INTRODUCTION
Sexual Assault against children represent some of the gravest violations of human life and dignity. To address such heinous crimes, The Protection of Children from Sexual Offences Act, 2012 (POSCO) was enacted as a special legislation which is a gender-neutral law that defines “Child” as anyone who is under the age of 18, and prohibits sexual assault, harassment and pornography including children. When read along with other offences, it raises complex issues of evidence, sentencing and the approach of the “rarest of rare” doctrine in awarding death penalty. The present case involves allegations of sexual assault and murder of a child, raising questions.
FACTS
On 28th July, 2018 at 12:30 pm, X (since the name of the victim is withheld in the judgement to protect her identity, she will be referred to as ‘X’) the child of Sant Pratap, was playing outside her house with her cousins before she went missing. Sant Pratap, father of X, started looking for X and upon asking the other children present there, it came to his knowledge that Jai Prakash (appellant) took all the children away to his hut and gave them Rs. 10/- each to go to the shop. When asked the appellant regarding the location of his daughter, he was informed that X left to the shop, soon after Jai Prakash handed the 10 rupees to her. After a few hours of searching with Kulbhushan and Mohd. Alam, upon searching the hut of the appellant, the victim was found dead under the empty cement bags. Sant Pratap, soon after finding his daughter’s dead body, lodged an FIR at P.S. Sahaspur, Dehradun and demanded for immediate action. After registration of the FIR, investigation for the matter was started. Soon after, the body of X was sent to Dr. Chirag Bahugana for the post-mortem. Reports of the post-mortem declared the cause of death to be ‘manual throttling by hand cause asphyxia’, where the cells and tissues within the body do not receive enough oxygen to function properly. After fulfillment of the investigation, charges were framed against the appellant under Section 302 (punishment for murder), Section 201 (causing disappearance of evidence), Section 376 (punishment for offence of rape) and Section 377 (unnatural sex) of The Indian Penal Code, 1860 and Section 6 (punishment for aggravated penetrative sexual assault) of Protection of Children from Sexual Offences Act, 2012. Let down by the orders of the Trial court and the High court, the appellant has now reached the Supreme Court.
PROCEDURAL HISTORY
The Trial court, after carefully examining the evidence, convicted the appellant under Section 376AB (punishment for rape of a girl under 12 years of age), Section 377 and Section 302 of The Indian Penal Code, 1860 and Section 5/6 of The Protection of Children from Sexual Offences (POSCO) Act, 2012. The court reached the conclusion that the prosecution interlinked the case to the appellant. It was proved through the witnesses that the victim was last seen with the appellant and the dead body of X was found in the hut of the appellant. Further, the scientific evidence in form of DNA Analysis of X, matched with the appellant, which was proved by Dr. Manoj Kumar Aggarwal. In light of the above, the court stated that prosecution has proved the case beyond any reasonable doubt. The court also observed the brutal nature of the crime stating the victim, a helpless child, was subject to strangulation and sexual assault, and concluded that the case will fall within the category of the ‘rarest of rare’ cases relying on Sunderajan v. State as the nature of the case harmed the very nature of peaceful co-existence. Court held that extreme penalty of death by hanging was upheld and justified.
The appellant disappointed with the decision of the Trial court, appealed before The High Court of Uttarakhand, Nainital. The high court upheld the conviction and confirmed the death penalty given by the trial court. The court stated that the appellant himself confirmed his presence in the room, from where the body of X was found, placing all burden of crime on him. The DNA evidence further made the case easier for the prosecution, as the samples collected from the victim’s undergarments were found to match with the Appellant’s DNA profile, thereby directly establishing his involvement in the offence. The high court emphasized on DNA report which established that the biological material collected from the victim, matched the blood samples of the appellant, leaving no reason to doubt. The court relied on Ram Naresh v. State of Chhattisgarh, where aggravating and mitigating circumstances guided the rarest of rare. After examining the evidences and circumstances, the court held that the case fell within the category of the rarest of rare doctrine and upheld the death penalty.
ISSUES RAISED
“Whether the judgement given by the Trial court and further affirmed by the High court, are sustainable in the eyes of law or not.”
CONTENTION
APPELLANT (Jai Prakash) – The counsel of the appellant argued that however brutal the crime may be, a death penalty cannot be justified. They emphasized that the lower courts failed to examine the mitigating circumstances or potential reformation. The appellant argued that both trial and high courts considered only the brutal nature of the crime and disregarded other very important matters throughout the process such as socio-economic strata, mental health, and the possibility of rehabilitation factors that should have gone to make a balanced decision under the “rarest of rare” formulation. The Appellant argued that the lower courts adopted a brutality only approach and neglected to conduct the two-step analysis in Supreme Court case law. The appellant stressed that moral outrage, while intense, could not take the place of the legally required balance. The courts failed in their duty to consider the possibility of reformation and therefore proportionate punishment.
RESPONDENT (State of Uttarakhand) – The state maintained that the conviction should follow that of lower courts, based on strong evidence that that victim was last seen with the appellant, body of the victim was found in the hut of the appellant and DNA evidence linked the appellant to the crime.
RATIONALE
The court held that there is no ground of interference as the court correctly placed reliance on last seen theory and DNA evidence of the appellant, and held that interference as far as conviction is confirmed.
The court examined the sentence of death penalty given by the lower courts. The court cited the case of Mohd. Farooq Abdul Gafur v. State of Maharashtra, which held that a court may choose to give importance to life imprisonment over death penalty in cases which are solely based on circumstantial evidence. This case also introduced the need for objective and consensus-based approach to the ‘rarest of rare’ doctrine.
In another case of Gudda v. State of M.P. where this court commuted the death sentence of a pregnant women and a five-year-old child, held that brutality alone cannot be the sole criteria for considering a crime as ‘rarest of rare”. The court must consider other factors as well. In the light of this, court refused to sustain such approach towards the present case.
More recently, this court in the case of Manoj v. State of M.P. gave importance on the application of the ‘rarest of rare’ doctrine and re-emphasized on the two-step process to determine whether a case will fall within the purview of this doctrine. The first step is to identify the aggravating and mitigating circumstances and consider them equally. The second test was to see whether the alternative of life imprisonment was closed. In the present case, the lower courts have failed to consider the aggravating and mitigating circumstances surrounding the appellant while giving the death penalty and only focused on the brutality of the crime.
In similar circumstances in Sundar @ Sundarrajan v. State by Inspector of Police, this court affirmed that before awarding death penalty, it is the duty of the court to enquire into the mitigating circumstances as well as foreclose the possibility of reformation and rehabilitation before imposing death penalty.
The Supreme court found that no consideration was given to mitigating circumstances and the approach was inconsistent with precedents. To ensure fairness, the Supreme court examined some reports which revealed that the appellant came from pathetic socio-economic background with the family surviving on labour work. A psychological report also revealed that the appellant had not attended school due to poverty and started working since the age of 12.
In light of the above, taking into consideration the mitigating circumstances and ‘rarest of rare’, the court deemed fit to grant life imprisonment without remission extending to natural life of the appellant, instead of the punishment of death penalty.
DEFECTS OF LAW
The court commuted the death penalty largely based on the Probation Officer’s Report and Psychological Evaluation. There is no such statutory law that mandates the reliance on such reports. While judicial precedents encourage the court to take in account the mitigating factors, courts reliance on these reports without and proper examination may be questioned due to procedural transparency.
The above judgement focuses heavily on the rights of the convict, almost taking no account of the rights of the victim or the trauma faced by the family of the victim. This imbalance can be criticized
INFERENCE
- This places a duty on the trial courts to examine psychological reports, or any such deemed fit, before sentencing to death penalty.
- Sentencing in capital punishment must be guided by mitigating factors rather than judicial conscience.
- Life imprisonment without remission helps in maintaining a balance between gravity of the offence and fairness in sentencing.
CONCLUSION
This case showcases the cautious approach of the Supreme court in capital sentencing, where it reaffirmed that brutality of the crime by itself cannot be the ground for capital punishment. By upholding the conviction, but commuting the sentence to life imprisonment without remission till natural life, court ensured that the doctrine of ‘rarest of rare’ should be applied reasonably, keeping in account the mitigating factors.
While the judgement limits the sentencing of death penalty, it also places doubts on the doctrine of ‘rarest of rare’ and the application of life imprisonment without remission till natural life. This case reduces the rights of the victim and focus more on the rights of the accused, but balance should be maintained ensuring constitutional commitment of the court.
Bhavini Kapoor
Narsee Monjee Institute of Management Studies, Hyderabad