A Supreme Court bench comprising of Justice C. Nagappan and Justice J.S. Khehar stayed the execution of death sentence of Kalu Khan, convicted for the rape and murder of a four-year old girl in Rajasthan. The execution was fixed for June 18.
A notice was reportedly issued to the Rajasthan Government on the convict’s plea challenging his conviction and sentence.
It was alleged that Khan, in May 2012, had lured the girl from his neighbor’s house, on the promise of treating her with berries. He then raped her along with Jumman Khan, his minor son and later killed the girl. His son was tried by the Juvenile Justice Board.
The body was discovered after the son was seen burying something in a pit in his courtyard.
Khan was convicted by a Special Judge at the SC/ST court in Sriganganagar in Rajasthan, with the judge describing it as a ‘rarest of rare’ case and awarding him with capital punishment. He was convicted for the offences punishable under Sections 363, 364, 376(2) (f), 302 and 201 Indian Penal Code and awarded death sentence in addition to the sentence of imprisonment for the offences other than Section 302 Indian Penal Code on 7th March, 2013.
The sentence was later upheld by the Jodhpur Bench of Rajasthan High Court. The Court, availing the assistance of Shri Kalu Ram as amicus curiae, had said: no person of little human prudence could have imagined that a mature man will cause such inhuman and brutal act with a small girl residing in neighborhood. The crime committed by the accused is an irreparable injury to the human values and that carries it to the category of “rarest of rare” case.
The counsel for Khan, Asha Madan alleged that the conviction was solely based on circumstantial evidence. Even in the appeal before the High Court, Madan had asserted that the courts below have failed to "appreciate that the entire prosecution case rests solely on circumstantial evidence which is wholly insufficient to base the conviction of the petitioner and that too for award of capital sentence". It was alleged that the foundation of entire case is an extra judicial confession made by Jumman Khan son of accused Kalu Khan which is not sufficient to record the conviction.
Rejecting the contention, the High Court held that the medical evidence establishes beyond any shadow of doubt about commission of rape with a minor girl and then committing her murder. The blood stained 'kassi', the blood stained shirt of the accused, the blood stained clothes of the girl having same blood group also establishes the prosecution case.
The apex court has now opined that the case doesn’t match the standard of ‘rarest of rare’ case, because of the presence of circumstantial evidence solely and the absence of any criminal past of the accused. The trial court had also observed that the murder wasn’t pre-planned.
The convict has asserted that entire prosecution’s story is “totally improbably” as the convict and his minor son could not have done the "sinful" act together. Additionally, that the petitioner has who has a clean past, should not be awarded capital sentence at the age of 48 years as there was "all possibility of (his) reformation".
The High Court had however, negated any chances of reformation observing that: His entire act is a serious scar on human values. He has broken the faith of the neighbors, the faith in humanity and further he also acted against the values to nurture the relations of father and son…. The brutality on the part of accused not only pricks the judicial consciences but even conscience of the society. The facts available are sufficient to satisfy ourselves that no other punishment except death penalty would be adequate in present set of circumstances. We are also of the view that looking to the middle age of the accused, his effort to involve his son also in the heinous crime and the brutality put forth in the crime is sufficient to arrive at the conclusion about no chance of his reformation.