Summary
The appellant's conviction for the rape and murder of a ten-year-old girl, resting on recovery of the body from his hut, the last-seen evidence of the victim's aunt and two child witnesses, and matching DNA, was affirmed. The death sentence was commuted to life imprisonment without remission for the appellant's natural life because the courts below had relied on the brutality of the crime alone, without considering aggravating and mitigating circumstances or the possibility of reformation.
Issues
- Whether the concurrent conviction under Sections 376(AB), 377 and 302 IPC and Sections 5/6 of the POCSO Act, based on circumstantial evidence, is sustainable.
- Whether the death sentence imposed by the trial court and confirmed by the High Court satisfies the rarest of rare test.
Provisions considered
- Section 302, Indian Penal Code, 1860Conviction for murder affirmed; on the choice between death and life imprisonment, the Court applied the rarest of rare framework and substituted the death penalty with imprisonment for the remainder of natural life without remission. (¶¶ 2, 4, 13, 14, 15, 22)
- Sections 5 and 6, Protection of Children from Sexual Offences Act, 2012Conviction for aggravated penetrative sexual assault on a ten-year-old, proved by medical evidence of sexual assault and DNA, was affirmed along with the IPC convictions. (¶¶ 2, 4, 9, 13)
- Section 366, Code of Criminal Procedure, 1973The High Court, as the court of reference for confirmation of the death sentence, expounded the requirement to consider aggravating and mitigating circumstances but failed to actually consider any, dealing only with the brutality of the incident. (¶¶ 5, 18)
Held
- Recovery of the victim's body from under empty cement bags in the appellant's hut was proved by the witness who found it, whose testimony withstood cross-examination and was supported by the complainant, the site contractor and the police witness; this circumstance was rightly held against the appellant. (¶ 10)
- The last-seen theory was proved beyond doubt: the victim's aunt saw the appellant take the children into his hut and only her own children came out, and the two child witnesses deposed that the appellant gave them Rs. 10 each but kept the victim back; their depositions were natural and inspired confidence, and nobody suggested the appellant's roommates were present. (¶ 11)
- DNA from hair found on the body and from the appellant's underwear matched the appellant's blood sample, and no infirmity was shown in the chain of seizure and examination; taking a cumulative view, the prosecution proved its case beyond reasonable doubt and no ground to interfere with the concurrent findings of conviction was made out. (¶¶ 12, 13)
- In cases resting solely on circumstantial evidence a court may, as a rule of prudence, give primacy to life imprisonment over death (Mohd. Farooq Abdul Gafur); the brutality of a crime cannot be the only criterion for the rarest of rare category (Gudda), yet the courts below discussed no circumstance other than brutality, an approach that cannot be sustained. (¶¶ 14, 15, 16)
- The two-step test reiterated in Manoj v. State of M.P. requires the aggravating and mitigating circumstances to be identified and weighed equally and the court to consider whether life imprisonment is unquestionably foreclosed; neither the trial court nor the High Court as reference court undertook that inquiry, as in Sundar @ Sundarrajan where the sentence was commuted on the same ground. (¶¶ 17, 18, 19)
- The probation officer's report showed the appellant's family to be in a very pathetic condition, earning a livelihood by labour, and the psychological report showed he could not attend school, began working at twelve, has good relations with inmates and suffers no psychiatric disturbance; in view of these mitigating circumstances and the rarest of rare threshold, life imprisonment without remission for his natural life was awarded in place of death. (¶¶ 20, 21, 22)
Result
Appeals partly allowed; conviction affirmed; death sentence substituted by life imprisonment without remission extending to the appellant's natural life; High Court judgment dated 07.01.2020 modified to that extent; pending applications disposed of.