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Penal Code, 1860 – s.376(1), (2)(f), (i), (m), s.376-A and s.302– Protection of Children from Sexual Offences Act, 2012 – s.6 –Rape and murder of a minor girl – A two-and-a-half-year-old girlwas subjected to sexual assault by her maternal uncle – The assaultwas accompanied by bites on the body of the victim – The rape wasof such intensity that there was merging of vaginal and anal orificesof the victim – The victim was taken to PW-6-doctor for medicalattention but she was already dead – The Trial Court foundcircumstances establishing the guilt of the appellant-accused – TheTrial Court held that the case was rarest of rare, one warrantingimposition of death sentence – Thus, the Trial Court by its orderawarded death sentence to the appellants on two counts, i.e. u/s.302 of IPC and u/s.376-A of the IPC; rigorous imprisonment forlife under two counts, i.e. s.376(1)(2)(f), (i) and (m) of IPC and u/s.6 of POCSO Act – The High Court affirmed the conviction andthe sentence passed by the Trial Court – On appeal, held: Accordingto the prosecution, on the day in question at about 7:30 p.m. whenthe victim was with her grandfather, on the pretext that the father ofthe victim had asked the appellant to bring the victim, the appellant,who was maternal uncle of the victim, took her away, this part isconclusively established through the testimony of PW-2, thegrandfather – As deposed by PWs 1 and 2, the appellant was foundby the side of the victim at the spot – The victim was having variousinjuries whereafter she was taken for medical attention – Soon afterincident appellant was also medically examined and injuries werefound on his private parts – The proximity in terms of time and thepromptitude in reporting are crucial factors and the evidence inthat behalf is completely trustworthy – The approximate time of theinjury of the appellant as given in report is consistent with the caseof prosecution – The pant of the victim was found at the spot ofincident is well established – In terms of chemical analyser’s report,the blood found on the trousers of the appellant was that of victim– This fact is also completely established – And it is a matter ofrecord that as per post-mortem report and medical opinion, therewas forceful sexual assault on the victim and her death was causeddue to injury which was in nature of multiple lacerations over vaginaland anal region; and merging of vaginal and anal orifices – Allthese circumstances stand proved beyond any doubt and bythemselves constitute a conclusive and consistent chain excludingevery other hypothesis except the guilt of the appellant – Theappellant is thus guilty of having committed offences punishableunder clauses (f), (i) and (m) of sub-section (2) of s.376 of IPC;and also, under clauses (j) and (m) of s.5 r/w s.6 of the POCSO Act,(as it stood before it was amended by Act 25 of 2019) – Sinceaccording to medical opinion, the death was because of sexualassault, the appellant is also guilty of having committed offencepunishable u/s. 376A of IPC.Penal Code, 1860 – ss.299, 300 and s.302 – Rape andmurder of a minor child – A two-and-a-half-year-old girl wassubjected to sexual assault – Her death was caused due to injuriesreceived during that assault – Whether such an act on part of theappellant comes within the parameters of ss.299 and 300 of IPCand whether he is guilty of having committed culpable homicideamounting to murder – Held: Considering the age of the victim inthe present case, the accused must have known the consequencethat his sexual assault on a child of two-and-a-half-year-old wouldcause death or such bodily injury as was likely to cause her death– The instant matter thus comes within the parameters of clausefourthly to s.300 IPC and the question posed on this issue must beanswered against the appellant – The appellant is therefore guiltyof having committed the offence of culpable homicide amounting tomurder.Sentence/Sentencing – Rape and murder of a minor girl – Atwo-and-a-half-year-old girl was subjected to sexual assault by hermaternal uncle – Her death was caused due to multiple injuries shereceived during such assault – The Trial Court found thatcircumstantial evidence established the guilt of the accused – TheTrial Court by its order awarded death sentence to the appellant ontwo counts, i.e. u/s.302 of IPC and u/s.376-A of the IPC; rigorousimprisonment for life under two counts, i.e. s.376(1)(2)(f), (i) and(m) of IPC and u/s. 6 of POCSO Act – The death sentence wasconfirmed by the High Court – On appeal, held: Merely becausethe instant case is based on circumstantial evidence there is no reasonto commute the death sentence – The matter must be considered tosee whether the circumstantial evidence is of unimpeachablecharacter in establishing guilt of the accused or leads to anexceptional case and also whether the evidence on record is sostrong and convincing that option of a sentence lesser than a deathpenalty is foreclosed – In the instant case, the circumstances provedon record are clear, consistent and conclusive in nature and are ofunimpeachable character in establishing the guilt of the appellant– The evidence on record also depicts an exceptional case wheretwo and half year old girl was subjected to sexual assault – However,it cannot be said that the option of a sentence lesser than deathpenalty is completely foreclosed – A definite pointer in favour ofthe appellant is the fact that he did not consciously cause any injurywith the intent to extinguish the life of the victim – In matters wherethe conviction is recorded with the aid of clause fourthly u/s. 300 ofIPC, it is very rare that the death sentence is awarded – In variousSupreme Court decisions, where the victims were below 16 years ofage and had died during the course of sexual assault on them, themaximum sentence awarded was life sentence – This aspect is veryimportant – Therefore, the appellant is guilty of the offencepunishable u/s. 302 IPC, since there was no requisite intent as wouldbring the case under any of the first three clauses of s.300 IPC, theoffence in the present case does not deserve death penalty –Appellant is sentenced to life imprisonment for offence punishableu/s.302 IPC – The second count on which death sentence has beenimposed is u/s. 376A of IPC – In view of the fact that s.376A IPCwas brought on the statute book just a few days before thecommission of the offence, the appellant does not deserve deathpenalty for said offence – However, the appropriate punishmentfor the offence u/s. 376A IPC must be rigorous imprisonment for aterm of 25 years – The conviction and sentence recorded by theCourts below for the offences punishable u/s. 376(1), (2)(f), (i) and(m) of IPC, and u/s.6 of the POCSO Act are affirmed.Code of Criminal Procedure, 1973 – s.235(2) – Penal Code, 1860– s.376(1), (2)(f), (i), (m), s.376-A and s.302 – Protection of Childrenfrom Sexual Offences Act, 2012 – s.6 – Rape and murder of a minorgirl – Trial Court found appellant-accused guilty – The Trial Court,by its order passed on the same day awarded death sentence to theappellant on two counts, i.e. u/s.302 of IPC and u/s.376-A of theIPC; rigorous imprisonment for life under two counts, i.e.s.376(1)(2)(f), (i) and (m) of IPC and u/s. 6 of POCSO Act – Thedeath sentence was confirmed by the High Court – Before theSupreme Court, the appellant contended that the sentence of deathwas passed on the same day when the conviction order waspronounced, there was non-compliance of s.235(2) of the Code,the infraction on that count was sufficient to consider commutationof the sentence of death to that of life imprisonment – Held: Merelyon account of infraction of s.235(2) of the Code, the death sentenceought not to be commuted to life imprisonment – Adequate andsufficient opportunity afforded to the appellant to place all therelevant materials on record in the light of principle laid down inDagdu v. State of Maharashtra.Penal Code, 1860 – s.376(1)(2) and s.376A – Criminal Law(Amendment) Ordinance, 2013 – Criminal Law (Amendment) Act,2013 – Rape and murder of a minor girl – The Trial Court, by itsorder awarded death sentence to the appellant on two counts, i.e.u/s.302 of IPC and u/s.376-A of the IPC; rigorous imprisonmentfor life under two counts, i.e. u/s.376(1)(2)(f), (i) and (m) of IPCand u/s. 6 of POCSO Act – The Criminal Law (Amendment)Ordinance, 2013 (promulgated by the President of India on03.02.2013), u/s.376(2) prescribed punishment as “shall be punishedwith rigorous imprisonment for a term which shall not be less thanten years but which may extend to imprisonment for life” – Thesentence prescribed by s.376(2) as amended by the Amendment Act,has for the first time provided that the imprisonment for life “shallmean imprisonment for the remainder of that person’s natural life”– Whether imposition of life sentence in the instant case for theoffence under u/s.376(2) could “mean imprisonment for theremainder of that person’s natural life” – Whether such ex-postfacto prescription would be consistent with the provisions of sub-Article (1) of Article 20 of the Constitution – Held: In the instantcase, the offence was committed on 11.02.2013 when the provisionsof the Ordinance were in force – However, the Amendment Act havingbeen given retrospective effect from 03.02.2013 – Since it was theOrdinance which was holding the field, going by the provisions ofthe Ordinance, Clauses (f), (h) and (l) of s.376(2) would getattracted – As far as consistency of ex-post facto prescription withArt.20(1) is concerned – An imposition of life sentence simpliciterdoes not put any restraints on the power of the executive to grantremission and commutation in exercise of its statutory power, subjectof course to s.433A of the Code – But, a statutory prescription thatit “shall mean the remainder of that person’s life” will certainlyrestrain the executive from exercising any such statutory power andto that extent the concerned provision definitely prescribes a higherpunishment ex-post facto – In the process, the protection affordedby Art.20(1) of the Constitution would stand negated – Therefore, itis must to declare that the punishment u/s.376(2) of the IPC in thepresent case cannot come with stipulation that the life imprisonment“shall mean the remainder of that person’s life”.Penal Code, 1860 – s.299 and s.300 – Interplay between –discussed.Words and Phrases – Theory of “Residual Doubt” –discussed. |
