A Division Bench dismissed an appeal filed on being aggrieved by the Judgment and order by the Additional Sessions Judge and Special Judge (POCSO), whereby it had convicted the appellant-accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of the Penal Code, 1860 and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012, and had sentenced him to death penalty for the offence under Sections 302, 376AB of the Penal Code and had convicted him of the offences under the Atrocities Act.
Facts of the Case
The appellant/accused was residing in a room situated on the ground floor of the house owned by one Shyam Narayan Pandey, situated on Surat, and the complainant was staying along with his family on the 1st floor of the said house as the tenant. The appellant on 14.10.2018 between 20.00 to 20.30 hours kidnapped the minor daughter (hereinafter referred to as “the victim”) aged about 3 years 6 months of the complainant who belonged to the scheduled caste. The appellant thereafter took the victim to his room and committed rape on her and killed her by throttling. The appellant thereafter with the intention to destroy the evidence put the body of the victim in a gunny bag in his room. He thereafter locked his room from outside and fled away. The complainant fervently searched his daughter in the society, but she was not found and therefore, he lodged a complaint at Limbayat Police Station, Surat on 15.10.2018 at about 1.15 hours, which was registered at the said police station. The Investigating Officer thereafter made an inquiry and search at the said society. Since the room of the accused was found locked, he broke open the lock of the said room in presence of the panch witnesses, from where the corpse of the victim was found in a gunny bag in a decayed and decomposed condition. The complaint thereafter was registered for the offences under Sections 302, 363, 366, 376AB, 377, and 201 of IPC and under Sections 3(A), 4, 5(a), 5(r) and 6 of the POCSO Act and under Section 3(2)(5), Section 3(2)(5-A) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act (hereinafter referred to as “the Atrocity Act”).
Arguments before the Court
On Behalf of appellant /Accused
The counsel for the appellant stated that the whole case of the prosecution was rested on the circumstantial evidence, the confession made by the before medical examiner as well as when in police custody could not be relied upon and read as evidence, the CCTV footages provided did not cover the entire area of the society and couldn’t be termed as reliable piece of evidence, relying upon the cross-examination which submitted that there was a shutter in the room of the accused and possibility that the gunny bag could be placed through that shutter cannot be ruled out.
Relying on the Supreme Court judgment of Bachan Singh v. State of Punjab[1], and Machhi Singh. v. State of Punjab[2], he submitted that the Special Court had committed a gross error in not considering the mitigating circumstances before awarding capital punishment and relying on various other cases he tried to establish that the instant case did not fall in the category of the rarest of the rare case.
On Behalf of Complainant/Respondent
The counsel on behalf of complainant stated that even if the case was based on circumstantial evidence the prosecution had proved each and every circumstance without reasonable doubt proving guilt of the accused at the time of the investigation he did not cooperate with it and had fled to his village the next morning of the incident and the investigation officer had found the body of the victim from his room, the post mortem reports clearly described that the victim was raped in a diabolical manner and brutally murdered by strangulation and then her dead body was kept in a gunny bag to decay and decompose. Late the accused was arrested from Bihar in a train going to Delhi. The DNA profile and other scientific investigations also proved that the accused was involved with the crime. The Court, therefore, had no hesitation in holding that trustworthy and credible evidence given by the prosecution had conclusively proved the guilt of the appellant/accused, excluding any possibility of his innocence.
The aggravating circumstances proved beyond reasonable doubt like the acts of the accused in kidnapping a young girl of 3½ years, committing rape on her in her absolutely helpless and unprotected condition, and then murdering her in a brutal manner by strangulating her and then putting her in a gunny bag, fleeing away to his native place at Bihar, leaving the dead body in the locked house to decay and decompose, with no repentance or remorse after the commission of crime overweigh the mitigating circumstances like no criminal antecedents of the accused or no evidence to suggest that he cannot be reformed.
Decision of the Court
The court dismissed the appeal and stated that the abhorrent and atrocious nature of crime committed by the appellant/accused in a diabolical manner, on the defenceless unprotected girl of 3½ years, without any remorse, has left the Court with no option but to consider the case as the “rarest of rare case” for awarding the punishment of death penalty. The Court, therefore, is of the opinion that the death penalty awarded to the accused by the Special Court deserves to be confirmed.. In that view of the matter the judgement and order dated 31.7.2019 passed by the Additional Sessions Judge and Special Judge (POCSO), Surat in Special POCSO Case No.223 of 2018 of conviction for the offence under Section 363, 376AB, 377, 302 and 201 of IPC and under Section 3(a), 4, 5(r) and 6 of the POCSO Act, and of the sentence of death penalty for the offence under Section 302 and 376AB of IPC is confirmed. The other punishments imposed by the Special Court for the other offences are also confirmed.
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