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IN THE HIGH COURT OF ALLAHABAD
Pritinker Diwaker, Raj Beer Singh, JJ.
Najeem Miyan - Appellant
Versus
State of Uttar Pradesh - Respondent
Capital Case No.198 of 2018 with Reference No.03 of 2018
Decided On : 06-03-2020
Criminal Procedure Code, 1973 – Section 366 – Rape and murder of young boys – sexual assault – Capital case and the death reference –Whether rarest of rare Case – Held, appellant is suffering from 'Unspecified Non-Organic Psychosis' (F 29.0) [a mental ailment] – instant case does not fall in the category of 'rarest of rare case', warranting capital punishment, particularly looking to the fact that the appellant is suffering from a mental illness. Hence, the death sentence awarded to the appellant under Section 302 of IPC is liable to be converted into life imprisonment till the end of his life without remission – conviction of the appellant under Section 302 of IPC affirmed – capital case is dismissed
Facts of the Case:
Boy was about six years of age, who was the victim of sexual assault and animal lust of the accused appellant, he was not only sexually assaulted but was murdered by the accused appellant
Finding of the Court:
Appellant is suffering from 'Unspecified Non-Organic Psychosis' (F 29.0) [a mental ailment] – instant case does not fall in the category of 'rarest of rare case', warranting capital punishment, particularly looking to the fact that the appellant is suffering from a mental illness. Hence, the death sentence awarded to the appellant under Section 302 of IPC is liable to be converted into life imprisonment till the end of his life without remission – Sentence modified – conviction of the appellant under Section 302 of IPC affirmed
Result: capital case is dismissed
JUDGMENT :
Pritinker Diwaker, J.
1. This death reference was made to this Court under Section 366 of the Criminal Procedure Code, 1973 (in short 'Cr PC') for confirmation of sentence awarded to the appellant. The capital case and the death reference are heard together and this judgment will govern both the capital case as well as the reference.
2. A large number of cases in recent times coming before the Courts of law involving rape and murder of young boys/girls, is a matter of concern. In the instant case, boy was about six years of age, who was the victim of sexual assault and animal lust of the accused appellant, he was not only sexually assaulted but was murdered by the accused appellant.
3. This death reference and the capital case arise out of the judgment and order dated 10.4.2018 passed by the Court of Additional Sessions Judge/Court No.1, Pilibhit in Special Sessions Trial No.51/2017 in which, accused/appellant herein was tried, found guilty, convicted and sentenced to undergo death sentence and to pay a fine of Rs.25,000/- for the offence punishable under Section 302 of IPC, to undergo rigorous imprisonment of ten years and to pay a fine of Rs.10,000/-for the offence punishable under Section 377/511 of IPC and to undergo life imprisonment and a fine of Rs.10,000/-for the offence punishable under Section 3/4 of POCSO Act. In default of payment of fine, he shall undergo two years' rigorous imprisonment; one year's rigorous imprisonment and one year's rigorous imprisonment under Sections 302, 377/511 of IPC and Section 3/4 of POCSO Act respectively.
4. In the present case, deceased was a young boy aged about six years, who went missing on 21.2.2017 from his house. He was searched immediately and at about 12:30 in the afternoon, (PW-3) Laik Ahmad, informed the informant (PW-1) Moin (uncle of the deceased) that he saw accused-appellant Nazeem Mian, carrying Monish (deceased) to the house of Mobin in his arms. Informant immediately rushed to the house in question, and saw the accused-appellant cutting the body of Monish in pieces. Hue and cry was raised by him and hearing the same, number of his neighbours including (PW-2) Uvash reached to the place of occurrence; information was also given to the police who also immediately reached to the place of occurrence; entered the house of Mobin and the accused-appellant was caught red handed. At 12:45 in the afternoon, beheaded dead body of the deceased was found and the body was cut in several pieces, even internal organs of the body were taken out from the body of the deceased which were clustered near the dead body. The crowd gathered there, made an attempt to catch the accused-appellant, but upon information, police made an attempt to make the situation normal. During this, villagers had closed their shops and there was total chaos in the village. Police brought the accused-appellant along with them to the police station and on the basis of written report Ex.Ka.1 lodged by (PW-1) Moin, at 1:30 pm FIR Ex.Ka.16 was registered against the accused-appellant under Sections 377 and 302 of IPC read with Section 3/4 of POCSO Act.
Inquest on the dead body of the deceased was conducted, vide Ex.Ka.6 on 21.2.2017; photograph of the dead body was marked as Material Ex.1. and the body was sent for postmortem which was conducted on the same day, vide Ex.Ka.4 by (PW-4) Dr S K Chawla.
As per Autopsy Surgeon, following injuries were noticed on the body of the deceased:
Injuries - all Ante-mortem:
1. Deep Hair singed out with blood, Head chopped out from body at level of C-1 vertebra, Large vessels, Trachea, Hyoid bone not traceable.
2. A vertical midline. Incised wound 38 cm x 5 cm in the midline from the level of neck to the genetalia and the intervening gluteal region.
3. On the ventral side skin peeled out to depth vertebra and ribeage below upto the gluteal region.
4. All internal organs viz-a-viz Heart, spleen, liver, small and large intestines separated out and k
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