Upgrad LLM

query no.1 for judicial exams

Lawyer

 

Q:-    A, a married person, is accused of Rape and Murder of B who was a minor. It came into evidence that B was known to A as both were living in the same area. It has further come into evidence that A used to pamper her right from her childhood and would often kiss her on cheeks. On the day of incidence both were seen playing Carom together. Whole case is based upon extra-judicial confession and circumstantial evidence which included the fact that the clothes of accused A were found to be blood soaked but he could not give any explanation to this fact. It has further come into evidence that A has no previous criminal record and has been an active Social worker.  Finally A is found to be guilty. For quantum of sentence, the prosecution insists for Capital Punishment for A as the offence is heinous and to apply breaks on commission of such crimes severest possible punishment shall be given, where as the Defence counsel pleads that this case is not covered under RAREST OF RARE CASES. Decide whether Capital Punishment should be inflicted upon A or not, support your judgment with relevant case laws explaining the concept of RAREST OF RARE CASES. (please give detailed reply).

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advocate

As per my opinion this case doesnot fall under rarest of rare. no doubt a minor has been raped n murdered bt we do not have direct evidence for making him liable.there is one more thing used to make him liable was that he was affectionate towards her from the begining this is nt enough to show had malicious intention from the begining ie he had such plans since long.his blood soaked clothes n extra judicial confession do make him liable for punished though there remains a doubt in the absence of direct evidence.


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Advocate

Charudureja sir question is on the quantum of punishment not on conviction. Rest i support you in your answer the case doesn't fall in rarest of rare case. As the mitigating circumstances like the accused is a social worker and not having criminal record will exclude his case 4m rarest of rare case. Also no exceptional circumstance is proved by the prosecution to put the case into rarest of rare case and the life imprisonment will be sufficient in the case

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You said B is Minor but not mentioned her age.

A is married. A raped and murdered B. Didn't mentioned in what way murdered. Rarest of rare case is depending upon girl's/boy's age and the way of murder.

I belive the above case is not comes under rarest of rare case.

Even though there is no bar in law if he hasn't any previous criminal record. Circumstantial evidence have to take into consideration of the accused for awarding punishment.

As A did henious crime capital punishment should be awarded to him. 

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Not a rarest of rare case: SC

NEW DELHI: Supreme Court has upturned the death sentence awarded to a 30-year-old man accused of raping and murdering his eight-year old neighbour whom he was escorting home.

The trial court at Mansa, Punjab, had convicted the accused, Amrit Singh, and awarded him the death penalty, probably having in mind the punishment awarded by the Supreme Court to Dhananjay Chatterjee in the infamous Hetal Parekh case.

The Punjab and Haryana HC agreed with the trial court on both counts the conviction and sentence. Amrit Singh moved the apex court challenging the conviction.

The apex court bench held that the death occurred not as a result of "strangulation but because of excessive bleeding (from private parts)".

The Bench quoted the doctor's report which said that at her age, a girl has two litres of blood in the body and as she had bled nearly half-a-litre, it was enough to cause her death from shock.


 

"The death occurred, therefore, as a consequence of and not because of any specific act on the part of the accused," said Justice Sinha.

Courts impose death sentence only after being convinced that a case fell in the rarest of rare category. The SC had determined the Parkeh case to be one, sending the accused to the gallows.

In this instance, however, it felt that the case of rape and murder of a girl by her neighbour whom she trusted did not meet the bar.

The Bench said: "It cannot be said to be a rarest of rare case. The manner in which the girl was raped may be brutal but it could have been a momentary lapse on the part of Amrit Singh, seeing a lonely girl at a secluded place.

"He had no pre-meditation for commission of the offence. The offence may look heinous, but under no circumstances it can be said to be a rarest of rare case."

 


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advocate

Mr Ashish i  had replied to punishment that it doesnt fall under rarest of rare that means the case isnt fit for capital punshment as  doubt is there as to convict him fully.

 
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Student

The present instance can be compared to the milestone case Bachan Singh v. State of Punjab. Both have almost similar facts.

 

In Bachan Singh, the only question for consideration in the special leave appeal was, whether the facts found by the courts below would be "special reasons" for awarding the death sentence as required under Section 354(3) of the Code of Criminal Procedure, 1973.

 

The Apex court gave that Judges should never be bloodthirsty. Hanging of murders has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency - a fact which attest to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

 

To decide whether a case falls under the category of rarest of rare case r not was completely left upon the court’s discretion.However the apex court laid down a few principles which were to be kept in mind while deciding the question of sentence.One of the very important principles is regarding aggravating and mitigating circumstances.While deciding such a question, a balance of aggravating and mitigating circumstances in that particular case has to be drawn.Full weightage should be given to the mitigating circumstances and even after that if the court feels that justice will not be done if any punishment less than the death sentence is awarded, then only death sentence should be imposed.

 

Here in the instant case the aggravating circumstances are the brutal rape and murder.The mitigating circumstances being no previous criminal record of the accused and he is a social worker. Anti-social or socially abhorrent nature of crime takes away the defense of no previous criminal record and that he is a social worker.Even though his intention was not to do murder, his heinous lust made him a beast and he raped and killed the helpless girl.

 

 

In Laxman Naik v. State of Orissa  (1994) 3 SCC 381 : 1994 SCC (Cri) 656 on the day of occurrence of rape and murder, the appellant, his niece and his mother had gone to a

neighbouring village to attend a funeral ceremony. In the afternoon when all relatives were busy in the observance of the ceremony, the appellant commanded the deceased, his seven-year-old niece to accompany him back to their village and the deceased followed her. The appellant reached alone to his house and on being asked by elder brother, the father of the deceased, he told that the mother and the deceased were in neighbouring village. The next day the deceased was found lying in a lonely place in a jungle in revealing circumstances. As it was a rape and murder, the trial court found the case as falling within the category of rarest of rare cases and held him to be guilty under Sections 376 and 302 IPC. The punishment inflicted was death penalty, which was also confirmed by the High Court. The Supreme Court held that extreme penalty could be inflicted only in the gravest cases of extreme culpability. Dismissing the appeal and confirmingdeath sentence, the Court emphasised that the facts of the case disclosed only aggravating circumstances and absolutely no mitigating circumstance.

 

In the present instance also the mitigating circumstances seems to be unconvincing and feeble, all incriminating facts appears to be incompatible with the innocence of the accused

Again in Sushil Murmu Vs. State of Jharkhand The court explained the principle:- "In rarest of rare cases, when the collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded."

In State of U.P. v. Satish (2005) 3 SCC 114 : 2005 SCC (Cri) 642 one Vishakha aged about six years was raped and murdered by the bestial acts of Satish, the accused. On 16-8-2001, the victim who was studying in Sarvodaya Public School had gone to school but did not return at

the usual time. On the next morning her dead body was found in sugarcane field. She was lying in a dead condition and blood was oozing from her private parts. The trial court found that circumstances were sufficient to hold the accused guilty and convicted him under Sections 363, 366, 376(2), 302 and 201 of the Penal Code, 1860. Since, the crime fell in the category of the rarest of rare cases, death sentence was imposed and the same was confirmed by the SC

 

Also in the present instance considering the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime and purposes of punishment persuades to hold that the instance is one of a rarest of rare case where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society’s abhorrence of such crimes

 Arun Krishnan 


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Arunji is right - Bachan Singh is an authority.

The test which emanates from Bachan Singh in clear terms is that the courts must engage in an analysis of aggravating and
mitigating circumstances with an open mind, relating both to crime and the  criminal, irrespective of the gravity or nature of crime under consideration. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the "rarest of rare cases" as indicated in Bachan Singh case.

 In Mohan Anna Chavan the court upheld the death sentence  imposed on a serial rapist. The accused had already been convicted twice for  the raping a minor girl, but on the first occasion he was awarded a sentence  only of two years and on the second, sentence of ten years rigorous  imprisonment only. When the accused was convicted of raping and  murdering two minor girls again, the court refused to interfere with the death  sentence awarded by the lower courts.

 In Bantu v. State of Uttar Pradesh [2008 (10) SCALE 336] the  accused had, after raping a six year old girl, tried to conceal his crime by  inserting a
stick in her v**gina which ultimately resulted in causing her death.  The court noted that the depraved acts of the accused only deserved a death  sentence.
 In Shivaji @ Dady Shankar Alhat (supra) the accused had raped and  murdered a nine year old girl. This Court therein rejecting the argument that  the conviction having been based in circumstantial evidence, death penalty  should not be awarded, affirmed the death penalty awarded by the lower  court.
 
In Amrit Singh v. State of Punjab [2006 (11) SCALE 309] the  accused had raped a minor girl. The victim died a painful death because of  bleeding from
her private parts. The court, however, noted that the accused  might not have had the intention of murdering the victim, but her death was  only the
unfortunate inevitable consequence of the crime, hence it did not  fall within the rarest of the rare cases.
 
In Bishnu Prasad Sinha and Anr. v. State of Assam [2007 (2) SCALE  42], this Court commuted the death penalty of the accused on the ground  that the
prosecution case was entirely based on circumstantial evidence.
 Thus on the principles laid down in Bachan Singh which is an authority even as on date, death penalty should not be awarded in the present case on the basis of facts and circumstances narrated. Some of the cases narrated above in which death penalty was awarded in identifical facts and circumstances appears to be per incuriam Bachan Singh.


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In my above answer last line please read, "In one of the case" i.e. Shivaji instead of "in some of the cases". The fact of shivaji @Dady Shankar Alhat is identical with the facts in the query to a large extent. The decision in it appears to be per incuriam

 
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advocate

 the case does not fall in the category of rarest of rare cases because as such no evidence is on record regarding the injuries to the victimor any sign of brutality....moreover capital punishment can be given only when the murder is committed in an extremely brutal manner so as to arouse intense n extreme indignation of the community.

 
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Student

 if death results due to rape on a minor, it is murder and there seems to be no legal or moral justification in distinguishing it from murders committed as a sequel to rape. A more drastic approach in any case is required to deal with the escalating rate of  rapes on young children in the country the dilution of sentence would be a case of misplaced sympathy and gross miscarriage of justice

 
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