"He Is Offering Prayer To God Many Times In A Day": Orissa HC Commutes Death Sentence To Man Convicted For Rape & Murder Of 6 Year Old Girl

The Orissa High Court commuted the death sentence of a man convicted for rape and murder of a six-year-old girl.

The Court noted that the accused "is offering prayer to God many times in a day and he is ready to accept the punishment as he has surrendered before God."

The Bench of Justice SK Sahoo and Justice RK Pattanaik observed that, "The punishment should not be disproportionately great is a corollary of just deserts and it is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt."

On 21.08.2014, a young girl and her minor cousin went to buy chocolates at around 2 PM. They were returning home around 3 PM. When the girl did not return, her family and villagers began searching for her. They found her naked and unconscious in a narrow part of Sk. Khairuddin's house. She was taken to a primary health care center, where the doctor suspected she had been raped and throttled. Her condition worsened, and she was referred to SCB Medical College and Hospital, Cuttack. She died on the way to the hospital. Her cousin later revealed that the appellants, Sk. Asif Alli and Sk. Akil Alli, had taken her away by force.

The victim's aunt filed an FIR suspecting the appellants. The police investigation led to a charge-sheet against Sk. Asif Alli, Sk. Akil Alli, and two others.

The trial court concluded that the appellants committed the crime and found them guilty under Section 302, 376-D, 376-A of the IPC and Section 6 of the POCSO Act.

For the charges against the appellant Akil Alli, the High Court, on examining the evidence and testimonies, observed that, "it is difficult to sustain the conviction of the appellant Sk. Akil Alli under sections 302/376-A/376-D of the I.P.C. and section 6 of the POCSO Act and accordingly, the same is hereby set aside and the appellant is acquitted of all the charges."

So far as the charges against the appellant Sk. Asif Alli, the Court observed that, "the prosecution has failed to establish the charge under section 376-D of the I.P.C. against the appellant Sk. Asif Alli and accordingly, he is acquitted of such charge, however he is found guilty under sections 302/376-A of the I.P.C. and section 6 of the POCSO Act."

It was noted that there was no cogent evidence that the appellant was beyond reform and rehabilitation. In furtherance of the same, the Court took the view that on considering the entire facts and circumstances, the aggravating circumstances and mitigating circumstances, it could not be said that capital punishment is the only option for the appellant and that the option of imprisonment for life will not suffice and is wholly disproportionate. 

Subsequently, the Court observed that, "it is borne out of record that the offence was committed against a girl child aged about six years in a most horrendous, devilish and barbaric manner, but the case is based on circumstantial evidence and there is no material on record that the crime was committed in a pre-planned manner. It seems that both the appellants noticed the deceased in the company of his cousin brother (P.W.17) while they were returning after purchasing chocolates and then the deceased was lifted away and she was subjected to rape during course of which she sustained injuries on different parts of her body and her death was due to shock and haemorrhage as a result of injuries to genital track which were fatal in ordinary course of nature."

The Court further noted that no harm was caused to the minor cousin, even though the appellants were aware that he was likely to disclose their misdeeds before others.

Cause Title: Sk. Asif Alli @ Md. Asif Iqbal & Anr. vs State of Odisha

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