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This is case of 2013 when accused Nand Kishore was charged under rape & murder of a 8 year old girls. The trial court after appreciating the evidences of the prosecution – mainly circumstantial, noted the case to be under the term “rare of rarest case” and thus ordered Death Sentence for the accused. The trial court/court of sessionsannounced the death sentence for the accused after confirmation from the High Court at Jabalpur as per the proviso of Section 366 Criminal Procedure Code, which lays down that any court of sessions shall order death sentence in any case only after confirmation from the High Court of the State.
The accused by way of appeal approached High Court at Jabalpur which subsequently disposed the appeal and upheld the death sentence for the accused. The accused approached Supreme Court via SLP granted under Article 32 of the Indian Constitution.
The Apex Court’s division bench comprising of Justice S. A. Bobde, Justice L. Nageswara Rao &Justice R. Subhash Reddy noted thatin addition to the offences under Sections 302, 363, 366 and 376(2)(i) of Indian Penal Code, the appellant was also charged under Sec 5 and 6 of Protection of Children from Sexual Offences Act, 2012.
The court said based on the appreciation of the oral and documentary evidence on record& since the case totally rests on circumstantial evidence, it is to be noticed that the deceased's brother, who accompanied her to a 'Mela' on the fateful day, identified the accused in the Test Identification Parade and even categorically stated that the appellant had taken away the deceased from the 'Mela'. Moreover, witness has deposed that he saw a dog running away with a leg of a child in its mouth, which, it dropped, on being chased. The investigation resulted in the detection of the headless body of the deceased in the bushes. Another prosecution witness has stated that he had seen the appellant on the same day with a girl wearing a yellow frock.
The counsel for the appellant contested that the case cannot be considered as rarest of rare cases and the several relevant aspects have escaped the attention of Sessions & High Court. The court applying the test on the touchstone & taking into account the evidence & totality of the circumstances of the case said “we are of the view that the case on hand will not fall within the 'rarest of rare' cases". The Bench finally modified life imprisonment sentence to period of 25 years, without any benefit of remission.
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