Madhya Pradesh High Court: A Division Bench of J.K. Maheshwari and Anjuli Palo, JJ. partly allowed a criminal petition filed by a person accused of rape and murder of his minor daughter, and commuted his death penalty to life imprisonment.
In the instant case, the prosecutrix (since deceased) aged six years was the younger daughter of the appellant. She was residing with her mother and the appellant. The appellant was annoyed and having suspicion on his wife, Farida of questionable character. As he wanted to take revenge, he allured the prosecutrix with chocolates and used to commit unnatural intercourse and rape with his minor daughter. After committing the rape with the prosecutrix, he murdered her, hanged her from the ceiling with the help of a dupatta and then fled away from the spot. Police registered a case under Section 174 of the Code of Criminal Procedure, 1973. The DNA test report revealed that the DNA profile of appellant matched with the DNA profile present in the vaginal swab of the prosecutrix and sperms were also present in the vaginal swab. Due to the aforesaid evidence, police filed charge-sheet against the appellant under Sections 376, 377, 302 and 201 of the Penal Code, 1860 and Section 5(m) read with Section 6 of the Protection of Children from the Sexual Offences Act, 2012. Trial Court convicted the appellant and awarded him a death sentence. The matter was referred to this Court for confirmation of the death sentence under Section 366 (1) of CrPC. The appellant had challenged the findings recorded by the trial court by filing the separate appeal under Section 374 (2) of CrPC.
The learned counsel for the appellant, Surendra Singh and Siddharth Sharma argued that the dupatta which was used by the deceased for hanging herself was not examined at the time of postmortem. It was further contended that conviction could not be based only on the DNA and Forensic Science Laboratory (FSL) reports. Hence, the impugned judgment was liable to be set aside and the appellant was entitled to be acquitted from the charges leveled against him.
The learned counsel for the respondent/State, Som Mishra contended that the Trial Court had properly evaluated the evidence available on record and rightly convicted the appellant and awarded sentence befitting the crime. Hence, the appeal filed by the appellant was liable to be dismissed and allowing the criminal reference, the death sentence may be confirmed.
The Court stated that in the rarest of the rare cases, death sentence ought to be awarded. For this, the Court relied on the judgment of Supreme Court in the case of Mofil Khan v. State of Jharkhand, (2015) 1 SCC 67, in which the Supreme Court had opined that the death sentence must be awarded where the victims were innocent children and helpless women, especially when the crime was committed in the cruelest and inhumane manner which was extremely brutal, grotesque, diabolical and revolting.
The Court drew a balance sheet of aggravating and mitigating circumstances to determine if the death penalty was adequate punishment. Aggravating circumstances: (i) extremely brutal, diabolic and cruel act; (ii) victim being six years was a minor and helpless; (iii) no provocation because the accused was in a dominating position; (iv) injuries were grievous with respect to sexual assault particularly in a case where the victim was the daughter of the appellant. Mitigating circumstances: (i) it was a case of circumstantial evidence; (ii) no evidence that the accused had the propensity of committing further crimes causing continuous threat to the society; (iii) no evidence to show that the accused could not be reformed or rehabilitated; (iv) other punishment options were open; (v) accused was not a professional killer or offender having any criminal antecedent; (vi) accused being a major having family with him, the possibility of reformation could not be ruled out.
Thus, the Court held that in place of the death penalty, the appellant undergoes life imprisonment with a minimum of 30 years of imprisonment (without remission) and fine of Rs 20,000. In default of payment of fine, the appellant had to undergo further rigorous imprisonment for six months. The conviction and sentences awarded under Sections 201, 377, 376 of IPC as awarded by the trial court were held to be just and hence, hereby maintained.
The criminal appeal filed by the appellant was partly allowed.[Afjal Khan v. State of Madhya Pradesh, Criminal Appeal No. 458 of 2019, decided on 17-05-2019]