| Headnote |
Penal Code, 1860: ss.302, 363, 376 and 377 – Kidnapping, rape/unnatural intercourse and murder of two year old girl – Prosecution case was that on the fateful day, the victim child went missing around 4.00 p.m. – During the search operations by police and family members of the missing child, it surfaced that the appellant was seen distributing chocolates to children around the time the child went missing – Police reached the house of appellant and nabbed the appellant red handed under the bed with the victim child in naked condition – Trial court and High Court concurrently held him guilty and awarded death sentence – Appeal against conviction and sentence – Held: It stood conclusively established that the victim child was brutally assaulted and subjected to vaginal and unnatural intercourse – She was inflicted multiple injuries on face, head, neck, external genitalia as well as inside the uterus and urethra – Medical opinion was that death was due to throttling – There was overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proved that it was appellant and he alone, who committed the horrendous crime – Appellant had the special knowledge as to in what circumstances the victim child suffered multiple injuries – Burden to prove that those injuries were not caused by him was on the appellant alone in view of s.106 of the Evidence Act, which he miserably failed to discharge though the evidence on record proved beyond doubt that the victim child was in unlawful custody of the appellant from about 4.00 p.m. till she breathed her last breath due to the beastly attack on her – Conviction of appellant is upheld – Protection of Children from Sexual Offences Act, 2012 – Protection of Children from Sexual Offences Amendment Act, 2019.Sentence/Sentencing: Death sentence – Rape and murder of two year old girl – Prayer for commutation of death sentence – Held: The victim in this case was barely a two-year old baby girl whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last – Appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger – He ruthlessly finished a life which was yet to bloom – He, instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust – It’s a case where trust was betrayed and social values were impaired – The unnatural sex with a two-year old toddler exhibits a dirty and perverted mind, showcasing a horrifying tale of brutality – The appellant meticulously executed his nefarious design by locking one door of his house from the outside and bolting the other one from the inside so as to deceive people into believing that nobody was inside – He was thus in his full senses while he indulged in this senseless act – He showed no remorse or repentance for the gory crime, rather he opted to remain silent in his 313 Cr.P.C. statement – His deliberate, well-designed silence with a standard defence of ‘false’ accusation revealed his lack of kindness or compassion and would lead to believe that he can never be reformed – That being so, case for interference with the death sentence is not made out – Protection of Children from Sexual Offences Act, 2012 – Penal Code, 1860 – ss.302, 363, 376 and 377.Criminal Law: Evidence – Motive – Though the High Court observed that ‘satisfaction of lust’ and ‘removal of trace’ was the appellant’s motive but motive is not an explicit requirement under the Indian Penal Code, though ‘motive’ may be helpful in proving the case of the prosecution in a case of circumstantial evidence – The case in hand was not entirely based on circumstantial evidence as there were reliable eye-witness depositions who had seen the appellant committing the crime, may be in part – Such an unshakable evidence with dense support of DNA test did not require the definite determination of the motive of the appellant behind the gruesome crime.Sentence/Sentencing: Death sentence – Doctrine of proportionality – The object and purpose of determining quantum of sentence has to be ‘society centric’ without being influenced by a ‘judge’s’ own views, for society is the biggest stake holder in the administration of criminal justice system – A civic society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements – The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterrent punishment that commensurates with the gravity of offence. Protection of Children from Sexual Offences Act, 2012: s.5 – Protection of Children from Sexual Offences Amendment Act, 2019 – Aggravated Penetrative Sexual Assault – Punishment – The unamended Act defines “Aggravated Penetrative Sexual Assault” in s.5, which included, “whoever commits aggravated penetrative sexual assault on a child below the age of 12 years” – Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10-years but which may extend for imprisonment for life with fine – The minimum sentence for an aggravated penetrative sexual assault has been increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for natural life of the person – Significantly, ‘death sentence’ has also been introduced as a penalty for the offence of aggravated penetrative sexual assault on a child below 12 years – The Legislature impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory and re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, ‘death penalty’ can also be imposed – In the Statement of Objects and Reasons of amendment, Parliament has shown its concern of the fact that “in recent past incidents of child sexual abuse cases administering the inhuman mindset of the accused, who have been barbaric in their approach to young victim, is rising in the country” – If the Parliament, armed with adequate facts and figures, has decided to introduce capital punishment for the offence of sexual abuse of a child, the Court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto – The judicial precedents rendered before the recent amendment came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised – Crime against children – Sentence/ SentencingAdministration of Criminal Justice: Punishment to the rape accused – Sentencing Policy needs to strike a balance between the two sides and count upon the twin test of (i) deterrent effect, or (ii) complete reformation for integration of the offender in civil society – Where the Court is satisfied that there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent – Sentence/Sentencing.Evidence: Medical evidence – DNA – Plea of appellant-accused that the prosecution relied on the DNA evidence despite the fact that the method of analysis used i.e. Y-Chromosome Short Tandem Repeat Polymorphism (Y-STR) has certain inherent limitations due to which accurate identification of accused cannot be established beyond reasonable doubt and that the said method did not accurately identify the accused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the same lineage – Held: Plea is rejected – The globally acknowledged medical literature coupled with the statement of the Assistant Director, Forensic Science Laboratory leaves no doubt that in cases of sexual assualt, DNA of the victim and the perpetrator are often mixed – Traditional DNA analysis techniques like “autosomal-STR” are not possible in such cases – Y-STR method provides a unique way of isolating only the male DNA by comparing the Y-Chromosome which is found only in males – It is no longer a matter of scientific debate that Y-STR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as exculpatory evidence and is extensively relied upon in various jurisdictions throughout the world – Science and Researches have emphatically established that chances of degradation of the ‘Loci’ in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis – Although Y-STR does not distinguish between the males of same lineage, it can, nevertheless, may be used as a strong circumstantial evidence to support the prosecution case – Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases – Medical jurisprudence.Sentence/Sentencing: Death sentence – Commutation of – Aggravating and mitigating circumstances – Rape and murder of two year old girl child – Held: (Per R. Subhash Reddy, J. - dissenting on sentencing part) – In a case of conviction based on circumstantial evidence, ordinarily the extreme punishment of death penalty should not be imposed – If in a given case, guilt of the accused is proved beyond reasonable doubt, by establishing chain of circumstances, resulting in conviction, in appropriate cases death penalty can be imposed only after considering balancing aspects of aggravating and mitigating circumstances – But, at the same time ordinarily, if no special reasons exist, in a case of conviction based on circumstantial evidence, death penalty should not be imposed – In the instant case, conviction of the appellant was mainly based on circumstantial evidence – The evidence onrecord showed that on the day of occurrence, the appellant was under influence of liquor and committed the offence and, therefore, it cannot be termed as a pre-planned one, to count the same as an aggravating circumstance, for balancing aggravating and mitigating circumstances – The socio-economic condition of the appellant, as a person below poverty line, can also be considered as one of the mitigating factors, while balancing the aggravating and mitigating factors – There was no evidence from the side of prosecution, to show that there was no possibility of reformation and rehabilitation of the appellant – Age of the appellant was 25 years at the relevant time – He also had no crime record – Thus, the mitigating circumstances of the appellant, dominated over the aggravating circumstances, to modify the death sentence to that of life imprisonment – In view of all these aspects, death penalty imposed on the appellant is modified to that of life imprisonment, for the offence under s.302 IPC – Penal Code, 1860 – s.302 |
