Allahabad High Court: In the Bulandshahr moving car gang rape case, the division bench of Arvind Singh Sangwan* and Mohd. Azhar Husain Idrisi, JJ. upheld the finding recorded by the Trial Court that the accused persons committed the offence of kidnapping the victim who was below the age of 18 years and committed aggravated penetrative sexual assault on her and then by committing her murder by strangulating with dupatta had thrown her dead body near a drain.
However, the Court commuted death sentence to life imprisonment for a fixed term of 25 years without any remission as the Trial Court has not recorded any finding as to how the present case is rarest of the rare case even though the accused has committed the gravest offence.
Background:
In the present case, the accused persons jointly confessed their guilt and gave the details of how they committed the offence. It was stated that on the date of the incident they stopped their car and forcibly took the deceased victim into their car and committed rape with her one by one and when the girl started crying, they with the help of her dupatta strangulated her to death and threw her body in a drain near village.
The Trial Court held the accused persons guilty of committing gang rape with the victim who was below 18 years of age under Section 376-D of Penal Code, 1860 and Section 5(g) read with Section 6 of Protection of Children from Sexual Offence Act, 2012.
On re-appreciation of entire evidence, the Court said that the age of the deceased is proved to be below 18 years as her date of birth, as per the educational certificate and school record and, therefore, on the date of incident i.e. 2-1-2018, she was aged about 17 years, 03 months and 28 days.
The Court upheld the finding recorded by the Trial Court that Alto Car, had a sticker pasted on its back pane ‘Abbasi Boys’ owned the accused persons as they have surname as ‘Abbasi’ and it has come in the statement of Investigating Officer that the same was purchased from one resident of Faridabad. Therefore, the use of the car by the accused committing the offence was proved.
After perusing the report of the Forensic Science Laboratory, the Court noted that human blood was found which suggests that there was aggravated penetrative assault on the victim. Therefore, the Court upheld the finding of the Trial Court.
The Court further mentioned that the injury sustained by the victim on her back also suggests that she was subjected to aggravated penetrative sexual assault in the car as she sustained multiple bruises and blue contusion on her upper and lower back.
The Court noted that the Trial Court has awarded death sentence to all the three accused persons. However, the Court accepted the argument of the accused that it is not a ‘rarest of the rare’ case where death penalty could be awarded, and the Trial Court has not recorded any mitigating circumstances which require that only death penalty should be awarded to the accused persons.
After taking note of various Supreme Court judgments, the Court commuted the sentence of capital punishment to life imprisonment, as the Trial Court while awarding death sentence has not recorded any mitigating circumstances in the instant case. The Trial Court has not recorded any specific finding that it is an exceptional case to award death sentence.
However, the Court laid down few mitigating circumstances from the record:
(i) The accused persons have no criminal history and have their families in support.
(ii) The accused persons are aged about 24 years as per statement under Section 313 Code of Criminal Procedure, 1973 and one is facing health problems, therefore, the possibility of reformation and rehabilitation of the accused in the society cannot be ruled out as the Trial Court has not recorded any finding that awarding severest punishment is the only possibility in the present case.
(iii) The Trial Court has also not recorded any finding that accused can be a menace to society before awarding capital punishment.
(iv) The Trial Court has not recorded any aggravating circumstances against the accused which can weigh the mitigating circumstances especially, when the accused have no criminal history.
Further, the Court mentioned that as per Navas alias Mulanvas Case (supra), there should be exceptional circumstances warranting imposition of excess death penalty which cannot be reversed.
[Zulfikar Abbasi v. State of UP, 2024 SCC OnLine All 5847, decided on 04-10-2024]
*Judgment Auhtored by: Justice Arvind Singh Sangwan
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