The High Court of Patna on Tuesday set aside a death sentence awarded by the Trial Court and acquits the accused in case of rape and death of a minor girl.
The Trial Court convicted Ajit Kumar for the offence of kidnapping and raping a minor girl under Sections 363, 366A, 120B, 302, 376(D) of the Indian Penal Code and Section 6(g) of the Protection of Children from Sexual Offences Act, 2012.
Accused Ajit Kumar and Vishal Kumar enticed and kidnapped the prosecutrix (hereinafter referred to as ‘the deceased’), a minor girl, from the guardianship of her parents residing in Village Pipra (Bihar) and took her first to Patna (Bihar) and then to Vadodara (Gujarat) where she was subjected to gang rape and burnt to death.
The Bench Noted that the Whole of the judgment runs into nine pages. To our reading, the trial judge has in a perfunctory manner referred to the evidence and not furnished any cogent, much less legally sustainable reasons in arriving at conclusions, holding the accused guilty of each one of the charged offences.
The HC taking note of the evidence on record observed that the testimony of all the three members, on the issue of kidnapping, sexual assault, and murder, based on hearsay, is wholly uninspiring in evidence, apart from being self-contradictory. None of these witnesses alleges intimidation, threat, or apprehension of any nature from the accused. Or any pressure from anyone. None of them contended that the deceased was forcibly taken away by the accused.
Moreover, The existence of the confessional statement was what weighed with the learned Judge for convicting the accused, but its relevance or admissibility was never considered and examined. The law of admissibility for a confessional statement though taken note of but not correctly applied.
Setting aside the conviction, the court said:
“We may reiterate, that the offence under Sections 363, 366A, 376 and 120B I.P.C. cannot be said to have been established to the testimonies of P.Ws. 1, 2 and 3, which in any case are hearsay in nature, without disclosing the complicity of the accused. On the issue of sexual assault, there is no evidence at all. The testimony of P.Ws. 1, 2, and 3 lacks credence. None found any telltale signs of rape on the spot or the body of the deceased. There is neither medical nor any scientific evidence indicating such a fact. The theory of the accused pouring kerosene oil and setting the deceased on fire is also not borne out of the record, for P.W. 6 has not ruled out the possibility of suicide. He has deposed that “cannot say it is suicidal, homicidal or accidental.” Also, what was the original version recorded in the Case Diary is not on record.”
The bench further noted It is surprising how the Trial Court awarded the death sentence by terming this case as the “rarest of rare” when the allegation of rape itself cannot be proved.
“What is the basis of his conclusion of the case being the rarest of rare cases is not discussed. What are the special reasons for grant of capital punishment; whether there were any mitigating circumstances; what was the mental state, motive, or the brutality of the crime were never thought of much less considered by the learned trial judge. The approach adopted is casual and perfunctory in nature, unmindful of the consequences of the decision which when implemented becomes irrevocable and irreversible. We are unable to persuade ourselves to agree with the Trial Judge, either on the sentence of awarding death penalty or applying the principles of sentencing. The sentence for each one of the offences was required to be pronounced which, perhaps Trial Judge forgot to do so.”
