'Must Remain In Prison Till Sunset Of His Virility': P&H High Court Commutes Death Penalty For Rape-Murder Of 7 Yrs Old, Directs 50 Yrs In Jail

The Punjab and Haryana High Court has commuted the death sentence awarded to a 21-year-old man convicted of the kidnapping, rape and murder of a seven-year-old girl in District Kaithal, holding that while the case does not warrant capital punishment, the convict must be kept out of circulation for a period long enough to remove any risk to other children. [2026 LiveLaw (PH) 270].Framing the sentencing dilemma candidly, the Division Bench observed that this was one of those rare cases where the line separating the "rarest of rare" from the merely "rare" lay "on the razor's edge", and posed the question of how, when the death penalty is not imposed and executive policy permits early release, the courts are to protect children from offenders who kill after raping in order to destroy evidence.The Court answered, "...the irreparable of the two crimes was her murder, because if the accused had not strangulated her to death, medical science might have saved her life, and no one can rule out this possibility; and now to ensure that this pervert is not a potential risk to the other girls, he must remain in prison till the sunset of his virility."The prosecution case arose from FIR stating that victim aged 7 years, 7 months and 23 days had gone out to play in the alley on the afternoon of 08.10.2022 and did not return. Her half-burnt body was discovered the next day in a jungle within the jurisdiction of Village Kurar, and was identified by her parents.The medical board's final opinion recorded the cause of death as smothering with manual strangulation associated with head injury and its complications, and did not rule out recent forcible vaginal penetration. Parentage of the body was scientifically established through DNA profiling against the blood samples of both parents.The Additional Sessions Judge, Special Court, Kaithal convicted the accused on 15.09.2023 under Sections 302, 365, 366, 376-AB and 201 IPC and Section 6 of the POCSO Act, and on 16.09.2023 awarded him the death sentence on two counts — under Section 302 IPC and under Section 6 POCSO. The murder reference came to the High Court under Section 366 CrPC [Section 407 BNSS], along with the convict's appeal under Section 374(2) CrPC [Section 415 BNSS].CCTV Footage Held Inadmissible For Want Of Section 65-B CertificationThe Court noted that, prosecution had relied on CCTV footage from a co-villager's house, from cameras near the school and Dera, and from a petrol pump where the accused was allegedly seen purchasing petrol in a bottle. The Court noted that the DVRs, the original devices were never seized, and only copies were taken on a pen drive, making certification under Section 65-B of the Evidence Act mandatory.Certificates had in fact been obtained but were tendered in evidence not through them but later through the Investigating Officer. In cross-examination, each of the three denied having issued any certificate. The Court observed that the Public Prosecutor neither put the certificates to these witnesses in examination-in-chief, nor sought to declare them hostile, nor confronted them with their signatures; nor did the trial Judge invoke Section 165 of the Evidence Act. Pointedly, the Bench recorded that the lapse could not be laid at the door of the investigators, who "could not have done a better job."Applying Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, the Court held that the footage, its content and the ocular versions describing it were rendered inadmissible as digital evidence.The disclosure statements of the accused (Exts. P-62 and P-63) were likewise held inadmissible under Section 26 of the Evidence Act, having led to no discovery of any distinct fact.Conviction Sustained On Last Seen And DNANotwithstanding the loss of the CCTV evidence, the Court held that the initial identification of the accused stood established independently through PW-5 Hoshiyar Singh, a witness related to the accused as a brother, who deposed to having seen the accused going towards the school with the child at about 1–1.30 PM on the date of occurrence. The defence suggestion of enmity, raised through the accused's father as, was found unexplained and insufficient to dent the credibility of what the Court described as a sterling witness.On the scientific evidence, the Court set out the chain of custody from the crime scene report and inquest through the post-mortem, the malkhana deposit, the transmission to FSL Madhuban and the Biology and DNA Division reports and held it to be unbroken, timely and legally proved. The DNA report established that the male DNA profile from the semen detected on the victim's lower and shirt was similar to that generated from the blood sample of the accused.Surveying the last-seen jurisprudence from Arjun Marik and Bodhraj through Digamber Vaishnav, Surajdeo Mahto and Ram Gopal, and the Section 106 line of authority from Shambu Nath Mehra to Dinesh Kumar, the Court held that once rape stood established...

'Must Remain In Prison Till Sunset Of His Virility': P&H High Court Commutes Death Penalty For Rape-Murder Of 7 Yrs Old, Directs 50 Yrs In Jail

Aiman J. Chishti

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Aiman J. Chishti

'Must Remain In Prison Till Sunset Of His Virility': P&H High Court Commutes Death Penalty For Rape-Murder Of 7 Yrs Old, Directs 50 Yrs In Jail

Aiman J. Chishti

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Aiman J. Chishti

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