'Punishment Shouldn't Be Disproportionately Great': Orissa HC Acquits One & Commutes Death Sentence Of Another For Rape & Murder Of 6-Yr-Old Girl

The Orissa High Court today, while answering death reference of two persons, acquitted one of them and commuted the capital punishment imposed on the other. The two were convicted and sentenced to the extreme penalty of death in 2022 for committing murder of a six-year-old girl, after subjecting her to rape.

While answering the death reference in negative, the Division Bench of Justice Sangam Kumar Sahoo and Justice Radha Krishna Pattanaik observed:

“The punishment should not be disproportionately great is a corollary of just deserts and it is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.”

Prosecution Case

The deceased along with her minor cousin brother went to fetch chocolates from a shop at about 2 PM on 21.08.2014. After purchasing chocolates, they were returning their home at about 3 PM.

When the victim did not return home for a long time, the family members and co-villagers started searching for her. After a brief search, the naked body of the deceased was recovered from the taza (a narrow part of the house) of one Sk. Khairuddin in an unconscious state.

The little girl was immediately rushed to a nearby primary health care centre, where the doctor prima facie opined that she had been brutally throttled after being raped by someone. As her condition worsened, the doctor referred her to the SCB Medical College and Hospital, Cuttack.

When the victim was being taken to the SCB hospital for further treatment, she succumbed on the way. After returning home with the dead body of the victim, the family members enquired from her minor cousin brother about the incident. He informed that when they were returning home, the appellants gagged the mouth of the victim and took her away by lifting in arms.

Suspecting the involvement of the appellants, the informant (aunt of the victim) lodged the FIR. The police carried out thorough investigation and upon its completion, the charge-sheet was submitted against the appellants Sk. Asif Alli and Sk. Akil Alli along with two others.

Findings of the Trial Court

Upon perusing the post-mortem report and inquest report and after examining, the testimonies of vital prosecution witnesses, the Ad-hoc Additional Sessions Judge, Jagatsinghpur formulated six major circumstances appearing against the accused persons.

The trial Judge referred to the evidence of the minor cousin brother of the victim to hold that the appellants were last seen with her when one of them gagged her mouth and the other took her away by lifting in arms. No body saw the victim after that until her unconscious body was traced from the taza.

Further, the Court also took into account the fact that the finger prints of one of the appellants, i.e. Sk. Asif Alli were found from liquor bottles which were lying on the spot of occurrence. The Judge also held that the appellant Sk. Asif Alli absconded after the incident, which strengthens the case of the prosecution that he was involved in the ghastly crime.

Consequently, the trial Court came to an irresistible conclusion that the appellants were the ones who in fact caused the cold-blooded crime and held them guilty under Section 302, 376-D, 376-A of the IPC and Section 6 of the POCSO Act.

High Court's Observations

At the outset, the Division Bench underlined that the case is purely based on circumstantial evidence and no direct evidence is available to inculcate the appellants in the crime and thus, it observed,

“It is well established rule of criminal justice that fouler the crime, the higher should be the degree of proof. A moral opinion howsoever strong or genuine cannot be a substitute for legal proof. When a case is based on circumstantial evidence, a very careful, cautious and meticulous scrutinisation of the evidence is necessary.”

The Court then examined the evidence of the cousin brother of the victim. It was argued on behalf of the appellants that the child witness had been tutored to implicate the accused persons as he did not disclose about the involvement of two accused persons, one of whom was absconding and the other one was acquitted by the trial Court, before the police and talked about their roles for the first time in the Court.

While discarding such argument, the Court observed that the rule of falsus in uno falsus in omnibus, i.e. falsity of one thing is falsity of all the things, is a not a sound principle to apply in the conditions of our country. Therefore, even if the child witness deposed about the involvement of two accused persons for the first time in the Court, that itself cannot make his entire evidence gullible.

“Bereft of implication of two accused Abid and Karim, nothing has been brought out in the cross-examination to discard his evidence, rather his evidence is very natural, clear, cogent and trustworthy,” it added.

The Court then discussed about the finding of finger prints of one of the appellants from the liquor bottle. It was argued on behalf of the appellants that the non-production of the liquor bottles and non-examination of the Scientific Officer, who detected and developed the chance finger-prints, are fatal to the prosecution case.

But the Court rejected such contention and held that –

“…when chance finger prints were detected and developed from the three Aska 40 liquor bottles found at the spot and one chance print marked 'B' tallied with specimen right index finger print of the appellant Sk. Asif Alli and there is no suspicious feature in it, the prosecution can be said to have proved the fifth circumstance against the appellant Sk. Asif Alli beyond all reasonable doubt.”

The Court also gave reasonable consideration to the fact that the appellant Sk. Asif Alli absconded from the village from the date of occurrence and he remained so till his apprehension by the police.

“No explanation has been rendered by the appellant in regard to his absence from his village and he was not available to the police in spite of their best efforts to trace him. Thus, the sixth circumstance relating to the conduct of the appellant in absconding from his village has been duly proved by the prosecution and this absconding of the appellant along with other incriminating circumstances as proved by the prosecution goes a great way to point his culpability.”

Taking into consideration the above circumstances, the Court was of the view that the prosecution has established its case against the appellant Sk. Asif Alli under Sections 302, 376-A and Section 6 of the POCSO Act but it acquitted the other appellant Sk. Akil Alli of all the charges. It further acquitted Sk. Asif Alli for the commission of offence under Section 376-D (gang rape) of the IPC.

“So far as the charge under section 376-D of the I.P.C. which relates to commission of gang rape is concerned, since one of the accused, who faced trial, namely, Sk. Abid Alli has been acquitted by the learned trial Court and appellant Sk. Akil Alli has been acquitted by virtue of this judgment, it would not be proper to convict the appellant under section 376-D of the I.P.C.,” it held.

So far as sentencing of the appellant is concerned, it was brought to the notice of the Court that the orders of conviction and sentence was passed by the trial Court on the same day. Thus, it was argued on behalf of the appellants that they were not afforded any meaningful opportunity to put forward the mitigating circumstances in their favour.

During the course of argument, the Court had referred to Sundar @ Sundarrajan v. State by Inspector of Police, 2023 LiveLaw (SC) 217 wherein the top Court had suggested to look into certain factors while deciding the quantum of sentence.

Accordingly, the Court had taken suo moto cognizance of the need for background analysis of convicts so as to ascertain mitigating circumstances in their favour before imposing the extreme penalty of death.

The Court had then ordered the Superintendent of Jail, Choudwar, Cuttack to furnish a report regarding (i) conduct of the appellants in jail; (ii) information on appellants' involvement in any other case; (iii) details of the appellants acquiring education in jail and (iv) details of appellants' medical records.

Further, to make the sentence hearing objective and meaningful, the Court had afforded the appellants an opportunity to furnish possible mitigating circumstances in the form of affidavits.

After perusing the reports and affidavits, the Court recorded that –

“Even though he is in judicial custody for about ten years, but the reports submitted by Jail Superintendent and the Psychiatrist indicate that his conduct and behaviour inside prison is normal, his behaviour towards co-prisoners as well as staff is cordial and he is maintaining every discipline of the jail administration. Neither there is any adverse report against him during the entire period of confinement nor he has committed any prison offence. He is offering prayer to God many times in a day and he is ready to accept the punishment as he has surrendered before God.”

Having regard for the aforesaid, the Court was of the considered opinion that the appellant cannot be said to be beyond reform and rehabilitation.

“Considering the entire facts and circumstances, the aggravating circumstances and mitigating circumstances, it cannot be said that capital punishment is the only option for the appellant and that the option of imprisonment for life will not suffice and is wholly disproportionate,” it added.

Consequently, the Court commuted the death sentence awarded to the appellant Sk. Asif Alli for the offence under Section 302 of the IPC to life imprisonment, which shall mean the remainder of his natural death, without remission/commutation under Sections 432 and 433 CrPC.

The Bench also directed the State to provide Rs. 10 Lakhs compensation to the parents of the deceased girl under Schedule-II of the Odisha Victim Compensation Scheme, 2017.

Case Title: State of Odisha v. Sk. Asif Alli @ Md. Asif Iqbal & Anr.

Case No: DSREF No. 01 of 2022 & tagged matters

Date of Judgment: June 20, 2024

Counsel for the Appellants: Mr. Sk. Zafarulla, Advocate

Counsel for the State: Mr. Bibhu Prasad Tripathy, Addl. Govt. Advocate

Citation: 2024 LiveLaw (Ori) 46

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