'Punishment Shouldn't Be Disproportionately Great': Orissa HC Acquits One & Commutes Death Sentence Of Another For Rape & Murder Of 6-Yr-Old Girl

The Orissa High Court today, while answering death reference of two persons, acquitted one of them and commuted the capital punishment imposed on the other. The two were convicted and sentenced to the extreme penalty of death in 2022 for committing murder of a six-year-old girl, after subjecting her to rape.While answering the death reference in negative, the Division Bench of Justice Sangam Kumar Sahoo and Justice Radha Krishna Pattanaik observed:“The punishment should not be disproportionately great is a corollary of just deserts and it is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.”Prosecution CaseThe deceased along with her minor cousin brother went to fetch chocolates from a shop at about 2 PM on 21.08.2014. After purchasing chocolates, they were returning their home at about 3 PM. When the victim did not return home for a long time, the family members and co-villagers started searching for her. After a brief search, the naked body of the deceased was recovered from the taza (a narrow part of the house) of one Sk. Khairuddin in an unconscious state.The little girl was immediately rushed to a nearby primary health care centre, where the doctor prima facie opined that she had been brutally throttled after being raped by someone. As her condition worsened, the doctor referred her to the SCB Medical College and Hospital, Cuttack.When the victim was being taken to the SCB hospital for further treatment, she succumbed on the way. After returning home with the dead body of the victim, the family members enquired from her minor cousin brother about the incident. He informed that when they were returning home, the appellants gagged the mouth of the victim and took her away by lifting in arms.Suspecting the involvement of the appellants, the informant (aunt of the victim) lodged the FIR. The police carried out thorough investigation and upon its completion, the charge-sheet was submitted against the appellants Sk. Asif Alli and Sk. Akil Alli along with two others.Findings of the Trial CourtUpon perusing the post-mortem report and inquest report and after examining, the testimonies of vital prosecution witnesses, the Ad-hoc Additional Sessions Judge, Jagatsinghpur formulated six major circumstances appearing against the accused persons.The trial Judge referred to the evidence of the minor cousin brother of the victim to hold that the appellants were last seen with her when one of them gagged her mouth and the other took her away by lifting in arms. No body saw the victim after that until her unconscious body was traced from the taza. Further, the Court also took into account the fact that the finger prints of one of the appellants, i.e. Sk. Asif Alli were found from liquor bottles which were lying on the spot of occurrence. The Judge also held that the appellant Sk. Asif Alli absconded after the incident, which strengthens the case of the prosecution that he was involved in the ghastly crime. Consequently, the trial Court came to an irresistible conclusion that the appellants were the ones who in fact caused the cold-blooded crime and held them guilty under Section 302, 376-D, 376-A of the IPC and Section 6 of the POCSO Act. High Court's ObservationsAt the outset, the Division Bench underlined that the case is purely based on circumstantial evidence and no direct evidence is available to inculcate the appellants in the crime and thus, it observed,“It is well established rule of criminal justice that fouler the crime, the higher should be the degree of proof. A moral opinion howsoever strong or genuine cannot be a substitute for legal proof. When a case is based on circumstantial evidence, a very careful, cautious and meticulous scrutinisation of the evidence is necessary.”The Court then examined the evidence of the cousin brother of the victim. It was argued on behalf of the appellants that the child witness had been tutored to implicate the accused persons as he did not disclose about the involvement of two accused persons, one of whom was absconding and the other one was acquitted by the trial Court, before the police and talked about their roles for the first time in the Court.While discarding such argument, the Court observed that the rule of falsus in uno falsus in omnibus, i.e. falsity of one thing is falsity of all the things, is a not a sound principle to apply in the conditions of our country. Therefore, even if the child witness deposed about the involvement of two accused persons for the first time in the Court, that itself cannot make his entire evidence gullible. “Bereft of implication of two accused Abid and Karim, nothing has been brought out in the cross-examination to discard his evidence, rather his evidence is very natural, clear, cogent and trustworthy,” it added.The Court then discussed about the finding of finger prints of one of the appellants from the...

'Punishment Shouldn't Be Disproportionately Great': Orissa HC Acquits One & Commutes Death Sentence Of Another For Rape & Murder Of 6-Yr-Old Girl

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