The Supreme Court today commuted the death sentence imposed on a man convicted for raping and murdering his six-year-old step-daughter in Madhya Pradesh.
A bench of Justice Vikram Nath, Justice Sandeep Mehta and Justice Vijay Bishnoi upheld his conviction but commuted the death sentence to life imprisonment.
The Madhya Pradesh High Court subsequently upheld both the conviction and the death sentence.
The High Court rejected his plea of alibi, finding contradictions between his own evidence and that of his defence witnesses.
It held that the Crime Test was 100 per cent and the Criminal Test was zero and concluded that the circumstances called for the death sentence.
The Supreme Court today commuted the death sentence imposed on a man convicted for raping and murdering his six-year-old step-daughter in Madhya Pradesh.
A bench of Justice Vikram Nath, Justice Sandeep Mehta and Justice Vijay Bishnoi upheld his conviction but commuted the death sentence to life imprisonment.
The appellant, one Waris, was convicted by the Special Court under the Protection of Children from Sexual Offences Act, Jaora, on December 17, 2018, under Sections 376(2)(F), 376(2)(N), 376(AB), 302 and 201 of the IPC and Sections 5/6 of the POCSO Act. The trial court had sentenced him to death under Sections 376AB and 302 IPC. It had also imposed a five-year rigorous imprisonment sentence under Section 201 IPC.
The Madhya Pradesh High Court subsequently upheld both the conviction and the death sentence. Thus, he approached the Supreme Court.
The deceased girl was the daughter of Waris's third wife from her previous marriage. The High Court found that the prosecution had established that he had sexually assaulted the child. It relied on the testimony of her mother, medical evidence and DNA evidence.
The post-mortem examination found multiple injuries on the child's body, and the medical panel concluded that she had died due to asphyxiation caused by throttling. The DNA report showed that male Y chromosomes found on the child's clothes matched the Y chromosome DNA profile of Waris.
The child's mother testified that Waris had sexually assaulted her daughter on several occasions. She also described physical violence against the child. According to her, he assaulted the child on April 21, 2018 and sexually assaulted her. On the following day, when the mother heard the child's muffled cries, she found Waris withdrawing his hands from the child's neck. The child then collapsed.
The High Court rejected his plea of alibi, finding contradictions between his own evidence and that of his defence witnesses. It also noted that the persons whom he claimed to have accompanied on the relevant date had not been examined as defence witnesses.
The Court also found that he had attempted to conceal the offences. It noted that he had not taken the injured child to a doctor despite her condition and had concealed the clothes worn by her at the time of the sexual assault. The Court also found that he had attempted to have the body cremated before the police were alerted.
The High Court noted that the child had been subjected to aggravated penetrative sexual assault, as Waris was her step-father and had a domestic relationship with her. It observed that the rape had been committed over a period of time and had been compounded with the murder of the child.
It noted that death penalty could be imposed only in the "rarest of rare" cases. While considering the death sentence, the High Court referred to the Supreme Court's judgments in Bachan Singh v. State of Punjab and Macchi Singh v. State of Punjab, which require courts to consider aggravating and mitigating circumstances and balance them before imposing capital punishment.
The High Court then referred to the "Crime Test", "Criminal Test" and "Rarest of Rare Test" laid down in Shankar Kisan Rao Khade v. State of Maharashtra. It noted that the Crime Test had to be 100 per cent, meaning there was no doubt about the accused's commission of the offence, while the Criminal Test had to be zero, meaning there were no mitigating circumstances favouring the accused. Even after those tests were satisfied, the Rarest of Rare Test had to be applied.
Applying those principles, the High Court observed, “In the present case, as already found proved, the accused Waris exhibited extreme depraved state of mind when he made the innocent little girl-child, whose welfare was his bounden duty, a tool to satiate his carnal desires and heaped miseries upon her in the form of her sexual exploitation over a period of time and ultimately, he brutally ebbed out her flame of life by strangulating her. The act was clearly cruel, diabolic, depraved and gruesome and the guidelines for awarding the death sentence culled out in Macchi Singh's case (supra) are satisfied.”
The High Court concluded that the proven facts brought the offence within the "rarest of rare" category. It held that the Crime Test was 100 per cent and the Criminal Test was zero and concluded that the circumstances called for the death sentence.
The Supreme Court has now upheld the conviction but commuted the death sentence, holding that the death sentence could not be sustained because the State had failed to establish that Waris was beyond the possibility of reformation. Referring to Bachan Singh v. State of Punjab, the Court observed that death penalty can be imposed only where life imprisonment is “unquestionably foreclosed” and both the aggravating circumstances of the crime and mitigating circumstances relating to the offender must be weighed.
The Court disagreed with the Madhya Pradesh High Court's approach of assessing the “crime test” at 100% and the “criminal test” at 0%, observing that this effectively meant that the High Court had failed to consider the offender's circumstances. The Supreme Court noted that the Trial Court had also sentenced Waris to death on the same day as his conviction, without giving him a meaningful opportunity under Section 235(2) CrPC to place mitigating material.
The Supreme Court observed that Waris had lost his mother at about seven, suffered neglect and deprivation during childhood, had no previous criminal convictions and had maintained satisfactory conduct in prison. The Court acknowledged the exceptional gravity of the crime, including the killing of the child to silence her and conceal the sexual assault, which it termed “instrumental silencing”.
The Court also considered his history of violence against women and children in his household as an aggravating circumstance.
The Court observed that the sustained sexual abuse of the child, the killing to silence her and conceal the sexual assault, denial of medical assistance, the attempt to hurriedly bury the body, and his history of violence against women and children in the household were aggravating factors. The Court described the “instrumental silencing” aspect as the aggravating circumstance of the highest order.
It also noted that his three previous wives had left him because of his violent conduct, a daughter from a previous marriage had spoken about him beating her mother, and he had beaten the victim's mother when she tried to intervene to protect the child. The Court said that this history, corroborated by other family witnesses, showed that the present crime was not an isolated departure from an otherwise blameless life but formed part of a continuing pattern of violence against women and children within his household.
But it ultimately held that these circumstances, even taken together, did not establish incorrigibility. I opined that the State had not produced evidence showing that he was beyond the possibility of reform. It also noted that a psychological evaluation did not disclose a condition from which incorrigibility could be inferred. It ultimately held that although the crime was extremely grave, the possibility of Waris's reformation had not been excluded. It observed that ordinary life imprisonment with the possibility of remission would be inadequate and held that imprisonment for the remainder of his natural life without remission would meet the ends of justice and accordingly commuted the death sentence.
Case no. – Crl.A. No. 429-430/2020
Case Title – Waris v. State of Madhya Pradesh
Citation: 2026 LiveLaw (SC) 986
Click Here To Read/Download Judgment
