Bulandshahr Moving Car Gang-Rape, Murder | 'Not Rarest Of Rare Case': Allahabad HC Commutes Death Sentence Of 3 To 25-Yr Jail Sans Remission

A bench of Justice Arvind Singh Sangwan and Justice Mohd. Azhar Husain Idrisi noted that it was not a 'rarest of the rare' case where the death penalty could be awarded. The Court also added that the possibility of reformation and rehabilitation of the convicts in the society cannot be ruled.

As per the prosecution's case, on the evening of January 2, 2018, convicts [Zulfikar Abbasi, Dilshad Abbasi and Malani alias Israel] decided to pick up a girl to 'have fun', and that is when they saw the victim coming alone on her bicycle, and they decided to stop their car.

They forcibly took the girl into their car, and in the moving vehicle, they committed rape with her one by one. When the girl started crying, they strangulated her with the help of a dupatta (Scarf) that she was wearing on her neck, and after that, her dead body was thrown in a drain.

In March 2021, a POCSO court in Bulandshahr sentenced three accused men to death by hanging, observing that their crime had “scared people and parents became apprehensive of sending their girls to school”. They were held guilty under Sections 364, 376D, 302/34, 201, 404 IPC & Section 5G/6 POCSO Act.

Hearing their appeals and the reference made by the trial court for confirmation of capital punishment, the High Court, on re-appreciation of the entire evidence, came to the following conclusions:

• On the date of the incident, the victim was aged about 17 years, 03 months and 28 days, and the accused persons kidnapped her and she forcibly taken in the Alto Car.
• As per the report of the Forensic Science Laboratory, Agra, there was an aggravated penetrative assault committed against the victim. As per the doctor's statement, a scarf (dupatta) was tied around the neck of the victim which was used in her murder.
• PW-4 had seen the accused persons after committing the offence and the presence of the vehicle crossing the Luhali Toll Plaza was also duly proved PW-5.

In view of this, the Court upheld the finding recorded by the Trial Court that the accused persons committed the offence of kidnapping the victim 'A' who was below the age of 18 years, also committed aggravated penetrative sexual assault on her and then by committing her murder by strangulating with dupatta (Scarf) had thrown her dead body near a drain. Accordingly, the Court confirmed their conviction.

As far as the appellants' sentence was concerned, the High Court observed that it was not a 'rarest of the rare' case where the death penalty could be awarded.

The Court also noted that the Trial Court had failed to record any mitigating circumstances requiring that only the death penalty be awarded to the accused.

In this regard, the Court also referred to the Supreme Court's ruling in the Navas alias Mulanvas Case, wherein it was observed that exceptional circumstances should warrant the imposition of the excess death penalty, which cannot be reversed.

In fact, the High Court considered the following mitigating circumstances:

• The accused appellants have no criminal history and have their families in support.
• The accused-appellants are aged about 24 years as per statement under Section 313 Cr.P.C. and one is facing health problems, therefore, the possibility of reformation and rehabilitation of the appellants in the society cannot be ruled out
• The Trial Court has also not recorded any finding that accused can be a menace to the society before awarding capital punishment.
• The Trial Court has not recorded any aggravating circumstances against the appellants which can over weigh the mitigating circumstances especially, when the appellants have no criminal history.
• The trial court has also not recorded any finding as to how the present case is rarest of the rare case even though the accused has committed the gravest offence.

Therefore, the Court opined that the capital punishment awarded to the appellants should be commuted to life imprisonment for a fixed term of 25 years without remission.

The order of sentence qua the fine was upheld with the aforesaid modification.