Safiya Malik

The High Court of Gujarat Division Bench of Justice Ilesh J. Vora and Justice R. T. Vachhani commuted the death sentence imposed on a man convicted of raping a six-year-old girl to imprisonment for the remainder of his natural life. The Court was dealing with a criminal confirmation case seeking approval of the capital punishment awarded by the Special POCSO Court, along with an appeal filed by the convict challenging the conviction and sentence. While affirming the findings of guilt under the Indian Penal Code and the Protection of Children from Sexual Offences Act, the Bench held that the case did not satisfy the “rarest of rare” threshold warranting the death penalty. Taking note of the absence of prior criminal antecedents, satisfactory jail conduct, and the possibility of reform, the Court concluded that life imprisonment till the end of natural life would meet the ends of justice.

The case arose from an incident dated 3 March 2021 involving the sexual assault of a six-year-old girl in District Kheda, Gujarat. The prosecution alleged that the accused, a neighbour of the victim, lured the child into his house on the pretext of offering tamarind and committed forcible sexual intercourse. The victim’s mother lodged a complaint on the same day after noticing bleeding injuries and recording the child’s disclosure.

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The investigation led to the registration of offences under Sections 363 and 376(AB) of the Indian Penal Code and Sections 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012. Medical examinations revealed rupture of the hymen and vaginal injuries consistent with forcible sexual intercourse. Bloodstains matching the victim’s blood group were recovered from the scene of offence and from the clothes of both the victim and the accused, as confirmed by forensic reports.

The Special POCSO Court convicted the accused and awarded capital punishment for offences under Section 376(AB) IPC and Section 6 of the POCSO Act, along with lesser sentences for allied offences. A Criminal Confirmation Case was filed by the State seeking approval of the death sentence, while the accused preferred an appeal challenging the conviction and sentence. Both matters were heard together by the High Court.

The Court recorded that the prosecution had conclusively established the age of the victim through documentary evidence, including the birth register and birth certificate, confirming that the victim was six years old on the date of the incident. The Bench noted that the testimony of the victim was consistent, natural, and corroborated by her statement recorded under Section 164 of the Code of Criminal Procedure, medical evidence, and forensic material on record.

Referring to the medical evidence, the Court observed that “the tearing of the victim’s vaginal wall implies that the victim had sustained an injury to her genitalia” and that “the injuries to the vaginal area were caused by forcible sexual intercourse.” It further recorded that the injuries were fresh in nature and were consistent with the timing of the alleged offence.

The Bench also took note of the forensic evidence and observed that “the bloodstains found on the accused’s pants and shirt, on the victim’s frock and legging, and at the scene of the offence were of Blood Group ‘O’, which matched the blood group of the victim.” The Court recorded that this scientific evidence lent corroboration to the oral testimony of the victim and the complainant.

On the question of sentencing, the Court examined the scope of Section 376(AB) of the Indian Penal Code and observed that “the ratio and the test to award the death penalty in the case of committing rape on a woman below twelve years of age shall be the same as has been laid down in the plethora of decisions prior to the amendment, i.e., ‘the rarest of rare case’.”

Relying on settled precedent, the Bench observed that “life imprisonment is the rule and death sentence is an exception” and that the Court must draw a balance sheet of aggravating and mitigating circumstances before confirming capital punishment. The Court further recorded that “the death sentence is to be awarded only in exceptional cases” and that the sentencing court is required to consider the possibility of reform and rehabilitation of the convict.

Applying these principles to the facts of the case, the Court observed that "Thus, considering the evidence adduced before the learned Special Court, the learned Special Court awarded the death penalty; however while awarding the sentence of death penalty has not taken into consideration the several factors as deliberated in the foregoing paragraphs with any possibility of reformative measures and therefore in absence of any antecedents, the imposition of death penalty deserves to be interfered with as nothing sort of any such material emerges from the record; nor seems to have been pointed out to us from the material which may constrain us to affirm the conclusion arrived at by the learned Special Court.”

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The Court directed that “Accordingly, the Criminal Confirmation Case No.4 of 2022 seeking confirmation of the death sentence awarded to the convict - accused by the judgment and order dated 17/03/2022 passed in Special (POCSO) Case No. 27 of 2021 by learned Additional Sessions Judge & Special POCSO Judge, Kheda at Nadiad is answered; however the death penalty / capital punishment imposed upon the convict for the offence punishable under Sections Section 376 (AB) of the Indian Penal Code and Section 5 (M) read with Section 6 of the Protection of Children of Sexual Offences Act, 2012 (for short the POCSO Act) is commuted to the imprisonment of life which shall mean the imprisonment for reminder of life. Rest of the conviction and sentence as awarded by the learned Sessions Court shall remain unaltered.”

“Accordingly, Criminal Appeal No.1525 of 2024 preferred by the convict – accused is disposed of in aforesaid terms. Office is directed to forward the copy of this Judgment to the learned Sessions Court concerned to take appropriate steps in accordance with the law.”

Advocates Representing the Parties

For the Petitioners (State): Mr. Ronak Raval, Additional Public Prosecutor
For the Respondents (Accused): Mr. P. V. Patadiya, Advocate

Case Title: State of Gujarat v. Jayantibhai @ Langho Chimanbhai Solanki
Case Number: R/Criminal Confirmation Case No. 4 of 2022 (with R/Criminal Appeal No. 1525 of 2024)
Bench: Justice Ilesh J. Vora and Justice R. T. Vachhani