a single large opening extending to abdominal cavity & internal organs visible from the opening."
On opening the abdominal cavity, whole of the large intestine was not present. There were two wooden sticks present inside the peritoneal cavity entangled in mesentary.
1. 14 cm in length maximum diameters 2 cm pointed and broken.
2. Splinter from above wooden stick present seperately in peritoneal cavity entangled in tissue measuring 7 cm with maximum width 1 cm. .........After the thorough examination of the deadbody we were of the opinion that the deceased died as a result of manaul ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 17 strangulation in case of gross perineal tear and foreign body insertion into genitals reaching up to .
abdominal wall. Homicidal in nature.
The probable time which might have elapsed between death and postmortem was opined to be 48 to 72 hours and that which might have elapsed between injury and death was opined to be immediate......."
24. Thus, having regard to the said evidence of PW 17 and the postmortem report Ext. PW17/B, prepared by him, there remains no shadow of doubt that the victim, aged about 7 years was subjected to the sexual assault and had died due to manual strangulation in case of gross perineal tear and foreign body insertion into genitals reaching upto abdominal wall. Thus, her death was a homicidal death and not the death in ordinary course of nature.
25. So far as the age of the victim is concerned PW7, the complainant, who is father of the victim, has deposed that the victim was born on 22.07.2009 and he produced the birth certificate Ext. P22 before the police in this respect. The birth record of the victim was also got verified from Gram Panchayat, Raipur of District Mushridabad, West Bengal. In this regard, certificate Ext.
::: Downloaded on - 02/01/2023 20:32:29 :::CIS 18PW10/C was issued by the Pradhan of Gram Panchayat, .
Raipur. Copy of birth certificate register Ext. PW10/D had been obtained from SubRegistrar Birth & Death, Raipur Panchayat. PW11, Pradhancumsub Registrar (Birth and Death), Gram Panchayat, Raipur, brought the original birth record of the victim as entered in the birth Register of Gram Panchayat, Raipur and as per the record, date of birth of the victim was 22.07.2009.
26. Hence, in view of the aforesaid evidence produced on record, it has been established that the victim was born on 22.07.2009 and she was around seven years and seven months of age on the date of incident i.e. 20.02.2017. As such, it has been proved beyond reasonable doubt by the prosecution that the victim was minor and below eight years of age at the time of incident.
27. Now the next question which is to be considered is whether the accused is the author of the death of the victim after committing sexual assault on her. The case of the prosecution is that the victim was last seen alive in the company of the accused. In this respect, the prosecution has relied upon the testimonies of PW2, brother of the ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 19 victim and another witness i.e. PW4, Manmohan Dass and .
their statements corroborated by the following circumstances: "(1) The accused while in police custody made a disclosure statement under Section 27 of the Indian Evidence Act and got recovered some of his clothes as well as wrapper of Kurkure.
(2) Presence of DNA profile of the victim on the sample of the pubic hair of the accused and on his jeans."
28. Before coming to the conclusion whether the victim and the accused were last seen together, we may first discuss the law on the subject. The theory of 'last seen together' is one where two persons are 'seen together' alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption as to the person alive being the author of death of the other can be drawn. Time gap should be such as to rule out possibility of somebody else committing the crime.
29. In State of Goa Vs. Sanjay Thakran & Anr., (2007) 3 SCC 755, the Hon'ble Apex Court observed that there can be no fixed or straight jacket formula for the ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 20 duration of time gap in this regard and it would depend .
upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, Para 34 of the judgment is reproduced as under: " 34. From the principle laid down by this Court, the circumstance of lastseen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 21 the crime, becomes impossible, then the evidence of circumstance of last seen together, although .
there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."
30. In Ganpat Singh Vs. State of Madhya Pradesh, AIR 2017 Supreme Court 4839, after taking note of the decisions of the Hon'ble Apex Court that the last seen evidence assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another.
Paragraph No. 10 of the judgment, reads as under: ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 22 "10 Evidence that the accused was last seen in the company of the deceased assumes .
significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows :
"The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
31. Thus, in view of the aforesaid principles, it is to be seen in the facts and circumstances of this case as to whether the court below was right in invoking the "last seen theory and whether the prosecution has succeeded in establishing by definite evidence that the deceased was seen alive in the company of the accused in such close proximity of time so as to exclude the possibility of a third ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 23 person entering in the scene of crime in all reasonableness, .
and, thus, enabling the Court to draw a reasonable inference against the accused to shift onus on the accused to explain the circumstance in accordance with the provisions of Section 106 of the Evidence Act.
32. So far as the first point regarding last seen of the victim with the accused is concerned, it is relevant to refer to the statements of PW2, brother of the victim and PW4, Manmohan Dass.
33. PW2, brother of the victim, who was 10 years old, has stated that the accused present in the Court took her sister towards Temple and nearby jungle on that day at 3:00 p.m. However, he could not state the date of the occurrence. In crossexamination, he has stated that he was playing with marbles with his friends, when accused took his sister. He also stated that he disclosed this fact to his father on the same day around 8:00 p.m. after he returned from his duty. Although he has been examined without oath, but, despite that his testimony inspires confidence, as his statement is quite natural and ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 24 true with respect to the fact that he had seen the accused .
taking her sister (victim) towards Temple and nearby jungle.
34. The Hon'ble Supreme Court in Dattu Ramrao Sakhare and Others vs. State of Maharashtra, (1997) 5 SCC 341, has held that a child witness if found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. The relevant portion of paragraph 5 of the judgment reads as under: "5...............A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand, but as a rule of prudence the court always finds it desirable to have the corroboration to such ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 25 evidence from other dependable evidence on record............"
.
35. The statement of PW2 is further corroborated by PW4 Manmohan Dass, who deposed that the complainant was his tenant and was residing in one room on the ground floor. The accused was also known to him and was residing with his father as tenant in the same building on first floor. On 20.02.2017, the accused came to his shop at about 2:00 p.m. and purchased one packet of Kurkure. Number of children were playing near the building including the girl. He saw the accused taking the victim towards the Temple. However, on the next day he came to know that dead body of the victim was found in the bushes near the Temple. In cross examination, he deposed that his building is two storeyed.
Old Village Judi Khurd is adjoining to his building. There are other residential houses on the Barotiwala road. He denied that his shop is not visible from the lintel of the building. He deposed that he came to know about the incident on 21.02.2017 from the public and police recorded his statement on the same day. He denied the ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 26 suggestion of the defence counsel that the accused had .
neither visited his shop on 20.02.2017, nor he purchased Kurkure. Both PW2 and PW4 were crossexamined at length, however, nothing favourable could be elicited from their crossexamination and their statements remained unimpeached to the effect that the victim was last seen alive with the accused.
36. to Thus, from the statements of PW2 and PW4, it is revealed that the victim was last seen alive with the accused prior to the recovery of her dead body from the forest. As observed earlier, from the statement of PW1, duly corroborated by complainant PW7 and Investigating Officer PW18, it has been established that dead body of the victim was recovered on 21.02.2017 and the Investigating Officer had prepared inquest report on 21.02.2017 at 8:00 p.m. and thereafter the body was sent for conducting postmortem. The perusal of the post mortem report, Ext. PW17/B reveals that the body was received at 10:30 a.m. on 23.02.2017 and the examination was conducted at 11:45 a.m. and it has been concluded in ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 27 the postmortem report that probable duration of the death .
was within 48 to 72 hours of the time of postmortem. As such, it has become clear that the victim was murdered within probable time of 11:45 a.m. on 20.02.2017 to 11:45 a.m. of 21.02.2017, which suggests that there was a minimal amount of time gap between the death of the accused.
r to victim and time when she was seen alive alongwith the
37. It is wellsettled that the burden to prove the guilt of the accused is always on the prosecution. If the prosecution has succeeded in proving the fact by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and only thereafter the onus can be shifted on the accused under Section 106 of the Indian Evidence Act. The last seen theory i.e. the evidence that the deceased was last seen alive in the company of the accused is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. As observed in Nizam Vs. State of ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 28 Rajasthan, AIR 2015 Supreme Court 3430, the "last seen .
theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. The principle is based on the provisions of Section 106 of the Indian Evidence Act which lay down that when any fact is established within the knowledge of the person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Indian Evidence Act. It has been held in paragraph 15 of the judgment as under: "15. Elaborating the principle "last seen alive" in State of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254, (AIR 2007 SC 144), the Court held as under: "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 29 are unambiguous and categoric in laying down that when any fact is especially within the .
knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)"
The above judgment was relied upon and reiterated in Kiriti Pal Vs. State of West Bengal, (2015) 5 Scale 319: (2015 AIR SCW 3545).
38. Hence, the onus shifts upon the accused under Section 106 of the Indian Evidence Act to offer an ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 30 explanation that he was not the last person who was with .
the victim at the time of commission of offence. However, in his statement recorded under Section 313 Cr. P.C., the accused has only stated that he was innocent and a false case has been registered against him at the instance of the complainant, who had enmity with him due to some money matter and had earlier also quarreled with him and threatened him to meet with dire consequences. The accused has failed to explain that what had happened to the victim during the intervening time when he was last seen with the victim taking her towards the Temple and between the death of the victim. It is not the case of the accused that after taking victim towards Temple, he had left her or that some other person was in the company of the victim.
39. The object of recording the statement of the accused under Section 313 Cr.P.C. is to bring to the notice of the accused the incriminating evidence and to give him an opportunity to explain the same, if he chooses to do so.
The essential features of Section 313 Cr.P.C. and the ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 31 principles of law enunciated in various judgments have .
been summarized in case of Ashok kumar Vs. State of Haryana, reported in (2010) 12 SCC 350. The paragraphs 29 to 31 thereof read as under: "29. Now we may proceed to discuss the evidence led by the prosecution in the present case. In order to bring the issues raised within a narrow compass we may refer to the statement of the accused made under Section 313,Cr.P.C. It is a settled principle of law that dual purpose is sought to be achieved when the Courts comply with the mandatory requirement of recording the statement of an accused under this provision. Firstly, every material piece of evidence which the prosecution proposes to use against the accused should be put to him in clear terms and secondly, the accused should have a fair chance to give his explanation in relation to that evidence as well as his own versions with regard to alleged involvement in the crime. This dual purpose has to be achieved in the interest of the proper administration of criminal justice and in accordance with the provisions of the Cr.P.C.. Furthermore, the statement under Section 313of the Cr.PC can be used by the Court in so far as it corroborates the case of the prosecution. Of course, conviction per se cannot be based upon the statement under Section 313 of the Cr.PC.
30. Let us examine the essential features of this section and the principles of law as enunciated by judgments of this Court, which are the guiding factor for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 32 opportunity to explain such incriminating circumstances appearing against him in the .
evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime.
31. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to crossexamine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence."
40. In the instant case, though the incriminating evidence was brought to the notice of the appellant/ accused while recording his statement, but, the accused ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 33 had failed to explain the same. The accused was given the .
opportunity to answer the incriminating circumstance which had come on record, however, except for the denial, he had not made any attempt to explain the same.
Furthermore, no suggestion has been put by the defence counsel to the complainant that he was having enmity with the accused. He has even failed to lead any evidence in his defence despite opportunity granted to him in this respect.
Thus, in view of the law laid down by the Hon'ble Apex Court, the accused has failed to rebut the prosecution evidence with respect to the last seen theory. Hence, it has been duly established that victim was last seen alive in the company of the accused, which circumstance establishes the guilt of the accused.
41. Further, while in police custody, the accused got recovered his red coloured shirt and blue coloured jeans from his house, which was worn by him at the time of incident. PW12, Som Dutt, has deposed that on 24.02.2017, the accused while in police custody made a disclosure statement in his presence and also in the ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 34 presence of Naushad Ali that he can get his red coloured .
shirt and blue coloured jeans recovered from his house, which was worn by him at the time of incident, i.e. on 20.02.2017 and in this regard, memo Ext. PW12/A was prepared, which bears his signatures as also the signatures of Naushad Ali and the accused. He further deposed that on the same day while in custody the accused led the police party to village Judi Khurd and from the second floor of the building he got recovered red coloured shirt and blue coloured jeans from his room, which was kept on the shelf behind the bag. He also deposed that on the same day, the accused led the police party towards bushes, where one red coloured wrapper of Kurkure was recovered.
42. PW18 also corroborated the statement of PW12 to the effect that while in police custody, the accused made a disclosure statement and got recovered his red coloured shirt and blue coloured jeans from his house, which were worn by him at the time of incident, i.e. 20.02.2017 and also got recovered red coloured wrapper of ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 35 Kurkure.
.
43. So far as the scientific evidence is concerned, PW13 Dr. Yuvraj Shori, has deposed that on 23.02.2017 he medically examined the accused and issued MLC and also obtained the blood sample of the accused on FTA Card, which he handed over to the police after seal. He further deposed that at the time of medical examination of the accused, he had taken samples of the penile swab, pubic hair and underwear of the accused which were sealed and then handed over to the police on 23.02.2017.
44. PW17, Dr. Piyush Kapila, has deposed that clothes of the victim, Ext. P30 to P32 and black thread around the neck of the victim Ext. P33 were sealed and handed over to the police. He also deposed that sample of the blood was taken from the body of the deceased on FTA Card, which was handed over to the police. He further deposed that wooden stick present inside the peritoneal cavity entangled in mesentary was sealed, preserved and handed over to the police.
45. PW16, Khajana Ram, has deposed that articles ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 36 seized/preserved in this case were sent to SFSL, Junga, .
vide letter Ext. PW16/F, which was signed by him. PW8, Constable Bahadur Singh has deposed that on 15.03.2017, vide RC No. 4/1617 he had deposited the recovered articles at SFSL, Junga and receipt was handed over to MHC. PW10, Inspector Rita, has deposed that DNA profile result Ext. PW10/E alongwith another report from SFSL, Junga Ext. PW10/F were received and made part of the challan. She further deposed that FSL reports Ext.
PW10/G and Ext. PW10/H were also received from FSL and made part of the challan. Thus the prosecution has duly proved the proper preservation of these samples with MHC (PW19) and that these were handed over to PW8, who deposited it at the Laboratory.
46. The prosecution has also placed reliance upon the FSL reports Ext. PW10/E, Ext. PW10/F, Ext. PW 10/G and Ext. PW10/H. The DNA profile report Ext. PW 10/E, reveals that DNA profile pertaining to a female individual was obtained from the pants of accused Akash, Ext. P25 and the said DNA profile completely matched ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 37 with the DNA profile obtained from the blood sample of the .
victim. It is further concluded that a mixed autosomal STR DNA profile was obtained from the pubic hair of accused Akash, from which two DNA profiles could be identified and one of the said profile matched with the DNA profile obtained from the blood sample on FTA Card of the victim, while the other matched with the DNA profile obtained from the blood sample on FTA Card of accused Akash. The report also concludes that the DNA profile obtained from the part of intestine completely matched with the DNA profile obtained from the blood sample on FTA Card of the victim.
47. Thus, DNA report, Ext. PW10/E has established the connection of accused with the crime, due to presence of DNA profile of the victim on the jeans of the accused as well as on the sample of his pubic hair.
Furthermore, as per FSL report, Ext. PW10/G, blood group of victim was 'A' and human blood of group 'A' was detected on the underwear of the accused and human semen was also detected on the same. The perusal of the ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 38 report further reveals that the human blood of group 'A' .
was detected on the underwear and Tshirt of the victim as well as the anal, perianal and vaginal swab of the victim. The accused has failed to explain the presence of DNA profile of the victim on the sample of his pubic hair and on his jeans.
48. r record, the following Thus, from the perusal of the entire evidence on incriminating circumstances have clearly been established against the accused: "(1) That on the afternoon of 20.02.2017, he was seen with the victim and was also seen taking the victim towards the temple and nearby forest; (2) That the dead body of the victim was recovered on 21.02.2017 in a forest adjoining to the temple; (3) The accused has failed to explain that after the time he was seen with the victim, there were any other event which rules out his culpability; and (4) The accused has failed to give any explanation as to how the DNA profile of the deceased victim was found on the sample of his pubic hair as well as that on the jeans."
49. The chain of aforesaid incriminating circumstances duly proved by the prosecution, taken cumulatively formed a chain so complete that it unerringly pointed to the guilt of the accused so far as the charges ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 39 leveled against him are concerned. At this stage it would .
be relevant to note that as per Section 29 of the POCSO Act, where the person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7, and Section 9 of the Act, the Court shall presume that such person had committed or abetted or attempted to commit the offence as the case may be, unless the contrary is proved. The presumption of culpable mental state of the accused is also envisaged in Section 30 of the said Act. In the instant case, as observed earlier, the accused had failed to rebut the said statutory presumption contained in the Act either by bringing on record the facts during the course of crossexamination of witnesses or during his statement recorded under Section 313 of Cr.P.C.
50. Having regard to the aforesaid chain of incriminating circumstances proved by the prosecution, and to the legal provisions contained in the POCSO Act and in the IPC, the Court is of the opinion that it has duly been established by the prosecution that the accused had ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 40 committed murder of the victim punishable under Section .
302 of the IPC. and aggravated penetrative sexual assault on the victim, punishable under Section 6 of the POCSO Act as she was under 12 years of age. It has also been duly proved that the accused had committed rape upon her, as described in Section 375 of the IPC punishable under Section 376 of the IPC. Therefore, the prosecution has conclusively proved the guilt of the appellant/accused beyond reasonable doubt.
51. As regards the sentence of death penalty awarded by the Special Court, the learned Legal Aid Counsel for the appellant/accused submitted that the death penalty should be imposed only when the alternative of lifeimprisonment is totally inadequate. He also submitted that the Special Court ought to have considered the age of the accused and the probability that the accused can be reformed and rehabilitated. According to him, in a catena of decisions, the Hon'ble Supreme Court in similar cases has substituted the death penalty by life imprisonment. He has also relied upon several decisions, ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 41 including the latest decisions in case of Vijay Raikar vs. .
State of M.P., reported in (2019) 4 SCC 210, Viran Gyanlal Rajput vs. State of Maharashtra, reported in (2019) 2 SCC 311, as also in cases of Raju vs. State of Haryana, (2001) 9 SCC 50 and Amit vs. State of U.P., (2012) 4 SCC 107, to submit that the instant case can not fall within the category of 'rarest of rare' case.
52. As against that, the learned Deputy Advocate General has vehemently submitted that this case is one of the rarest of rare cases, where the seven years old helpless child was sexually assaulted and brutally murdered.
53. Whether the case falls within the rarest of rare case so as to impose death penalty or not, is always a matter of great concern for every Court. Though, the Hon'ble Supreme Court in various decisions dealing with various situations has laid down certain guidelines as to which case should be treated as the rarest of rare case, there is no straightjacket formula and yardstick set to decide the vexed issue.
::: Downloaded on - 02/01/2023 20:32:29 :::CIS 4254. In the case of Bachan Singh vs. State of .
Punjab, (1980) 2 SCC 684, the Hon'ble Supreme Court had laid down elaborate guidelines as to what are the mitigating circumstances and aggravating circumstances which should be taken into consideration before awarding the extreme penalty of death. Thereafter in Machhi Singh and Ors. vs. State of Punjab (1983) 3 SCC 470, r the Hon'ble Supreme Court culled out the guidelines indicated in Bachan Singh vs. State of Punjab (supra) as under: "38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's case:
(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 43 provided, and only provided the option to impose sentence of imprisonment for life cannot be .
conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
55. There is no quarrel with the settled legal position that the death sentence should be awarded in rarest of rare cases. However, the question that arises for consideration in the present case is as to whether this is a rarest of rare case.
56. In Bachan Singh Vs. State of Punjab (supra), wherein the Apex Court has enjoined giving importance to the antecedents of the prisoner, apart from the gravity of the crime, for reaching the conclusion whether only a death sentence was appropriate. One important mitigating circumstance to be taken into account was the age of the accused and as to whether the accused had a previous criminal history, or whether there was any material to suggest that his reform was wholly improbable and that he ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 44 was likely to commit such crimes in the future. Paragraphs .
206 and 209 of the said judgment are reproduced as under: "206. Dr. Chitale has suggested these mitigating factors :
Mitigating circumstances: In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances :
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(emphasis supplied).
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person, (7) That the condition of the accused showed that he was mentally defective and that the said ::: Downloaded on - 02/01/2023 20:32:29 :::CIS 45 defect impaired his capacity to appreciate the criminality of his conduct.
.
209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be bloodthirsty. Hedging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequencya fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz, that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare ::: Downloaded on - 02/01/2023 20:32:30 :::CIS 46 cases when the alternative option is unquestionably foreclosed.
.
57. In Amit vs. State of U.P., (2012) 4 SCC 107, where a 3 year old girl had been murdered by a 28 year old man, the Court converted a sentence of death to a sentence of life imprisonment, to run for the whole life of the prisoner, as he had no criminal antecedents, and it was not likely that the accused would repeat the offence.
Thus, it was mentioned in the decision in para 22 of the said judgment, as under: "22. In the present case also, we find that when the appellant committed the offence he was a young person aged about 28 years only. There is no evidence to show that he had committed the offences of kidnapping, rape or murder on any earlier occasion. There is nothing on evidence to suggest that he is likely to repeat similar crimes in future. On the other hand, given a chance he may reform over a period of years. Hence, following the judgment of the threeJudge Bench in Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 we convert the death sentence awarded to the appellant to imprisonment for life and direct that the life sentence of the appellant will extend to his full life subject to any remission or commutation at the instance of the Government for good and sufficient reasons."
::: Downloaded on - 02/01/2023 20:32:30 :::CIS 4758. In Viran Gyanlal Rajput Vs. State of .
Maharashtra, (2019) 2 SCC 311, where a 13 years old girl had been raped and killed by a 22 years old boy, the Hon'ble Supreme Court converted the sentence of death to a sentence of life imprisonment. Paragraphs 25 and 26 of the aforesaid judgment read as under: "25. Though we agree that the crime committed is of an abominable nature, it cannot be said to be of such a brutal, depraved, heinous or diabolical nature so as to fall into the category of the rarest of rare cases and invite punishment with death. We also find ourselves unable to agree with the view of the Courts that the appellant is such a menace to society that he cannot be allowed to stay alive. On the other hand, we are of the view that the prosecution did not establish that the appellant was beyond reform, especially given his young age. We are also mindful of the appellant's lack of criminal antecedents prior to the commission of this crime, and of his post incarceration conduct, which in no way suggests the impossibility of his reform. It would be pertinent to observe at this point that although the Trial Court noted his lack of remorse during the hearing, and the High Court noted his lack of remorse after committing the crime, as he was found calmly wandering around the locality, this does not in any way indicate that there is no scope of reform for the appellant.
::: Downloaded on - 02/01/2023 20:32:30 :::CIS 4826. Thus, neither the circumstances of the crime nor the circumstances of the criminal, i.e. the .
appellant, would go to show that the instant matter falls into the category of the rarest of rare cases, or that the sentence of life imprisonment is unquestionably foreclosed and grossly disproportionate. Therefore, in the totality of the facts and circumstances of this case, we find it fit to commute the death sentence of the appellant to life imprisonment.
59. In Vijay Raikwar Vs. State of Madhya Pradesh, (2019) 4 SCC 210, where a minor girl of seven and half years of age was raped and murdered by the accused, aged about 19 years, the Hon'ble Supreme Court converted the sentence of death to a sentence of life imprisonment. Paragraph 10 of the aforesaid judgment reads as under: "10. Now, so far as the request and the prayer made on behalf of the accused to commute the death sentence to life imprisonment is concerned, having heard the learned counsel appearing on behalf of the accused on the question of death sentence imposed by the learned Sessions Court, confirmed by the High Court and considering the totality and circumstances of the case and the decisions of this Court in the cases of Bachan Singh (supra) and Shyam Singh (supra), we are of the opinion that the present case does not fall within the category of 'rarest of rare case' warranting death penalty. We have considered ::: Downloaded on - 02/01/2023 20:32:30 :::CIS 49 each of the circumstance and the crime as well as the facts leading to the commission of the crime .
by the accused. Though, we acknowledge the gravity of the offence, we are unable to satisfy ourselves that this case would fall in the category of 'rarest of rare case' warranting the death sentence. The offence committed, undoubtedly, can be said to be brutal, but does not warrant death sentence. It is required to be noted that the accused was not a previous convict or a professional killer. At the time of commission of offence, he was 19 years of age. His jail conduct also reported to be good. Considering the aforesaid mitigating circumstances and considering the aforesaid decisions of this Court, we think that it will be in the interest of justice to commute the death sentence to life imprisonment."
60. In Raju vs. State of Haryana, (2001) 9 SCC 50, the appellant had committed the rape and murder of the 11 year old girl after enticing her with toffees. On his arrest, his shirt and and pant had bloodstains and his underwear had blood and seminal stains. The accused gave no explanation of the blood stains. The Hon'ble Supreme Court held that as the appellant appeared to have acted without premeditation in giving two brick blows to the deceased after she threatened to expose him, and had no criminal antecedents, and it could not be concluded ::: Downloaded on - 02/01/2023 20:32:30 :::CIS 50 that he would be a danger to society, the sentence of death .
awarded by the Courts below be commuted to a sentence of imprisonment for life.
61. Coming to the facts of the instant case, we do not think that this is a ''rarest of rare case' in which death penalty should be imposed on the accused. The manner in which the deceased was raped and thereafter murdered may be brutal, but it could have been a momentary lapse on the part of the accused. He had no premeditation for commission of the offence. The offence may look heinous, but, under no circumstances, it can be said to be a rarest of rare case. The accused who has been awarded death sentence was aged about 19 years only at the time of commission of offence and there is no evidence that the accused had been involved in any other criminal case previously and it cannot be said that he would be a menace to society in future. The prosecution did not establish that he was beyond reform. No material has been placed before us to draw such a conclusion. In our opinion, the accused should have been given a chance by ::: Downloaded on - 02/01/2023 20:32:30 :::CIS 51 the trial court to reform himself. Therefore, the Special .
Court had committed gross error in not following the guidelines issued by the Supreme Court in case of Bachan Singh vs. State of Punjab (supra) and in the case of Machhi Singh and Ors. vs. State of Punjab (supra) by not comparing the mitigating circumstances with the aggravating circumstances and also the fact that the accused was only 19 years of age at the time of commission of offence.
62. On these considerations, we are of the view that the judgment of the trial judge, dated 14.01.2022 convicting the accused as above, is upheld. However, considering the fact that accused was aged only about 19 years at the time of commission of offence and is in the prime youth of his life, we are of the view that the death penalty awarded to him should be converted to imprisonment for life and direct that the life sentence of the accused will extend to his whole life subject to any remission or commutation at the instance of the Government.
::: Downloaded on - 02/01/2023 20:32:30 :::CIS 5263. Accordingly, the appeal is partly allowed. The .
impugned order of sentence dated 17.02.2022 is modified to the extent that the death penalty awarded to the accused under section 302 of the Indian Penal Code is converted to life imprisonment and direct that the life sentence of the accused will extend to his whole life of the Government.
r to subject to any remission or commutation at the instance
64. The reference No.1 of 2022 for confirming the death sentence, is rejected.
(Sabina)
Judge
(Sushil Kukreja)
December 30, 2022 Judge
(raman)
::: Downloaded on - 02/01/2023 20:32:30 :::CIS