[Rape And Murder of Minor] Orissa HC Sets Aside Conviction For Rape, Commutes Death Penalty To Life Imprisonment

"In the case in hand, the offence of lust is lost raising residual doubt upon the act by sexual assault. Having regards to the aggravating and mitigating circumstances, we are of the opinion that, the mitigating circumstances outweigh the aggravating factors. Conscience is shocked but there is an alternative available to the death sentence. The assumption of power to take one's breath away, in the facts proved would be stretching the direction 'in rarest in rare cases' beyond the limit of limitation so far prescribed by the precedents. The sentence 'Imprisonment for Life' will be just and proper. The death sentence awarded by the learned Trial Court is not to be confirmed. Instead it is to be modified to Imprisonment for Life for offence U/s.302 of I.P.C", concluded the judge.

Justice S.K. Mishra, in his separate but concurring opinion, found that the condemned prisoner is a 28 years old man belonging to low status of the society and a villager, who could not afford to engage a defence counsel on his own and was provided the assistance of an Advocate as State defence counsel. The offender does not have any criminal track record. The judge appreciated that there is neither any material on record to show that he has been charge-sheeted by the police for committing any other offences in the past nor he has been found guilty by any court of competent jurisdiction. He is a semi-literate rustic villager earning his livelihood as a labourer, who can barely write his name as signature on the accused statement. Moreover, the accused is only 28 years old at the time of trial. So, the judge was of the view that there is every chance of his being reformed by the correctional treatments meted out by the authorities in charge of the penitentiary.

"In this case, as already observed by my learned brother Dr. Justice A.K. Mishra, the offences under Sections 376 (2)(i) and 376-A of the IPC and Section 6 of the POCSO Act have not been established by the prosecution. There also appears to be nothing uncommon about the crime, which would render the sentence of imposition for life inadequate and calls for a death sentence...we are of the opinion that this is not a case where there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the offender", concluded the judge, holding that this is not a case which falls in the category of rarest of rare cases, where all other options, but the sentence of death, is foreclosed.