Capital punishment can only be imposed in 'rarest of rare' cases, and mitigating factors such as the age of the offender can influence commutation of death sentences.

JUDGMENT :

(Ritu Bahri, CJ.) :

The present Reference has been sent by the Special Judge/Sessions Judge, Tehri Garhwal in judgment and order dated 27th April, 2018 passed in SST No. 46 of 2016 State vs. Yusuf @ Sonu, whereby respondent-Yusuf alias Sonu has been convicted under Sections 376(2) and 302 of the INDIAN PENAL CODE (for short ‘IPC’) with death penalty.

2. Criminal Appeal No. 167 of 2018 has also been filed by the convict (Yusuf alias Sonu) against the judgment and order dated 27th April, 2018 passed by the Special Judge/Sessions Judge, Tehri Garhwal in Special Sessions Trial No. 46 of 2016 State vs. Yusuf alias Sonu, whereby the appellant has been convicted and sentenced under Section 376(2)(i) of IPC to undergo imprisonment for life with a fine of Rs. 50,000/- and under Section 302 of IPC with death sentence and fine of Rs. 50,000/-.

3. An FIR (Exhibit A-1) was registered on the complaint made by Anita, wife of Bhim Singh, on 11.03.2016. As per the complainant, she got married to Sonu as per Muslim customs on 05.03.2016. In the night of 05.03.2016, she made his daughter (the deceased) sleep with him and committed rape on her, as a result of which she died. Three-four days after the incident, the complainant went to Patwari, but she did not find him at the post, as he had gone to Dehradun for training. On the basis of the above, investigation was carried-out and charge-sheet was presented in the Court. The accused was provided with all the documents as per rules.

4. Thereafter, arguments were heard on framing of charges against the accused and after that, the charges of Sections 376(2), 302, 201 IPC and Section 5 (e) read with Sections 6 and 5(n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO’ Act) were leveled against the accused, which the accused denied and pleaded to be tried.

5. On behalf of the prosecution, the following thirteen witnesses were examined:-

i. PW1-Mrs. Anita

ii. PW-2 Mrs. Sunita

iii. PW-3 Suresh

iv. PW-4 Dilbahadur,

v. PW-5 Bachal Singh

vi. PW-6 Surat Singh,

vii. PW-7 Mrs. Babita Devi,

viii. PW-8 Mrs. Monica

ix. PW-9 Mohammed Wajid,

x. PW-10 Chintamani,

xi. PW-11 Dr. Bagesh Chandra Kala

xii. PW-12 Mrs. Smrita Parmar

xiii. PW-13 Revenue Sub Inspector Harikrishna.

6. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure (for short, ‘Cr.P.C.’). In the statement, he admitted that he lived with the complainant-Anita, the victim (deceased) and the two children of Anita. He denied therein of committing any murder after committing on rape.

7. As per the evidence given by PW1-Mrs. Anita (the mother of the deceased child), Anita had been living in Vinakhal for seven-eight years. Her parents and her three children used to live with her. Her husband-Bheem Singh had left her two years ago. All the three children born to her were of Bheem Singh. The house, in which she resides, is a two-storeyed house. Her parents and her two children lived in the upper floor and she, the victim, and accused @ Sonu lived together on the lower floor. Three-four months before this incident, she started living with the accused and established husband-wife relationship with the accused. The accused asked her to accompany her to Ghansali and to solemnize marriage after going to New Tehri. For two-three days, the accused kept her with him and there, they had established husband-wife relationship and, thereafter, he took her to Vinakkhal stating that after earning money, he will solemnize marriage with her by taking her to Tehri, but the accused never solemnized marriage with her. In the night of the incident, the accused took her to Khawada at 07:00-08:00 PM to feed her, where his friend Wajid Miyan lived. Whey they came back f