“Every Sinner Has A Future”: Orissa High Court Commutes Death Sentence Of Man Convicted By Trial Court For Rape & Murder Of 6-Yr-Old Girl

The Orissa High Court, on Monday, commuted the capital punishment awarded to a man who was convicted by the trial court for committing rape and murder of a 6-year-old girl in 2018.

While sentencing him to life, the Division Bench of Justice Sangam Kumar Sahoo and Justice Radha Krishna Pattanaik observed –

“No material has been produced before us by the learned State counsel that there is no possibility of reformation and rehabilitation. 'Every saint has a past and every sinner has a future' - strikes a note of reformatory potential even in the most ghastly crime. Human endeavour should be to hate the sin and not the sinner. There is still life in life sentence and only death in death sentence.”

Factual Background

On April 21, 2018, during the evening hours, the minor victim girl was found missing from her home, for which her grand-father (the informant in the case) along with other family members and neighbourers tried to trace her out but in vain.

Subsequently, after being informed by some men from the locality, the informant got to know that the victim was lying naked on the verandah of a school nearby. Upon getting such information, he rushed to the spot but found that the victim had already been shifted to the nearby hospital.

As her health condition deteriorated, she was referred to the SCB Medical College & Hospital, Cuttack. However, after remaining in coma for a few days, she succumbed.

The informant lodged the FIR and the investigation was carried out. After thorough investigation, it came to the light that before the victim was found in an injured condition, she came to the shop of a witness (P.W.7) being accompanied by the appellant. The witness deposed that the appellant bought some chocolates for the victim and took her towards the school.

It was also revealed that the brother (P.W.13) of the victim as well as another witness (P.W.5) had also seen the appellant wandering near her before the incident. Upon completion of investigation, the charge-sheet was filed against the appellant.

The trial Court formulated eight (8) circumstances which potentially implicated the appellant for the commission of the alleged crime. The Court also took into account the evidence of the doctor, scientific officer and the medical report to come to the irresistible conclusion that the victim was subjected to rape before she lost consciousness and went to the state of coma.

Blood stains were also found from the shirt of the appellant which matched with that of the victim. Thus, the 3^rd Additional Sessions Judge-cum-Presiding Officer, Children's Court, Cuttack found the appellant guilty under Sections 302/376-AB/363 of the Indian Penal Code ('IPC') and Section 6 of the Protection of Children from Sexual Offences Act, 2012 ('the POCSO Act'). He was awarded death penalty for the offences under Sections 302 and 376-AB of the IPC.

Decision Of High Court

Evidence of P.W.5 was assailed by the counsel for the appellant on the ground that despite having seen the appellant near the deceased just before the crime as he did not disclose the fact to the informant, his evidence should be discarded. However, the Court rejected such contention observing that:

“The appellant was a co-villager and he was a family man having wife and children and there was nothing on record that the appellant had any criminal antecedents in the past or he was a licentious person and therefore, not to raise any suspicion against the appellant in connection with the missing of the deceased was very natural on the part of P.W.5.”

The Court also examined the evidence of the minor brother of the victim who gave minute details of the incident in a vivid manner. After going through his statement, the Bench was of the opinion that the evidence of the child witness is trustworthy and can be relied upon.

“After going through the evidence of P.W.13 and the manner in which he withstood the long gruelling cross-examination and gave minute details of the incident clearly indicates that he had attained a measure of mature understanding and there is no infirmity in his understanding of the facts perceived and his ability to narrate the same correctly.”

The counsel for the appellant also contended that non-mentioning of the name of the appellant as a suspect in the FIR is fatal to the prosecution case. But the Court rejected this contention and observed:

“…there was hardly any time on the part of P.W.4 to ascertain the appellant's role in the crime and therefore, non-mentioning of the name of the appellant as a suspect cannot be a ground to discard the evidence of P.W.7 and P.W.18.”

It was also argued for the appellant that there was an undue delay in sending the copy of the FIR as well as the statements of the witnesses to the Court which was situated near the police station. The Court, however, did not accept such argument.

“Mere delay in sending the statements of the witnesses already recorded to the Court while forwarding the accused would not make their evidence unacceptable unless something glaring is brought to the notice of the Court or proved otherwise that such statements were non-existent and subsequently crated and ante-dated.”

It was also observed that non-sending of all the statements recorded while forwarding the appellant to the Court cannot be a ground to disbelieve the evidence of the witnesses examined to prove the 'last seen' of the appellant with the deceased even though it was an omission on the part of the investigating officer, who seemed to have remained busy in the investigation.

The testimony of P.W.7 (the shop-keeper) was challenged on the ground that she was a 'stock-witness' of the police department who usually appears in a number of cases on the behalf of the police.

“Stock witness is a person who remains at the back and call of the police and comes in front as per the directions of the police…. When the evidence of P.W.7 is clinching, trustworthy and reliable and it has not been shattered in the cross-examination, the same cannot discarded on the ground of 'stock witness' without any specific material to that effect.”

The Court also took into account the fact that the appellant absconded from the village immediately after the incident which is a relevant 'conduct' under the provision of Section 8 of the Evidence Act.

The Division Bench also observed that the injuries inflicted upon the victim by the appellant were fatal in the ordinary course of nature and death was proved to have been caused due to coma as a result of blunt trauma injury to head and corresponding brain injury coupled with effects of hypoxic brain injury. Thus, the commission of offence under Section 302 of the IPC was proved against the appellant.

However, the Court was of the view that there is no clinching evidence on record to convict the appellant under Section 376-AB of the IPC or under Section 6 of the POCSO Act. Instead, it was convinced that offence under Section 354 of the IPC was squarely made out against the appellant.

So far as the question of imposition of capital sentence was concerned, the Court held that no material was produced to show that the possibility of reformation has been foreclosed and hence, observed:

“During course of argument, we enquired specifically from the learned State Counsel as to whether there is any criminal antecedent against the appellant, whether there is anything adverse against the conduct of the appellant during his detention in jail custody, to which he answered in negative. It is not disputed that the appellant is a married person and having children.”

Resultantly, the appellant was held guilty under Section 302 of the IPC. But his sentence was commuted to the imprisonment for life. However, a rider was imposed that he shall undergo minimum sentence of twenty (20) years before which he shall not be eligible for consideration of remission.

He was also sentenced to rigorous imprisonment for five (5) years for offence under Section 354 of the IPC and his conviction and sentence, i.e. rigorous imprisonment for seven (7) years for commission of offence under Section 363 was upheld.

An order was issued to the District Legal Services Authority, Cuttack for grant of compensation to the parents of the victim under the Odisha Victim Compensation Scheme, 2017, if the same has not already been granted to them pursuant to the order of the trial Court.

Case Title: State of Odisha v. Mohammed Mustak and a tagged matter

Case No: DSREF No. 04 of 2019 & CRLA No. 817 of 2019

Date of Judgment: May 06, 2024

Counsel for the State: Mr. Janmejaya Katikia, Addl. Govt. Advocate

Counsel for the Appellant: Mr. Ramanikanta Pattanaik & Mr. Bikash Chandra Parija, Advocates

Citation: 2024 LiveLaw (Ori) 36

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