Rajasthan High Court - Jaipur
Sunil Kumar S/O Shri Balwan Singh vs State Of Rajasthan on 31 May, 2023
Bench: Pankaj Bhandari, Bhuwan Goyal
[2023/RJJP/010944]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Death Reference No. 3/2021
State Of Rajasthan, Through Public Prosecutor
----Petitioner Versus Sunil Kumar Son Of Balvan Singh, Resident Of Shahpur Makan Khet Khud Rohi, Shahpur Police Station Singhana Distt. Jhunjhunu (Raj)
----Respondent Connected With D.B. Criminal Appeal (Db) No. 66/2021 Sunil Kumar S/o Shri Balwan Singh, Aged About 20 Years, R/o Shahpur Makaan Khet Khud Rohi, Shahpur, Police Station Singhana, District Jhunjhunu (Raj) (Presently Confined In Central Jail, Jaipur)
----Petitioner Versus State Of Rajasthan, Through Public Prosecutor
----Respondent For Accused : Dr. Prakash Chandra Jain Ms. Kriti Jain For State : Mr. Javed Choudhary, Addl.G.A. For Complainant/ : Mr. Sudhir Yadav with Victim Ms. Garima Yadav HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment RESERVED ON :: 15/05/2023 PRONOUNCED ON :: 31/05/2023 (Per: Pankaj Bhandari, J.)
1. Present D.B. Criminal Death Reference No.03/2021 has been moved by the Special Judge, POCSO Court, Jhunjhunu (Rajasthan) (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (2 of 16) [CRLDR-3/2021] for confirmation of death sentence dated 17.03.2021 given to accused - Sunil Kumar in Sessions Case No.11/2021 - State of Rajasthan Versus Sunil Kumar, FIR No.0087/2021 registered at Police Station Pilani, District Jhunjhunu. Aggrieved by the judgment of conviction dated 16.03.2021 and the order of sentence dated 17.03.2021, accused - Sunil Kumar has preferred D.B. Criminal appeal No.66/2021. By the aforesaid judgment of conviction dated 16.03.2021, accused was convicted for offence under Sections 366(A), 376(2)(i)(j)(m), 376(AB) of IPC and Section 5(m)/6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act"), in alternate Section 376(AB) of IPC and 5(m)/6 of POCSO Act. For offence under Section 366A of IPC, he was sentenced for 10 years imprisonment and a fine of Rs.25,000/- and in default of payment of fine, to further undergo 3 months additional imprisonment. For offence under Section 376(2)(i)(j)(m) of IPC, he was sentenced for life imprisonment till his natural life and a fine of Rs.25,000/- and in default of payment of fine, to further undergo 3 months additional imprisonment. For offence under Section 376(AB) of IPC, he was sentenced for life imprisonment till his natural life and a fine of Rs.25,000/- and in default of payment of fine, to further undergo 3 months additional imprisonment. For offence under Section 5(m)/6 of POCSO Act, he was awarded death penalty. All the sentences were directed to run concurrently.
2. Succinctly stated the facts of the case are that a written report (Exhibit-P9) was given to the SHO by Rahul (PW-5), brother (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (3 of 16) [CRLDR-3/2021] of the victim, aged about 16 years. The said report reads as under:- xxxxxx "lsokesa] Jheku~ Fkkukf/kdkjh egksn;] iqfyl Fkkuk&fiykuhA fo"k;%&esjh cgu jkf/kdk dk vigj.k dj cykRdkj djus ckcr~A egksn;] mijksDr fo"k; vUrZxr fuosnu gS fd eSa jkgqy iq= chj flag tkfr&ukbZ fuoklh&tljkiwj] gky&[kkfr;ksa dk tksgM+] <k.kh&';ksjk.kk] ru&nsojksM dk jgus okyk gwa vkt fnukad 19-02-2021 dks le; djhc 5%15 lka;dky eSa ?kj ds viuh cguksa ds uke Øe'k% fiz;k 10 o"kZ] eksfudk mez 8 o"kZ] xxxxxx mez 5 o"kZ [ksy jgk Fkk rHkh ,d lQsn jax dh LdwVh ij ,d O;fDr gekjs ikl vk;k vkSj dgk fd euh"k ds ?kj dgk ij gSA ¼Kkr jgs euh"k esjk cM+k HkkbZ gS½ mlds tokc esa eSaus dgk fd esjk HkkbZ dgha ckgj x;k gqvk gSA fQj mlus dgk fd esjh LdwVh dk lhlk¼Side Glass½ <hyk gks x;k gS] rks mldks VkbZV djus dk ikuk yknsA rRi'pkr eSa nkSM+dj vius ?kj ikuk ykus pyk x;kA vkSj okfil vkdj mldh LdwVh ds lkbZV Xykl dks ml ikus ls eSaus vkSj O;fDr us mldks Bhd djus dh dksf'k'k dh] ysfdu og Bhd ugha gqvkA mlds ckn eSa ikuk ?kj ij j[kus x;k vkSj eSaus ikuk j[kdj viuk dksV iguk vkSj ckgj vk;k] rks og O;fDr esjh lcls NksVh cgus jkf/kdk ds ikl [kM+k Fkk vkSj ckdh nskuksa cgus lkbZfdy pyk jgh FkhA og eq>s cksyk dh lkeus ds isVªksy iEi ij rsy Myokus tk jgk gwa vkSj esjh NksVh cgu dks cksyk&?kqeus pysxhA rFkh xxxxxx us mlds lkFk tkus ds fy, xnZu ls gka Hkh HkjhA vkSj ml O;fDr us xxxxxx dks LdwVh ds vkxs [kM+k dj fy;k vkSj fiykuh dh rjQ LdwVh rsth ls Hkxk nhA rc eSa rqjUr viuh cgu ls lkbfdy ysdj mldk ihNk fd;k] ysfdu og cgqr nwj fudy pqdk fiykuh dh rjQA mlds ckn eSaus okfil tk dj lkjk ? kVukØe eSaus esjs HkkbZ dks crk;kA fQj esjs HkkbZ us fiykuh iqfyl Fkkuk tk dj bl ?kVuk ds ckjs esa crk;kA rc fiykuh Fkkus dh iqfyl esjs HkkbZ ds lkFk ekSds ij vkbZ vkSj geus o iqfyl us feydj esjh cgu dks ryk'k fd;kA ryk'k ds nkSjku gekjs dks lwpuk feyh dh esjh cgu fey xbZ gS] ftldks fpM+kok ds ljdkjh vLirky esa ysdj x;s gSA rc eSa esjs ?kj okyksa ds lkFk fpM++kok ljdkjh vLirky esa vk;k rks esjh cgu ;gka ij ygwywgku gkyr esa feyhA ftldk MkWDVj bZykt dj jgs FksA esjh cgu ds lkFk ml O;fDr us xyr dke cykRdkj fd;k gS] ftldks eSa lkeus vkus ij igpku ldrk gwa ml O;fDr ds ikl tks LdwVh Fkh mlds uacj RJ-18-S-07 Fks] iwjs uacj eSa ugha ns[k ik;kA dk;Zokgh ds fy, fjiksVZ nsrk gwa dk;Zokgh djus dh d`ik djsaA izkFkhZ jkgqy s/o chj flag tkfr&ukbZ fuoklh&tljkiwj gky&[kkfr;ksa dk tksgM+ ru&nsojksM+ eksa-&9116952546"
3. The said report was received by the SHO, Government Hospital, Chidawa. As per the report, the incident took place on (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (4 of 16) [CRLDR-3/2021] 19.02.2021. The police registered FIR bearing No.87/2021 (Exhibit-P72) at 04:04 AM on 20.02.2021. The police investigated the case and the sample of the victim was obtained. Her 'nikar' was seized vide Exhibit-P4. Site plan of the place of incident was prepared. Accused was arrested on 20.02.2021. His underwear was seized vide Exhibit-P30. His vest was also seized vide Exhibit- P37. Scooty which was used for abducting the child was seized vide Exhibit-P40. Seat covers and foot board of the scooty were seized vide Exhibit-P41. CCTV footages were also obtained. Accused was subjected to test identification parade. Samples of the accused were taken on FTA Card and all were forwarded to the State Forensic Science Laboratory and a report was obtained. Police after due investigation submitted charge-sheet against the accused. Accused denied charges and sought trial upon which 27 witnesses were examined and as many as 115 documents were produced as Exhibit-P1 to P115 on behalf of the prosecution. Explanation of the accused appellant was recorded under Section 313 Cr.P.C. Three documents (Exhibit-D1 to D3) were exhibited in defence. After hearing the counsel for the accused appellant as well as State, the trial Court vide its judgment of conviction dated 16.03.2021 has convicted the accused for the aforesaid offences and after hearing the accused on question of sentence vide order of sentence dated 17.03.2021 has awarded death penalty to the accused, therefore, he has preferred an appeal against the said conviction and sentence order before this Court.
4. It is contended by Mr. P.C. Jain, Advocate, appearing for the accused appellant that the police has acted in a hot haste. Report (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (5 of 16) [CRLDR-3/2021] was lodged on 19.02.2021, FIR was registered on 20.02.2021. Within 12 days, the charge-sheet was filed on 04.03.2021 and plea of the accused was recorded on 04.03.2021 and thereafter, within a week, statements of 27 witnesses were recorded and explanation of the accused was also recorded. Within a week thereafter, the judgment was delivered by the Court on 16.03.2021. It is also contended that no opportunity was given to the accused and the order of sentence was pronounced on 17.03.2021. It is further argued that the Court proceeded with the guilt of the accused in its mind and it did not give any breathing space to the accused to cross-examine the witnesses.
5. It is contended by the counsel for the accused appellant that the possibility of the victim being injured while she was going on the scooty cannot be ruled out. It is also contended that the test identification parade has no value since there was a possibility of the accused being shown to the witnesses. It is further contended that the Court proceeded in a hot haste only to make a record for the quickest disposal of a POCSO case and in doing so, it violated the law laid down by the Apex Court by not providing ample opportunity to the accused on the question of sentence. Counsel in this regard has placed reliance on Manoj Versus The State of Madhya Pradesh: Criminal Appeal Nos.248-250 of 2015 decided by the Apex Court on 20.05.2022.
6. Learned Additional Government Advocate appearing for the State contends that the accused committed rape with a young girl aged 5 years on the pretext of giving her a ride and providing (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (6 of 16) [CRLDR-3/2021] 'kurkure' to her. Thus, the accused should be awarded death penalty and the reference should be answered in positive. It is argued that the legislature in its wisdom has made death penalty as one of the sentence, to put a check and to curb the menace of heinous crimes like rape. It is contended that the Prosecuting Agency and the Investigating Agency have done an excellent job in giving justice to the victim. Merely because the Court proceeded expeditiously, it cannot be said that any right of the victim was infringed, more particularly, when all the witnesses were cross- examined at length by the Advocate representing the accused.
7. We have carefully considered the submissions and have also carefully perused the entire record of the case.
8. On perusal of the record, it is evident that immediately after the girl was recovered from near the shop and when it was found that offence has been committed with her, the police sprang into action, obtained CCTV footages and came to the conclusion that the accused came on a scooty, took the victim with him, thereafter, he went to a shop and purchased 'kurkure', the packet of which was found near the place where the girl was left by the accused.
9. With regard to the age of the victim, Sangeeta (PW-14) Principal of the School has stated in her evidence that date of birth of victim as mentioned in the school record is '01.01.2015'. She has exhibited the school admission form and the affidavit as Exhibit-P27 and P28 respectively. Scholar Register was also exhibited as Exhibit-P48. Thus, it is established that the victim (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (7 of 16) [CRLDR-3/2021] was aged 6 years and one and a half month on the date of the occurrence.
10. Dr. Teena Dhaka (PW-1), Dr. Jitendra Singh (PW-2) and Dr. Manoj Kumar Janu (PW-25) were the members of the medical board, which examined the victim. Dr. Teena Dhaka (PW-1) and Dr. Jitendra Singh (PW-2) have given a verbatim evidence with regard to the medical report (Exhibit-P1). The fact that it was a third degree torture, these witnesses have exhibited sample of forwarding letter (Exhibit-P2), the identification form for DNA examination (Exhibit-P3) and the seizure memo of the 'nikar' worn by the victim as Exhibit-P4.
11. Rahul (PW-5), brother of the victim, aged about 16 years and who is the complainant in this case, has narrated the incident. He has deposed before the Court that a boy came on a scooty, inquired about his brother Manish and when they informed that Manish is not at house, he asked for wrench to tighten the mirror. Rahul (PW-5) has also stated that he went inside the house to bring the wrench. Mirror could not be tightened so he went back to keep the wrench inside the house. The accused asked his sisters to accompany him to the petrol pump. On their refusal, he inquired from the victim and the victim nodded in affirmative and he took her at a fast speed toward Pilani road. Rahul chased the scooty on a cycle but he could not catch hold of the accused. Similar is the statement of Priya (PW-7), 13 year old sister of the victim and Monika (PW-8), 9 year old sister of the victim. PW-5, PW-7 and PW8 have identified the accused in test identification (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (8 of 16) [CRLDR-3/2021] parade and before the Court as well. The accused after taking the victim went to a shop to purchase 'kurkure (Palo)'. Manoj Kumar (PW-17) sold 'kurkure (Palo)' to the accused and he has deposed that he saw child on the scooty. He has stated that he knows the accused as he had studied with him. In addition to the above, owner of Aarush Trading Company, Shri Vikas (PW-21) has provided the CCTV footage wherein a scooty is seen going towards Pilani. Victim (PW-27) has also narrated the incident and the act committed by the accused with her. She has also identified the accused in dock identification before the Court. The scooty which the accused was driving was provided by Jameela (PW-4), who has stated that the accused took the scooty on 19.02.2021. Aziz Dhobi (PW-13), who was the Supervisor at Indica Motors, Chidawa, has identified the accused in Court and has stated that the accused came to his work-shop on 19.02.2021. He has also supplied the footage in a pen drive (Exhibit-P46) and has also given a certificate (Exhibit-P47) under Section 65-B of the Evidence Act in support of the pen drive. Thus, the facts that scooty was with the accused; that he came to the house of the victim; that he took away the victim, purchased kurkure for the victim, are established from the evidence adduced on behalf of the prosecution.
12. As to whether rape was committed by the accused is the moot question which this Court has to deal with. The victim aged about 5 years was examined as PW-27, she has identified the accused in the Court and also narrated the incident before the Court. The accused in this case was arrested on 20.02.2021, his (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (9 of 16) [CRLDR-3/2021] underwear was seized vide Exhibit-P30, accused vide Exhibit-P73 gave information about the place of incident and vide Exhibit-P74, he informed about his clothes and sandals. In pursuance of the information given by the accused, the recovery was effected vide Exhibit-P38.
13. In the report of the State Forensic Science Laboratory, Rajasthan (Exhibit-P113), human semen was detected in the 'nikar' of the victim, underwear of the accused, vaginal swab of the victim, and anal swab of the victim and glans secretion stained guaze of the accused. All the exhibits were forwarded to DNA for necessary examination. The DNA report has been exhibited as Exhibit-P114. The conclusion of the report reads as under:-
"CONCLUSION On the basis of above analysis performed on the aforesaid exhibits it is concluded that:
1. The male DNA profile obtained from exhibit no. 23 (Blood sample of accused) is matching with the male DNA profile obtained from exhibit no. 1 (Nicker of victim), 2 (Underwear of accused), 3 (Vaginal swab of victim), 4 (Anal swab of victim), 5(Vaginal slide of victim), 12(Blood smeared soil), 13 (Jute bori) and 19 (Leather seat cover).
2. The female DNA profile obtained from exhibit no.22 (blood sample of victim) is matching with the female DNA profile obtained from stains detected on exhibit no. 1 (Nicker of victim), 2 (Underwear of accused), 3 (Vaginal swab of victim), 5 (Vaginal slide of victim), 12 (Blood smeared soil), 13 (Jute bori), 15 (Blood smeared soil), 16 (Baniyan of accused), 17 (T-
shirt of accused), 18 (Paijama of accused), 19 (Leather seat cover) and 20 (Net seat cover)."
14. From perusal of the above report and from perusal of the statement of the victim, it is clearly established that the accused (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (10 of 16) [CRLDR-3/2021] was the person who had committed rape with a child - victim aged 5 years. The offence is thus proved against the accused.
15. Counsel appearing for the accused was not able to point out any infirmity in the prosecution case and the only argument advanced before the Court is that the Court below and the Prosecuting Agency had acted in a hot haste. We would like to appreciate the efforts made by the Investigating and Prosecuting Agency in arresting the accused and proving the guilt against the accused. They have indeed not left any loopholes in the prosecution case right from the inception of the case till the conclusion. Thus, we do not find any error in the impugned judgment of conviction and the same deserves to be upheld.
16. Upon the question of sentence, we would like to note that the trial Court committed an error in not affording ample opportunity to the accused while hearing him on the question of sentence. From the perusal of the judgment of conviction and the order of the sentence, it is clearly revealed that the conviction order was passed on 16.03.2021 and the sentence was passed on 17.03.2021. After pronouncement of the judgment of conviction, the accused was heard on the question of sentence on the same day. The Apex Court in Manoj & Ors. Versus State of Madhya Pradesh (supra) has held that on the date when an accused is convicted, he is under a shock and hearing him on the question of sentence on the same day is not doing justice with him.
17. On the question of sentence, it is argued by the counsel for the accused that the accused was aged 21 years on the date of (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (11 of 16) [CRLDR-3/2021] the alleged incident. He brought the child back and left her near the shops, which goes to show that even after having committed the offence, he had sympathy for the victim and that is why he left her near the shops. Learned trial Court has dealt with the aggravating and mitigating circumstances and has arrived at the conclusion that the case falls under the category of 'rarest of rare case' and thus, awarded death penalty to the accused.
18. The Sessions Judge in the order of sentence dated 17.03.2021 has observed in Para (6) that:-
"eSa ;g mYys[k dj pqdk gwW fd izLrqr ekeys esa vkthou dkjkokl vFkok e`R;qn.M nksuksa ltk ij fopkj djus ds vius&vius dkj.k gS fQj Hkh esjs }kjk e`R;qn.M fn;s tkus ij fopkj djus dk ,d izeq[k dkj.k ;g Hkh gS fd bl U;k;ky; }kjk nh xbZ QkWlh dh ltk dsoy varfje n.M gSA ls'ku tt }kjk fn;s x;s e`R;qn.M ds izR;sd ekeys dks vfuok;Zr% iqf"V gsrq ekuuh; mPp U;k;y; dks Hkstk tkrk gS pkgs ml vijk/kh us bl n.M ds fo:} dksbZ vihy Hkh ugha dh gksA mPp U;k;y; dh ihB }kjk xEHkhjrkiwoZd lquokbZ o fopkj djus ds i'pkr~ gh bls iq"V fd;k tkrk gSA vr% bl U;k;ky; }kjk nh xbZ QkWlh dh ltk dk izHkko ,d iziksty ek= gh gSA blds foijhr ;fn vijk/kh dks dBksjre n.M ls de n.M fn;k tk; rks jkT; dh vihy ds vHkko esa mldks nh xbZ vkthou dkjkokl dh ltk dks e`R;qn.M esa rCnhy ugha fd;k tk ldrkA ;g vo'; gS fd e`R;qn.M dks vkthou dkjkokl ds n.M esa rCnhy fd;k tk ldrk gSA vr% t?kU;re ekeyksa esa ls'ku U;k;ky; }kjk bl rjg dh ltk ij fopkj djrs le; uje :[k viukuk eq>s mfpr izrhr ugha gksrkA iksDlks vf/kfu;e esa gR;k ds fcuk dsoy cykRdkj ds ekeyksa esa gh e`R;qn.M fdu ekeyksa esa fn;k tkuk pkfg;s bldh vkSfpR;rk dh O;k[;k ekuuh; mPp U;k;ky; }kjk dh tkuh Hkh mfpr izrhr gksrh gSA vr% izLrqr ekeys dks Rarest of rares dk ekurs gq;s vfHk;qDr dks /kkjk 5¼M½/6 iksDlks vf/kfu;e ds vijk/k ds fy;s nh xbZ oSdfYid ltk e`R;qn.M ls nf.Mr fd;k tkuk mfpr izrhr gksrk gSA vfHk;qDr dks mijksDr nks"kfl) vijk/kksa ds fy;s fuEu izdkj nf.Mr fd;k tkrk gSA** From perusal of the order of sentence passed by the trial Court, it is revealed that the learned trial Court has awarded the maximum sentence on two counts; firstly, the trial Court has (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (12 of 16) [CRLDR-3/2021] observed that the sentence of death penalty awarded by the trial Court is only a proposal and secondly, it has observed that in the matters of heinous offences, the Sessions Judge should not adopt a lenient approach, one of the reasons assigned for the same is that if life imprisonment is awarded and the State does not file an appeal, then there is no possibility of awarding of death penalty. The trial Court has also observed that in POCSO cases where there is rape and no murder, whether death penalty should be awarded, is yet to be decided by the High Court, therefore, the trial Court has considered the present case to be a 'rarest of rare case' and has awarded death penalty. We are not satisfied with the reasons assigned by the trial Judge for awarding the death penalty. The death penalty awarded by the Trial Judge is not a mere proposal and the fact that lower sentence should not be awarded as in absence of an appeal by the State, the accused will not be sentenced with death penalty is an extraneous consideration. The other observation that in heinous offences, the Sessions Judge should not adopt a lenient approach is against the principles laid down by the Apex Court with regard to heinous offences where while sentencing the accused, aggravating and mitigating circumstances are to be considered. Each case is to be judged on its merit and not by taking a pre-determined approach, as suggested by the Sessions Judge.
19. Learned trial Court has also committed error in convicting the accused for the offence under Sections 376(2)(i) of IPC, for the very reason that Section 376(2)(i) of IPC was deleted with (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (13 of 16) [CRLDR-3/2021] effect from 21.04.2018 whereas, the present offence was committed on 19.02.2021.
20. It is also pertinent to note that Section 42 of the POCSO Act deals with alternate punishment. The same is reproduced hereunder:-
"42. Alternate punishment - Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E or section 509 of the Indian Penal Code (45 of 1860) of section 67B of the Information Technology Act, 2000 (21 of 2000), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
42A. Act not in derogation of any other law - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency."
21. From bare perusal of the provisions of Section 42 of POCSO Act, it can be inferred that if an accused has committed crime for the offence under Section 376(AB) & Section 376(2)(j) & (m) of IPC and for offence under Section 5(m)/6 of POCSO Act, the trial Court can award sentence either under the POCSO Act or under the IPC, whichever provides for punishment that is greater in degree. The accused cannot be awarded both the sentences at the same time under the IPC as well as under the POCSO Act for the same offence.
(Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (14 of 16) [CRLDR-3/2021]
22. The Trial Judge has convicted the accused for the offence under Section 376(2)(i)(j) & (m) of IPC for life imprisonment till his natural life; for the offence under Section 376(AB) of IPC, he has been sentenced for life imprisonment till death; and for offence under Section 5(m)/6 of POCSO Act, he has been awarded death penalty. No reason has been assigned by the Trial Judge for awarding life imprisonment till death for offences under the IPC and death penalty for the offence under the POCSO Act, when sentence provided for the offence under Section 376(AB) of IPC and Section 5(m)/6 of POCSO Act is same.
23. We are of the considered view that the accused was not provided ample opportunity to put the mitigating circumstances before the Court and in view of the judgment of the Apex Court in Manoj & Ors. Versus State of Madhya Pradesh (supra), hearing the accused on the same day when he is sentenced, is not just. This Court could have remanded the matter back to the learned trial Court to hear the accused afresh on the question of sentence, however, taking note of the fact that the aggravating and mitigating circumstances have been placed before the Court, we are not inclined to remand the matter for hearing on the question of sentence. We have taken note of the aggravating circumstances, which in this case is that the offence of rape was committed with a 5 year old girl, the mitigating circumstances are that the accused is aged 21 years, he is not having any criminal antecedents and that he did not leave the girl at the crime scene, rather left her near the shops so that she could get proper medical treatment. Thus, this Court does not consider it to be a case (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (15 of 16) [CRLDR-3/2021] falling in the category of 'rarest of rare case' and the reformative theory needs to be applied in this case.
24. As to what sentence should be awarded under Section 5(m)/6 of POCSO Act, when the law provides for minimum sentence of 20 years, life imprisonment till death and death penalty; is to be now determined. The present case pertains to an accused, who was aged 21 years on the day of the incident. He has no criminal antecedents and there is no report that he cannot be reformed. No material has been shown to indicate that the accused cannot be reformed or that the accused is a continuing threat to the society. These extenuating factors add up against imposition of death penalty which is inflicted only in the rarest of the rare cases. The State has not shown anything to prove the likelihood that the appellant would commit acts of violence or is a continuing threat to society; per contra, his conduct in the prison has been described as satisfactory. There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for a period of 30 years will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live, he poses a grave and serious threat to the society. We believe that there is hope for reformation, rehabilitation and thus, we impose the sentence of 30 year for offence under the POCSO Act.
25. Thus, we deem it proper to set aside the order of sentence dated 17.03.2021 while upholding the judgment of conviction dated 16.03.2021. The Death Reference is accordingly declined (Downloaded on 11/11/2023 at 05:41:34 PM) [2023/RJJP/010944] (16 of 16) [CRLDR-3/2021] and the appeal preferred by the appellant is partly allowed. We deem it proper to award sentence of 30 years rigorous imprisonment for the offence under Section 5(m)/6 of POCSO Act and a fine of Rs.1,00,000/- (Rupees: One Lac Only) and in default of payment of fine, to further undergo 1 year simple imprisonment. For offence under Section 366A of IPC, we deem it proper to award sentence of 7 years and a fine of Rs.50,000/- (Rupees: Fifty Thousand Only) and in default of payment of fine, to further undergo additional 3 months simple imprisonment. Sentences shall run concurrently.
(BHUWAN GOYAL),J (PANKAJ BHANDARI),J
SUNIL SOLANKI /PS
(Downloaded on 11/11/2023 at 05:41:34 PM)
Powered by TCPDF (www.tcpdf.org)