Uttarakhand High Court Commutes Death Sentence Of Man Convicted For Repeatedly Committing Rape Upon 5-Yr-Old Step-Sister

The Uttarakhand High Court has recently commuted the death penalty awarded to a man convicted for repeatedly committing rape upon his five-year-old orphan cousin and assaulting her numerous times.

While lessening the punishment awarded to the convict to twenty-year rigorous imprisonment, the Division Bench of Chief Justice Ritu Bahri and Justice Alok Kumar Verma observed –

“…we are of the opinion that it is not a case where extreme death sentence should be imposed. The ends of justice would be met if we commute the sentence of death to the rigorous imprisonment for a term of twenty years.”

Background of the Case

Upon getting information from a secret informer, the police reached the spot and found the minor victim in the lap of a woman. When asked by the police party, the woman informed that she discovered the child in a big plastic pipe from her terrace. She also stated that the little girl informed her that she lives at a nearby place with her step-brother ('the convict'), who often assaults her and commits rape on her.

The police proceeded to the house of the convict, who was then present with his two minor children. He was subsequently arrested and custody of the victim as well as both the children of the convict was handed over to a local NGO.

An FIR was lodged against the convict for the charges of rape and medical examination of the victim was done, as per the prescribed procedure. Radiological and dental examination of the victim revealed that she was about five to six-year-old.

After thorough investigation, the charge-sheet was filed against the convict under Sections 376-AB and 323 IPC as well as under Section 5 read with Section 6 of the POCSO Act. The convict denied his guilt and pleaded that he was searching for the victim over that night but did not inform about the missing of the victim to the police.

Contentions of Parties

The counsel for the convict contended that the forensic report does not support the prosecution case as semen and blood could not be detected from the wearing apparels.

Further, she argued that the woman, who rescued the victim, had stated in her cross-examination that her house is three-storeyed. There is a channel gate in her house to go to the terrace which closes at 8'0 clock in the evening. Therefore, it was not possible for the victim to reach the terrace of this witness.

Also, it was vehemently contended that as there is no independent corroboration to the version of the victim, her solitary evidence cannot be relied upon and thus, the convict deserves to be acquitted.

On the other hand, the counsel appearing for the State maintained that the judgment and the order passed by the trial Court is well-reasoned and justified. To that effect, he relied upon the judgment of the Supreme Court in Sunil v. State of Madhya Pradesh.

Court's Observations

The Court, at first, examined the evidence of the woman who rescued the child victim from her terrace. The Bench found that the testimony of the witness is unequivocal and clear that when she rescued the little girl, she was scared.

The aforesaid witness along with the Sub-Inspector deposed that the victim told them that the convict used to insert his private part into her private part. Further, the administrator of the NGO also stated to have come to take custody of the children after being called by the police and she also supported the prosecution case.

The Court then went on to examine the evidence adduced by the victim herself. Despite being a girl of tender age, she deposed consistently and unambiguously about the occurrence, Court said. After going through her statement recorded under Section 164 CrPC, the Division Bench observed–

“The victim's statement was recorded under Section 164 of the Code of Criminal Procedure, 1973 on 07.04.2021. She had stated in her statement that her Dada (brother) used to open her pants. He used to insert his private part into her private part and he went to jail because he used to hit her and talk dirty to her.”

Furthermore, the Court found that the evidence of the doctor, who medically examined the victim, corroborates the testimony of the victim. She deposed that at the time of medical examination, injuries were found at several parts of the victim's body and her hymen was torn at three places.

This witness also informed the Court that at the time of medical examination, the victim told her that she had been living with her brother/convict for six months. He used to talk dirty to her every night and she felt pain in her lower side.

Thus, taking into account all the evidence on record, the Court came to the conclusion that the evidence of the victim is completely trustworthy, well-corroborated and deserves to be acted upon. Accordingly, it concluded –

“Therefore, having re-appreciated the entire evidence on record, we concur with the learned trial court on the point of conviction. It is not a fit case where impugned judgment of conviction requires any interference. We also concur with the learned trial court on the point of sentence, passed under Section 323 IPC.”

While considering the legality and tenability of the sentence of death imposed upon the convict for the offence under Section 376-AB IPC, the Court took into consideration a catena of judgments of the Apex Court as well as the attending circumstances of the case in hand.

The Bench observed that no evidence was produced by the prosecution which will convince the judicial conscience of the Court that reformation, rehabilitation or social re-integration of the convict are not possible.

Though the Court concurred that the convict has committed a very heinous crime, but it duly considered factors like young age of the convict, absence of criminal antecedents and the well-being of the minor children of the convict, since he is the only guardian alive for them.

The Bench held that it cannot be said that the convict shall be a menace to the society in the future, if the extreme sentence of death is not awarded to him. Resultantly, the Court deemed it apposite to commute the sentence of death awarded to the convict and ordered him to undergo rigorous imprisonment for twenty years instead.

“We confirm conviction of the appellant on all the counts, but the death sentence, imposed on the appellant for the offence under Section 376 AB IPC is commuted to the rigorous imprisonment for a term of twenty years,” it ordered.

Case Title: State of Uttarakhand v. Janak Bahadur

Case No: Criminal Reference No. 03 of 2021

Citation: 2024 LiveLaw (Utt) 8

Date of Judgment: May 21, 2024

Counsel for the Condemned Prisoner: Ms. Manisha Bhandari, Advocate

Counsel for the State: Mr. J.S. Virk, Deputy Advocate General assisted by Mr. Rakesh Kumar Joshi, Brief Holder

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