Gauhati HC Commutes Death Sentence On Ground That Trial Court Failed To Consider Convict's Possibility Of Rehabilitation & Social Integration

The Gauhati High Court recently commuted the death sentence of a convict to life imprisonment on the ground that the trial court while imposing the ultimate penalty of death, failed to take into consideration the possibility of his reformation, rehabilitation and social reintegration.

The division bench of Justice Kalyan Rai Surana and Justice Mridul Kumar Kalita observed that there are no special reasons to impose the death penalty and the mitigating factors in the present case are sufficient to place it out of the “rarest of rare” category.

On March 14, 2018, the informant lodged an FIR at Ramnathpur Police Station alleging that on March 14, 2018, his neighbour and he was doing house repair work and his two nieces returned to their house and noticed another niece “X” was found lying dead with a cut on her neck and on seeing this they raised hue and cry.

It was also stated in the FIR that the first informant noticed the accused-appellant, running away with a blood-stained dao in his hand and therefore he believes that the accused, finding the niece of the informant namely, “X” alone in the house, committed rape on her and in order to conceal evidence, he killed her by cutting her neck.

On receipt of the said FIR, a case was registered under Sections 302 and 376 of the IPC read with Section 4 of the POCSO Act, 2012.

The Sessions Judge, Hailakandi vide judgment dated October 01, 2018 convicted the appellant under Sections 376 and 302 of the IPC as well as under Section 4 of the POCSO Act, 2012, and by order dated October 04, 2018, the appellant was sentenced to imprisonment for life for the offence of committing rape, penetrative sexual assault and to pay a fine of Rs. 10,000/- under Section 376 of the IPC, read with Section 4 of the POCSO Act, 2012. The appellant was also sentenced to death for committing the offence of murder under Section 302 of the IPC and was also sentenced to pay a fine of Rs. 10,000/- under Section 302 of the IPC.

The appellant has impugned the said judgment of conviction and sentence order before the High Court in the present appeal.

The counsel appearing for the appellant submitted that the prosecution side had failed to prove its case beyond all reasonable doubt. It was further submitted that the prosecution case is based entirely on circumstantial evidence and there are several missing links in the chain of circumstances which do not lead to the only inference that the appellant is guilty of the offence with which he is charged.

It was argued that the prosecution side has failed to examine vital witnesses and no reason has been cited for non-examination of such witnesses. With regard to the discovery of fact under Section 27 of the Indian Evidence Act, the counsel for the appellant submitted that the portion of the statement where the appellant has confessed to his guilt is inadmissible in evidence as said the confession was made by the appellant in the custody of the police and the appellant is protected under Section 24 and 25 of the Indian Evidence Act.

It was further submitted that the prosecution side has miserably failed to establish that the dao which was recovered by the investigating officer during the course of the investigation was used for the commission of the offence in this case as the blood stain found on the dao which was recovered was not cross-matched with the blood of the deceased to establish the fact that the said dao was used for commission of the offence.

It was highlighted that the trial court had erred in taking into consideration the previous bad character of the appellant as one of the incriminating circumstances in coming to the conclusion of guilt of the present appellant in the case. It was also submitted that no conclusive evidence regarding the commission of an offence under section 376 of the IPC or under section 4 of the POCSO Act, 2012 has been adduced in this case.

The Court noted that there is no eyewitness to the alleged offence who could have adduced direct evidence, hence, the prosecution's case is based on circumstantial evidence only. The Court further observed that in the instant case, there appears to be no circumstantial evidence on record to conclusively prove the existence of any of the four ingredients of Section 376 of IPC and Section 4 of the POCSO Act.

The Court further observed that due to the embargo of Section 25 and Section 26 of the Indian Evidence Act, the confession made by the appellant while in police custody as well as the confession made to the police officer is not admissible in this case.

“If we exclude the so-called confessional statement of the appellant as inadmissible evidence, only the oral testimony of prosecution witnesses, inquest report, post-mortem examination report, forensic laboratory report, exhibited documents, as well as material, exhibits remains as the evidence for prosecution side. However, we are of the considered opinion that none of the said evidence the prosecution side, proves conclusively that the appellant had done any of the acts described in clauses (a), (b), (c) or (d) of paragraph No. 92 of this judgement,” the Court said.

The Court noted that the trial court had presumed that the victim was raped before she was killed, only due to the swelling of the labia majora of the deceased “X”. It was further observed by the Court that there is no evidence on record to show that the stains of semen found on the undergarments of the deceased were cross-matched with the semen of the present appellant.

Therefore, the Court set aside the conviction of the appellant under Section 376 of IPC and Section 4 of the POCSO Act.

However, the Court upheld the conviction of the appellant by the trial court under Section 302 of the IPC for committing murder of the victim 'X' with the help of the dao.

“Even if we ignore the evidence on record which relates to making of confession by the appellant, as well as the evidence relating to reconstruction of crime scene by the appellant, the circumstances enumerated in the foregoing paragraph (i.e., paragraph No. 128) are fully established. Thus, under the facts and circumstances of this case, the facts established in this case are consistent only with the hypothesis of the guilt of the appellant, and the chain of evidence appears to be so complete that it does not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant and it also appears that in all human probability the murder of victim “X” has been committed by the appellant only,” the Court said.

However, the Court noted that the instant case does not fall in the category of rarest of rare cases as only one cut injury was found on the dead body. It was further observed by the Court that the trial court has taken into consideration the past criminal antecedent of the appellant regarding his attempts to outrage the modesty of PW-8 and PW-9 on earlier occasions as aggravating circumstances, however, materials on record shows that the said allegations are at the stage of accusation only and the appellant is yet to be held guilty of the said allegations by a competent court of law.

“….hence, we are of the considered opinion that the said accusations could not be regarded as an aggravating circumstance for imposition of death penalty on the appellant,” the Court said.

The Court further highlighted that it is only when the possibility of reformation, rehabilitation and social reintegration of the convict is ruled out, the extreme penalty of death may be imposed, which is not the case in the instant case.

“…..we do not think that any of the factors in the present case discussed above warrants the award of the death penalty. There are no special reasons to impose the death penalty and the mitigating factors in the present case, in our opinion, are sufficient to place it out of the 'rarest of rare' category,” the Court added.

Thus, the Court commuted the death sentence awarded to the appellant by the trial court to rigorous imprisonment for life.

Citation: 2024 LiveLaw (Gau) 26

Case Title: The State of Assam v. Jashim Uddin Barbhuiya

Case No.: Death Sentence Ref./3/2018

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