30 April 2023 5:09 AM GMT
The Chhattisgarh High Court, while partly allowing a criminal appeal filed by a POCSO convict, has commuted the death sentence awarded to him by the lower court to imprisonment for life.The division bench of Chief Justice Mr. Ramesh Sinha and Justice Mr. Sanjay K. Agrawal said:“We are of the opinion that this is not the rarest of rare case in which major penalty of sentence of death awarded...
The Chhattisgarh High Court, while partly allowing a criminal appeal filed by a POCSO convict, has commuted the death sentence awarded to him by the lower court to imprisonment for life.
The division bench of Chief Justice Mr. Ramesh Sinha and Justice Mr. Sanjay K. Agrawal said:
“We are of the opinion that this is not the rarest of rare case in which major penalty of sentence of death awarded has to be confirmed. In our view, imprisonment for life would be completely adequate and would meet the ends of justice.”
According to prosecution, on 05.06.2017, the appellant allegedly took a 12-year-old girl away from her parents' lawful guardianship in Dallirajhara and committed rape and aggravated penetrative sexual assault on her multiple times. The appellant was also accused of murdering the girl using a stone and disposing of evidence.
The mother of the deceased filed a missing person report. The body of the deceased was later discovered near the Kharritola Mining area by family members and villagers, and a Dehati Merg Intimation was registered by the police on 06.06.2017.
The postmortem report revealed that the cause of death was shock due to extensive haemorrhaging from a skull injury, and that the deceased had been sexually assaulted with forced intercourse, which caused genital damage.
Based on the evidence on record, the Sessions Judge had found the appellant guilty and sentenced him under various sections of the Sections 302, 363, 376(2)(i)(n), 201 of the Indian Penal Code and 5(1)(m) of the Protection of Children from Sexual Offences Act. Hence, the present appeal was filed by the appellant.
Whether the death sentence is proper in accordance with Section 366 of the CrPC?
The bench was to consider the question whether this case falls under the category of rarest of rare case justifying capital punishment, or not, to answer which the bench relied on the Supreme Court’s ruling wherein it has laid down principles for awarding capital punishment for which the balance between aggravating circumstances and mitigating circumstances has to be struck.
“In case of conviction under Section 302 of the IPC or any conviction for an offence punishable with death or in the alternative imprisonment for life, the Court is required to assign special reasons for awarding such penalty and the special reason for awarding death sentence in accordance with sub-section (3) of Section 354 of the CRPC,” the court explained.
Relying on the practical guidelines issued by the Supreme Court in Manoj and others v. State of Madhya Pradesh, the bench made it clear that the trial court while convicting the appellant and sentencing him to death has not taken into consideration the probability of the appellant to be reformed and rehabilitated and has only taken into consideration the crime and the manner in which it was committed and has not given effective opportunity of hearing on the question of sentence to the appellant.
The bench noted that no evidence was brought on record on behalf of the prosecution to prove to the court that the convict/appellant cannot be reformed or rehabilitated, by producing material about his conduct in jail and no opportunity of hearing was given to the convict/appellant to produce evidence in that respect.
The bench further noted that no jail offence(s) were said to have been committed by the accused/appellant, though the appellant has committed the offence of kidnapping minor victim girl from the guardianship of her father and subjecting her to sexual intercourse by which she severe injuries on her private part "which is barbaric, inhuman, heinous and extremely brutal".
The court also noted that these are the incriminating circumstances, but there is no evidence on record that the convict/appellant cannot be reformed or rehabilitated.
“Though it shocks the conscious of the society at large, but, yet, in the facts and circumstances of the case, upon thoughtful consideration, we are of the view that extreme sentence of death penalty is not warranted in the facts and circumstances of the case,” the bench said.
The bench further said that this is not the rarest of rare case in which a major penalty of sentence of death awarded has to be confirmed.
"We further direct that the life sentence must extend to the imprisonment for remainder of natural life of the appellant herein – Jhaggar Singh Yadav," the court, while commuting the sentence.
While partly allowing the criminal appeal filed on behalf of appellant, the conviction of the appellant under Sections 302, 363, 376(2)(i)(n), 201 of the Indian Penal Code and Section 5(1)(m) of the POCSO Act, 2012 were maintained by the bench.
Case Title: Jhaggar Singh Yadav vs. State of Chhattisgarh [CRREF No. 1 of 2019]
Citation: 2023 LiveLaw (Chh) 13
For Appellant/Convict : Shri Sangharsh Pandey, Advocate
For State/Respondent : Mr. Raghavendra Pradhan, Additional Advocate General