'Belongs To Backward Community, Reformation Can't Be Ruled Out': Chhattisgarh HC Commutes Death Sentence Of Man For Rape & Murder Of 7 Yr-Old

The Chhattisgarh High Court has commuted the extreme sentence of death imposed on a man for committing rape and murder of a seven-year-old girl in the year 2021.While weighing the aggravating and mitigating circumstances against the accused-appellant, the Division Bench of Chief Justice Ramesh Sinha and Justice Amitendra Kishore Prasad held –“These are the incriminating circumstances, but there is no evidence on record that the appellant cannot be reformed or rehabilitated as at the time of offence he was aged about 29 years and he is a member of Other Backward Class, thereby he belongs to backward community and his chances of being reformed or rehabilitated cannot be ruled out.”Prosecution Case & Trial Court FindingsOn the night of 28.02.2021, the appellant took the minor deceased with her minor brother to attend a function. He left the brother of the deceased at the function and took her near the railway track at Somni and committed forceful sexual intercourse with her. Subsequent to the rape, he crushed her head with a heavy stone causing her death and threw away the corpse on the railway tracks in order to destroy evidence against him.Subsequently, the FIR was lodged and the appellant was arrested on suspicion. He then led the police team to the spot where he had hidden the stone used for crushing the head of the deceased and also gave recovery of a bracelet which he had taken away from the body of the deceased. Also, his wearing apparels were seized, on which blood stains were found.After obtaining the post-mortem report, DNA analysis report and upon completion of investigation, the police filed charge-sheet against the appellant. The trial Court, after analysing all the evidence on record, found the appellant guilty under Sections 302, 201, 363 and 366 of the IPC read with Section 6 of POCSO Act and awarded him the sentence of death under Section 302 IPC and Section 6 POCSO Act.The trial Court referred the matter to the High Court under Section 366 of the CrPC for confirmation of the capital sentence and the appellant also filed an appeal under Section 374(2) of the CrPC assailing the judgment of the trial Court.Can there be concurrent convictions U/S 363 & 366 IPC?At the outset, the Division Bench addressed the challenge to conviction of the appellant both under Sections 363 and 366 of the IPC which provide for 'punishment for kidnapping' and 'punishment for kidnapping, abducting or inducing woman to compel her marriage, etc' respectively. The counsel for the appellant argued that the trial Court erred in convicting the appellant both under Section 363 and 366 as according to him the substantive offence under Section 366 covers the offence provided under Section 363 and thus, conviction of the appellant only under Section 366 would have been sufficient. However, the Court did not find merit in such submission and held that conviction for offence under Section 363 would be just for commission of the offence of kidnapping the deceased from the lawful custody of her guardian and liability under Section 366 of the IPC would be sustainable as the abduction was for the purpose of subjecting the deceased girl to 'illicit intercourse'. For coming to this conclusion, the Court relied upon the judgments of the Supreme Court in Mohammed Yousuff @ Moula & Anr. v. State of Karnataka and Kavita Chandrakant Lakhani v. State of Maharashtra.Whether the appellant committed rape and murder of the deceased?The Bench went through the post-mortem report to find out as to whether the deceased has met with a homicidal death or not. It noticed 12 external injuries and 4 injuries on the private part of the deceased. Furthermore, the doctor also opined the cause of death to be the injury caused to the head of the deceased.The DNA report also proved the involvement of the appellant in the heinous crime as DNA of the deceased found on the articles seized from the appellant and the DNA of the samples of organ taken from the deceased, vaginal swab, slide cervical swab and the nail clipping of the deceased matched with the DNA of the appellant obtained from his blood samples.Referring to the observations made in Mukesh v. State (NCT of Delhi), the Court held that the DNA report deserves to be accepted, which indicates sexual intercourse committed by the appellant on the minor deceased. So far as the liability of the appellant for commission of murder of the deceased is concerned, the Court took into account the 'last seen theory' apart from other medical and documentary evidence. The testimonies of the mother and brother of the deceased proved the fact that the appellant enticed away the deceased with him and after that, no one has seen her alive. “Thus, after appreciating the entire ocular and medical evidence on record, we do not find any illegality in appreciation of oral, medical and circumstantial evidence or arriving at a conclusion as to the guilt of the appellant by the trial Court warranting interference by this Court and...

'Belongs To Backward Community, Reformation Can't Be Ruled Out': Chhattisgarh HC Commutes Death Sentence Of Man For Rape & Murder Of 7 Yr-Old

Jyoti Prakash Dutta

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