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2018 Supreme(UK) 10
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAJIV SHARMA, ALOK SINGH, JJ.
State of Uttarakhand - Applicant
Versus
Karandeep Sharma @ Razia @ Raju - Respondent
Criminal Reference No. 01 of 2017 With Criminal Appeal No. 156 of 2017
Decided On : 05-01-2018
For the Applicant : Mr. Amit Bhatt
For the Respondent: Mr. B.N. Molakhi
Headnote:
(A) Death Penalty – Principles of proportionality – Object and consideration – Explained. (Paras 31 to 35, 37, 39)
(B) Death Penalty – Rarest of rare case – Principle of rarest of rare – Applicability – Held that death sentence can be given in rarest of rare cases if the “collective conscience" of a community is so shocked that death penalty is the only alternative – The “rarest of the rare case" comes when the convict would be a menace and threat to the harmonious and peaceful coexistence of the society. (Paras 38 to 44)
(C) Indian Penal Code, 1860, Secs. 376(A), 302, 201, 363, 366 and Protection of Children from Sexual Offences Act, 2012, Secs. 6 and 42 – Rape is one of the most depraved acts – Such iniquitous, flagitious act becomes abominable when the victim is a child – The diabolic act reaches the lowest level of humanity when the rape is followed by brutal murder – Held that present case falls in the rarest of rare category and death sentence awarded by the trial court was appropriate.
(Paras 31 to 35, 37, 40 to 44)
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¼l½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376(A), 302, 201, 363, 366 ,oa caPpksa dh ;kSu vijk/kksa ls lqj{kk vf/kfu;e] 2012] /kkjk 6 vkSj 42 & jsi ,d vR;Ur foÑr vijkèk gS & dfFkr vlkE;iw.kZ] nq"Vrkiw.kZ ÑR; f?kukSuk gksrk gS tc ihfM+rk ,d cPph gks & ;g iS'kkfpd vijk/k ekuork ds fupys Lrj dk gS] tc jsi ds ckn u`'kal gR;k dkfjr Fkh & /kkfjr fd orZeku okn nqyZHk ls Hkh vlkekU; dh dksfV esa vkrk gS & ijh{k.k vnkyr }kjk vf/kfu.khZr e`R;q n.M] mi;qDrA ¼izLrj 31 ls 35] 37] 40 ls 44½
Rajiv Sharma, J.
The criminal appeal No. 156 of 2017 is instituted against the judgment and order dated 05.04.2017 and 06.04.2017 rendered by learned Additional Sessions Judge/FTC/Special POCSO Judge, Rudrapur, District Udham Singh Nagar in Special Sessions Trial No. 159 of 2016 whereby the appellant was charged with and tried for the offences under Section 302/201/363/366/376(A) of IPC and Section 6 of Protection of Children from Sexual Offences Act (hereinafter referred to as “POCSO Act”). The appellant was convicted under Sections 376(A), 302, 201, 363, 366 of IPC and Section 6 of POCSO Act and in light of Section 42 of the POCSO Act, the appellant was sentenced under Sections 376(A) of IPC. The appellant was sentenced with Death Penalty under Section 376(A) IPC as well as under Section 302 IPC. Under Section 366 IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. For the offence under Section 363 IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for three months. He was further sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.10,000/- under Section 201 of IPC and in default of payment of fine, to undergo simple imprisonment for three months.
2. Learned Additional Sessions Judge/Special Judge POCSO/FTC, Rudrapur, District Udham Singh Nagar has also made a reference to this Court bearing Criminal Reference No. 01 of 2017 for confirmation of Death Sentence imposed upon the appellant/convict vide judgment dated 5.4.2017 and order dated 6.4.2017.
3. The case of the prosecution, in a nutshell, is that PW-1 (father of victim) has lodged a first information report on 26.06.2016 to the effect that he alongwith his family had gone to attend a Jagran function (religious congregation) nearby his residence on 25-26.06.2016. He came back to his house at around 11.00 p.m. and went to sleep. In the morning at about 05.00 a.m., his wife informed him that their daughter has not come back home and she was missing. They tried their level best to trace her. When they were searching their daughter near Dhakiya-Gulabo, someone told him that the body of a child was lying in the nearby field. He identified the body of his daughter. It seemed that the child was raped before killed.
4. The dead body was sent for conducting the post mortem examination. The first information report was registered. The matter was investigated. The police conducted the medical examination of the accused. The samples were collected from the spot and they were sent for FSL examination. The appellant has also made confessional statement before the Magistrate under Section 164 Cr.P.C. Challan was put up before the Court after completing all the codal formalities.
5. The prosecution has examined as many as fifteen witnesses in order to prove its case.
6. The statement of appellant was also recorded under section 313 Cr.P.C. He has denied the case of the prosecution and claimed to be tried. According to him, he was falsely implicated. After conclusion of the trial, the appellant was convicted and sentenced as noticed hereinabove.
7. Mr. B.N. Molakhi, Advocate appearing on behalf of the appellant, has vehemently argued that the prosecution has failed to prove its case against the appellant.
8. Mr. Amit Bhatt, Dy. Advocate General appearing on behalf of the State has supported the impugned judgment and order dated 05.04.2017 & 06.04.2017. Learned Deputy Advocate General has also vehemently argued that death sentence imposed upon the appellant be confirmed in Criminal Reference No.01 of 2017.
9. We have heard learned counsel for the parties in the appeal filed by the appellant as well as in Criminal Reference filed by the State. We
