Crime Heinous But Not Premeditated: Allahabad High Court Commutes Death Penalty To Life Term Sans Remission In 5-Month-Old Cousin's Rape-Murder Case

In it 65-page judgment, a Division Bench of Justice Rajnish Kumar and Justice Rajeev Singh concluded that the prosecution had fully established the charges under Sections 302, 364, 376 (Ka)(Kha) IPC and Section 6 of the POCSO Act, 2012 through a chain of circumstances which referred only towards the guilt of the convict/appellant without reasonable doubt

The Court noted that though it was 'heinous' crime of rape where the child was put in such condition, on account of which she succumbed to the injuries sustained by her and died, the act was not committed with a pre-meditated mind, hence, death penalty was liable to be set aside.

Case in brief

As per the FIR, during a family wedding at a Marriage Lawn in Lucknow, the accused (victim's real cousin) took the infant from her mother at around 7 p.m. on the pretext of playing with her and did not return.

After hours of search, the infant was found lying unconscious amidst bushes in a nearby vacant plot naked with blood all over her clothes and body. She was rushed to the hospital where she died. The post-mortem and medical evidence indicated “rape like” assault on the victim.

In September 2020, the trial court convicted the accused and as per the procedure, the reference along with the records of the case was sent to the HC. The matter was tagged with the appeal filed by the accused.

During the hearing in HC, the appellant-convict argued that he had not attended the marriage where the incident occurred and had been “falsely implicated” on account of enmity.

He alleged that 4 PWs had given false evidence and that the IO had conducted a 'wrong investigation'.

The State, however, submitted that the entire chain of circumstances was fully established which was consistent with the testimonies of 4 PWs and even defence witness.

It was also submitted that in the CCTV footages, the appellant was clearly visible wherein he could be seen taking the child and leaving the marriage lawn.

High Court's observations

Although the CCTV compact disc supplied to the Court was found broken, the Bench relied on the testimony of the Investigating Officer, who had earlier viewed the footage. The Court said that this testimony could not be contradicted by any evidence.

The bench also took into account the testimonies of independent witnesses, including PW-4 and DW-2), stated that they saw the accused in the bushes with the child, who was naked and that he fled after seeing the family members.

Furthermore, the division bench also noted that the child's mother (PW-2) and father (PW-1) affirmed that the accused took the baby from the mother's lap and later ran away upon their arrival at the spot where the child was found.

In fact, the bench further noted, the Medical evidence also revealed that the child was brought in “gasping condition”, with mud and sand all over her body, with blood in the anal and perineal region and the post-mortem doctors had confirmed ante-mortem injuries consistent with violent assault.

In view of these incriminating circumstances, the High Court held that the circumstances as a whole, taking away the child, recovery of the victim, injuries, medical evidence, witness testimonies and conduct of the accused, formed a complete and unbroken chain.

Thus, rejecting the defence's arguments alleging false implication due to enmity, the Court found that the prosecution had been able to prove the prosecution case on the basis of circumstantial evidence.

It also said that there was no illegality, error or perversity in the trial court's findings and that the brutality committed with the minor girl child had not been disputed even by the brother of the convict/appellant.

Thus, the conviction for rape, murder and kidnapping was upheld by the Court. However, though the bench acknowledged the brutality of the offence, it applied the sentencing principles laid down by the Supreme Court in its various judgments to examine as to whther this case warranted death penalty.

The Court took into account the following points:

• The case was based on circumstantial evidence (except for Section 364 IPC).
• There was no report of Probation Officer, Jail Administration or Psychologist.

• The convict was 27 years old who had no criminal history and there was no evidence that the offence was pre-meditated.

Against this backdrop, the Bench concluded that although the crime was 'heinous', it did not fall under the "rarest of rare" category which required the capital punishment.

Therefore, the death sentence under Section 302 IPC and Section 376 (Ka)(Kha) IPC read with Section 6 POCSO Act was commuted to life imprisonment for the convict's natural life without remission.

The life sentence under Section 364 IPC and fines imposed by the trial court were confirmed.