'Crime Test' & 'Criminal Test' Not Properly Applied : Supreme Court Commutes Death Sentence Of Man Convicted For Rape & Murder Of 8 Year Old Girl

Taking note of the fact that the Courts below had not given the required attention to the 'crime test' and the 'criminal test' while awarding and affirming death penalty, the Supreme Court, on Friday, commuted death sentence of an accused, who was convicted for rape and murder of a 8 year old girl-child. "…we are of the considered view that the 'crime test' and the 'criminal test' require to be followed before awarding capital sentence, did not gather the required attention of the trial Court as also the High Court." A Bench comprising Justices A.M. Khanwilkar, Dinesh Maheswari and C.T. Ravikumar upheld the conviction for offences under Sections 302, 376A and 376(2)(i) of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offence Act, 2012 (POCSO) as modified by the Madhya Pradesh High Court, but commuted the death sentence to life imprisonment. Considering that the 8 year old girl-child was raped and murdered in an 'extremely brutal manner' it awarded life sentence extending to 30 years without remission/early release. Background On 10.09.2014, the deceased, who was then 8 years of age was stripped, raped and strangled by her uncle. On 20.09.2014, an FIR was registered at the Police Station, Dabra and on the same day he was arrested. Upon conclusion of trial, he was convicted under Sections 302, 376A and 376(2)(i) of the IPC and Section 6 of the POCSO and awarded death sentence. The conviction was based on circumstantial evidence. The High Court affirmed the death sentence, but set aside the conviction and sentence of offence under Section 376A on technical reasons. It disagreed with the findings of the Trial Court with respect to the admissibility and evidentiary value of the underwear seized from the place of occurrence, which was treated to be that of the accused. Contentions raised by the appellant Amicus Curiae, Ms. Sonia Mathur, appearing on behalf of the accused, submitted that the conviction was on the basis of circumstantial evidence, but the material on record indicated that the chain of circumstances was not complete. She submitted that there was no medical evidence to establish the presence of the accused at the place of occurrence; FSL report was inconclusive; there was incongruity in doctor's opinion; date of birth of the deceased was not proved by adducing evidence; no independent witness was examined to prove the body and clothes of the deceased was recovered at the instance of the accused; testimonies of related witness was taken into account; no DNA test was conducted. Contentions raised by the respondent Advocate, Mr. Pashupatinath Razdan, appearing for the State of Madhya Pradesh defended the concurrent findings of the Courts below. He submitted that the failure to comply with Section 53 Cr.P.C. was inconsequential in the present matter; testimonies of witnesses were uncontroverted and credible; last seen theory was correctly applied; recovery of body which was proved by other witnesses cannot be discredited. It was asserted that the chain of circumstances was complete. Analysis by the Supreme Court Expert opinion cannot be taken out of the ambit of judicial scrutiny The Court noted that only rarely is death penalty awarded when the conclusion regarding the connection of the accused with the offence is based on circumstantial evidence. With respect to the incongruity pointed out by the accused in the opinion of the doctor who conducted the post mortem, the Court noted that like other evidence, the expert opinion of the doctors also needs proper appreciation by the Courts. Though the opinion of the doctor with the post- mortem report is entitled to get great weight, it cannot be taken out of the ambit of judicial scrutiny. Upon examining the same, the Court affirmed the findings of the Courts below, that asphyxia by throttling is the cause of death and the grave injuries sustained by the deceased on the private parts were also sufficient to cause death in ordinary course of nature. Omission to carry out accused person's DNA profiling by itself is not fatal On the issue of non-conduct of DNA profiling under Section 53A CrPC, it opined that omission to carry out accused person's DNA profiling by itself is not fatal in cases of such nature. Not prudent to base conviction solely on last seen theory With regards to the last seen theory, the Court observed that the same is applicable to crimes carried out in secret during night, when it would be difficult to have eye-witnesses. The Apex Court has noted in a catena of judgments that it would not be prudent to base conviction solely on last seen theory. Referring to the same, the Court decided not to interfere with the findings of the Courts below in this regard as the present conviction was not solely based on such theory. Witness being related to the deceased, by itself, is no reason to discredit...

'Crime Test' & 'Criminal Test' Not Properly Applied : Supreme Court Commutes Death Sentence Of Man Convicted For Rape & Murder Of 8 Year Old Girl

Sohini Chowdhury

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