GUIDELINES FOR GIVING DEATH SENTENCE IN CASE OF RAPE OF A MINOR

Recently Apex Court in the case of “Ravi verses State of Maharashtra” in Criminal Appeal no. 1488-89 of 2018 decided on 03^rd October 2019” by 2:1 majority dismissed the appeal of appellant against the Judgment dated 20.01.2016 passed by Bombay High Court  confirming the death reference in the Sessions Case No. 127 of 2012 decided by the Additional Sessions Judge, Jalna, in which the appellant having been found guilty of committing offences punishable under Sections 302, 363, 376 and 377 of the Indian Penal Code (for short, “the IPC”), has been awarded the sentence of death under Section 302, IPC along with the sentence of rigorous imprisonment(s) of different durations with fine for the rest of offences

At the outset both the Trial Court and the Bombay High Court have  concurrently held that the aforesaid case falls within the exceptional category of `rarest of the rare’ cases  and where all other alternative sentence,, are excluded except death sentence.

In this case the accused/appellant has charged with the rape of 2 year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last and on the basis of evidence led by the parties and after hearing them, the court awarded him death sentence and the main question involved in the case whether this is a fit case wherein death sentence can be awarded to the accused or not

Accused counsel urged that this is not a fit case for awarding death punishments and relies upon the facts like (i) lack of criminal antecedents of accused herein; (ii) no record of anti-social conduct prior to the crime; (iii) appellant being 25-30 years of age; (iv) brutality of crime cannot be a ground to award death sentence; and (v) the appellant belongs to poor section of society. On the other hand, state urged that it is fit case for awarding death sentence as the case falls in the category of rarest of rare case and relied upon following cases

Supreme  Court in “Bachan Singh v. State of Punjab” (1980) 2 SCC 684, uphold the constitutional validity of death sentence as provided under Section 302 IPC and  its sentencing procedure provided  under Section 354(3) of the Code of Criminal Procedure, thereby struck a balance between the protagonists of the deterrent punishment on one hand and the humanity crying against death penalty on the other and elucidated the strict parameters to be adhered to by the Courts for awarding death sentence. While emphasising that for persons convicted of murder, life imprisonment is the `rule’ and death sentence an `exception’, this Court viewed that a rule abiding concern for the dignity of the human life postulates resistance in taking the life through laws instrumentality and that the death sentence be not awarded “save in the rarest of the rare cases” when the alternative option is foreclosed.

45. In Machhi Singh v. State of Punjab (1983) 3 SCC 470, This case lay down the circumstances in which death sentence may be imposed for the crime of murder and held as follows:- “ It thus spells out from Machhi Singh that extreme penalty of death sentence need not be inflicted except in gravest cases of extreme culpability and where the victim of a murder is ... (a) an innocent child who could not have or has not provided even an excuse, much less a provocation for murder...”, such abhorent nature of the crime will certainly fall in the exceptional category of gravest cases of extreme culpability”.

 Further  the Apex Court relies upon the law laid down by this Court in “Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673” , (popularly known as Delhi Gang Rape Case), “the case would fall in the category of the “rarest of rare case” warranting death sentence/capital punishment. The aggravating circumstances are in favour of the prosecution and against the accused.

Therefore, striking a balance between the aggravating and mitigating circumstances, we are of the opinion that the aggravating circumstance would tilt the balance in favour of capital punishment. In view of the aforesaid facts of the  case, the Supreme Court is of the opinion that there is no alternative punishment suitable, except to award the death punishment to the accused. The crime is committed with extremist brutality and the collective conscience of the society would be shocked. Therefore, we are of the opinion that the capital punishment/death sentence imposed by the learned Sessions Court and confirmed by the High Court does not warrant any interference by this Court. Therefore, we confirm the death sentence of the accused imposed by the learned Sessions Court and confirmed by the High Court while convicting the appellant for the offence punishable under Section 302 IPC.”

The recent amendment in Section 6 of POCSO Act 2012 which has substituted the punishment for aggravated penetrative sexual assault.  The said amendment came into force on 6^th August 2019 and the object behind the insertion of the said provision that “The Legislature has impliedly distanced itself from the propounders of “No-Death Sentence” in “No Circumstances” theory”.

Supreme Court after going through the aforesaid object behind the amendment in section 6 of the POCSO Act 2012 observed that the Court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto. The judicial precedents rendered before the recent amendment came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised”.

SC after going through the aforesaid judgments and recent amendment in the POCSO Act 2012 which came into force on 6^th August 2019 held that the sentencing in this case has to be judged keeping in view the parameters originating from Bachan Singh and Machhi Singh cases and applying the principles laid down therein to the facts of the present case held that  it is case where The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. The unnatural sex with a two-year old toddler exhibits a dirty and perverted mind, showcasing a horrifying tale of brutality. |Hence, Appellant has not shown any remorse or repentance for this violent crime, rather he opted to remain silent in his 313 Cr.P.C. statement. As such, this Court cannot set aside the death sentence awarded to him so long as it is mentioned in the statute book.