INDIA: UTTARAKHAND HC COMMUTES DEATH SENTENCE OF MAN WHO RAPED HIS 5 YEAR OLD COUSIN SISTER MULTIPLE TIMES

May 29, 2024:

The Uttarakhand High Court has commuted the death sentence of a man convicted of repeatedly raping his five-year-old orphaned cousin, Lawbeat reported on May 28, 2024.
A Division Bench, comprising Chief Justice Ritu Bahri and Justice Alok Kumar Verma, reduced the punishment to twenty years of rigorous imprisonment, stating that "the ends of justice would be met" with this commutation.
The court said “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.”
The brief facts of the case are as follows:
On April 3, 2021, police personnel left for patrolling. They were informed by a secret informant near ITBP that a 5-year-old girl had been raped by her Nepali step brother. Upon reaching the scene, they found a woman with a distressed girl in her lap. The woman reported that she had found the girl hiding in a large plastic pipe on her terrace. The girl disclosed that she lived with her brother named Janak Bahadur, who beat her, removed her pajamas, and did "dirty things" to her, causing pain and fear. The girl pleaded not to be sent back to him.
The Sub-Inspector confirmed the girl's account. They learned that her cousin brother (accused) lived nearby. The police arrested him and the victim and accused’s two children were handed over to the Administrator of Ujjawala Rehabilitation Center.
An FIR was lodged on April 3, 2021, against the accused under Sections 323 and 376 of the Indian Penal Code (IPC) and Section 5 read with Section 6 of the Prevention of Children from Sexual Offences (POCSO) Act, 2012. The victim was medically examined on and her age was later determined to be between 5 and 6 years by medical experts.
The victim's statement was recorded on April 7, 2021.
Evidence, including the victim's and the accused's clothing and biological samples, was sent to the Forensic Science Laboratory.
The trial court charged the accused under Sections 323 and 376 AB of the IPC and Section 5 read with Section 6 of the POCSO Act, 2012.
The accused, in his defence, admitted to being the victim's stepbrother and to his arrest but denied the allegations of abuse.
The forensic report dated January 13, 2022, did not detect semen or blood on the evidence. The defence argued that the lack of physical evidence and independent witnesses, as well as logistical improbabilities in the victim's account, warranted acquittal.
A thorough investigation ensued, resulting in a charge under Sections 376-AB and 323 of the IPC, along with Section 5 read with Section 6 of the POCSO Act. Despite claims of innocence by the accused and his assertion that he had been searching for the missing victim, he was convicted.
The High Court scrutinised the testimony of the woman who rescued the victim, finding it unequivocal and clear. Both the rescuer and the Sub-Inspector testified that the victim disclosed the assaults by Bahadur.
The NGO administrator corroborated the prosecution's case by confirming the children's custody transfer.
The Court also evaluated the victim's testimony, recorded under Section 164 of the CrPC, where she consistently described the abuse. Medical evidence supported her account, with the examining doctor reporting injuries and a torn hymen.
Despite the defence's challenges, the Court concluded that the victim's evidence was trustworthy and well-corroborated. The Bench upheld the conviction, noting that “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.”
Furthermore, the court's ruling to impose a lesser penalty in the case of the appellant, despite the heinous nature of the crime, was justified by the presence of several mitigating circumstances. The key points of mitigation included:
The appellant was aged 31-32 years at the time of the offence;
He was a labourer;
He did not have any criminal antecedents;
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.
It cannot be said that he would be a menace to the society in future if the death sentence is not awarded to him.
Therefore, considering Bahadur's young age, lack of prior criminal record, and responsibility for his minor children, the Court found the death sentence disproportionate. The court ruled that Bahadur does not pose a future menace to society warranting capital punishment.
”We confirm the conviction of the appellant on all counts," the court declared, "but the death sentence imposed for the offence under Section 376-AB IPC is commuted to rigorous imprisonment for a term of twenty years,” it conclusively ruled.