Penal Code, 1860 – ss.450, 376(2)(i), 376D, 376A and 302 r/w. s. 34 – Protection of Children from Sexual Offences Act, 2012 – s.5(g)/6 – Appellant contended that the instant case rested on the three dying declarations and a DNA report – The Dying declarations were inconsistent and DNA report pointed presence of a third person – It was also contended that it was not ‘rarest of the rare’ case:
Held: On perusal of the materials on record, it is found that the dying declaration recorded by the Executive Magistrate (Naib Tehsildar), PW-11, which was endorsed by PW-9- doctor is reliable and trustworthy – The dying declaration recorded by PW-11 is in question-answer form – In the said dying declaration, the deceased clearly implicates the present appellant – The Medical Officer, PW-9, before the commencement of the dying declaration has given an endorsement regarding fit mental status of the deceased to make a declaration and at the end of the dying declaration again he has endorsed that the deceased was in a fit state of mind – The written dying declaration is corroborated by the oral dying declaration as has come on record in the evidence of her grand-father (PW-1), her grand-father’s brother (PW-2), her aunt (PW-13) and her uncle (PW-14) – In the said dying declaration, all the witnesses have clearly stated that the deceased after coming out from the room in flames has narrated the incident about the appellant committing the crime – The statement of the deceased recorded u/s.164 of Cr.P.C. also supports the prosecution case – There is no error in the conviction of the appellant – As far as the question whether the present case falls under the category of ‘rarest of rare case’ is concerned, in the present case, it is to be noted that the appellant comes from a socio-economic backward stratum of the society – He lost his mother and brother at the tender age – The appellant and his family members do not have any criminal background – The appellant was of a tender age of 22 years when the aforesaid incident occurred – It cannot be said that the appellant is a hardened criminal, who cannot be reformed – The possibility of the appellant, if given the chance of being reformed, cannot be ruled out – In view of the matter, the confirmation of the death penalty would not be justified – In facts and circumstances of the case, the death penalty needs to be commuted to fixed imprisonment without remission for a period of 20 years. [Paras 7, 8, 15, 16, 18]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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