Calcutta High Court: While dealing with a death reference the Court cancelled the death sentence awarded by Trial Court to a person convicted for rape and murder of an Eight year old girl, by modifying the conviction from Section 302 IPC to Section 304 (II) IPC and sentenced him to ten years imprisonment. The court allowed the appeal in part and but did not approve the death sentence reference. The Trial Court had sentenced the appellant to death for the offence under Section 302 of Indian Penal Code and has also sentenced the appellant for the offence under Sections 363, 376(2)(f) and 201 IPC.
The division bench comprising of Nadira Patherya and Debi Prosad Dey JJ. said that “It is apparent from the facts and circumstances of this case that the convict had no intention to commit murder of the victim but the victim could not bear the violent onslaught of the convict at the time of commission of such offence under Section 376 (2)(f) of the Indian Penal Code. The convict had also definite knowledge that by such action the victim could have died. Relying on the aforesaid decision of the Apex Court we do hold that such offence of the convict would squarely fall within the purview of Section 304 (II) of the Indian Penal Code and accordingly we reduce the sentence awarded by the learned Trial Judge under Section 302 of Indian Penal Code to one under Section 304 (II) of Indian Penal Code and sentence him to suffer Rigorous Imprisonment for 10(ten) years and to pay a fine of Rs.10,000/-(Ten thousand) i.d. Rigorous Imprisonment for 2(two) years.”
The Court further also set aside conviction under Section 201 IPC by stating: “Admittedly, the convict/appellant after commission of such offence concealed the dead body under water hyacinth of a pond in order to cause dis-appearance of the evidence of offence but ultimately the dead body was recovered pursuant to the information given by the convict/appellant. The convict/appellant also did not conceal the whereabouts of the dead body though initially he had concealed the dead body. Therefore we do not find any applicability of Section 201 of the Indian Penal Code and accordingly the conviction of the appellant under Section 201 of the Indian Penal Code is set aside.” However the Court upheld the order of conviction and sentence passed for the offence under Section 376(2)(f) & 363 of the Indian Penal Code. The bench further said that, ‘we answer the death reference in the negative and modify the sentence awarded by learned trial Judge, as stated herein above and set aside the order of conviction and sentence against the convict in respect of the offence under Section 302 (by reducing the same under Section 304 (II) of the Indian Penal Code) and Section 201 of Indian Penal Code.’ [Binay Majhi v. State of West Bengal, Criminal Appeal No.857 of 2013, Decided on 19.05.2016]
