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2018 Supreme(Raj) 1770
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mr. Munishwar Nath Bhandari and Mr. Banwari Lal Sharma, JJ.
State Of Rajasthan - Appellant
Versus
Vinod Kumar Banjara - Respondent
Criminal Death Reference No. 4 of 2018 Connected With D.B. Criminal Appeal (DB) No. 351 of 2018
Decided On : 03-12-2018
Manish Gupta and Mr. Anil Upman, Advocates, for the Appellants; Mrs Sonia Shandilya, PP, for the Respondent/State
In cases involving the death penalty, the court must consider the mitigating circumstances and determine whether the case falls under the category of 'rarest of rare cases' before imposing the extreme penalty.
Headnote:
CRIMINAL APPEAL - POCSO ACT - SECTION 376AB IPC - DEATH SENTENCE - MITIGATING CIRCUMSTANCES - COMMUTATION OF SENTENCE - SECTION 450 IPC - SECTION 3/4 POCSO ACT - CONCURRENT SENTENCES - REFERENCE ANSWERED - CONVICTION UPHELD - SENTENCE MODIFIED.
Fact of the Case:
Accused Vinod Kumar was convicted and sentenced to death for offenses under sections 376AB, 450 IPC, and 3/4 of the POCSO Act for sexually assaulting a 3-year-old girl. The trial court referred the death sentence to the High Court for confirmation.
Finding of the Court:
The High Court found that the prosecution had proven the case beyond a reasonable doubt and upheld the conviction for all offenses. However, it found that the case did not fall under the category of 'rarest of rare cases' and commuted the death sentence to 20 years rigorous imprisonment under the amended provisions of the State of Rajasthan.
Issues: 1. Whether the prosecution had proven the case beyond a reasonable doubt. 2. Whether the case fell under the category of 'rarest of rare cases' warranting the death penalty. 3. Whether the sentence for the offense under section 376AB IPC and section 3/4 of the POCSO Act should be modified.
Ratio Decidendi: 1. The High Court held that the prosecution had proven the case beyond a reasonable doubt based on the evidence presented, including the victim's testimony, medical reports, and witness statements. 2. The High Court found that the case did not fall under the category of 'rarest of rare cases' as the accused was 20 years old at the time of the offense, and the crime was not committed in a brutal or heinous manner. 3. The High Court commuted the death sentence to 20 years rigorous imprisonment, considering the accused's age and the mitigating circumstances of the case.
Final Decision: The High Court upheld the conviction for all offenses but modified the sentence for the offense under section 376AB IPC and section 3/4 of the POCSO Act from death sentence to 20 years rigorous imprisonment. The sentences for all offenses were ordered to run concurrently.
JUDGMENT
Munishwar Nath Bhandari, J. - This judgment will answer the Reference of Death sentence given by the Special Judge, Protection of Children from Sexual Offences Act, 2012 and Commission for Protection of Child Right Act, 2005, Jhunjhunu, in Sessions Case No.168/2018. The trial court has convicted accused Vinod Kumar for offence under sections 376AB, 450 IPC apart from section 3/4 of the Protection of Children from Sexual Offences Act, 2012 (for short the POCSO Act) and sentenced as under - Section 376AB IPC - Accused appellant Vinod Kumar has been given death sentence. Section 450 IPC - Ten years rigorous imprisonment with a fine of Rs. 5,000/-, in default to pay fine, to further undergo one year's rigorous imprisonment.
Section 3/4 of the POCSO Act - Life imprisonment with fine of Rs. 5,000/-, in default to pay fine, to further undergo one year's rigorous imprisonment.
2. Since accused Vinod Kumar has been given death sentence, learned trial court has referred it to the High Court for its confirmation in view of section 366 CrPC, 1973. The accused appellant has also preferred criminal appeal hence both the cases were taken together for hearing and are disposed of by this common judgment.
Brief Facts Of The Case
3. It is a case where an FIR No.85/2018 was registered by Police Station - Malsisar, Jhunjhunu for offence under section 450 and 376 IPC and section 3/4 of the POCSO Act. The complainant-Prabhati Devi along with her brother-in-law - Subhash Chandra and victim girl, at the age of 3 years, made a written report that her daughter-Bala came to stay with her. It was along with daughter at the age of three years. On 1.8.2018, daughter-Bala went to meet her brother-in-law-Richhpal at Chirawa. The complainant and her grand daughter were at the residence. On 2.8.2018 at around 10.00 AM, Prabhati Devi went to get buttermilk from his brother-in-law Subhash Chandra leaving her grand daughter alone at the residence. When she returned back to her house, seen blood oozing out from private part of grand daughter. She had seen the accused, who was selling utensils, going out of her house on a motorcycle.
4. Based on the FIR, police made investigation and finding a case against the accused, filed a charge sheet for offence under section 450, 376 IPC and section 3/4 of the POCSO Act.
5. The trial court framed charges for the offence under section 450, 376AB IPC and section 3/4 of the POCSO Act. It was explained to the accused. He did not plead guilty rather claimed trial.
6. During trial, prosecution produced nineteen witnesses apart from nineteen documents to prove their case. The statement of the accused was recorded under section 313 CrPC, 1973. He did not produce any evidence in defence.
7. The trial court found that prosecution has successfully proved the case beyond doubt for offence under section 450, 376AB IPC and section 3/4 of the POCSO Act, thus it convicted accused Vinod Kumar for the offence under section 450, 376AB IPC and section 3/4 of the POCSO Act and sentenced him, as stated above.
Arguments Of Learned Counsel For Accused Appellant
8. Learned counsel for accused appellant has contended that the accused has been falsely implicated in the case. There is no evidence to connect him with the crime. There exists no eye witness to the occurrence. He has been implicated based on suspicion. The complainant had seen him going out of her house on motorcycle but she had not seen the accused causing offence. In view of the aforesaid, the prosecution failed to bring evidence to prove their case beyond doubt.
9. It is also stated that if the conviction of the accused for the offence under section 376AB IPC and section 3/4 of the POCSO Act is maintained, interference may be caused in the order of sentence. The trial court has given death sentence to the accused though incidence does not fall in the category of 'rarest of rare case'. The trial court failed to appreciate the judgment of the Apex Court cited by the accused. The Ap
