The Patna High Court acquitted a rape and murder accused setting aside the death penalty awarded by the Trial Court.Taking note of the evidence on record, the bench observed that the testimony of all the three prosecution witnesses, on the issue of kidnapping, sexual assault and murder, based on hearsay, is wholly uninspiring in evidence, apart from being self-contradictory. “The existence of the confessional statement was what weighed with the learned Judge for convicting the accused, but its relevance or admissibility was never considered and examined. The laws of admissibility for a confessional statement though taken note of but not correctly applied.”
The bench comprising the Chief Justice Sanjay Karol and Justice S. Kumar noted that the whole of the judgment of the Trial Court of death penalty runs into nine pages and has not furnished any cogent reasons in arriving at conclusions.
Case Background
Ajit Kumar was convicted by the Trial Court for death penalty under Sections 363, 366A, 120B, 302, 376(D) of the Indian Penal Code and Section 6(g) of the Protection of Children from Sexual Offences Act, 2012 finding him guilty of kidnapping and raping a minor girl.
The prosecution case was thus: In March 2017 the accused for death penalty Ajit Kumar and Vishal Kumar had enticed and taken away the deceased, a minor i.e. below the age of 18 years, without the consent of her lawful guardian. She was seduced by either of the accused persons namely Ajit Kumar and Vishal Kumar to have illicit intercourse with another person which perhaps may be Govind Prasad. All of them had agreed to commit an illegal act with an intent of causing bodily injury and thereby set the deceased on fire by pouring kerosene oil before sexually assaulting the victim in furtherance of a common intention.
High Court’s Observations in case of death penalty awarded by Trial Court
Setting aside the conviction, the court said:
“We may reiterate, that the offence under Sections 363, 366A, 376 and 120B I.P.C. cannot be said to have been established to the testimonies of P.Ws. 1, 2 and 3, which in any case are hearsay in nature, without disclosing the complicity of the accused. On the issue of sexual assault, there is no evidence at all. The testimony of P.Ws. 1, 2 and 3 lacks credence. None found any telltale signs of rape on the spot or the body of the deceased. There is neither medical nor any scientific evidence indicating such fact. The theory of the accused pouring kerosene oil and setting the deceased on fire is also not borne out of the record, for P.W. 6 has not ruled out the possibility of suicide. He has deposed that “cannot say it is suicidal, homicidal or accidental.” Also, what was the original version recorded in the Case Diary is not on record.”
The bench also noted that Trial Judge, concluded for death penalty, without assigning any reason, that the nature of the offence and the manner in which it was committed to fall within the category of ‘rarest of rare cases’.
“What is the basis of his conclusion of the case being the rarest of rare cases is not discussed. What are the special reasons for grant of capital punishment; whether there were any mitigating circumstances; what was the mental state, motive, or the brutality of the crime were never thought of much less considered by the learned trial judge. The approach adopted is casual and perfunctory in nature, unmindful of the consequences of the decision which when implemented becomes irrevocable and irreversible. We are unable to persuade ourselves to agree with the Trial Judge, either on the sentence of awarding death penalty or applying the principles of sentencing. The sentence for each one of the offences was required to be pronounced which, perhaps Trial Judge forgot to do so.”
