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Case title:  State of Uttarakhand V. Janak Bahadur

Case no: CRIMINAL REFERENCE NO. 03 of 2021 WITH CRIMINAL APPEAL NO.23 of 2021

Order on: May 21, 2024

Quorum: HON’BLE THE CHIEF JUSTICE MS RITU BAHRI AND HON’BLE JUSTICE SHRI ALOK KUMAR VERMA

Fact of the case:

The case involves Janak Bahadur’s conviction for multiple offences, including rape under Section 376A, 376B of the Indian Penal Code(IPC). On 3rd April 2021, Sub-Inspector Aarti (PW8) was on patrol duty when a secret informer reported that a 5-year-old girl had been raped by her Nepali stepbrother. The victim was living with her cousin brother, Janak Bahadur, after her parents passed away. The police reached the spot where they found a woman (PW7) with the victim (PW1) in her lap. The woman had found the girl hiding inside a large plastic pipe on her terrace. The girl had injuries and revealed that her brother, Janak Bahadur, had been abusing her. The victim told PW7 and later Sub-Inspector Aarti that her brother would beat her with a stick, make her lie on the ground, take off her pajama, and perform “dirty things” causing her pain, especially while urinating. The girl requested not to be sent back to her brother due to fear of further abuse. The police located and arrested Janak Bahadur at his residence around 21:05 hrs, where he was found with his two minor children. The victim and the accused’s children were handed over to PW3, an administrator of Ujjawala Rehabilitation Center (Card Sanstha). Sub-Inspector Megha Sharma (PW9) led the investigation, recording statements and preparing the site plan. The victim’s statement was recorded under Section 164 of the Code of Criminal Procedure, 1973. Various physical evidence items including the victim’s pajama, blood samples, and swabs were collected and sent for forensic examination. The Trial Court ordered Rs. 7,00,000 compensation for the victim, to be kept in an F.D.R. scheme for five years. The Uttarakhand Government was directed to provide comprehensive rehabilitation, including educational, social, and residential support, for the victim and the accused’s children until they reach adulthood or are settled in life. Additional rehabilitation measures were also ordered for the accused’s children living in the Ujjawala Rehabilitation Center.

 Issues framed by court:

Whether the petitioner in this case is punished under Section 376AB of the IPC twenty years of rigours imprisonment whether it is valid or not.

Legal provisions:

Section 376AB of the IPC: This section deals with the punishment for rape on a woman under twelve years of age, which may include rigorous imprisonment for a term not less than twenty years or imprisonment for life, or death.

Section 323 of the IPC: This section deals with the punishment for voluntarily causing hurt, which can include imprisonment for up to one year, or a fine, or both.

Section 5 and 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012: Section 5 outlines aggravated penetrative sexual assault, and Section 6 prescribes punishment for the same, including rigorous imprisonment not less than ten years, which may extend to imprisonment for life and fine.

Section 42 of the POCSO Act, 2012: Provides that in case of an offense punishable under this Act and also under sections of the IPC, the offender shall be liable to punishment under either of the provisions, which provides for a greater punishment.

Section 366 of the Code of Criminal Procedure (Cr.PC), 1973: Deals with any sentence of death passed by a Sessions Judge must be confirmed by the High Court before it can be executed.

 Contentions of Appellant:

The appellant denied the accusations of rape and physical abuse, stating that he was not guilty of the charges framed against him under Section 376AB IPC, Section 323 IPC, and Sections 5 and 6 of the POCSO Act. The appellant contended that the evidence presented by the prosecution was insufficient and unreliable. He challenged the credibility of the witnesses and the consistency of their testimonies. The appellant argued that there were procedural irregularities in the investigation and trial process, which violated his right to a fair trial. The appellant pleaded for mitigation of the death sentence, arguing that it was excessively harsh and that the trial court did not adequately consider alternative sentences.

Contentions of Respondents:

The respondent contended that the appellant was rightly convicted based on the disturbing evidence, including the victim’s testimony, medical reports, and forensic evidence. The State emphasized the heinous nature of the crime, pointing out that the victim was a minor and the appellant, being a close relative, violated a position of trust. The respondent argued in Favor of the death penalty, asserting that the gravity of the offense warranted the maximum punishment under Section 376AB IPC to serve as a deterrent for similar crimes in the future. The State maintained that all legal and procedural requirements were duly followed during the investigation and trial, ensuring the appellant received a fair trial. The respondent highlighted the measures taken for the victim’s compensation and rehabilitation, as ordered by the trial court, stressing the State’s commitment to support and rehabilitate the victim and her siblings.

 Court analysis & Judgement:

The case involves the appellant, Janak Bahadur, who was convicted by the Special Judge (POCSO), Pithoragarh, for offenses under Section 376AB IPC (rape of a minor under twelve), Section 323 IPC (voluntarily causing hurt), and Section 5 read with Section 6 of the POCSO Act (aggravated penetrative sexual assault).

The Trial Court sentenced him to death under Section 376AB IPC, and fine of Rs.5,000/- were imposed. Further sentenced to undergo rigorous imprisonment for one year under Section 323 IPC, and appropriate sentences under the POCSO Act. Additionally, a fine of Rs. 1,000/- for the victim were imposed. The appellant’s death sentence was referred to the High Court for confirmation under Section 366 CrPC. The appellant also filed an appeal challenging his conviction and sentence. Denied charges, challenged the evidence and procedural aspects, and argued the death penalty was too harsh. Respondent supported the conviction and death penalty, emphasizing the crime’s severity and the need for a strong deterrent. The High Court reviewed the evidence, including witness testimonies, medical reports, and forensic evidence. The court found that the prosecution had established the guilt of the appellant beyond a reasonable doubt. The court noted the heinous nature of the crime, the young age of the victim, and the appellant’s breach of trust as an major factor.

 The High Court confirmed the appellant’s conviction under Section 376AB IPC, Section 323 IPC, and Sections 5 and 6 of the POCSO Act. The High Court confirmed the death sentence awarded by the Trial Court, emphasizing the crime’s brutality and the appellant’s betrayal of trust. The court upheld the Trial Court’s orders for compensation to the victim and directed the State to ensure the victim’s educational, social, and residential rehabilitation until she attains majority or is properly settled.

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Judgement Reviewed By- Antara Ghosh