“The record indicates that he was left by his mother and residing alone, therefore, the accused was the first offender living separate from his family at the age of 21 year and the probability of his being rehabilitation and reformation is there, cannot be ruled out. Nothing is available on record to suggest that he cannot be a useful member of the society.”
The Madhya Pradesh High Court recently commuted death penalty imposed on a youth accused of rape and murder of a 9-year-old girl.
How the bench comprising Justice JK Maheshwari and Justice Akhil Kumar Srivastava distinguished this case with recent judgment delivered by another bench in another capital reference case (Bhagwani vs. State of MP) is what makes this interesting.
Sunil Adiwasi was convicted and sentenced to death by the trial court after it found him guilty of rape and murder of a 9-year-old girl.
The prosecution, in this case, relied on the judgment in Bhagwani (supra), in which the girl aged 11 years was raped and thereafter throttled to her death and the death sentence was confirmed by the high court.
The bench said the said case is distinguishable on facts except the age of the girl. It also observed commission of rape and the manner in which the girls done away with brutality was the factor aggravated to find those cases within the connotation “the rarest of the rare case”.
Another judgment relied on was a Supreme Court judgment in BA Umesh vs. Registrar General, State of Karnataka, in which death penalty of an ex-cop was upheld by the apex court in the rape-cum-murder of a housewife. The bench said the said judgment is also distinguishable from the facts of the present case because in BA Umesh (supra), there was a violent sexual assault on a minor girl having injuries on her body that includes the private part.
The bench then commented on the distinguishing aspects in the present case so as not to award death penalty. It said: “In the present case as discussed herein above, the sign of commission of rape on the person of the prosecutrix by the accused is on record but the cause of death is asphyxia by unknown reason. The mitigating circumstances to the accused in the present case is that he was only 21 years of age on the date of commission of the offence while in above referred two cases, the age of the accused persons were between 32 to 33 years. Nothing has been brought on record by the prosecution that the accused was having any criminal antecedent. On the other hand, the record indicates that he was left by his mother and residing alone, therefore, the accused was the first offender living separate from his family at the age of 21 year and the probability of his being rehabilitation and reformation is there, cannot be ruled out. Nothing is available on record to suggest that he cannot be a useful member of the society. In our considered opinion, it is not a case in which the alternative punishment would not be sufficient to the facts of the case.”
Setting aside the capital sentence, the bench sentenced the accused for imprisonment for remainder life subject to remission.
In another capital reference case decided earlier this month, the bench headed by the Chief Justice Hemant Gupta had affirmed the death sentence awarded to a youth accused of raping a 4-year-old girl. In the said judgment, it was observed that the court has the social responsibility to make the citizen of this country know that law cannot come to the rescue of such persons on the basis of humanity.