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."
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Read the Order of Supreme Court dated 23.11.2017