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Synopsis

The Orissa High Court has commuted the death sentence of a convict in a rape and murder case of a six year old girl child, to life imprisonment, stating that the convict “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, presided over by Justice S.K. Sahoo and Justice R.K. Pattanaik, delivered the verdict on a reference made to the High Court under Section 366 of the Code of Criminal Procedure (CrPC) by the trial court for the confirmation of death sentence of the convict/ appellant Sk. Asif Alli and his co-accused Sk. Akil Alli.

The case involved the rape and murder of a 6-year-old girl in Jagatsinghpur district of Odisha on August 21, 2014. According to the prosecution, the victim was abducted by the accused men while she was returning after purchasing chocolates with her cousin brother. She was allegedly raped by the two men and succumbed to injuries. Her body was later found naked and bearing multiple injuries. In November 2022, the trial court convicted both accused finding them guilty for the offences punishable under sections 302/376-A/376-D of the Indian Penal Code (IPC) and section 6 of the Prevention of Children from Sexual Offences (POCSO) Act and sentenced them to death.

Another co-accused Sk. Abid Alli, who faced trial along with the appellants, was found not guilty for the offences punishable under sections 302/376-A/376-D/120-B of the I.P.C. and section 6 of the POCSO Act and accordingly, he was acquitted of all the charges by the trial court. While Sk. Akil Alli was acquitted of all charges by the High Court.

The court noted that “There is no dispute that there is no direct evidence as to who committed the rape and murder of the deceased and how. The prosecution case hinges on circumstantial evidence,” while assessing the application of the last seen theory in the present case. The court found that the evidence provided by the prosecution witness, identified as P.W.17, indicated that the appellants and the deceased were last seen together when both appellants lifted away the deceased while she was returning with chocolates from the village shop."The chain of evidence is so complete that it does not leave any reasonable ground for the conclusion consistent with the innocence of the appellant. When the circumstances are collectively considered, they lead only to the irresistible conclusion that the appellant is the perpetrator of the crime in question,” the court said. The court also acknowledged that this evidence could be used as one of the incriminating circumstances against the appellants, as the learned trial court had rightly done. However, the court also stated that this last seen circumstance alone could not be held sufficient to record the finding of guilt of the appellants.

On the death penalty, the court took into account the convict’s behaviour in jail, as reported by the authorities which highlighted the convict is offering prayers to God many times a day as a means of repentance for his crime. The court observed, "Considering the entire facts and circumstances, the aggravating and mitigating circumstances, it cannot be said that capital punishment is the only option for the appellant. The option of imprisonment for life will suffice and is not wholly disproportionate.”

Consequently, the court set aside Asif Alli’s conviction under section 376-D of the IPC but upheld convictions under sections 302/376-A of the IPC and section 6 of the POCSO Act. His life imprisonment sentence under section 376-A was confirmed, meaning he shall remain incarcerated for life.

Additionally, the death sentence originally awarded under section 302 of the IPC was commuted to life imprisonment by the court stating “Death Sentence Reference is answered in negative.”

 

Cause Title: State of Odisha v Sk. Asif Alli @ Md. Asif Iqbal [DSREF No.01 of 2022]