Odisha High Court (Image Source: The Statesmen)
The Orissa High Court has commuted the death sentence of a man convicted of the rape and murder of a six-year-old girl, citing his display of remorse and readiness to accept punishment. The Bench, comprising Justice SK Sahoo and Justice RK Pattanaik, took note of the convict’s frequent prayers (namaz) and his surrender to divine judgment.
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 Court emphasised the principle of proportional punishment, stating, “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.”
The incident occurred on August 21, 2014, when the minor girl (6) and her minor cousin went to buy chocolates at around 2 PM. By 3 PM, when the girl did not return, her family and villagers began searching for her. She was found naked and unconscious in a secluded part of Sk. Khairuddin’s house.
She was immediately taken to a primary health care centre, where the doctor suspected she had been raped and throttled. As her condition worsened, she was referred to SCB Medical College and Hospital in Cuttack but died en route.
The victim’s cousin later disclosed that the appellants, Sk. Asif Alli and Sk. Akil Alli, had forcibly taken her away.
Following this revelation, the victim’s aunt filed an FIR against the appellants. The police investigation led to a charge sheet against Sk. Asif Alli, Sk. Akil Alli, and two others.
The trial court found the appellants guilty under Sections 302 (murder), 376-D (gang rape), 376-A (rape leading to death) of the IPC, and Section 6 of the POCSO Act.
However, upon examining the evidence and testimonies, the High Court acquitted Sk. Akil Alli of all charges, stating, “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.”
Regarding Sk. Asif Alli, the Court observed that the prosecution failed to establish the charge under Section 376-D of the IPC, leading to his acquittal on that count. However, he was found guilty under Sections 302 and 376-A of the IPC and Section 6 of the POCSO Act.
The Court noted that there was no substantial evidence proving that the appellant was beyond reform and rehabilitation. Taking into account the entire set of facts and circumstances, as well as the aggravating and mitigating factors, the Court concluded that capital punishment was not the only option. They determined that life imprisonment would suffice and was not disproportionate to the crime committed.
In its observation, the Court stated, “It is borne out of the record that the offence was committed against a girl child aged about six years in a most horrendous, devilish, and barbaric manner.”
However, “the case is based on circumstantial evidence, and there is no material on record indicating that the crime was pre-planned.”
The Court further explained that the appellants noticed the deceased with her cousin while they were returning after buying chocolates. The deceased was then abducted, raped, and sustained injuries on different parts of her body, leading to her death due to shock and haemorrhage from injuries to the genital tract, which were fatal in the ordinary course of nature.
Additionally, the Court noted that no harm was caused to the minor cousin, despite the appellants being aware that he could disclose their misdeeds to others.
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