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Rajasthan High Court Finds Man On Death Row Wrongly Convicted For Rape & Murder Of 7-Yr Old, Modifies Sentence To Life Citing Conviction By SC
ANIRUDH VIJAY
19 May 2022 5:12 AM GMT
The Rajasthan High Court recently commuted death sentence awarded to a man convicted for the offence of sodomy, rape and murder of a 7-year old girl child, while observing that it appeared to be a case of wrong conviction whereby the actual offenders had, with the help of the Police, shifted the crime on the present convict.The case had travelled up to the Supreme Court which did not upset...
The Rajasthan High Court recently commuted death sentence awarded to a man convicted for the offence of sodomy, rape and murder of a 7-year old girl child, while observing that it appeared to be a case of wrong conviction whereby the actual offenders had, with the help of the Police, shifted the crime on the present convict.
The case had travelled up to the Supreme Court which did not upset the conviction and had remitted the matter back to the High Court only to decide the question of sentence upon consideration of aggravating and mitigating circumstances.
While dealing with this criminal death reference, a division bench of Justices Pankaj Bhandari and Anoop Kumar Dhand observed,
"It appears that two persons committed the horrendous act of rape and sodomy with a seven ones year old girl and murdered the girl and thereafter, with the help of the police shifted the crime to the present appellant...We are alive of the fact that the conviction of the accused has been upheld by the Apex Court...Since we have been directed to confine our judgment only on the question of sentence for offence under Section 302 IPC, we with heavy heart and with hope that justice would be done to the accused, who has been sentenced to imprisonment till death for crime committed by two other persons, commute sentence from death penalty to life imprisonment."
The Court noted that the entire prosecution case rested on circumstantial.evidence. The Trial Court had placed reliance on the DNA report but from the perusal of the same, it is revealed that two male DNA profiles were obtained from the leggings of the deceased and two male DNA profiles were from the underwear of the accused. DNA obtained from the blood sample of the present appellant did not match with the DNA obtained from vaginal swab and also the two male DNA profiles obtained from the leggings of the deceased.
It further noted that the DNA report was not even put to the accused when his statement was recorded under Section 313 CrP.C. and he was not given any opportunity to explain the DNA report. Furthermore, the two male DNA profile obtained from the leggings of the deceased did not match with the DNA profile of the blood sample taken from the accused, and thus, the only conclusion that can be drawn from the above is that the two criminals who actually committed the crime were not booked by the police.
In the above circumstances, the High Court deemed it fit to commute the death sentence to life imprisonment and directed the concerned Superintendent of Police to reopen the matter and investigate afresh to book the two accused whose DNA's were obtained from the leggings of the deceased.
The court also ordered to initiate appropriate action against those who booked the accused, purportedly a child belonging to a backward class, with no means to defend his case. Further, the court directed the Superintendent of Police to submit a report of the action taken by him within two months.
During the course of hearing, the Court noted that the age of the accused according to the school record was just 17 years and 1 month. However, the Court relying on the statement doctor, who had conducted the medical examination, held the age of the appellant to be between 19 to 21 years.
"The doctor was not a radiologist and he opined on the basis of X-Ray Report that the age of the accused was between 19 to 21 years. As per the Juvenile Justice Act, the age as mentioned in school first attended has to be considered, however, even considering the statement of the doctor, the accused was a very young boy," it observed.
The Court added,
"The role of the police and the investigating officer is also dubious for the very reason that the underwear which was got recovered from the present accused was having DNA of some other male and that DNA matched with the DNA of the deceased, which goes to show that to save a culprit, somebody else's underwear was got recovered from the present accused."
It noted that Police and prosecution must do their job right, and ensure that an overzealous prosecution does not result in an innocent man being convicted of a crime, he did not commit, otherwise people would not have faith and respect for the justice delivery system.
The Court also noted that as per the arrest memo, when appellant was arrested, a Police Constable looked beneath his penis and found abrasion marks. However, there is no mention nor is there any evidence before the Court that he was derobed and his penis was checked and if he was actually derobed then why the underwear was not seized at the same time, which also points to the false implication of the accused.
"It is also relevant that the witnesses of arrest and recovery of underwear were police personnel and there were no independent witness to the arrest memo and recovery memo. It is evident that the underwear of the person, who in fact committed the offence, was shown as recovered from the present appellant and his semen was planted on the underwear. We would be failing in our duty if those culprits are not booked and justice is not given to the victim," the Court observed.
Finally, the Court observed that it does not find any aggravating circumstance against the accused rather, all the mitigating circumstances are in favour of the accused and passed the directions, as discussed hereinabove.
Case Title: State Of Rajasthan, Through P.P v. Komal Lodha
Citation: 2022 LiveLaw (Raj) 164
Click Here To Read/Download Judgment
