IMPORTANT POINT
Death sentence – Brutality of a crime cannot be only criterion for determining whether a case falls under “rarest of the rare” category.

JUDGMENT :

SANJAY KAROL, J.

1. A simple afternoon of play and frolic with family members yielded catastrophic results for a 10-year-old female child. The most innocent desire of either a candy or a toy was exploited in the worst manner possible by the appellant. He lured innocent children to his dwelling, took his pick from among them and let the others go. He allegedly assaulted and exploited her, killed her and then, if the prosecution is to be believed, lied to the parents of the victim saying that he was not aware of her whereabouts. The Courts below have concurrently found the appellant to be guilty of offences against the victim and also of taking her life. This Court is now called upon to examine the correctness of these conclusions.

2. The present Appeals arise from the final judgment and order dated 7th January 2020, passed by the High Court of Uttarakhand at Nainital in Criminal Jail Appeal No.64 of 2019 & Criminal Reference No.02 of 2019, whereby the Judgment and sentencing Order dated 26th/28th August 2019 passed by Fast Track Court, Special Judge (POCSO)/Additional District and Sessions Judge, Dehradun, in Special Sessions Trial Number 119/2018, convicting the appellant under Sections 376, 377, 302 of the Indian Penal Code, 1860¹[hereinafter referred to as ‘IPC’] and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012²[hereinafter referred to as ‘POCSO’] came to be affirmed. The punishment handed down to the appellant by the Courts below was of death penalty, for the murder of the victim, whose name³[hereinafter referred to as ‘X’] stands redacted in view of the judgment of this Court in Nipun Saxena v. Union of India, (2019) 2 SCC 703.

Prosecution Case

3. The case set out by the prosecution against the appellant, as emerging from the record and also as set out by the Courts below, is as under :

3.1 On 28th July 2018, at around 12:30 p.m., while playing outside her house, with cousins and friends, X the child of PW1 went missing. Concerned, PW1 - Sant Pratap (father of the victim) started looking for his daughter. On enquiry, from other children present, he got to know that the appellant took all the children to his hut and gave them Rs.10/- each to go to the shop. Somwati - PW13, his sister-in-law also corroborated the version of the children. When he asked the appellant regarding the whereabouts of her daughter, he was apparently told that she had taken the gift of 10 rupees note and left the place. Eventually, after a few hours of exasperated searching, which included Kulbhushan - PW2 sending one Mohd. Alam - PW3, to search the hut of the appellant, the victim was found dead underneath empty cement bags. PW1, therefore, lodged an FIR at P.S. Sahaspur, District – Dehradun. It was stated therein that he resided with his family in a hut, in the under- construction premises of Shivalik Engineering College, narrating the facts as above, asking for action to be taken against the appellant.

3.2 After registration of the abovementioned FIR, the Investigating Officer commenced the investigation. The inquest report was prepared, and the body of X was sent for post-mortem to Dr. Chirag Bahugana - PW4. The cause of death came to be determined as ‘manual throttling by hand causes asphyxia.’ After completion of the investigation, charges were framed against the appellant under Sections 302, 201, 376 and 377 IPC and Section 6 of the POCSO Act.

Reasoning of the Courts below

4. The Trial Court, after careful consideration of the evidence- on-record, vide judgment and order dated 26th/28th August 2019, convicted the appellant under Sections 376(AB), 377, 302 of the IPC and Section 5/6 of POCSO. The Court arrived at the following findings :

4.1 Master Rakesh - PW11, Rani @ Radha Rani - PW12, and PW13 - Somwati have proven that X was last seen with the appellant;

4.2 PW1, PW2, PW3, SI Lakshmi Joshi - PW5, Rani W/o Sant Partap - PW8 and PW12 have proven the recovery of the body of X from the hut of the appellant. Their t