‘Rarest Of Rare’ Test Still Applies: Madhya Pradesh HC Commutes Death Penalty Awarded Within 46 Days By The Trial Court In A Rape Case [Read Judgment]

‘The test for awarding the death sentence in the case of woman under 12 years of age shall be still the same which has been laid down in the various judgments prior to the amendment i.e. ‘rarest of rare case’.

The Madhya Pradesh High Court commuted death penalty awarded to a man accused of raping a seven year old.

The trial court had completed the trial within 46 days and delivered judgment on 7^th July 2018 awarding death sentence to the accused, subject to confirmation by the High court.  Last week, the first bench of the High court comprising of Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla, though upheld the conviction, commuted the death penalty.

The rape of the seven year old had happened in temple premises on 21^st May, this year. There were direct witnesses who deposed that they saw the accused was violating the girl. When they came, he ran away and the girl was crying and there was bleeding from her private part. FIR was lodged on the same day. On the very next day, accused was arrested and chargesheet was filed before the Trial court within 72 hours.

The Trial court invoked newly inserted Section 376(AB) of the Indian Penal Code, which provides for death penalty for rapists of girls below 12 years of age. The bench observed that, even after the amendment, the test for awarding the death sentence in the case of woman under 12 years of age shall be still the same which has been laid down in the various judgments prior to the amendment i.e. ‘rarest of rare case’.

The Court held that the prosecution has proved that the age of prosecutrix as less than 12 years at the time of the incident and she has been violated by the accused. However, applying the rarest of rare test, Justice Shukla observed that the instance case does not fall within the aggravating circumstances viz. extreme depravity and the barbaric manner in which the crime was committed.

The judgment reads: “In the present case the important consideration is the manner in which the alleged offence is committed. The evidence of Dr. Saroj Bhuriya (PW-3) is relevant. She stated that there was no external injury on the person of the prosecutrix, especially on her neck, chick, chest, abdomen and thigh. She also did not find any injuries on the outer part of the genital part of the prosecutrix. She has found the hymen was ruptured recently and there was bleeding. The injury was ordinary in nature. She further stated that the same could have been possibly be caused by hard and blunt object as well. The evidence has established that a minor child was violated by the accused. However, there was no other injury inflicted him either on the other parts of the body and also on the private part. Thus the manner in which the offence is committed is not barbaric and brutal. We have given our anxious consideration to the material on record and find that though the offence is condemnable, reprehensible, vicious and a deplorable act of violance but the same does not fall within the aggravating circumstances namely extreme depravity and the barbaric manner in which the crime was committed. Taking into consideration the totality of the facts, nature, motive and the manner of the offence and further that nothing has been brought on record by the prosecution that the accused was having any criminal antecedent and the possibility of being rehabilitation and reformation has also not been ruled out. Nothing is available on record to suggest that he cannot be useful for the society. In our considered opinion, it is not a case in which the alternative punishment would not be sufficient to the facts of the case.”

The court added that the capital punishment for the offence under Section 376(AB) is commuted to the imprisonment for life which shall mean imprisonment for natural life.