Uttarakhand High Court
State Of Uttarakhand vs Yusuf Alias Sonu on 2 May, 2024
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
MS. JUSTICE RITU BAHRI, C.J.
AND
MR. ALOK KUMAR VERMA, J.
2ND MAY, 2024
CRIMINAL REFERENCE NO. 02 OF 2018
State of Uttarakhand .....Applicant.
Versus
Yusuf alias Sonu,
S/o Sri Jayad Hussain,
R/o Village Noorpur, Post Noorpur,
Tehsil Chandpur, District - Bijnor (U.P.) ..Respondent.
With
CRIMINAL APEAL NO. 167 OF 2018
Yusuf alias Sonu ...............Appellant
Versus
State of Uttarakhand ..............Respondent.
Counsel for the State : Mr. J.S. Virk, learned Deputy
Advocate General with Mr. Rakesh
Kumar Joshi, learned Brief Holder
Counsel for the Appellant : Mr. R.S. Sammal, learned counsel for
the accused.
Upon hearing the learned Counsel, the Court
made the following
JUDGMENT :(per: Ms. Ritu Bahri, C.J.) The present Reference has been sent by the Special Judge / Sessions Judge, Tehri Garhwal in judgment and order dated 27th April, 2018 passed in SST No. 46 of 2016 State vs. Yusuf @ Sonu, whereby respondent-Yusuf alias Sonu has been convicted under Sections 376(2) and 302 of the Indian Penal Code (for short 'IPC') with death penalty.
2. Criminal Appeal No. 167 of 2018 has also been filed by the convict (Yusuf alias Sonu) against the judgment and order dated 27th April, 2018 passed by the Special Judge / Sessions Judge, Tehri Garhwal in Special Sessions Trial No. 46 of 2016 State vs. Yusuf alias Sonu, whereby the appellant has been convicted and sentenced under Section 376(2)(i) of IPC to undergo imprisonment for life with a fine of Rs. 50,000/- and under Section 302 of IPC with death sentence and fine of Rs. 50,000/-.
3. An FIR (Exhibit A-1) was registered on the complaint made by Anita, wife of Bhim Singh, on 11.03.2016. As per the complainant, she got married to Sonu as per Muslim customs on 05.03.2016. In the night of 05.03.2016, she made his daughter (the deceased) sleep with him and committed rape on her, as a result of which she died. Three-four days after the incident, the complainant went to Patwari, but she did not find him at the post, as he had gone to Dehradun for training. On the basis of the above, investigation was carried-out and charge-sheet was presented in the 2 Court. The accused was provided with all the documents as per rules.
4. Thereafter, arguments were heard on framing of charges against the accused and after that, the charges of Sections 376(2), 302, 201 IPC and Section 5(e) read with Sections 6 and 5(n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO' Act) were leveled against the accused, which the accused denied and pleaded to be tried.
5. On behalf of the prosecution, the following thirteen witnesses were examined:-
i. PW1-Mrs. Anita
ii. PW-2 Mrs. Sunita
iii. PW-3 Suresh
iv. PW-4 Dilbahadur,
v. PW-5 Bachal Singh
vi. PW-6 Surat Singh,
vii. PW-7 Mrs. Babita Devi,
viii. PW-8 Mrs. Monica
ix. PW-9 Mohammed Wajid,
x. PW-10 Chintamani,
xi. PW-11 Dr. Bagesh Chandra Kala
xii. PW-12 Mrs. Smrita Parmar
3
xiii. PW-13 Revenue Sub Inspector Harikrishna
6. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure (for short, 'Cr.P.C.'). In the statement, he admitted that he lived with the complainant-Anita, the victim (deceased) and the two children of Anita. He denied therein of committing any murder after committing on rape.
7. As per the evidence given by PW1-Mrs. Anita (the mother of the deceased child), Anita had been living in Vinakhal for seven-eight years. Her parents and her three children used to live with her. Her husband-Bheem Singh had left her two years ago. All the three children born to her were of Bheem Singh. The house, in which she resides, is a two-storeyed house. Her parents and her two children lived in the upper floor and she, the victim, and accused @ Sonu lived together on the lower floor. Three-four months before this incident, she started living with the accused and established husband-wife relationship with the accused. The accused asked her to accompany her to Ghansali and to solemnize marriage after going to New Tehri. For two-three days, the accused kept her with him and there, they had established husband-wife 4 relationship and, thereafter, he took her to Vinakkhal stating that after earning money, he will solemnize marriage with her by taking her to Tehri, but the accused never solemnized marriage with her. In the night of the incident, the accused took her to Khawada at 07:00-08:00 PM to feed her, where his friend Wajid Miyan lived. Whey they came back from Khawada village at 11:00-12:00 o'clock after having dinner at the house of the accused's friend Wajid, at that time, the deceased was found right at the house and she was changing sides. There was no one other than three of them in the room. It was the habit of the accused that he would not allow the deceased to sleep in the mid, rather he himself used to sleep between her and the deceased and made the deceased sleep his another side. On the day of the incident, the deceased was sleeping towards the wall and the accused was sleeping in the middle and the deceased was sleeping on the other side. At night, the accused removed the electricity bulb which was installed in the room. At around 02:00 in the night of the incident, she saw the accused feeding Khichdi to her daughter. Thereafter, she fell asleep. When she woke up at about 6 o'clock in the morning, the girl was dead. There was blood 5 around her mouth and ankles, her legs were blue. The pajama was worn loosely and there was latrine attached to the pajama. Even before this incident, the accused used to often beat the deceased. On an earlier occasion also, the accused had kicked the deceased on her face, due to which the blood had oozed out and had also broken her right hand. When her mother saw the deceased, the accused threw the Daal which she was cooking in the kitchen on the body of her mother. The accused used to do such things with the deceased. After this, she went to her brother and sister-in-law, who lived with her parents, and told them that her daughter had died. Her brother and sister in law came down to her room and saw the girl dead. Knowing that the accused had killed him, they beat the accused and after this, his father also came. Somebody in the village said that do not keep the dead body for long, therefore, her father, brother and a few people of the village took the child and buried her. After that, she reached Patwari Chauki at 12 o'clock in the noon, but the Patwari had gone on training, thereafter, she came back. In the evening on that day, the accused came to her house with seven-eight goons, who were speaking in support of the accused that the accused had not 6 caused the incident and he had killed the child. After this, she stayed with the accused in Wajid's house in Khawada for two days so that the accused could not run away from her and could teach him a lesson. After this, she ran away from Khawada and came to her parents and, thereafter, someone from the same village came and made him writ the Report Exhibit A-1, on which she put her signature. The accused was caught in Miyala. Senior officials, SDM, etc. including Pradhan and Patwari took out the girl from the pit, where the child had been buried. The girl was brought to New Tehri for post mortem. Naksha Nazri was prepared by the Patwari, after interrogating him, on his pointing and his statement under Section 164 Cr.P.C. Exhibit-2 was recorded in the Narendranagar Court, which had been given to the Magistrate. The pajama of the deceased was taken into custody and sealed and stamped in his presence. By opening the bundle with the permission of the Court, pajama was identified as Exhibit-1.
8. The evidence given by PW-1 Anita (mother of the deceased) was further supported and reiterated by PW-2 Smt. Sunita (the mother of PW-1), PW-3 Suresh 7 (brother of PW-1) and PW-4 Dilbahadur (father of PW-
1).
9. Mrs. Babita Devi, younger sister of PW -1 Anita appeared as PW-7, who stated that the accused was living with Sonu at the time of incident. Her sister- in-law Monica called at 06:00 a.m. on 6th March, 2016 and told that deceased had died, and you come here. She immediately went to Anita's house and when she entered Anita's room, she found the deceased dead, there was blood on her legs, tears and injury marks on her stomach. She suspected Sonu as he had slapped the deceased many times and broken her hand and had also hit her in such a way that blood came out from her mouth and after being beaten, the deceased child used to come to her.
10. Another witness PW-4 Mrs. Monica (sister-in- law of PW-1 Anita) also gave her sworn affidavit that the incident took place on 5th March, 2016, and next morning, her sister-in-law came to her house and told her crying that her daughter had died. Thereafter, they called Babita (PW-7). Before this, she went to Anita's room and saw that the deceased was dead, her legs were blue and then her sister-in-law Babita had come. Apart from Anita and the accused, there was no one 8 with the deceased and she suspected that the accused had killed the child. Even before the incident, accused Sonu had broken the deceased's hand by bending it and had once drawn blood from her mouth.
11. Apart from the family members, there was a witness, who is PW-5 Bachal Singh, who was the former Head of Gram Sabha Khawada from 2008 to 2013 and presently Mrs. Santosh Rawat-his daughter was the Village Head. On 12.03.2016, he had gone from Khawada to Vinakkhal. There, he met SDM Smrita Parmar and she asked him to accompany her. Thereafter, he, Patwari Harikishan Kohli, Surat Singh Panwar, Manmohan Dimri, Roopchand Panwar Darmiyan Singh Bisht and Dilbahadur etc. accompanied her to the Pine forest, where Dilbahadur took out a one and a half year old girl wrapped in a blanket from the pit. After removing the clothes and blanket, it was found that there were blue marks on the girl's private parts and underwear.
12. A Panchnama was prepared of the dead body after inspecting the dead body of the girl on the instructions of the SDM, and he identified his signatures on the Panchnama. This witness supported the 9 proceedings regarding filing of Panchayatnama of the deceased as per rules.
13. PW-6 Surat Singh stated that on 12.03.2016, when he was asked by SDM Smriti Parmar to accompany her to the place of incident from Vinakkhal, he had also gone with the SDM. After reaching the incident site in the forest about one and a half kilometers away, Dilbahadur was asked to take out the dead body from the pit. Then Dilbahadur took out the dead body from the pit in the presence of SDM and others and the process of naming the dead body by the Panchayat took place. He identified his signatures on the Panchayatnama.
14. Another witness PW-9 Mohammad Wajid stated that he knew the accused for the last four and a half years. On 5th March, 2016, the accused reached his house with Anita at 7o'clock in the evening. The food was ready. There were three boys living in the room with them. After feeding both of them, they returned immediately. The next morning, it came to light that the child of Anita had been murdered. He reached Vinakkhal and then came back. He had met the accused present in the Court at Vinakkhal. There was a conversation going on between Nepali people 10 and him. Then, he asked one gravel vehicle from Chintamani. He said that the keys of his vehicle is with accused Sonu. When he called the accused, he told that he had gone to forest to bury the child. He went to get the keys with Chintamani. And one the way they met accused Sonu on the hill above the place where the girl had been buried. They took the keys of the vehicle and came back. Sonu is Muslim.
15. Another witness, who appeared as PW-10, is Chintamani. He stated that he knew accused Sonu from one or one and a half months before the incident. He used to the work in a hotel and the accused used to come to have tea or to eat something. On 06.03.2016, when he went to Vinakkhal Hotel from the village, he came to know that the daughter of the woman with whom the accused used to live had died. Then he remembered that he had given the car key to the accused because he had to deliver the goods somewhere. The accused did not have the phone at that time. Another boy named Suresh lived with him. He was told by Suresh that he had gone to the forest to bury the girl. Then he along with a boy named Abhijeet He went towards forest where Suresh had told. Then accused Sonu met him on the way while coming back 11 from the forest. He took the key from him and came back.
16. In the present case, PW-10 Chintamani, PW- 9 Mohammed Wajid and PW-5 Bachal Singh are all independent witnesses and they have consistently said that on 5th of March, 2016, Sonu was having the keys of gravel vehicle and was doing part time driving job and they had met Sonu when he was coming back from forest where the girl had been buried and the key of the vehicle was taken from him by Mohammad Wajid. The post mortem was report of the deceased girl was prepared by PW-11 Dr. Bagesh Chandra Kala on 13.03.2016 with panel of Doctors, in which there were included Doctor Bagesh Chandra Kala, Doctor Jagdish Pathak, Doctor Ritu Khaitan and the following injuries were found on the external examination of the dead body:
1. She was a girl of normal built, whose weight was about 10 kgs and her height from head to toe was 2 feet 3 inches. Both the eyes were closed, the eyeball was soft, the cornea was white and milky and flat.
2. The skin over the abdomen was greenish in colour in both the iliac fossa, the stomach was 12 distended, the mouth was half pen, there were hair on the head which were of medium length and were easily coming out along with the roots from a few places, on some places, these hairs were lying loose from the roots.
3. Rigor mortis was gone, PM was not visible due to Stainy Greenish discolouration.
17. The following ante-mortem external and internal injuries were found on dissection:-
1. Multiple marks of abrasion of ill-defined margin were in front of the neck, the colour of which was greenish. On the internal examination of these marks, the following positions were found:-
Blood clots of green and black colour were present, brachial cartilage and trachea were broken.
Multiple ill-defined abrasions were there on suprapubic region and on the inner side of both the thighs, the colour of which was greenish. The vagina was lacerated, meaning thereby, it was torn and was partially rotten and the opening of the vagina was large as per the age. Dirty 13 smelling fluid and blood, greenish and blackish were present.
The rectum opening was also very large and broken, the margins of which were partially rotten and in which there foul smelling and partially rotten material.
While giving further statement, PW-11 Dr. Bagesh Chandra Kala gave evidence that there was gas and greenish and blackish ill-defined rotten food in the stomach and small intestines of the deceased. In the opinion of the above panel of Doctors, the cause of death was trauma and shock due to injuries received before death and the suffocation. The expected time of death was about 7 days old and the death was likely to have occurred on 05.03.2016. The deceased's cartilage / wind pipe was broken and there were many injuries on her neck, which were caused to her due to sexual assault. Injuries in the private parts of the deceased are also possible due to sexual assault and if excessive pressure is applied on the neck while doing so, it is possible for the cartilage & trachea of the neck to break. The witness 14 proved the Post Mortem Report Exhibit A-4 identifying his writing and his signature and the signatures of the Members of the panel and has proved the Pathology Report Exhibit A-5 to be in handwriting and signature of Dr. Ritu Khaitan.
18. As per the evidence given by Smt. Smrita Parmar, Sub Divisional Magistrate, Gairsain, Chamoli, by way of her sworn affidavit, she stated that on 11.03.2016, she had received a telephonic information that 6th Nisali SDM Devanand Sharma was on leave and she was posted on the post of In-charge SDM, Ghansali. She received information that there was a fire near village Vinakkhal and the girl was raped, murdered and buried and the case is being investigated by Revenue Sub Inspector, Dalgaon having additional charge of Vinakkhal. In the said case, she was asked to appear as a Magistrate to remove the deadbody from the burial place and to conduct Panchnama. Since it was evening, she reached Village Vinakkhal the next date on 12.03.2016 and reached the spot along with other people of the village and the Investigating Revenue Sub Inspector. The place of incident was Village Trisiada, located in the Tok named Shivgarhi in 15 the middle of Village Trisiyada, which is about two and a half kilometers away from Revenue Police Station Vinakkhal. Where the dead body of the deceased was buried, stones of big size were placed on it and under her direction, efforts were made to remove the body from the place where the dead body had been buried.
The proceeding started at 12o'clock. Before removing the dead body, Panchs were appointed by her. Stones were removed from the place where the dead body was buried and the body was dug out. The body was buried about two feet deep in the ground, was wrapped in a white cloth and covered with a blanket. With the dead body of the deceased child, the clothes used by the deceased child were kept. The age of deceased child was one and a half year, the identification of dead body of which had been done by her real maternal grandfather-Dilbahadur. The deadbody was taken out from the pit in the presence of the Panchs, along with the blanket. On removing the white cloth wrapped on her body, her body was found naked and the dead body was laid on its back. Both the hands were straight and the mouth was open and the eyes were closed. The right hand was found to be broken. There were marks of red colour on the neck. There was excreta of the 16 deceased on the blanket. On looking back, red coloured spots or marks were found below the neck and waist of the deceased girl. There were blue marks on the girl's knees and near her genitals. The vagina of the deceased appears to be large for her age. Bloodstains were found on the white cloth in which the dead body was kept. Doing all the proceeding of Panchayatnama on the spot and taking the opinion of Panchs, the Panchayatnama was prepared by Patwari / Revenue Sub Inspector, Dalgaon Teshil Nisali Shri Harikishan, which is Exhibit A-6 on the file. The said witness identified her signature and signature of Harikishan on the Panchayatnama. Along with this, proving the fact of handwriting and signatures of Sri Harikishan on the photo of the deadbody prepared at the time of Panchayatnama, sample seal, stamp of dead boy, the said witness by doing the proceeding of panchayat by recovering the dead body from the place it was buried, by sealing and stamping the dead body as per rules, has given the sworn affidavit for sending the dead body for post mortem. From the statements of PW-12, it gets proved that the dead body of the deceased child ws recovered on 12.03.2016 from Village Trisiyada, in the middle of Tok named Shivgarhi 17 at about 12o'clock in the noon and at the spot itself, the proceeding of Panchayatnama was completed.
19. PW-13 Revenue Sub Inspector Harikishan was the Investigating Officer of FIR No. 2/2016 Exhibit A-7 lodged against accused Yusuf alias Sonu, and he proved the fact of disclosure of the same in GD Exhibit A-8 in his signature and handwriting. After this, the complainant's statement was recorded and after inspecting the incident at her instance, Exhibit A-9 site map was prepared by him in his handwriting and signatures. The accused was taken into custody for questioning on the information of an informer from Chamiyala market and all higher officials were informed about the incident. The proceeding of taking out the deadbody of the deceased had to be done on 12.03.2016. This proceeding had to be done in the presence of Incharge Pargana Magistrate Ghansali. On 12.03.2016, he asked on telephone to reach the spot. On 12.03.2016, at 12o'clock in the day, Pargana Magistrate, along with Mrs. Smrita Parmar went to the spot where the dead body of the deceased was buried and reached the place where the body was buried in a forest called Shivgahri, two and half kilometers away 18 from Vinakkhal market, which he exhibited in GD Exhibit-A. The body was recovered in the presence of accused Sonu, deceased's maternal grandfather Dilbahadur and other local villagers, Sri Bachan Singh, Chandra Singh, etc. The body of the deceased girl was kept in a pit about two feet below and was taken out. The dead body of the deceased was kept in a blanket wrapped in a white cloth and the photograph of the dead body was taken by him, which is in his handwriting and signatures, which is Exhibit A-11. The white cloth wrapped on the dead body was taken by the police, which was sealed and survey-stamped by the police and the memo of taking into possession the cloth having bloodstains by the police was prepared at the spot, which is in his handwriting and signatures, on which there are signatures of him, Revenue Sub Inspector Gona and Revenue Sub Inspector Tugan, which is Exhibit A-12. He has identified sample seal Exhibit A-13 to be in his handwriting and signatures. The Exhibit A-14 is the spot map of the place from where the dead body of the deceased was taken out and it was made by him during the proceedings of Panchayatnama, on which he has identified his handwriting and signatures. On the very same day, one 19 more map of the place where the dead body of the deceased had been buried from the place of incident was prepared by him, which is Exhibit A-15 in his handwriting and signatures. After that, for sending the dead body for post mortem, sample seal Exhibit Ka-16, post mortem challan for the dead body Exhibit A-17 were prepared by him in his handwriting and signatures. Exhibit A-18 is the letter written by him to the Medical Officer for post mortem of the dead body, on which there is his signature. On same day accused Sonu was arrested and the Arrest Memo and Search Memo were also prepared by him as per rules, which is in his handwriting and signatures, which is Exhibit A-
20. The information of the arrest was given to Sri Jayad Hussain-the father of the accused through Exhibit Ka-20, on which there is his signature. On 13.03.2016, the complete address and name of accused Sonu was disclosed as Sonu alias Mohammad Yusuf, son of Jayad Hussan, Villae Noorpur, Police Station Noorpur, Tehsil Chandpur, District Bijnore. After conducting the medical examination of the accused, the accused was produced for remand and was made aware of the crime committed by him. On 13.03.2016, the post mortem of the deceased's body was conducted 20 at the District Hospital, Bauradi. After post mortem, the body of the deeased was handed over to her maternal grandfather Dilbahadur for last rites. On 14.03.2016, the pajama worn by the deceased at the time of the incident was taken into custody by the police from the mother of the deceased, out of which a Memo was prepared, which contains the signature of the witness, which is Exhibit A-21. The pajama was sealed and survey stamped at the spot. The seal is Exhibit A-22. On 16.03.2016, after interrogating Shri Ram Mohan Bahuguna and Kumari Rama, living near the incident site, their statements were also recorded in CD. The complainant's Application for deposition under Section 164 Cr.P.C. is Exhibit A-23. On 22.03.2016, the post mortem report of the deceased was obtained from District Hospital Baraudi, whereafter for DNA an Application was presented before the Court on 26.03.2016, which is Exhibit A-25, which is in his handwriting and signature. On 30.03.2016, the blood sample of the accused was taken by the medical panel and was sent to Dehradun with permission of the Court. The order of the Court is Exhibit A-26. The receipt of the FSL Dehradun is Exhibit A-27. The DNA sample form is Exhibit A-28. This witness then went 21 to District Hospital, Baraudi on 31st March, 2016 and took the statements of Dr. Bagish Chandra Kala Ravish Chandra, on 3rd April, 2016, took the statement of Ram Singh, and Babita-the real sister of the complainant, on 6th April, 2016 took the statement of Chintamani, on 27.05.2016 took the statements of Mohammad Wajiv, Mahaveer Sajwan, Manoj Semwal and on 03.06.2016, took the statement of Dr. Ritu Khaitan and Dr. Jagdish Pathak in District Hospital Baraudi. On 05.06.2016, after interrogation of Smt. Monika Devi-the sister-in- law of the complainant, took her statement.
21. After completing the investigation, charge sheet was filed in the Court against the accused under Sections 376, 302, 201 IPC and Section 5/6 of POCSO, which is Exhibit A-29.
22. The Trial Court, after going through the entire evidence, had come to the conclusion that the prosecution has successfully proved that on the night of the incident, Anita slept on one side of the wall, the accused slept in the middle and the deceased girl slept on the other side. The accused had beaten the deceased girl and broke her right hand and had also kicked her in the face, drawing blood. The deceased girl was treated cruelly by the accused during her 22 lifetime before the incident. The Trial Court concluded that the prosecution has been successful in proving that on the night of the incident, complainant-Anita wanted to take the deceased girl to eat to Khawada, but the accused did not permit the deceased innocent girl to go in the feast and snatching her deceased daughter from Anita, made her sleep alone in the room. The prosecution was further successful in proving that the accused was repeatedly getting in and out of the room of the house on the night of the criminal incident and the accused had fed the deceased girl Khichdi at night. The prosecution has also been successful in proving that the deceased girl's pajama was worn upside down. Even the accused had answered Question Nos. 7 and 15 under Section 313 of Cr.P.C. in his statement and said that he saw the girl's pajama worn out. Anita had taken off the pajama of the deceased girl and thrown it in front of a closed room. The prosecution has proved the recovery of Pajama. The Trial Court further examined the evidence and held that the Revenue Police took possession of Pajama and the Patwari was present in the Court. It was said that if the medical report and the post-mortem report corroborate the prosecution's version as to the time 23 and manner of the incident, minor discrepancies in a crime like murder and rape cannot be considered to be unbelievable. The injury on the private part of the deceased girl could have been caused by sexual assault or if excessive pressure is applied on the neck while doing so, it is possible that neck cartilage and windpipe may break. As per the statement given by Dr. Bagesh Chandra Kala, the deceased girl was sexually assaulted. The vagina of the deceased girl was torn and two fingers were entering easily. The vagina of a two year old girl cannot be big enough for two fingers to enter. As per the opinion given by the Doctor in the post mortem report, it was proved that the deceased girl was sexually assaulted / raped. On the letter, the Doctor had accepted the fact that the Medical Panel is of the opinion that the injuries on the private parts of the body of the deceased girl and the broken neck bone was a result of a sexual crime and the girl's neck was hit while committing sexual crime. By applying excessive pressure so that the child does not cry, it was possible for the child's throat cartilage and trachea to break. In this way, the accused raped and murdered the one and a half year old deceased girl. 24
23. The accused has been convicted for the offences under Sections 376 (2) & 302 of IPC and Section 5(e) read with Section 6 and Section 5(n) read with Section 6 of the POCSO Act.
24. Since there was no evidence on the file that the accused had destroyed the body of the deceased girl in order to save himself from the crime of rape and murder of the deceased girl, hence, he was acquitted of the offence under Section 201 of IPC.
25. As far as awarding sentence to the accused is concerned, the Trial Court had referred to the judgments of the Supreme Court in Bachan Singh vs. State of Punjab, AIR 1980 SC 898; Kehar Singh vs. State (Delhi Administration) AIR 1988 SC 1883; Swami Shraddhanand alias Murli Manohar Mishra (2) vs. State of Karnataka, (2008) 13 SCC 767; Shankar Krishna Rav vs. State of Maharashtra, 2013 (5) SCC 546; and Mukesh and others vs. State of NCT Delhi and others, Criminal Appeal No. 607-608/2017 AIR 2017 SC 2061.
26. After examining the above judgments, the Trial Court has convicted under Section 376(2)(i) of IPC and has been awarded the sentence of life imprisonment and fine of Rs. 50,000/-. The accused 25 has also been punished with death penalty and fine of Rs. 50,000/- under Section 302 of IPC. Thereafter, the accused Yusuf alias Sonu has been directed to be hanged till death.
27. After hearing learned counsel for the parties, learned counsel for the appellant (accused) does not press the Criminal Appeal (Criminal Appeal No. 167 of 2018) as regards the conviction and he is restricting his prayer to commuting the death penalty to imprisonment for life.
28. Keeping in view the abovse prayer, the appeal qua merit is dismissed, and this Court proceeds to examine the issue of commuting death sentence to imprisonment for life.
29. In 1973, the Supreme Court in the case of Jagmohan Singh Vs State of U.P. (1973) 1 SCC 20, examined the question whether death sentence awarded by a court under Section 302 of Indian Penal Code, 1880 was violative of sub-clause (1) of Article 19 of the Constitution. As per Sub-Section (5) of Section 367 of Criminal Procedure Code, there was a discretion with the court either to award capital sentence or life imprisonment. The Supreme Court held that Article 19 of the Constitution does not directly deal with the freedom to 26 live. It is not included in the seven freedoms mentioned in that Article. As far as India is concerned, capital punishment cannot be described as unusual because that kind of punishment has been with us from ancient times right up to the present day though the number of offences for which it can be imposed has continuously changed. The framers of our Constitution were well aware of the existence of capital punishment as a permissible punishment under the law. The other Articles in the Constitution, viz., Section 72(1)(c), 72(3), 21 and 134 and Sections 401 and 402 of the Code of Criminal Procedure and the Entries 1 and 2 in List III of the Seventh Schedule, all indicate that capital sentence has not been regarded per se as unreasonable or not in the public interest.
30. After the amendment by Act 26 of 1955, it was left to the judicial discretion of the court whether the death sentence or the lesser sentence should be imposed. Article 14 cannot be invoked in matters of judicial discretion. If the law has given to the Judges wide discretion in matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there would be at all any discrimination, since facts 27 and circumstances of one case can hardly be the same as the facts and circumstances of another. In a criminal trial, the accused who is charged for murder knows that he is liable to sentence of death in the committing court itself. The accused has a right to examine himself as a witness, and thereafter, give evidence on the material facts. He and his counsel are at liberty to address the court not merely on the question of guilt but also on the question of sentence, and so on. After the prosecution and the accused have had their full say, the court is principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. In this backdrop, the procedure established by law cannot be said to be unconstitutional under Article 21.
31. The Supreme Court also examined several studies made by Western Scholars to show the ineffectiveness of capital punishment either as a deterrent or as an appropriate retribution. The Supreme Court Judges in the above study observed that social conditions are different and also the general intellectual level. The only authoritative study in India is that of the Law Commission of India published in the year 1967. One the 28 basis of its conclusions it is difficult to hold that capital punishment as such is unreasonable or not required in public interest. The policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin and impossibility of laying down standards.
32. The impossibility of laying down standards is at the very core of the Criminal Law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. This discretion in the matter of sentence is liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Mode Judicial Code would not serve the purpose. The exercise of judicial discretion of well-recognised principles is, in the final analysis, the safest possible safeguards for the accused. The Code of Criminal Procedure lays down a detailed procedure and this procedure is limited to the finding of the guilt. The Supreme Court finally held that it was necessary to emphasize that the court was principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry.
29
33. In paragraph 29 of the Jagmohan's case (supra), the Supreme Court observed as under :
"However, it is necessary to emphasize that the court is principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the court. The only thing that remains is for the judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr.P.C. purport to provide for. These provisions are part of the procedure established by law and, unless it is shown that they are invalid for any other reasons, they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid, and, hence, the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article
21."
34. Thereafter, in Bachan Singh Vs State of Punjab (1980) 2 SCC 684, a larger bench of Supreme Court consisting of five judges has affirmed the view taken in Jagmohan's case (supra), and has affirmed the proposition that the provisions of death penalty for an offence punishable under Section 302 IPC, and the sentencing procedure laid down in sub-section (3) of 30 Section 354 of Criminal procedure Code, requires that special reasons have to be recorded for awarding a death penalty, and these provisions are not violative of Article 14, 19 and 21.
35. While approving the judgment in Jagmohan's case (supra), the Supreme Court also referred to the new provision in sub-section (3) of Section 354 of the Criminal Procedure Code, 1973, that award of death sentence was an exception to be made for "exceptional reasons"
founded on grave circumstances of the particular case relating to the crime and the criminal.
36. In Paragraphs 160, 161 & 162 of the Supreme Court judgment rendered in Bachan Singh's case (supra), it has been observed as under :
"160. In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan's case. These propositions may be summed up as under:
(i) The general legislative policy that underlies the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum punishment therefor, and to allow a very wide discretion to the Judge in the matter of fixing the degree of punishment.
31
With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where the maximum punishment is the death penalty.
(ii)(a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible.
"The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need." (Referred to McGoutha v. California, (1971) 402 US 183.
(b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment.
(iii) The view taken by the plurality in Furman v.
Georgia, 408 US 238 (1972), decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and un-guided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in out Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process"
clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in 32 respect of one area of the world may not hold good in respect of another area.
(iv)(a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime.
(b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.
In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different. Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an unguided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.
(v)(a) Relevant facto and circumstances impinging on the nature and circumstances of the crime can be brought before the Court at the pre- conviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facts and circumstances had been specifically provided. Where counsel addresses the Court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302, Penal Code, "the Court is principally concerned with the facts and circumstances whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance With the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the Court. The 33 only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), Cr.P.C. purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not tin-constitutional under Article 21. (emphasis added).
161. A study of the propositions set out above, will show that, in substance, the authority of none of them has been affected by the legislative changes since the decision in Jagmohan's case. Of course, two of them require to be adjusted and attuned to the shift in the legislative policy. The first of those propositions is No. (iv)(a) which postulates, that according to the then extant CrPC both the alternative sentences provided in Section 302, Penal Code are normal sentences, and the court can, therefore, after weighing the aggravating and mitigating circumstances of the particular case, in its discretion, impose either of those sentences. This postulate has now been modified by Section 354(3) which mandates the Court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are "special reasons" - to be recorded - for such sentence. The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases.
162. In this view we are in accord with the dictum of this Court in Balwant Singh v. State of Punjab , 1976 SCC (Cri) 43, wherein the interpretation of Section 354(3) first came up for consideration. After surveying the legislative background, one of us (Untwalia, J.) speaking for the court, summed up the scope and implications of Section 354(3), thus: 34
Under this provision the Court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. It is unnecessary nor is it possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a case.
While applying proposition (iv)(a), therefore, the Court has to bear in mind this fundamental principle of policy embodied in Section 354(3)."
37. The Supreme Court further observed that there could be no rigid standards which can be laid down in the form of guidelines with respect to area of imposition of death penalty. The purpose of "laying down standards"
meant that 'murder' should be categorised beforehand according to the degrees of its culpability and all aggravating and mitigating circumstances should be exhaustively and rigidly enumerated so as to exclude all free play of discretion. Such standardisation was not possible. Firstly, the degree of culpability cannot be measured in each case; secondly, criminal cases cannot 35 be categorized where there are infinite, unpredictable and unforeseeable variations; thirdly, on such categorisation the sentencing process will cease to be judicial; and, fourthly, such standardization or sentencing discretion is a policy matter belonging to legislation beyond the court's function. In this backdrop, no rigid standard in this area can be laid down. Some broad guidelines consistent with the policy indicated by the legislature in Section 354(3) can be taken. The Court finally has to pay due regard both to the crime and the criminal. What is relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of a particular case. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. Hence, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. The Judges should never be bloodthirsty. Hence, courts aided by the broad illustrative guidelines will discharge the onerous function with evermore scrupulous care and humane concern. As per the legislative policy guidelines in sub-section (3) of Section 354, i.e., for the person convicted of murder, life imprisonment is the rule and 36 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 cases when the alternative option is unquestionably foreclosed.
38. The Supreme Court, thereafter, in Machhi Singh and others Vs State of Punjab, (1983) 3 SCC 470, followed the guidelines laid down by it in Bachan Singh's case (supra), and examined the case of a death sentence imposed on Machhi Singh, Kashmir Singh, Jagir Singh by the Sessions Court as confirmed by the High Court. They confirmed the death sentence awarded to the above said three accused. While, affirming the death sentence, in paragraph 32 of said judgment, the Supreme Court observed as under :
"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in 'death sentence-in-no-case' doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of 'reverence for life' principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law 37 enforced by it. The every existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so 'in rarest of rare cases' when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime."
39. All the three accused had murdered two innocent and helpless women named Ghamo Bai and Rajo Bai in a helpless and defenceless state in their own house. A couple namely Bishan Singh and his wife Paro Bai were killed in similar circumstances. Sahib Singh, Mukhtiar Singh, Manto Bai, Palo Bai and Jita Singh were killed by five men including Machhi Singh and Jagir Singh. They put to death a young newly married couple and rendered a young woman a widow. The appeal filed by above 38 accused was dismissed by the Supreme Court following the guidelines indicated in Bachan Singh's case (supra).
40. Recently, the Supreme court in the case of Digambar Vs The State of Maharashta, 2023 2 CriCC 647, had an occasion to examine whether death penalty could be awarded in case of an honour killing. In that case, the Supreme Court observed that the appellant Digambar was a young boy of 25 years at the time of incident and had not acted in a brutal manner as there was one single injury inflicted on both deceased. As far as offence punishable under Section 302 is concerned, the Supreme Court held that the prosecution had established that the deceased and accused persons left the house together and soon thereafter the death of deceased person had occurred. The accused were held guilty of the offence punishable under Section 302 IPC. However, keeping in view the fact that appellant Digambar was 25 years of age, it was not considered to be a 'rarest of rare' case. He was held to be not a person with criminal mindset and criminal records, and in this backdrop, the sentence of capital punishment was committed to life imprisonment. The Supreme Court had also taken into account the report of the Probation Officer. As per said 39 report, the Sarpanch and people of the village had stated that inter-caste marriage of deceased friend Govind and deceased sister Pooja was putting social pressure and being angry about it, the incident took place in sudden provocation by Digambar. However, overall behaviour of Digamber was found to be good.
41. The Supreme Court also referred to the case of Gandi Doddabasappa alias Gandhi Basavaraj Vs State of Karnataka, (2017) 5 SCC 415, wherein the accused had committed murder of his daughter, who was in the advanced stage of pregnancy. The Supreme Court had upheld the conviction of the accused in respect of offence punishable under Section 302 IPC, but commuted the sentence from capital punishment to imprisonment for life.
42. Similarly, in the case of Prakash Dhawal Khairnar (Patil) Vs State of Maharashtra, (2002) 2 SCC 35, the appellant was a Senior Scientific Assistant. He wiped out his brother's entire family. The Supreme Court found that this was done by him on account of frustration as his brother was not partitioning the alleged joint property. The Supreme Court held that the crime was heinous and brutal, but the same could not be considered to be 'rarest of rare' case. It is, however, held that it was 40 difficult to hold that the accused was a menace to the society, and that there was no reason to believe that he could not be reformed or rehabilitated.
43. Also, Mohinder Singh Vs State of Punjab, (2013) 3 SCC 294, was a case where the accused had committed murder of his wife and daughter, and the Supreme Court had held that it could not be considered to be 'rarest of rare' case to inflict the capital punishment.
44. The Supreme Court also referred to the case of Sundar @ Sundarrajan Vs State by Inspector of Police [Review Petition (Criminal) Nos. 159-160 of 2013, in Criminal Appeal Nos. 300-301 of 2011, dated 21.03.2023], wherein it was held that 'rarest of rare' doctrine does not require that in such a case only death sentence has to be imposed. The Court has to consider not only the grave nature of crime, but also as to whether there is possibility of reformation of a criminal.
45. The Supreme Court in B.A. Umesh Vs Union of India and others, Criminal Appeal No. 1892 of 2022 (arising out of SLP (Crl.) No. 890 of 2022, decided on 04.11.2022) has also examined the issue whether delay in execution of death sentence could be a sufficient ground 41 for substituting death sentence by imprisonment for life.
46. In the above matter, the Supreme Court was examining the case where the execution of death sentence was due to the delay which took place in execution of the death sentence due to pendency of mercy petition and reference was made to a judgment of Ajay Kumar Pal Vs Union of India and another, 2015 (2) SCC
478. In that case there was a delay of 03 years and 10 months, which was found to be inordinate and the delay was not attributed to the accused / petitioner but the delay was found on account of functionaries and authorities in question.
47. In paragraph 14 of the above said judgment, the Supreme Court observed as under :
"Paras 44 and 48 of the decisions of this Court in Shatrughan Chauhan and another Vs Union of India and others, (2014) 3 SCC 1, which were quoted in Ajay Kumar Pal (supra), had laid down that undue long delay in execution of death sentence would entitle the condemned prisoner to pray for commuting the death sentence to that of life imprisonment. The individual cases were thereafter dealt with in Shatrughan Chauhan (supra) and paragraph 105 onwards of said decision 42 show that in cases where there was a delay of 12 years (para 118), 9½ years (para 137), 9½ years (para 147), 7 years and 8 months (para 161), 5 years and 8 months (para 175) and 7 years and 5 months (para 209), the benefit of commutation was extended by this Court."
48. In the case before the Supreme Court the mercy petition was received by the Central Government on 03.03.2011, and it was disposed of on 15.05.2013. In between, the Ministry of Home Affairs, Government of India, forwarded the mercy petition to the Principal Secretary, Home Department, Karnataka so that the Governor, Karnataka could consider the mercy petition. Thereafter, in the meantime, on 09.03.2011 in Writ Petition No. 52 of 2011, preferred by the accused- appellant, Supreme Court granted stay of execution of death sentence. Before the Central Government authorities, the State Cabinet on 07.05.2012, decided to approve the note prepared by the Home Department recommending rejection of mercy petition. The Governor also rejected the mercy petition on 06.06.2012, and subsequently, the matter was referred to the Central Government on 30.08.2012, and finally, the Hon'ble President after considering the mercy petition, rejected the mercy petition on 12.05.2013. Hence, a period of 02 43 years and 03 months was taken to dispose of the mercy petition.
49. In A.G. Perarivalan Vs State through Superintendent of Police and another, 2022 SCC Online SC 635, a bench of three Judges of Supreme Court had commuted the sentence of death to life in a petition filed under Article 161 of the Constitution keeping in view the fact that the petition remained pending for 2½ years with the Hon'ble Governor, despite recommendation of the State Cabinet for remission of the sentence.
50. In the facts of the present case, the judgment of conviction is dated 27.04.2018 and till 2nd May, 2024, almost six years have gone-by and the Supreme Court in the case of B.A. Umesh vs. Union of India (supra) has observed that the delay in execution of death sentence could be a sufficient ground for substituting death sentence by imprisonment for life. The Supreme Court referred to the case of Ajay Kumar Pal vs. Union of India and another 2015 (2) SCC 478, where there was delay of 3 years and 10 months on account of pendency of a mercy petition and this delay was not attributed to the accused. It was sufficient ground to commute the 44 death sentence to imprisonment for life. The Supreme Court was examining a case, where a period of two years and three months was taken to dispose of the mercy petition, which was a ground for commuting the death sentence to imprisonment for life.
51. Another fact, which requires examination, is that the accused in the present case was 23 years of age and even if the allegation was of rape and if he has been convicted for life imprisonment, there was a scope for reforming and rehabilitating the accused, which is the main object in the criminal law while considering the imposition of penalty of sentence.
52. The Supreme Court in the case of Digambar vs. The State of Maharashtra, 2023 2 CriCC 647, had commuted the death sentence of a young boy of 25 years Digambar for committing honour killing. The Supreme Court had observed that since he was 25 years of age, it could not be considered to be a 'rarest of rare' case and he was not a person with criminal mindset and criminal records, and in this backdrop, the sentence of capital punishment was commuted to imprisonment for life. Therein, the Supreme Court in this case took into account the report of the Probation Officer. As per the said report, the Sarpanch and 45 people of the village had stated that the inter-caste marriage of his sister Pooja with Govind was putting social pressure and made him angry.
53. Applying the ratio of all the judgments as referred to above, even though the victim was one and a half year old, the accused being 23 years of age and was not having a criminal background, there is scope that by associating him with counselors, his mindset can be reformed while in custody and even while he is in custody, he can be given training to lead a good life by giving him technical skills to make a good livelihood so that he can come out of peer pressure, anger and frustration and be reformed.
54. In the present case, the incident took place on 05.03.2016 and on that day, as per Section 6 of the POCSO Act, the punishment of rigorous imprisonment could not have been less than ten years, which may extend to imprisonment for life.
55. For ready reference, Section 6 of the POCSO Act (unamended) reads as under:-
"6. Punishment for aggravated penetrative sexual assault.--Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."
46
56. Hence, the punishment, which can be awarded to the accused (respondent) under Section 6 of the POCSO Act read with Section 42, is life, and the punishment under Section 302 of IPC is for death, or imprisonment for life and fine. Since the appellant had been punished with death penalty, it is being commuted to imprisonment for life.
57. The issue as regards commuting death penalty to imprisonment for life was considered by a three-Judge Bench of the Supreme Court in Swamy Shraddananda (2) vs. State of Karnataka (2008) 13 SCC 767. The Supreme Court had taken into account the tenets of penology and examined the issue that if the death sentence is to be commuted to imprisonment for life, then 14 years conviction would not be a proper punishment. A proper course would be to expand the option and take over what as a matter of fact lawfully belongs to the Court, i.e., the vast hiatus between 14 years' imprisonment and death. For the purpose of execution of a life sentence, the Supreme Court proceeded to examine the scope of limiting the benefit of remissions, which are given by the State. Where after claiming the benefit of remission, the 47 sentence is only of 14 years, a special category of sentence, instead of death sentence, can be substituted by the punishment of imprisonment for life, or for a term exceeding fourteen years and put that category beyond application of remission is well founded principle.
58. The Supreme in Court in Union of India vs. Sriharan, (2016) 7 SCC 1 reiterated the procedure given in Swamy Shraddhanand vs. State of Karnataka.
59. In the present case, the accused respondent had raped a one and a half years old hapless girl and thereafter committed her murder, as per the evidence given by the prosecution. However, the accused is 23 years of age and did not have the criminal background. There is hope that by associating him with counselors, his mindset could be reformed while in custody and even while he is in custody, he can be given training to lead a good life by giving him technical skills to make a good livelihood so that he can come out of peer pressure, anger and frustration and be reformed. Hence, following the principles laid down by the Supreme Court in Swamy Shraddananda (2) vs. State of Karnataka (2008) 13 SCC 767 and Union 48 of India vs. Sriharan, (2016) 7 SCC 1, the death sentence is being commuted to life.
60. Accordingly, the Appeal is partly allowed as hereunder:
(i) The conviction of the appellant for the offences punishable under Sections 376(2)(i) and 302 IPC and Section 5(e) read with Section 6 and Section 5(n) read with Section 6 of the POCSO Act is upheld and the sentence awarded to him except under Section 302 I.P.C. is confirmed.
(ii) However, the death sentence awarded to the appellant for the offence under Section 302 of IPC is commuted to that of imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 20 years.
(iii) The other terms of sentences awarded to the appellant including fine amount and default stipulations also stand confirmed. All the substantive sentences awarded to the appellant shall run concurrently.
61. Resultantly, the Criminal Reference also stands disposed of.
_____________ RITU BAHRI, C.J.
__________________ ALOK KUMAR VERMA, J.
Dt: 2nd May, 2024 Rathour 49