"Convict has surrendered before God, praying daily": Orissa High Court commutes death sentence in rape and murder case

The Orissa High Court recently commuted the death sentence of a man who was convicted for the rape and murder of a six-year-old girl [State of Odisha V. Sk. Asif Alli and Another]..The Court also acquitted another accused who had been sentenced to death by the trial court.The case before the High Court involved appeals by two men convicted in a rape and murder case. As regards one of the convicts, Sk. Asif Alli, the Bench of Justices SK Sahoo and RK Pattanaik noted that a report by a psychiatrist said that he was sticking to his routine properly, was cordial towards other prisoners and the staff, was offering prayers to God and had surrendered before God. "He is offering prayer to God many times in a day and he is ready to accept the punishment as he has surrendered before God," the Court observed.Further, there is no cogent evidence to show that the appellant is beyond reform and rehabilitation, the Court reasoned."The punishment should not be disproportionately great is a corollary of just deserts and it is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt," the Court added in its 106-page judgement.The Court also noted that there was neither any adverse report against the convict nor had he committed any prison offence during his ten years in jail. Hence, it commuted his death penalty to life imprisonment.As regards accused Sk. Akil Alli, the Court acquitted him for lack of evidence, both medical and circumstantial..By way of background, Sk. Asif Alli and Sk. Abid Alli (appellants) were accused of apprehending a six-year-old girl, while she was returning home with her cousin after buying chocolates from a shop. After being forcibly taken away, she was subjected to rape due to which she sustained injuries and died. The cause of death was due to shock and hemorrhage suffered by the girl as a result of injuries to her genital tract, it was alleged.The trial court convicted both appellants for murder and awarded them the death sentence.A third accused was acquitted. The two accused who were convicted moved the High Court in appeal.The Court examined the evidence on record and found that the case against one of the appellants, Sk. Akil Alli, did not stand proved beyond reasonable doubt.As regards scientific evidence cited in Akil Alli's case, the Court noted,"The chemical examination report indicates that no blood, no semen and no vaginal secretion stain were noticed and similarly in no blood and no semen were noticed... Admittedly, no finger print of the appellant Sk. Akil Alli was found to be tallying with the chance finger prints detected on Aska 40 liquor bottles found at the spot," the Court said.It was also contended by the prosecution that Akil Alli was found consuming liquor with the other accused before the crime. However, the Court said that this was much before the crime and could not link Akil Alli to the crime itself."Thus, the second circumstance i.e. the appellants were seen taking liquor in the verandah of the house of one Manu Mian and gossiping among themselves and the other two accused persons were also with them, as proved by the prosecution is not by itself sufficient to connect the appellants with the crime," the Court held.Similarly, the mere fact that he was found trembling and nervous later would also not be sufficient to link him to the offence, the Court said.Hence, it proceeded to acquit Akil Alli..As regards Asif Alli, the Court upheld the conviction but noted that the trial court did not afford an opportunity to submit any material to show mitigating factors to oppose the sentence of the death penalty. Therefore, the High Court went on to consider both the aggravating and mitigation circumstances in the case and held that capital punishment is not the only option for Sk. Asif Alli. .Thus, it commuted the death sentence handed down the sentence of life imprisonment."The death sentence awarded to the appellant for the offence under section 302 of the I.P.C. is commuted to life imprisonment, which shall mean till his natural death, without remission/commutation under sections 432 and 433 Code of Criminal Procedure," the Court ruled..Advocate Sk. Zafarulla appeared for the prisoner Sk Asif Ali and the accused Sk. Abid Ali, while Additional Government Advocate Bibhu Prasad Tripathy appeared for the State. .[Read Judgment]