IMPORTANT POINT
Imprisonment for life vis-à-vis power of clemency; S. 433-A, Cr. P.C. and Jail Manual.

ORDER

1. Delay condoned.

2. This petition has been filed against the impugned judgment and Order dated 8.2.2012 passed by the High Court of Judicature at Allahabad in Criminal Appeal (Capital Case) No. 7760 of 2009, by which the High Court has commuted the death sentence awarded to the respondent by the Sessions Court, in life imprisonment upon recording its conclusion that it was not among the `rarest of rare cases’, in which death penalty could be awarded.

3. Facts and circumstances giving rise to this petition are as follows: A. The respondent was engaged in the work of whitewash in the house of one Shyam Ji Sharma, resident of Tulsi Vihar Colony, Varanasi and his very close relative Divya Rani was staying with him, as she was appearing for her Intermediate examination. The complainant Shyam Ji Sharma alongwith his wife Rajni Sharma had gone to the market on 24.2.2007 to purchase goods while Divya Rani (deceased) was supervising the said work. When the complainant came back with his wife they found the door of the house open and saw that the respondent had killed Divya Rani and was now trying to conceal her body in a tin box after throwing out the clothes contained in it. There was blood on Divya’s face. The complainant and his wife tried to catch hold of the respondent but he pushed them aside and ran away. They immediately lodged a First Information Report and Divya’s body was henceforth sent for post- mortem examination. B. In addition to several simple injuries on her body, a ligature mark measuring 29 cm in length, 1/2-1 cm in thickness at places all around the neck, with a pattern of pressure points 3 cm below the sternal notch and 3 cm below both the ears, was found. The doctor also found that there was laceration of the vagina and the vaginal vault, and rupturing of hymen was also observed. Asphyxia as a result of strangulation contributed to her death. The doctor also opined that the victim had been subjected to sexual assault. C. On the basis of the post-mortem report, the charges under Sections 376 and 302 of Indian Penal Code, 1860 (hereinafter called ‘IPC’), were framed against the respondent, to which he pleaded not guilty and claimed trial. D. After conclusion of the trial and particularly placing reliance upon the confessional statement made by the respondent under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter called ‘Cr.P.C.), the trial Court vide its judgment and order dated 5.12.2009 in Sessions Trial No. 245 of 2007 convicted the respondent of the said charges and awarded him death sentence. The reason for giving death sentence had been recorded stating that the deceased was 18 years of age and the offence committed by the respondent would have a very negative effect on society. The offence committed by the respondent was in fact rarest of the rare. The confessional statement recorded by the Judicial Magistrate was worth placing reliance upon, wherein the respondent had admitted his guilt and, therefore, taking into consideration all the facts and circumstances of the case, the Court reached the conclusion that it was a case under the category of ‘rarest of rare cases’. Therefore, death penalty was awarded to the respondent alongwith a fine of Rs.10,000/- in default of which, he would have to suffer further RI for 4 months. For the charge of rape, he was awarded life imprisonment, with a fine of Rs.10,000/- and in default, he would have to suffer further RI for 4 years. E. Being aggrieved, the respondent filed an appeal and while considering his appeal alongwith the Death Reference made to the High Court, the High Court after appreciating the entire evidence, came to the conclusion that upon consideration of the totality of circumstances, the charges stood fully proved against the respondent. However, the case did not fall within the category of ‘rarest of rare cases’ where the option of awarding a sentence of imprisonment for life was unquestionably foreclosed. Hence, this petition.

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