Uttarakhand High Court
State Of Uttarakhand vs Janak Bahadur on 21 May, 2024
RESERVED
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE MS RITU BAHRI
AND
HON'BLE JUSTICE SHRI ALOK KUMAR VERMA
21ST MAY, 2024
CRIMINAL REFERENCE NO. 03 of 2021
State of Uttarakhand
Versus
Janak Bahadur .....Respondent
Counsel for the State : Mr. J.S. Virk, Deputy
Advocate General
assisted by Mr. Rakesh
Kumar Joshi, Brief
Holder.
Counsel for the Respondent : Ms. Manisha Bhandari,
Advocate.
With
CRIMINAL APPEAL NO.23 of 2021
Janak Bahadur .....Appellant
Versus
State of Uttarakhand .....Respondent
Counsel for the Appellant : Ms. Manisha Bhandari,
Advocate.
Counsel for the Respondent : Mr. J.S. Virk, Deputy
Advocate General
assisted by Mr. Rakesh
Kumar Joshi, Brief
Holder.
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Reserved on:-30.04.2024
Delivered on:-21.05.2024
Upon hearing the learned counsel for the parties, this Court
made the following judgment :
(Per : Shri Alok Kumar Verma, J.)
The Criminal Reference and the Criminal Appeal have
arisen from a common judgment and order dated
22.09.2021/24.09.2021, passed by Special Judge (POCSO),
Pithoragarh in Special Trial No.27 of 2021, "State Versus Janak
Bahadur", by which, the appellant has been convicted for the
offence punishable under Section 376 A B of the Indian Penal
Code, 1860 (in short, "IPC"), Section 323 IPC and Section 5
read with Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (in short, "Act, 2012").
2. In view of the provisions of Section 42 of the Act,
2012, the Trial Court has awarded death sentence to the
appellant-accused for the offence under Section 376 A B IPC
with a fine of Rs.5,000/- and referred the matter to this Court
for confirmation of the same in terms of the provisions of
Section 366 of the Code of Criminal Procedure, 1973. The
appellant-accused has been ordered to be hanged till death.
3. Appellant-accused has been further sentenced to
undergo rigorous imprisonment for a period of one year along
with a fine of Rs.1,000/- for the offence under Section 323 IPC,
and in default of payment of fine, he has been directed to
undergo further simple imprisonment for a period of two
month's.
4. Both the sentences have been directed to run
concurrently.
5. So far as the compensation and rehabilitation part
are concerned, the learned Trial Court has ordered,
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"Rs.7,00,000/- (Rupees Seven Lakhs) compensation should be
provided to the victim, which shall be kept in the F.D.R.
scheme in the name of the victim for five years in some
Nationalized Bank. The amount so deposited, can only be
withdrawn with the permission of the Court on her education or
any other incident of life of the victim, in which she can develop
herself as a valuable citizen of India to come in the stream line
of the society. Interim compensation of Rs.1,00,000/- (Rupees
One Lakh Only) already awarded to the victim vide order dated
07.04.2021 of this Court shall be adjusted in the final
compensation. Accordingly, Government of Uttarakhand
(District Magistrate, Pithoragarh) is directed to pay the
compensation amount of Rs.6,00,000/- (Rupees Six Lakhs) to
the victim within the statutory period of 30 days from the
receipt of the copy of this judgment, in compliance of sub rule
5 of Rule 7 of the POCSO Rules, 2012.
So for as the rehabilitation part is concerned, there is
no one to look after the victim in this universe. The parents of
the victim are no more. She was living with her cousin brother,
who has been held guilty for committing rape on her. She is the
helpless girl child of five years of age. So, the compensation
provide to her, is not sufficient for rehabilitation of the victim.
For rehabilitation of the victim, the Court has to consider the
educational rehabilitation, social rehabilitation and residential
rehabilitation. Thus, the Government of Uttarakhand is directed
to look after for educational rehabilitation, social rehabilitation
and residential rehabilitation of the victim till the time, she
attains majority or not properly settled in her life, whichever is
later. The State Government cannot left any girl child
unreddressed, which is almost an orphan. Hence, it is the duty
of the State Government to provide the dignified shelter,
quality education and counseling sessions to the victim so that
scars of rape on the brain of the victim can be removed.
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The two children, a boy and a girl, named Prakash,
aged about one and a half years and Nirmala, aged about nine
years of age respectively are also the victims in this case as
there is no one to look after their livelihood. Their father held
guilty for rape committed with his cousin sister, another child.
They are also living in Ujjawala Rehabilitation Center (Card
Sanstha). Thus, this Court is considering both of the kids as
victims in this case, not for the purpose of any monitory
benefit, but for the purpose of rehabilitation. Therefore, similar
education, social and residential rehabilitation facilities will also
be extended by the State Government to the two kids of
convict, who are living in Ujjawala Rehabilitation Center (Card
Sanstha) along with the victim."
6. The case of the prosecution in brief is that Sub-
Inspector Aarti (PW8) along with other police personnel left the
police station at 18:30 hrs on 03.04.2021 for patrolling. When
they reached ITBP, the secret informer informed them that a 5
year old girl had been raped by her Nepali step brother. On
receiving this information, when the police party reached the
spot, they saw that a woman (PW7) was standing with a girl
(victim PW1) in her lap. She was looking quite upset. She told
the police that today when she went to pour water in her pots
on the terrace of her house, she saw that the girl was hiding
inside a big plastic pipe on the terrace. She also told the police
that she (victim) had told her when asked that she was living
nearby with her brother Janak Bahadur. Her brother beats her
with stick, makes her lie on the ground, takes off her pajama
and does dirty things with her, causing pain. She (victim) had
requested her not to send her to her brother because he would
beat her again and give her pain again. She took her to her
house and fed her. When Sub-Inspector Aarti (PW8) asked the
girl, she told her name and said that she lives nearby with her
Dada (brother). Her Dada beats her with stick and does dirty
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work with her, which causes her pain. She feels pain while Shu-
Shu (urinating). She is very afraid of her brother. That's why
she hid on the terrace. She (PW7) told that Janak Bahadur lives
on rent in the same area. The girl (PW1) was handed over to
her (PW7) by Sub-Inspector Aarti. The police party reached
Janak Bahadur's room. Janak Bahadur was present with his two
minor children. He was arrested at around 21:05 hrs. From the
spot, information was given to PW3, the Administrator,
Ujjawala Rehabilitation Center (Card Sanstha), Jakhani,
Pithoragarh (Non-Governmental Organization). She (PW3)
reached the house of PW7 with the child helpline worker. The
victim and both the minor children of the accused were handed
over to her (PW3) and the said activist. Despite efforts,
member of the public could not be secured to testify. An arrest
Memo (Ext. Ka. 8) was prepared on the spot. A copy of memo
was given to the accused on the spot.
7. An FIR No. 14 of 2021 (Ext. Ka. 1) was lodged at
Police Station Jajardewal, District Pithoragarh on 03.04.2021 at
22:30 hrs. pursuant to the arrest Memo (Ext. Ka. 8). The FIR
was registered by Constable Rakesh Singh (PW2) against the
accused under Sections 323, 376 IPC and Section 5 read with
Section 6 of the Act, 2012.
8. Sub-Inspector Aarti produced the victim for her
medical examination on 04.04.2021 before Dr. Prema Fakliyal,
Medical Officer of Women's Hospital, Pithoragarh. Medical
examination of the victim was conducted by Dr. Prema Fakliyal
(PW5).
9. Dr. N.S. Gunjyal (PW4) was Radiologist in District
Hospital, Pithoragarh. He had examined the victim by taking X-
ray on 12.05.2021 to determine her age.
10. Dr. Harshikesh Joshi (PW6) was on the post of
dentist in District Hospital, Pithoragarh. The victim's teeth were
examined by him on 12.05.2021 to determine her age.
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11. According to Dr. N.S. Gunjyal (PW4) and Dr.
Harshikesh Joshi (PW6), the age of the victim was found to be
between 5 to 6 years.
12. The investigation was handed over to Sub-Inspector
Megha Sharma (PW9). Statements of witnesses including the
statement of victim were recorded by her. At the behest of the
victim, Site Plan (Ext. Ka. 13) was prepared by her in the
presence of PW3.
13. The victim's statement was recorded under Section
164 of the Code of Criminal Procedure, 1973 on 07.04.2021.
14. The pajama worn by the victim at the time of the
incident was taken vide Memo (Ext. Ka. 14) by Sub-Inspector
Megha Sharma (PW9) on 09.04.2021. Blood samples of the
victim and the accused were taken by her. Blood samples of
the victim and the accused, a lower (inner) of the victim, a
pajama of the accused, pubic hair and one glans penis swab of
the accused, two vaginal smear slides and scalp hair of the
victim were sent by her to the Forensic Science Laboratory
Uttarakhand for examination and after concluding the
investigation, a charge-sheet (Ext. Ka. 16) was filed by her
against the accused under Sections 323, 376 IPC and Section 5
read with Section 6 of the Act, 2012.
15. The Trial Court framed charges against the appellant-
accused under Sections 323, 376 AB IPC and Section 5 read
with Section 6 of the Act, 2012. As the appellant-accused
pleaded innocence, trial was held.
16. In order to establish the accusations, prosecution
examined 9 witnesses.
17. Statement under Section 313 of the Code of Criminal
Procedure, 1973 was recorded. Appellant-accused has accepted
the prosecution's case that he is the step brother of the victim.
She lived with him. He searched for the victim throughout the
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night but did not inform the police. He also admitted that he
was arrested and that his children were taken away, although
he has denied all the incriminating evidence, produced by the
prosecution.
18. The appellant-accused has not produced any
evidence in defence.
19. Ms. Manisha Bhandari, learned counsel appearing for
the appellant contended that the report of the Forensic Science
Laboratory dated 13.01.2022 does not support the prosecution
case. As per the report of the Laboratory, semen and blood
could not be detected on the articles. The prosecution witness
PW7 has stated in her cross-examination that her house is
three storeyed. There is a channel gate in her house to go to
the terrace. The said channel gate closes at 8'0 clock in the
evening. Therefore, in these circumstances, it was not possible
for the victim to reach the terrace of this witness and the
alleged victim's evidence regarding sexual assault is not
corroborated by any independent witness. Therefore, the
appellant deserves to be acquitted.
20. On the other hand, Mr. J.S. Virk, learned Deputy
Advocate General, has supported the judgment and order,
passed by learned Trial Court. He has relied upon a judgment
of the Hon'ble Supreme Court, passed in Sunil Vs. State of
Madhya Pradesh, (2017) 4 SCC 393.
21. In Sunil Vs. State of Madhya Pradesh, (2017) 4
SCC 393, the Hon'ble Supreme Court held that a positive result
of the DNA test would constitute clinching evidence against the
accused if, however, the result of the test is in the negative i.e.
favouring the accused or if DNA profiling had not been done in
a given case, the weight of the other materials and evidence on
record will still have to be considered.
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22. Now, we proceed to examine whether the appellant
can be held to be guilty.
23. The prosecution's witness PW7 has clearly deposed
that on 03.04.2021 at 8 a.m., when she went to her terrace to
pour water in the pots, she saw the victim who was scared at
that time. Her daughter had bathed the victim and fed her. She
had come to the road with the victim, at the same time a police
vehicle arrived there.
24. The prosecution witness PW7 and Sub-Inspector Aarti
(PW8) have stated that the victim had told them that her Dada
(brother) Janak Bahadur inserts his Shu-Shu (private part) in
her Shu-Shu (private part).
25. The prosecution witness PW3, who was the
Administrator, Ujjawala Rehabilitation Center (Card Sanstha),
Jakhani, Pithoragarh (N.G.O.), and is an independent witness,
has deposed that she had reached the spot after receiving the
information on phone on 03.04.2021 and took the victim and
both the children of the accused to the said Card Sanstha,
Jakhani. No reason is found to disbelieve the evidence of this
witness.
26. The statement of the victim (PW1), aged about 5
years, has been recorded by the Trial Court in question and
answer form, which is as follows:-
"Question No.1 - Where are your mother and father?
Answer - They are dead.
Question No.2 - How did your mother and father
die?
Answer - My father died after taking Daru
(alcohol) and my mother consumed
medicines due to which she died.
Question No.3 - With whom did you live after the
death of your mother and father?
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Answer - After the death of my mother and
father, I lived with Dada Janak.
Question No.4 - Who else lived with Dada?
Answer - I, Prakash and Nirmala lived with
Dada. Prakash and Nirmala were
also small.
Question No.5 - Where does Janak's wife live?
Answer - Janak's wife lived in Nepal. She is
also dead. We all lived in Panda.
Question No.6 - What did Janak do with you?
Answer - Janak used to talk dirty to me.
Question No.7 - What dirty deeds did Janak do?
Answer - He used to open his pants. He used
to beat me. Used to hold my hand.
He used to put his Shu-Shu (private
part) in my Shu-Shu (private part).
I used to refuse.
Question No.8 - How many time did he do dirty
things to you?
Answer - Many times.
Question No.9 - How did that dirty deed make you
feel?
Answer - That dirty work caused pain in my
Shu-Shu (private part).
Question No.10 - Where did you go after that?
Answer - After that I hid in someone's house.
I don't remember his name.
Question No.11 - Where were you taken after that?
Answer - Then took me to the institution.
Question No.12 - Where did you go after that?
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Answer - After that I went to the hospital. I
was treated in the hospital. I also
told the doctor that Janak did dirty
things to me.
Question No.13 - Where did you go after this?
Answer - After this I came to the Court.
Question No.14 - To whom did you go to Court?
Answer - I went to the Court in front of
aunty. My mother was also with
me.
Court's observation :- The victim is addressing the
Administrator of the Sanstha,
Nirmala Pandey, as mother.
Question No.15 - What did you tell aunty?
Answer - I had told aunty in front of mother
that Janak Dada does wrong things
with me. Aunty had written it and
put the ink of my thumb on it.
Cross-examination of the victim by Pankaj Sharma,
Advocate/amicus curiae on behalf of the accused.
Question No.16 - How many room were there where
you lived with Janak Dada?
Answer - There was only one room. Prakash
and Nirmala also lived in this room.
Question No.17 - How old is Nirmala?
Answer - Nirmala is also small. She is a little
older than me.
Question No.18 - How did you sleep in that room?
Answer - We used to sleep on the floor in
that room. Beds were arranged
separately. I used to sleep
separately.
Question No.19 - How many clothes did you have
there to wear?
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Answer - Where I lived with Janak, I had
more clothes.
Question No.20 - Was there any fight between
Janak's children Nirmala, Prakash
and you?
Answer - There was no fight between
Nirmala, Prakash and me.
Question No.21 - What time did Janak go to work?
Answer - Janak used to go to work at 10 in
the morning.
Question No.22 - What time did he return home?
Answer - He used to come back home only at
night.
Question No.23 - Did he come home and cook for
you?
Answer - Yes.
Question No.24 - When Janak went to work where
did you stay the whole day?
Answer - I used to stay at home only.
Question No.25 - Did you go to the neighbourhood to
eat food?
Answer - No, I never went out of the house.
Question No.26 - After how many days did you take
bath and who used to bathe you?
Answer - I used to take bath every day and
Nirmala used to bath me.
Question No.27 - Have you testified against Janak
before the Court at the behest of
people?
Answer - No, I have spoken the truth.
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It is wrong to say that Janak had not done anything wrong to
me. It is also wrong to say that I am giving wrong statements
at the behest of people."
(This is the translated version of the original which is in
Hindi script.)
27. 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.
28. In Ganesan Vs. State Rep. By its Inspector of
Police, (2020) 10 SCC 573, while dealing with conviction
under the Act, 2012, the Hon'ble Supreme Court held that the
statement of the prosecutrix, if found to be worthy of credence
and reliable requires no corroboration. The court may convict
the accused on the sole testimony of the prosecutrix.
29. The Trial Court has recorded the testimony of the
victim (PW1) after being satisfied that she was capable of
understanding the questions asked to her and giving rational
answers to the questions.
30. Dr. Prema Fakaliyal (PW5) had proved the medical
examination report of the victim (Ext. Ka. 5) and
supplementary medical report (Ext. Ka. 6). The victim's
evidence corroborates with the evidence of Dr. Prema Fakaliyal
(PW5). She has 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. The victim had
given a statement at the time of the medical examination that
she had been living with her brother for six months. Her step
brother used to talk dirty to her every night and she felt pain in
her lower side. She used to cry in pain. He used to beat her and
threaten to kill her.
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31. On evaluating the evidence of the victim and other
evidence, available on the record, we are of the opinion that
the testimony of the victim is absolutely trustworthy. 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.
32. Now the question arises whether death sentence
should be awarded on the appellant in this case.
33. Ms. Manisha Bhandari, learned counsel for the
appellant contended that the appellant is aged about 34-35
years old. He was a laborer. He has a daughter and a son, who
are still very young. Their mother has died. There is no one else
except the appellant for their care and maintenance. He has no
criminal antecedent. Hence, he is liable to get opportunity of
rehabilitation and reformation.
34. On the other hand, Mr. J.S. Virk, learned Deputy
Advocate General, prayed for confirmation of the death
sentence of the appellant in view of the provision of Section
376 AB IPC.
35. Section 376 AB IPC is inserted by the Criminal Law
(Amendment) Act, 2018 (Act No. 22 of 2018) (w.e.f.
21.04.2018), which reads as under:-
" 376 AB. Punishment for rape on woman under
twelve years of age- whoever, commits rape on a
woman under twelve years of age shall be punished
with rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment
for the remainder of that person's natural life, and
with fine or with death:
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Provided that such fine shall be just and
reasonable to meet the medical expenses
and rehabilitation of the victim:
Provided further that any fine imposed
under this section shall be paid to the
victim".
36. In view of Section 354 (3) of the Code of Criminal
Procedure, 1973, life imprisonment is the general rule and
death sentence is an exception which may be imposed in rarest
of rare case. For inflicting death sentence Judge is to assign
special reason.
37. In Gurvail Singh alias Gala and Another Vs.
State of Punjab, (2013) 2 SCC 713, the Hon'ble Supreme
Court held that the rarest of rare cases test (R-R Test) depends
on the perception of the society and not "Judge-centric".
38. In Mofil Khan Vs. State of Jharkhand, (2015) 1
SCC 67, the Hon'ble Supreme Court observed that the "rarest
of the rare" case exists when an accused would be a menace,
threat and antithetical to harmony in the society.
39. After considering the judgments of Bachan Singh
Vs. State of Punjab, (1980) 2 SCC 684, Machhi Singh Vs.
State of Punjab, (1983) 3 SCC 470, the Hon'ble Supreme
Court in Mohd. Mannan alias Abdul Mannan Vs. State of
Bihar, (2019) 16 SCC 584 observed:-
"The proposition of law which emerges from the
judgments referred to above is that death sentence
cannot be imposed except in the rarest of rare
cases, for which special reasons have to be
recorded, as mandated in Section 354 (3) of the
Criminal Procedure Code. In deciding whether a case
falls within the category of the rarest of rare, the
brutality, and/or the gruesome and/or heinous
15
nature of the crime is not the sole criterion. It is not
just the crime which the Court is to take into
consideration, but also the criminal, the state of his
mind, his socio-economic background, etc. Awarding
death sentence is an exception, and life
imprisonment is the rule".
40. In the case of Surendra Pal Shivbalakpal Vs.
State of Gujarat, (2005) 3 SCC 127, the appellant was
found guilty by the Sessions Court for the offences punishable
under Sections 363, 376 and 302 IPC. For the offence of
murder he was sentenced to death. The High Court confirmed
the conviction and the death penalty was imposed on the
appellant for the offence under Section 302 IPC. The Hon'ble
Supreme Court held,
"The next question that arises for consideration is
whether this is a "rarest of rare case"; we do not
think that this is a "rarest of rare case" in which
death penalty should be imposed on the appellant.
The appellant was aged 36 years at the time of the
occurrence and there is no evidence that the
appellant had been involved in any other criminal
case previously and the appellant was a migrant
labourer from U.P. and was living in impecunious
circumstances and it cannot be said that he would
be a menace to society in future and no materials
are placed before us to draw such a conclusion. We
do not think that the death penalty was warranted in
this case. We confirm conviction of the appellant on
all the counts, but the sentence of death penalty
imposed on him for the offence under Section 302
IPC is commuted to life imprisonment".
41. In Kaumudi Lal Vs. State of U.P. (1999) 4 SCC
108, where the appellant was convicted for raping and
16
murdering a young girl of 14 years of age, the Hon'ble Supreme
Court altered the order imposing death sentence to
imprisonment for life.
42. In the case of Bishnu Prasad Sinha and Another
Vs. State of Assam, 2007 (11) SCC 467, where the
appellant was convicted for raping and murdering a girl of
about 7-8 years of age, the Hon'ble Supreme Court held that it
is not a case where extreme death penalty should be imposed.
The death sentence was reduced to imprisonment for life.
43. In Sunil Vs. State of Madhya Pradesh, (2017) 4
SCC 393, while dealing with the case under the Act, 2012 and
under Section 302 IPC, where the age of the deceased, the
niece of the accused, was 4 years and the age of the accused
was 25 years and he was sentenced to death by hanging for the
offence under Section 302 IPC, the Hon'ble Supreme Court had
commuted the sentence of death into one of life imprisonment.
44. In the case of Bantu Vs. State of M.P. (2001) 9
SCC 615, there was nothing on record to indicate that the
appellant had any criminal antecedents nor could it be said that
he would be a grave danger to the society at large despite the
fact that the crime committed by him was heinous. The Hon'ble
Supreme Court held,
"However, the learned counsel for the appellant
submitted that in any set of circumstances, this is not
the rarest of the rare case where the accused is to be
sentenced to death. He submitted that age of the
accused on the relevant day was less than 22 years.
It is his submission that even though the act is
heinous, considering the fact that no injuries were
found on the deceased, it is probable that death
might have occurred because of gagging her mouth
and nosetrix (nostril) by the accused at the time of
incident so that she may not raise a hue and cry. The
17
death, according to him, was accidental and an
unintentional one. In the present case, there is
nothing on record to indicate that the appellant
was having any criminal record nor can it be
said that he will be a grave danger to the
society at large. It is true that his act is heinous
and requires to be condemned but at the same
time it cannot be said that it is the rarest of the
rare case where the accused requires to be
eliminated from the society. Hence, there is no
justifiable reason to impose the death
sentence".
45. In Santosh Kumar Satishbhushan Bariyar Vs.
State of Maharashtra, (2009) 6 SCC 498, the Hon'ble
Supreme Court held that capital punishment should be awarded
only in the rarest of rare cases and there must be clear
evidence to indicate that the convict is incapable of reform and
rehabilitation. The Hon'ble Supreme Court held,
"The "rarest of rare" dictum, as discussed above,
hints at this difference between death punishment
and the alternative punishment of life imprisonment.
The relevant question here would be to determine
whether life imprisonment as a punishment will be
pointless and completely devoid of reason in the facts
and circumstances of the case? As discussed above,
life imprisonment can be said to be completely futile,
only when the sentencing aim of reformation can be
said to be unachievable. Therefore, for satisfying the
second exception to the rarest of rare doctrine, the
court will have to provide clear evidence as to why
the convict is not fit for any kind of reformatory and
rehabilitation scheme. This analysis can only be done
with rigour when the court focuses on the
18
circumstances relating to the criminal, alongwith
other circumstances. This is not an easy conclusion to
be deciphered, but Bachan Singh sets the bar very
high by introduction of the rarest of rare doctrine".
46. In Sandesh Vs. State of Maharashtra, (2013) 2
SCC 479, the Hon'ble Supreme Court held that it is for the
prosecution to lead evidence to show that there is no possibility
that the convict cannot be reformed.
47. The reformation and rehabilitation of a convict is a
mitigating circumstance for the purposes of awarding
punishment. But, the prosecution has not placed any material
or evidence before the courts to arrive this conclusion that
reformation, rehabilitation and social re-integration of the
appellant into society are not possible. It is true that the
appellant committed a most heinous crime but the following
mitigating circumstances demand the lesser penalty:-
(i) The appellant was aged 31-32 years at the time of the
offence.
(ii) He was a labourer.
(iii) He did not have any criminal antecedents.
(iv)He has a daughter and a son, who are still very
young. Their mother has died. There is no one else except
the appellant for their care and maintenance.
(v) It cannot be said that he would be a menace to the
society in future if the death sentence is not awarded to
him.
(vi) It cannot be said that reformation, rehabilitation and
social re-integration of the appellant into society are not
possible.
48. In view of the above and for the reasons stated
above, 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
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rigorous imprisonment for a term of twenty years. We,
therefore, allow the appeal partly. 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 is made clear that the said sentence will also include
the period of sentence already undergone. The sentence
awarded for the conviction under Section 323 IPC shall run
concurrently.
49. The Reference is answered accordingly.
50. A copy of this judgment be placed on the record of
the Criminal Appeal No. 23 of 2021.
________________
RITU BAHRI, C.J.
___________________
ALOK KUMAR VERMA, J.
Dated:21.05.2024
Shiksha
