Point of Law: Legislature has impliedly distanced itself from the propounders of "No-Death Sentence" in "No Circumstances" theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, 'death penalty' can also be imposed

JUDGMENT :

Bela M. Trivedi, J.

1. Both the proceedings arise out of the self-same judgment and order dated 31.7.2019 passed by the Additional Sessions Judge and Special Judge (POCSO), Surat (hereinafter referred to as "the Special Court") in Special POCSO Case No. 223 of 2018, whereby the Special Court has convicted the appellant-accused for the offence under Sections 302, 363, 366, 376AB, 377 and 201 of IPC and under Sections 3(a), 4, 5(a), 5(r) and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act"), and has sentenced him to death penalty for the offence under Sections 302, 376AB of IPC and has awarded different punishments of different durations and directed to make payment of fine for the said offences. The Special Court has acquitted the accused for the offences under the Atrocities Act. The Special Court has not imposed separate punishment for the offence under Sections 3, 4, 5(a), 5(r) and 6 in view of Section 42 of POCSO Act. The appellant-accused has preferred the appeal under Section 374 of Cr.P.C., against the said judgment and order of the conviction and sentence, which has been registered as Criminal Appeal No. 1973 of 2019, whereas the Special Court has submitted the proceedings to the High Court for confirmation of sentence of death penalty imposed by it in view of Section 366 and Section 368 of Cr.P.C., which has been registered as Confirmation Case No. 2 of 2019.

Case of Prosecution:

2. The case as unfolded by the prosecution before the Special Court was that the appellant/accused was residing in a room situated on the ground floor of the house owned by one Shyam Narayan Pandey, situated on the plot No. 44 at Someshwar Park Society, Surat, and the complainant was staying along with his family on the 1st floor of the said house as the tenant. The appellant on 14.10.2018 between 20.00 to 20.30 hours kidnapped the minor daughter (hereinafter referred to as "the victim") aged about 3 years 6 months of the complainant Narayan Uttam Umale, who belonged to the scheduled caste. The appellant thereafter took the victim to his room and committed rape on her and killed her by throttling. The appellant thereafter with the intention to destroy the evidence put the body of the victim in a gunny bag in his room. He thereafter locked his room from outside and fled away. The complainant fervently searched his daughter in the society, but she was not found and therefore, he lodged a complaint at Limbayat Police Station, Surat on 15.10.2018 at about 1.15 hours, which was registered as CR-I No. 209 of 2018 at the said police station. The Investigating Officer thereafter made inquiry and search at the said society. Since the room of the accused was found locked, he broke open the lock of the said room in presence of the panch witnesses, from where the corpse of the victim was found in a gunny bag in a decayed and decomposed condition. The complaint thereafter was registered for the offences under Sections 302, 363, 366, 376AB, 377, and 201 of IPC and under Sections 3(A), 4, 5(a), 5(r) and 6 of the POCSO Act and under Section 3(2)(5), Section 3(2)(5-A) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocity) Act (hereinafter referred to as "the Atrocity Act"). The case was investigated by the Investigating Officers at Surat as well as at the native place of the accused at Bihar. After collecting sufficient evidence against the accused, the charge-sheet was filed by the ACP Mr. Parmar before the Special Court, which was registered as Special POCSO Case No. 223 of 2018.

3. The Special Court framed charge against the accused for the alleged offences, however, the accused denied the said charge and claimed to be tried. The prosecution examined following 38 witnesses and relied upon about 60 documentary evidence in order to prove the charges levelled against the accused.