The Supreme Court today commuted the death sentence imposed on a man convicted for raping and murdering his six-year-old step-daughter in Madhya Pradesh.

A bench of Justice Vikram Nath, Justice Sandeep Mehta and Justice Vijay Bishnoi upheld his conviction but commuted the death sentence to life imprisonment.

The appellant, one Waris, was convicted by the Special Court under the Protection of Children from Sexual Offences Act, Jaora, on December 17, 2018, under Sections 376(2)(F), 376(2)(N), 376(AB), 302 and 201 of the IPC and Sections 5/6 of the POCSO Act. The trial court had sentenced him to death under Sections 376AB and 302 IPC. It had also imposed a five-year rigorous imprisonment sentence under Section 201 IPC.

The Madhya Pradesh High Court subsequently upheld both the conviction and the death sentence. Thus, he approached the Supreme Court.

The deceased girl was the daughter of Waris's third wife from her previous marriage. The High Court found that the prosecution had established that he had sexually assaulted the child. It relied on the testimony of her mother, medical evidence and DNA evidence.

The post-mortem examination found multiple injuries on the child's body, and the medical panel concluded that she had died due to asphyxiation caused by throttling.

The DNA report showed that male Y chromosomes found on the child's clothes matched the Y chromosome DNA profile of Waris.

The child's mother testified that Waris had sexually assaulted her daughter on several occasions. She also described physical violence against the child. According to her, he assaulted the child on April 21, 2018 and sexually assaulted her. On the following day, when the mother heard the child's muffled cries, she found Waris withdrawing his hands from the child's neck. The child then collapsed.

The High Court rejected his plea of alibi, finding contradictions between his own evidence and that of his defence witnesses. It also noted that the persons whom he claimed to have accompanied on the relevant date had not been examined as defence witnesses.

The Court also found that he had attempted to conceal the offences. It noted that he had not taken the injured child to a doctor despite her condition and had concealed the clothes worn by her at the time of the sexual assault. The Court also found that he had attempted to have the body cremated before the police were alerted.

The High Court noted that the child had been subjected to aggravated penetrative sexual assault, as Waris was her step-father and had a domestic relationship with her. It observed that the rape had been committed over a period of time and had been compounded with the murder of the child.

It noted that death penalty could be imposed only in the "rarest of rare" cases. While considering the death sentence, the High Court referred to the Supreme Court's judgments in Bachan Singh v. State of Punjab and Macchi Singh v. State of Punjab, which require courts to consider aggravating and mitigating circumstances and balance them before imposing capital punishment.

The High Court then referred to the "Crime Test", "Criminal Test" and "Rarest of Rare Test" laid down in Shankar Kisan Rao Khade v. State of Maharashtra. It noted that the Crime Test had to be 100 per cent, meaning there was no doubt about the accused's commission of the offence, while the Criminal Test had to be zero, meaning there were no mitigating circumstances favouring the accused. Even after those tests were satisfied, the Rarest of Rare Test had to be applied.

Applying those principles, the High Court observed, “In the present case, as already found proved, the accused Waris exhibited extreme depraved state of mind when he made the innocent little girl-child, whose welfare was his bounden duty, a tool to satiate his carnal desires and heaped miseries upon her in the form of her sexual exploitation over a period of time and ultimately, he brutally ebbed out her flame of life by strangulating her. The act was clearly cruel, diabolic, depraved and gruesome and the guidelines for awarding the death sentence culled out in Macchi Singh's case (supra) are satisfied.”

The High Court concluded that the proven facts brought the offence within the "rarest of rare" category. It held that the Crime Test was 100 per cent and the Criminal Test was zero and concluded that the circumstances called for the death sentence.

The Supreme Court has now upheld the conviction but commuted the death sentence.

Report to be updated after the judgment is uploaded.

Case no. – Crl.A. No. 429-430/2020

Case Title – Waris v. State of Madhya Pradesh