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Madhya Pradesh High CourtMadhya Pradesh High Court commuted death penalty of rape and murder convict of minor girl.

30th November, 2017

The death penalty awarded to convict who raped and murdered his niece has been commuted by the High Court of Madhya Pradesh. 


The accused Vinay was convicted by the Trial Court for rape and murder of his 13 years old niece. The prosecution case was that after raping the victim, the accused and his juvenile friends killed her by hitting her head with a stone, strangled her and hanged her from the roof with a red coloured sari.

The convict has preferred Criminal Revision Appeal No. 2756 of 2017 before the Court. In the Judgment the Bench of Justice S.K. Seth and Smt. Justice Anjuli Palo laid down the following laws:

(i) Conviction can be based upon the evidence of child witness and circumstantial evidence.
(ii) DNA analysis report can be considered for holding the accused guilty

In Para 13 of the Judgment the court observed that the facts are admitted by the appellant himself, hence, the question with regard to the fact that the witnesses are child witnesses and not reliable, does not arise:

"13. Hence, after considering the aforesaid admissions it is not in dispute that Sabina (9 years old) and Rupesh (5 years old) saw the appellant at their house with the body of the victim just after the incident. As these facts are admitted by appellant himself, hence, the question with regard to the fact that they are child witnesses and not reliable, does not arise. A child witness is competent witness under Section 118 of Cr.P.C. Further, in the cross-examination, presence of appellant is duly established. Their testimony is very important. Section 6 of the Evidence Act defines relevancy of facts forming part of same transaction. Though, the aforesaid facts are not in issue, they are so connected with a fact in issue as to form part of the same transaction, are relevant with regard to circumstantial evidence. Similarly, those facts are relevant under Section 8 of the Indian Evidence Act as motive, preparation and previous or subsequent conduct of the accused. Both the witnesses clearly stated that, they returned home from the school at about 4:30 pm. The incident took place during 3:00 pm to 4:30 pm. The appellant had not disclosed / explained the reason as to why the appellant along with other juvenile co-accused was present there."

In para 29 to 35 of the Judgment has detailed description about the DNA test conducted, scientific evidences and its result which also considered as evidence. The court observed that the DNA test is reliable to sustain the conviction.


The Court said:
"53. We are of the considered view that in the facts and circumstances of the case, it would be appropriate to impose the alternative punishment for life, following the guidelines given in the case of Selvam vs. State [AIR 2014 SC 1911] and Rajkumar vs. State of MP [(2014) 5 SCC 353] instead of death sentence."

The court disposed off the Criminal Revision Appeal with the following observation / direction:

"54. We seriously considered the mitigating circumstances in favours of the conviction. The appellant belongs to schedule tribe without criminal antecedents.

55. The prosecution has not proved the probability that the conviction cannot be reformed and rehabilitated and the probability that he would continue to commit criminal acts and thereby would pose threat to the society. Thus, appeal filed by the appellant is partly allowed.

56. Accordingly, we uphold the conviction of the appellant under Sections 449, 376(A), 376(D) and 302 of IPC and Section 6 of Protection of Children from Sexual Offences Act, however, we set aside the death sentence awarded to the appellant and instead direct him to undergo life imprisonment (life long without remission) for the offences under Sections 449, 376(A), 376(D) and 302 of IPC.

57. Accordingly, the reference made by the learned trial Court is discharged. Subject to above modification, for the aforesaid reasons, the criminal appeal is partly allowed."




Read the Order of Supreme Court dated 23.11.2017


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