Allahabad High Court: In a capital case filed for confirmation of death sentence to a man who raped his 5-month-old cousin, the Single Judge Bench of Rajnish Kumar* and Rajiv Singh, JJ., upheld the conviction but commuted the death sentence to life imprisonment till the natural life of convict without remission, holding that the convict had no criminal history and there was no evidence that offence was pre-meditated.
Background
In 2020, the complaint had gone to a wedding in their village with his family when his nephew, the convict, took away his 5-month-old daughter on the pretext of playing with her. When the convict did not return for a long time, the complainant’s wife searched for them and after an extensive search for a long time, the baby was found lying unconscious in the bushes of a vacant plot at some distance from the marriage lawn. The victim was admitted to the hospital, where she died. The prosecution stated that the convict had killed the victim after kidnapping and raping her.
Accordingly, an FIR was lodged under Sections 302, 364, 376 (2) (i) of the Penal Code, 1860 (“IPC”) and Sections 5(m) and 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).
Thereafter, the Trial Court convicted him under Sections 302, 376(1) and (2), and 364 of the IPC read with Section 6 of the POCSO Act and sentenced him to death by hanging along with a fine of Rs 70,000 to be paid to the complainant.
Aggrieved, he filed the present criminal appeal against his conviction, and the State filed the present capital case to confirm the death sentence.
Analysis and Decision
At the outset, the Court affirmed the Trial Court’s finding that the deceased victim was aged 5 months and 13 days on the date of the incident, as proved by the birth certificate and supporting testimony of the computer operator at Community Health Center who registered the same.
Upon examining the witness testimonies and the opinion of the members of the inquest report, the Court held that it was proved that the convict had taken the deceased victim away from her mother from the marriage venue and found her with her in a vacant plot at some distance. The deceased was found without clothes on the lower part of her body, and the remaining clothes were wet and were taken away by her cousin brother. Eyewitnesses also saw the convict at the scene of the crime and running away subsequently. Therefore, the presence of the convict at both places and in the intervening period could not be denied.
The Court noted that when the deceased victim was found, she was sent for medical examination, and her clothes were sent for forensic examination. However, the samples could only generate a partial DNA profile; thus, they could not be matched with the convict. However, biological fluid of a female origin was found on the convict’s clothes, which he was wearing at the time of his arrest, and the Investigating Officer proved that the clothes were the same that he was wearing at the wedding when he took the deceased away from her mother. Additionally, the convict was unable to explain or dispute the presence of such biological fluid on his clothes. The Court further noted that the FSL report indicated that two buttons of the shirt of the deceased were missing, and the button on the convict’s shirt matched the button that was recovered from the open plot from where the deceased victim was recovered. Thus, the Court held that the convict’s presence at the place of the crime and the recovery of the victim from him were proved.
Regarding the partial generation of the DNA profile, the Court referred to Veerendra v. State of M.P., (2022) 8 SCC 668, wherein the Supreme Court held that solely on account of defects or shortcomings in investigation, an accused is not entitled to get acquitted. Thus, lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape, especially when it is combined with the commission of the offence of murder. Even if such a flaw had occurred in the investigation in a given case, the Court still has a duty to consider whether the materials and evidence available on record before it are enough and cogent to prove the case of the prosecution. It was further held that in a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances form a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour.
The Court also referred to State of W.B. v. Mir Mohammad Omar, (2000) 8 SCC 382, wherein the Court observed that it is almost impossible to come across a single case wherein the investigation was conducted completely flawlessly or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in the investigation, the cause of criminal justice becomes the victim.
Regarding the aspect of rape, the Court held that, as per the witness testimonies, testimonies of the medical experts, and medical reports, including the post-mortem report, it was proven that rape was committed with the victim. Thus, in view of the aforesaid facts and circumstances and based on evidence and material on record, the Court held that it was proved that the convict committed the brutal crime with the victim.
The Court held that the prosecution proved their case based on circumstantial evidence and the chain of circumstances referred only to the guilt of the convict without any reasonable doubt. Thus, the Trial Court rightly recorded the findings on the basis of evidence and material available on record, thereby holding the convict guilty and convicting him. The Court held that it did not find any illegality, error, or perversity in the findings recorded by the Trial Court.
On the aspect of sentencing, the Court stated that, undisputedly, the heinous crime of rape was committed by the convict with a five-month-old girl and, thereafter, the convict put the victim in such a condition that she died during treatment. Furthermore, the Court noted that the conviction was made based on circumstantial evidence, except for the conviction and sentence under Section 364 of the IPC.
The Court referred to Bachan Singh v. State of Punjab, (1980) 2 SCC 684, wherein the Supreme Court indicated that numerous other circumstances are justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation, and has held that death penalty ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Similarly, in Sundar v. State, (2024) 12 SCC 764, wherein the appellant was convicted with the death penalty under Sections 302, 364-A, and 201 of the IPC, for the murder of a 7-year-old child, but the Supreme Court commuted the death sentence, reiterating the rarest of rare cases principle.
The Court also referred to Veerendra (Supra), wherein the Court observed that where the conviction is based on circumstantial evidence, the death penalty would rarely be awarded if the conclusion on the connection of the accused with the offence(s) is fixed based on circumstantial evidence. It is true that even in such cases, the existence of exceptional circumstances/special circumstances would make the death penalty awardable. The Court further highlighted the requirement of application of ‘crime test’, ‘criminal test’, and ‘rarest of rare test’, and the aggravating circumstances (crime test) and the mitigating circumstances (criminal test) have been narrated.
Considering the aforesaid, the Court reiterated that though in a rape and murder case based on circumstantial evidence, the death penalty can be awarded in the ‘rarest of rare’, normally imprisonment for life without any remission may be awarded, unless a death sentence is inevitable. Dealing with the ‘aggravating’ and ‘mitigating’ circumstances, the Court may choose to give primacy to life imprisonment over the death penalty after inquiring to enable the consideration of the facts.
Noting that the convict had no criminal history and there was no evidence that the offence was committed with a premeditated mind, the Court held that the death penalty was liable to be commuted to life imprisonment till the natural life of the convict without remission. Accordingly, the Court partly allowed the criminal appeal filed by the convict and did not confirm the capital case.
The Court upheld the conviction under Section 302, 364, and 376 (1)(2) of the IPC, and Section 6 of the POCSO Act. While the Court confirmed the sentence awarded under Section 364 of the IPC, the death sentences awarded under Section 302 and under Section 376(1)(2) of the IPC read with Section 6 of the POCSO Act were commuted to life imprisonment for his remaining natural life without remission. Other terms of the sentence, including the fines awarded with default stipulation, were also confirmed.
[State of U.P. v. Premchandra, Capital Cases No. 4 of 2021, decided on 18-11-2025]
*Judgment authored by: Justice Rajnish Kumar
Advocates who appeared in this case:
For the appellant: Government Advocate V.K. Singh and Additional Government Advocate Raj Deep Singh
For the respondent: Rajesh Kumar Dwivedi
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