As per case facts, a 6-year-old girl was lured by the accused, Jayantibhai Solanki, into his house on the pretext of giving her tamarind. He then sexually assaulted her, causing ...
No Acts & Articles mentioned in this case
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL CONFIRMATION CASE NO. 4 of 2022
With
R/CRIMINAL APPEAL NO. 1525 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
==========================================================
Approved for Reporting Yes No
✓
==========================================================
STATE OF GUJARAT
Versus
JAYANTIBHAI @ LANGHO CHIMANBHAI SOLANKI
==========================================================
Appearance:
MR RONAK RAVAL APP for the Appellant(s) No. 1
MR PV PATADIYA(5924) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 12/12/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
Criminal Confirmation Case No.4 of 2022 is filed seeking
confirmation of the death sentence awarded to the 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. The accused has been convicted and sentenced
Page 1 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
as under:
Conviction Sentence
Section 363 of the Indian Penal
Code.
Rigorous imprisonment for five
years with fine of Rs.5,000/-; in
default of payment of fine, to
undergo simple imprisonment of six
months.
Section 376 (AB) of the Indian
Penal Code.
Capital punishment with fine of
Rs.50,000/-; in default of payment
of fine, to undergo rigorous
imprisonment of one year.
Section 5 (M) read with Section 6
of the Protection of Children of
Sexual Offences Act, 2012 (for
short the POCSO Act)
Capital punishment with fine of
Rs.50,000/-; in default of payment
of fine, to undergo rigorous
imprisonment of one year.
The convict-accused is also ordered to pay compensation of
Rs.2,00,000/- to the Victim.
2.The convict has also preferred Criminal Appeal No.1525 of 2024
against said judgment and order of conviction and sentence and therefore,
the Criminal Confirmation Case and the said appeal of the convict is
heard and decided together by this common judgment.
Case of the Prosecution:-
3.The complainant, Rajuben w/o Sanjaybhai Ravjibhai Solanki, was
residing with her family at Lasundra, Vajpayee Nagar, near the canal,
Taluka Kathlal, District Kheda, and was doing house hold work. Her
Page 2 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
husband works as a driver at Torrent Power in Ahmedabad and they have
three children. Among them, the victim daughter is 6 years old. She was
enrolled in the 1st standard but due to the schools being closed because of
Corona, she was not attending the school. That on 03/03/2021, at around
7:30 a.m., in the morning, her husband had left for his job in Ahmedabad
and she alongwith her children were at home. After preparing food and
giving it to her children, she left home at around nine 9 O’clock in the
morning for the work of picking tobacco leaves in the field near
Lakshmipura and her three children were playing near house as there was
a wedding of Raijibhai Chaturbhai Solanki's daughters nearby. When the
complainant returned home from the field at Five O’clock in the evening,
at that time, her daughter was playing in the courtyard. Upon seeing her,
her daughter came to her crying and her leggings and inner clothes were
found wet and she continued crying and was trembling, as also unable to
speak anything. The complainant therefore checked bathroom and found
her daughter's leggings lying in wet condition, so also the top was lying
in wet condition having bloodstains. Thus, the complainant removed the
leggings of her daughter worn by her due to wet and bleeding. Upon
checking, the complainant found that blood was coming from her
daughter's genital area and she calmly reassured her daughter and asked
her to which her daughter told her while crying that "when she left them
and went to the field in the morning, after they took lunch, Bhotho, Kiran,
and she was playing 'catch and run' under the neem tree in the courtyard;
at that time, Langho (Jayantikaka), who lives in our courtyard, was
sleeping on a cot in front of his house had called her by saying that he
will give you some tamarind (aambli).' When she went near his cot, he
said, the tamarind (aambli) is inside the house and she was asked to come
Page 3 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
inside the house where he grabbed her hand and took her to the back area
inside his house, behind the partition and then pushed her on the floor,
took off the leggings she had worn and thereafter pressed her mouth with
one hand and climbed on her and did something wrong act with her. After
some time, the blood started coming out of her urinating area and started
burning. Thereafter, Langho gave her ten rupees by saying that if she tells
this to anyone, he will do this again and she was therefore scared. As per
the complainant, her daughter stated these facts to her and thereafter
immediately she called her husband and informed about this fact. The
complainant also put her daughter's leggings and the top in a bag, and
then informed her family members about the incident. Thereafter, her
husband came home at around 8:00 p.m. and gave a complaint above the
aforesaid incident.
4.The complaint was given by the complainant on 3/09/2021, before
Senior Police Sub-Inspector D.C. Raol at Kathlal Police Station. Based
on the complainant's report, Kathlal Police registered the offence u/ss
363, 376(AB) of the Indian Penal Code and Sections 5(m), 6 of The
Protection of Children from Sexual Offences Act, 2012, at Kathlal Police
Station I- CR No. 11204027210133/21. The investigating officer
completed the investigation and upon its conclusion, a charge sheet was
filed against the present accused in the Sessions Court. This has been
registered as POCSO Case No.27 of 2021.
5.Thereafter, the learned Sessions Judge transferred the case against
the accused to the Special POCSO Court for the purpose of conducting
the judicial proceedings having jurisdiction to try the case. After ensuring
Page 4 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
that the accused was provided with copies of the police investigation
papers, the charge was framed against him at Exhibit 16 for offences
under IPC Sections 363, 376(AB), and under Sections 5(m) and 6 of the
POCSO Act. Upon taking the statement of the accused at Exhibit 17, the
accused denied the offence and consequently, the prosecution's evidence
was taken.
6.The prosecution has produced the following oral and documentary
evidence:
(A) Oral Evidence of the Complainant, Victim, and Witnesses:-
Sr.
No.
Name of Witness Details Exhibit
1 Victim
(Witness No. 1)
Victim 18
2 Rajuben Sanjaybhai Solanki
(Witness No. 2)
Complainant/
Mother of the
victim
20
3 Mukeshbhai Vakhatsinh Damor
(Witness No. 6)
Talati cum Mantri,
Lasundra
33
(B) Evidence of the Doctor:-
Sr.
No.
Name of the Witness Details Exhibit
1Dr. Bhavik Vishnubhai PatelMedical Officer, CHC,
Kathlal
23
2Dr. Kalpana Dhirenkumar
Shah
Medical Officer, Civil
Hospital, Nadiad
26
3Dr. Nirmala Ram Matai Medical Officer, Civil
Hospital, Nadiad
29
Page 5 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
(C) Evidence of Panch Witnesses:-
Sr.
No.
Name of the Witness Details Exhibit
1 Jaydeepsinh Abhesinh
Parmar
Seized the clothes of
Victim and the accused
and Panch witness of the
place of offence
36
(D) Evidence of Investigating Officer:-
Sr.
No.
Name of the Witness Details Exhibit
1Dharmendrasinh
Chandrasinh Raol (Witness
No. 8)
Investigating Officer (Sr.
PSI, Kathlal Police
Station)
47
2Hardeepsinh Chandrasinh
Zala (Witness No. 9)
Investigating Officer
(S.P.I., Kapadwanj)
49
(E) Documentary Evidence:-
Sr.
No.
Name of the Document Exhibit
1Complaint 21
2Birth Certificate of the victim 34
3True Copy of Birth Register of Lasundra Gram
Panchayat
35
4Panchnama of the offence place 39
5Statement of the victim u/s 164 of CrPC 19
6Police Yadi Medical Examination of the Victim27
Page 6 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
7Medical Certificate of the victim- Civil Hospital,
Nadiad
28
8Panchnama of seizure of the clothes of the
victim
43
9Panchnama of seizure of the clothes of the
accused
46
10Station Diary 48
11Police Yadi of Medical Examination of the
Accused
30
12History case papers given by the accused to the
doctor, Nadiad
31
13Medical Certificate of the Accused-Civil
Hospital, Nadiad
32
14Certificate of the victim- Civil Hospital,
Ahmedabad
50
15Certificate of the victim- CHC, Kathlal 24
16Certificate of the accused- CHC, Kathlal 25
17Dispatch Note 52
18FSL Receipt 53
19FSL Letter 54
20FSL Report 55
21FSL Serology Report 56
7.Other than the above, the prosecution has neither produced any
documentary evidence nor examined any further oral evidence. The
prosecution has submitted a pursis confirming that their evidence has
been completed. Upon the completion of the prosecution's evidence, the
further statement of the accused under Section 313 of the Criminal
Procedure Code was recorded. In the said statement, the accused
primarily stated that the prosecution's evidence was false, that a false case
had been filed against him and that he is innocent. Upon completion of
Page 7 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
the arguments from each side, the learned Special Court has recorded the
conviction and sentence of the convict-accused as stated in paragraph 1 of
this judgment.
8.Heard the learned APP Mr.Ronak Raval appearing for the
respondent – State and learned Advocate Mr. P V Patadiya appearing for
the convict – accused in the captioned matter.
9.Before examining the case on hand considering the evidence
adduced before the learned Special Court and dealing with the rival
submissions made by the respective parties, it would be apt to refer the
provisions of Criminal Law (Amendment) Ordinance,2018 by which
Section 376-AB was inserted after Section 376-A, which reads as under :
“376AB. Whoever, commits rape on a woman under twelve years
of age shall be punished with rigorous imprisonment for a term
which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, and with fine or with death:
Provided further that any fine imposed under this section
shall be paid to the victim.”
With the aforementioned insertion of new Section 376-AB, the
provision has been made to an effect that whoever commits rape on a
woman under twelve years of age shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but
Page 8 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person’s natural life, and with fine
or with death. The proviso reads that such fine shall be just and
reasonable to meet the medical expenses and rehabilitation of the victim.
Thus, by the aforesaid new provision in a case of rape on a woman under
twelve years of age, minimum sentence of rigorous imprisonment is not
less than twenty years, but the same may extend to imprisonment for life
would mean natural life of the accused. Thus, in such cases the rigorous
imprisonment would not be less than twenty years and the same would be
coupled with fine or the court may award death sentence.
10.Learned APP Mr.Ronak Raval appearing for the State would
submit that in light of aforementioned amendment, the accused has
rightly been convicted and sentence of death penalty for committing rape
on a minor girl aged 6 years. He has further submitted that evidence so
adduced before the learned Special Court is proved and on the basis
thereof, the convict has rightly been imposed a death penalty and hence
this Court may confirm the said death penalty and dismissed the appeal
preferred by the convict.
11.Whereas, learned counsel appearing for the convict has argued that
in the facts of the present case, the conviction of death sentence awarded
to the accused is not sustainable. It is submitted that the manner in which
the alleged offence is committed is not barbaric and brutal and hence
present case does not fall within ‘rarest of rare case’ to award death
sentence. In support of his contentions, learned Advocate for the convict
Page 9 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
has relied upon various decisions of the Hon’ble Supreme Court in the
cases of Bachan Singh Versus State of Punjab reported in AIR 1980 SC
898 and Machhi Singh & Others Versus State of Punjab reported in
AIR 1983 SC 957.
12.Reliance is also placed upon the decision of the Hon’ble the
Supreme Court in the case of Amit Versus State of Uttar Pradesh
reported in AIR 2012 SC 1433 to contend that in absence of having any
evidence that the accused may repeat a similar crime in future, the
possibility of his reform cannot be ruled out in the coming years looking
to the age and under such circumstances, the Hon’ble Supreme Court in
the said case relying upon the judgment of Rameshbhai Chandubhai
Rathod Versus State of Gujarat reported in AIR 2011 SC 803 converted
the death penalty into the imprisonment for life for the remaining term.
Reliance is also placed on the judgment of Hon’ble the Supreme Court in
the case of Panchhi & Another Versus State of U.P reported in (1998) 7
SCC 177 to explain the circumstance as to when the death penalty is not
justified.
13.By making the above submissions, learned advocate for the convict
would submit to allow this appeal.
14.At the outset, if the newly inserted Section 376-AB of the IPC is
seen, it provides that in a case of rape where the age of woman is under
12 years of age, minimum rigorous imprisonment is provided not less
than twenty years which may extend to imprisonment for life which shall
Page 10 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
mean natural life and with fine. Therefore, the ratio and the test to award
the death penalty in the case of committing rape on a woman below 12
years of age shall be the same as has been laid down in the plethora of
decisions prior to the amendment i.e. ‘rarest of rare case.’
15.It would be relevant to note that the learned Special Judge has
recorded the evidence of the witnesses produced by the prosecution
before the Court and after evaluating the same, including the scientific
and medical evidence has convicted and imposed the death penalty.
Therefore, evidence of the complainant, victim and other relevant
witnesses is required to have a glance through.
Evidence of Date of Birth of the Victim – Minor:-
16.It would be apt to note that to prove the victim's date of birth on
behalf of the prosecution, Mukeshkumar Vakhantsinh Damor, the Talati-
cum-Mantri of Lasundra, has been examined at Exhibit 33 who has
deposed that the birth-death register is maintained in the Gram Panchayat
office and produced the original birth register for the year 2013, wherein
the victim is registered at Serial No. 135/13, according to which the
victim's date of birth is 27/10/2013. The victim's birth certificate issued
by their office has been produced and assigned Exhibit-34 which also
shows the victim's date of birth as 27/10/2013. Likewise, the
complainant/victim's mother, Rajuben Sanjaybhai Solanki, examined at
Exhibit-20, stated in her evidence that the victim's age is 6 years and she
was admitted to Standard 1. Moreover, the Investigating Officer in the
present case also verified the victim's certificate and included it in the
Page 11 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
investigation papers, which states the victim's date of birth as 27/10/2013.
Since the incident occurred on 03/03/2021 and as per birth date of the
victim, it is proved that the victim was minor aged 06 years and 1 month
at the time of the incident.
17.Statement of the victim under Section 164 Cr.P.C has been
recorded by the learned 6
th
Additional Chief Judicial Magistrate,
Kapadvanj vide Exhibit-19, wherein also the following questions-answers
were asked to the victim.
“Question:Beta (Child), did anything happen to you?
Answer: (Upon asking the present question, the child's expressions
changed and she states that, Langho told me I will give
Ambaliyo.
Question: Who is this Langho? What is his name?
Answer: His name is Jayanti but they call him Langho... He is Jayanti
Langho.
Question:What happened after saying about Ambaliyo?
Answer: (Upon asking this question to the child, the child immediately
asked to go out to avoid the conversation and stated I am going
to pass urine, I want to pass urine, saying so she went out with
her mother. The victim child came back and was seated in the
chair) The child answers looking down that Langho told me
that Ambaliyo is on the tin in my house, you go into my house.
When I went into Langho's house to take Ambaliyo, Langho
came into the house behind me and closed the door. Then
Langho caught my hand and holding my hand, the room in
middle of the …... there Langho took me by holding my hand.
Question: Then what happened Beta?
Answer: Then Langho opened the zip of his pant.
Question: Then what happened Beta?
Answer: Langho removed my entire pink colored lenghi.
Question: Then what happened Beta?
Answer: I was trying to shout but Langho pressed my mouth with his
hand so I could not shout.
Question: Then what happened Beta?
Answer: Then put his private part into my private part.
Question: Then what happened Beta?
Answer: When Langho put his private part into my private part, full
blood was coming out and blood started coming out drop by
Page 12 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
drop.
Question: Then what happened Beta?
Answer: I was having too much pain. When Langho was doing such
heinous act with me, I was just crying and crying, it was
paining a lot and I could not even walk. It happened like I
couldn't walk, couldn't sit on the cot and it was hurting a lot.
Question: Then what happened Beta?
Answer: My Mummy went at eight o'clock, then after some time Langho
called me I will give Ambaliyo, then took inside and did
heinous act with me and I cried a lot and blood started falling a
lot and it started paining extremely then Langho opened the
door and left me. Langho made me sleep on the plaster on
theground and did heinous act then when he left me, I could not
stand up so Langho held hand and made me stand up. Even
then blood was falling from my private part (Victim child
speaks and shows by gesture) and when I was coming to my
house from Langho's house and going to the backyard, blood
was falling in the drain also and my lenghi had become fully
wet with blood.
Question: Then what happened Beta?
Answer: Then I hid my blood-stained clothes and there was a lock on my
house so I took water from the barrel in my house's backyard
and took a bath. Before my Mummy came I had hidden one
blood-stained lenghi and had hidden one frock and had hidden
another lenghi. Those lenghis have been given in the Police
Station.
Question: Then what happened Beta?
Answer: Then I was just crying and I kept on crying the whole day.
Because I couldn't walk and it was paining a lot.
Question: Then what happened Beta?
Answer: When Langho did heinous act with me, my stomach was hurting
a lot and a lot of blood had fallen from my private part inside
Langho's house.
Question: Then what happened Beta?
Answer: When I came to my house from Langho's house, then also blood
was falling from my private part.
Question: Then what happened Beta?
Answer: After doing heinous act with me, Lango gave ten rupees and
said that if you tell anyone then I will do like this with you
daily. He did this so I told Langho that I will never come to
your house in my life.
Question:Then what happened Beta?
Answer: Then blood was coming from my private part so I kept sitting in
the backyard itself until my Mummy came.
Question:Then what happened Beta?
Answer: My Mummy came home at five o'clock then I was crying so my
Mummy asked me why are you crying. Then my Mummy looked
Page 13 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
in the backyard and she saw my clothes I had hidden, and after
taking those clothes my mother was asking me. I had hidden
clothes because my Mummy would beat me up. Then as blood
was coming from my private part and my lenghi was getting
spoiled and as blood stains were also seen on the back of the
white frock I had worn, my Mummy asked me as to what
happened with you. Then I told my Mummy that I will tell you
only if you don't tell Papa. Then my Mummy told me that she
will not tell Papa. Then I told my Mummy that Langho had put
his private part into my private part and I told what Langho
had done with me.
Question:Then what happened Beta?
Answer: Picture is over, now you go to your room. (Child plays and
says that I want to go home now.)
Question: Then what happened Beta?
Answer: My Mummy took me to the hospital then my Papa came to the
hospital. My Mummy and Papa remained hungry for two days
and remained hungry for half a day.”
18.If the evidence of the victim examined by the prosecution is seen,
who is examined at Exhibit-18 and considering the age of the victim who
is six years old at the time of incident asked the following questions.
“Question:- What does your mother do?
Answer:- Goes to work. Goes to work of tobacco.
Question:- What does your father do?
Answer:- Goes to service in Ahmedabad.
Question:-When your mother and father go to work in the morning, with
whom do you stay?
Answer:- I stay with my Moti Mummy (Aunt) and my Moti Mummy gives
me food in the afternoon.
Question:- What happened with you?
Answer:- Langho (Jayanti) took me into his house saying he would give
'Ambali' (tamarind).
Question:- Then what happened?
Answer:- Langho removed my lenghi.
Question:- Then what happened?
Answer:- Then laid me on the floor.
Question:- Then what did Langho do?
Answer:- He slept on top of me.
Question:- Then what did he do?
Answer:- Then he put his private part into my private part.
Question:- Did you have pain?
Answer:- I was bleeding.
Question:- Did you not shout?
Page 14 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
Answer:- He had pressed my mouth with hand.
Question:- Then did it hurt?
Answer:- Yes.
Question:- Where did it hurt?
Answer:- The witness gestures to the part below the stomach and shows
the place where it hurt.
Question:- If Langho did this with you, did you tell anyone?
Answer:- Yes, told my Mummy.
Question:- Did Langho Kaka (Accused) give you anything?
Answer:- Yes, Langho gave me ten rupees.
Question:-After you told your Mummy what Langho did, where did your
Mummy take you?
Answer:- To the Police Station.
Question:- Then where did she take you?
Answer:- Took to all hospitals, Kathlal, Nadiad, Ahmedabad, took
everywhere.
Question:-Did you tell everything to Doctor Saheb?
Answer:- Yes.
Question:-What was done with your clothes?
Answer:- Given to the police people.
Question:- If clothes are shown to you, can you identify?
Answer:- Yes.
Question:-How many times did Langho (Accused) do this with you?
Answer:- Once.
Question:-Did the police ask you anything?
Answer:- Yes, at that time I dictated everything correctly.
Question:-Were you taken to Kapadvanj?
Answer:- Yes.
Question:- Do you sign or do thumb impression?
Answer:- I do thumb impression.
Question:-Do you know Langha Kaka (Accused)?
Answer:- Yes, he used to live near my house."
19.Thus, considering the evidence of the victim-girl, it clearly appears
that the accused took her to his house saying he would give Ambali when
she was playing and then removed the victim's lenghi, laid her on the
floor, slept on top of her and put his private part into the genitals of the
victim resulted into her bleeding and the accused pressed her mouth with
his hand to prevent the victim from shouting and the accused gave ten
rupees to the victim.
Page 15 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
20.Therefore, now if the statement recorded under Section-164 of
Cr.P.C is taken into consideration, the victim has clearly stated therein
that the accused lured her to give Ambali, took her to his house, removed
her lenghi, the accused put his private part into her private part due to
which blood was coming out there-from for the whole day and there was
inflammation. Thus, considering the above statement also, it appears that
the victim was so scared by such heinous act that she had hidden her
blood-stained lenghi and frock and when her mother came home from
labor work, the victim was crying and seeing her lenghi in blood-stained
condition, upon asking, the victim who is a daughter of 6 years tender age
told her mother that "she will tell her mother only if she does not tell her
Papa and then her Mummy told her that she will not tell Papa." The said
victim informed the above fact to her mother and her mother took the
victim and filed the complaint immediately on the day of the incident and
the medical examination of the victim was conducted. Thus, if the entire
evidence of the said victim is taken into consideration, it is clearly proved
that the accused who is aged 45 years has taken the minor victim who is
aged only 6 years, a girl of tender age who has no understanding of
anything, into his house by luring her to give Ambali and committed
forcible sexual intercourse rape with her. The accused is shown to the
child witness on the screen and the witness has identified him. Thus, the
evidence of the victim girl supports the case of prosecution in toto.
21.Complainant, Rajuben Sanjaybhai Solanki, who is the mother of
the victim has been examined at Exhibit-20. She states in her evidence
that the victim is her daughter and was 6 years old at the time of the
incident. She was studying in 1
st
Standard and on the day of the incident
Page 16 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
her husband had gone for job at Ahmedabad and the complainant herself
had gone for labor work and upon returning in the evening, her daughter
was crying, her lenghi and clothes were wet, she was shivering and was
not able to speak anything and upon seeing in the bathroom the daughter's
lenghi was lying wet and top was also stained with blood and the lenghi
worn by the daughter was also contained with blood stains and upon
removing the victim's lenghi, she found that blood was coming out from
her private part. Thereafter, upon asking the victim calmly she stated the
fact that "In the afternoon when they were playing, Langho (Jayanti
Kaka) took her to his house saying that he will give Ambali and he made
me down on the ground in his house , removed her lenghi, pressed her
mouth with his hand, climbed upon her and was doing dirty things with
her and blood started coming out from the place of passing urine and
there was burning sensation and then gave her ten rupees and told that if
she tells this to anyone then he will do this again with her and therefore
she was scared" and then the complainant took her victim daughter's
blood-stained clothes and gave complaint at Police Station and has
identified the accused present in the Court. Thus, the said complainant
has also given evidence clearly supporting the facts of the Prosecution's
case.
Medical Evidence:-
22.The medical examination of the victim was first conducted on the
day of the incident itself at C.H.C. Kathlal with police yadi. Prosecution
Witness No. 8 Dr. Bhavik Vishnubhai Patel has been examined at
Exhibit-23 and he has given such evidence that, the victim was brought
with police yadi, samples collected from the victim's body were sent to
Page 17 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
FSL and history was noted. Thereafter, she was referred to Civil Hospital,
Nadiad for gynec examination and expert opinion. Also, on the day of the
incident itself, the accused was brought to C.H.C. Kathlal with police
yadi for physical examination. Necessary samples were collected from
the body of the accused and sent for FSL examination and the history
given by the accused was also recorded; wherein it was stated that "the
victim lived in his neighborhood and he know her for approximately six
months. In the morning on 03/03/21 at around 11-00 o'clock, she came
and sat on my cot and asked for a 10 rupee note from me, I asked her to
come inside the house. I gave her a 10 rupee note and laid her on the
ground inside the house and after laying her down and pulled her
lenghi down; she was shouting Mummy Mummy. He removed his
trouser and inserted a little part of his penis into her vagina and then as
she shouted more, he left her and she went to her house. Witness has
admitted all this and no force or coercion is made to him.” Thus, even
considering the history of the accused, the fact that the accused
committed rape with the victim is clearly proved.
23.The victim has been sent to Nadiad Civil Hospital for examination
along with a Referral Note. Dr. Kalpana Dhirenkumar Shah, who
conducted the medical examination of the victim, has been examined at
Exhibit-26. In her evidence, she has stated that the victim was brought in
for a physical examination by a Woman Police Constable, accompanied
by the Transfer Yadi from CHC Kathlal. Upon examination of the
victim's genitalia part, she noted that the victim's hymen was ruptured at
the six o'clock position and that it was ruptured on the posterior wall of
her vagina at the six o’clock position, with the fact that there was
Page 18 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
bleeding from that site. She further stated that the tearing of the victim’s
vaginal wall implies that the victim had sustained an injury to her
genitalia, and there was bleeding from the site. The injuries sustained by
the victim's private parts were of fresh nature. As per her opinion, the
injuries to the vaginal area were caused by forcible sexual intercourse.
However, in the cross-examination conducted on behalf of the accused,
the said Doctor-witness admitted the fact that there are many reasons for
a rupture of hymen. She admitted that bleeding occurs when the hymen is
ruptured. The Doctor submitted the victim's Medical Certificate and
Medical Case Papers vide Exhibit-28. Considering the evidence of the
said witness, the tearing of the victim's vaginal wall implies that an injury
was sustained to the victim's private parts, and blood was oozing out
there-from. The injuries to the victim's private parts were fresh in nature.
She has given a clear opinion that the injuries to the vaginal area were
caused by the victim being subjected to forcible sexual intercourse. Thus,
this fact is clearly substantiated by the aforementioned medical evidence,
establishing that the accused committed forcible sexual intercourse with
the minor victim on the day of the incident.
Evidence of the Panch Witnesses:
24.The prosecution has examined Panch Witness Jaydipsinh Abhesinh
Parmar vide Exhibit-36, regarding the seizure of the clothes of the victim
and the accused, and the drawing up of the Panchnama of the place of the
offence. In his evidence, he has clearly stated that on 04/03/2021, the
Kathlal Police called him to the residence of Chimnabhai Solanki in
Bajpey Nagar, Lasundra village, around 14:00 hours. Rajuben Sanjaybhai
Solanki and an F.S.L. Officer were also present there. In their presence,
Page 19 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
Rajuben pointed out the place of the offence which was situated inside
the house of Chimanbhai Gemabhai Solanki, and the police drew a
detailed Panchnama of that spot in their presence. At the scene of the
offence, reddish stains were observed. F.S.L. Officer present at the spot
inspected them and prima facie stated that the stains were of blood. This
blood was swabbed using cotton wool and seized for examination in a
transparent plastic container. On the same day, Rajuben, the mother of the
victim, produced the cloths worn by her daughter at the time of the
incident wherein one carrot-coloured frock, which showed bloodstains on
the front and back portions. One purple-coloured legging, which also
showed bloodstains on the front and back portions. These articles were
seized in the presence of the Panchas. Likewise on the same day, the
accused, Jayanti alias Landho Chimanbhai Solanki, was present at
Kathlal Police Station and produced the clothes he worn at the time of the
incident was produced wherein a blue and white dotted shirt showing
bloodstains. A grey coloured pant also showing bloodstains. Both articles
of clothing were seized by the police for the purpose of investigation,
after placing slips bearing his as well as second Panch’s signatures on
them. The witness has produced the Panchnama of the seizure of the
victim's clothes vide Exhibit-43, the Panchnama of the seizure of the
accused’s clothes vide Exhibit-46, and the Panchnama of the scene of the
offence vide Exhibit-39. Thus, the evidence of this witness clearly
supports the Panchnama drawn by the police.
25.Furthermore, the prosecution has proved the Panchnama drawn by
the Investigating Agency through the Panch Witness. In this case,
considering the significant evidence, the Site Inspection Report from the
Page 20 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
Directorate of Forensic Science, Gandhinagar, Mobile Investigation Van,
Kheda-Nadiad, Exhibit-51, reddish stains were found at the scene of the
offence in a radius of approximately 1 feet. Upon testing these stains with
the 'Blood Detection Kit' present in the Mobile Investigation Van, the
result was positive, and the said reddish stains were found to be prima
facie blood. The following samples related to the incident were sent for
analysis as per the Dispatch register vide Exhibit-52, the blood sample
taken by swabbing the reddish stain from the scene of the incident with a
cotton thread.
26.The Biological Examination Report relating to these samples is
produced vide Exhibit-55, the details of which are as follows:
Parcel
No.
Name and description of
the sample
Stain descriptionResult of analysis
B B-Shirt:
Long-sleeved shirt, blue
in colour with a white
dotted pattern.
Moderate
quantity
Medium sized
scattered brown
stains.
Presence of blood
was found.
Presence of
semen, saliva,
heirs was not
found.
B-1 B-1 Pants:
A pants of grey colour
Moderate
quantity
Medium sized
scattered brown
stains.
Presence of blood
was found.
Presence of
semen, saliva,
heirs was not
found.
A A-Frock:
A frock like pink colour
with red white and blue
designs having short
sleeve.
Stains in small
quantity, small to
medium in size.
Presence of blood
was found.
Presence of
semen, saliva,
heirs was not
Page 21 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
found.
A-2 A-2 legging:
purple coloured legging
Moderate
quantity
Medium sized
brown stains.
Presence of blood
was found.
Presence of
semen, saliva,
heirs was not
found.
C C-Some cotton threads in
a plastic beg.
Light brown
stains.
Presence of blood
was found.
27.Thus, taking into consideration the Biological Examination Report
produced vide Exh.-55 along with the Serology Report produced vide
Exh.-56, bloodstains were found on the accused's shirt as well as his
pants, which were found to be of Blood Group 'O', the blood group of the
victim. Similarly, bloodstains were found on the victim's legging and
frock, which were also determined to be of Blood Group 'O', the blood
group of the victim. Furthermore, the bloodstains found at the scene of
the offence in a surrounding area of 1-feet, were also found to be of
Blood Group 'O', the blood group of the victim. Thus, considering the
aforementioned F.S.L. Examination Report, the fact is clearly established
that the bloodstains found at the scene of the incident, on the accused's
pants and shirt, and on the victim's frock and legging, match the victim's
Blood Group 'O'. This evidence supports the conclusion that the accused
lured the victim on the pretext of giving her aambali, took her to his
house, removed her legging, and forcibly committed rape with her. Due
to the said rape, the victim's vaginal wall was ruptured and she sustained
injuries to her private parts, and blood was oozing from there which has
stained her legging and frock with blood.
Page 22 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
Evidence of the Investigating Officer :
28.Investigating Officer Dharmendrasinh Chandrasinh Raol (Sr.
P.S.I., Kathlal Pol. St.) is examined at Exhibit-47. In his evidence, he has
stated that while he was on duty at Kathlal Police Station, complainant
Rajuben Sanjaybhai Solanki appeared before him and narrated the facts
of complaint on 03/03/2021, which was reduced into writing. That he has
identified his signature as before in complaint, Exh.-2, and an entry of the
aforesaid offence was made which is produced vide Exh.-48 and as the
said offence falls under POCSO Act, and as the authority to investigate
such cases vests with Police Inspector, it has been stated that he has
forwarded the said case for further investigation. Thus, the Investigating
Officer has registered complainant’s complaint as mentioned by the
complaint.
29.Another Investigating Officer, Hardipsinh Chandrasinh Jhala (CPI,
Kapadvanj) is examined at Exh.-49 who has deposed that upon receiving
the investigation into the offence registered at Kathlal Police Station vide
C.R. No. 133/2021, he took charge of the investigation and conducted the
investigation.
30.Thus, the complainant, the victim and the witnesses have adduced
evidence corroborating the facts of prosecution case. Further, statement
of the victim as per section-164 of the Cr.P.C. has been recorded by the
Addl. Chief judicial Magistrate, Kapadvanj vide Exh.-17 wherein also she
has clearly stated that the accused had removed her legging and
committed rape on her. The fact which has been stated in the statement
Page 23 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
under Section 164 have been stated in the statement before the Court also.
Further, the accused was examined, seizure Panchnama of the clothes of
accused and victim and the Panchas of the Panchnama of the scene of
offence have been supported by the Panchas. Moreover, the Panch
Witness examined has given evidence that corroborates the facts recorded
in the Panchnamas for the seizure of the clothes of the accused and the
victim, as well as the Panchnama of the scene of the offence. Prosecution
has also examined Dr. Bhavik Vishnubhai Patel vide Exhibi-23, who has
examined the victim on the very day of the incident and medical case
papers and history has been produced therein also stated that the accused
committed rape on her. Furthermore, the victim was brought for medical
examination before Dr. Kalpana Dhirenkumar Shah at Nadiad Civil
Hospital and she has adduced evidence and as per her opinion, the
injuries to the Victim's vagina are attributed to forcible sexual intercourse
having been committed with her.
31.Thus, from the aforesaid facet of evidence, the prosecution has
clearly proved that the victim minor girl aged six years has been raped by
the accused which constitutes an act falling under Section 5(m) of the
POCSO Act, fulfilling the definition of rape under Section 375 of the IPC
and thereby the case falls under Section 6 of the POCSO Act.
32.Now, the questions comes for consideration as to whether the case
on hand in light of the evidence produced by the prosecution and believed
by the learned Special Court falls under the category of ‘rarest of rare
case’ wherein the sentence of death penalty may be confirmed on account
Page 24 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
of aggravating circumstances or any alternative punishment which
otherwise is of greater in degree due to having some mitigating
circumstances may be imposed?
Legal position / Case Law On the aspect of Awarding Sentence in
Rarest of Rare Case:-
33.The Supreme Court in the case of Machhi Singh (supra),
relying upon the guidelines drawn by the Apex Court in
Bachan Singh (supra) laid down the test on the individual facts
while pronouncing the sentence. In Paragraph Nos.37,38,39, the
Apex Court has observed as under:-
37. In this background the guidelines indicated in Bachan
Singh's case (supra) will have to be culled out and applied to the facts
of each individual case where the question of imposing of death
sentences arises. The following propositions emerge from Bachan
Singh's case:
(i) the extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability;
(ii) Before opting for the death penalty the circumstances of
the 'offender' also require to be taken into consideration alongwith
the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an
exception. In other words death sentence must be imposed only when
life imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and
provided, and only provided the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime and all the
relevant circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating
circumstances has to be accorded full weightage and a just balance
has to be struck between the aggravating and the mitigating
circumstances before the option is exercised.
38. In order to apply these guidelines inter-alia the
following questions may be asked and answered:
Page 25 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and calls for
a death sentence?
(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak
in favour of the offender?
39. If upon taking an overall global view of all the
circumstances in the light of the aforesaid proposition and taking into
account the answers to the questions posed here in above, the
circumstances of the case are such that death sentence is warranted,
the court would proceed to do so.”
34. In the case of Mofil Khan Versus State of Jharkhand
reported in (2015) 1 SCC 67, the Hon’ble Apex Court has
explained the meaning of “the rarest of rare case”. The
relevant portion of Paragraph No.64 is reproduced as under:-
“The rarest of the rare case” exits when an accused would be a
menace, threat and antithetical to harmony in the society. Especially
in cases where an accused does not act on provocation, acting on the
spur of the moment but meticulously executes a deliberately planned
crime in spite of understanding the probable consequence of his act,
the death sentence may be the most appropriate punishment.”
35.In the case of Haresh Mohandas Rajput Versus State of
Maharashtra reported in (2011) 12 SCC 56, the Apex Court
has emphasized the connotation “the rarest of the rare”. The
relevant portion of Paragraph No.56 is reproduced as under:-
“The rarest of the rare case comes when a convict would be
menace and threat to the harmonious and peaceful coexistence of
the society. The crime may be heinous or brutal but may not be in
the category of “the rarest of the rare case.”
36.In the case of Santosh Kumar Versus State Through
C.B.I reported in (2010) 9 SCC 747, the Apex Court has
explained the philosophy behind “the rarest of the rare case”.
Page 26 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
The relevant portion of in Paragraph No.98 is reproduced as
under:-
“Undoubtedly, the sentencing part is a difficult one and often
exercises the mind of the Court but where the option is between a
life sentence and a death sentence, the options are indeed
extremely limited and if the Court itself feels some difficulty in
awarding one or the other, it is only appropriate that the lesser
sentence should be awarded. This is the underlying philosophy
behind “the rarest of the rare” principle.”
37. In the case of Rameshbhai Chandubhai Rathod
(supra), the Apex Court has held that it is now well settled that
as on today the broad principle is that the death sentence is to
be awarded only in exceptional cases. The Court deciding the
issue has accepted the view by one of the Judge whereby in a
similar case of rape and murder of a minor girl below the age
of 12 years, the Court has given weightage to the fact that the
appellant was a young man only 27 years of age. It was
obligatory on the Trial Court to have given a finding as to a
possible rehabilitation and reformation and the possibility that
he could still become a useful member of the society in case
he was given a change to do so. The Apex Court while
relying upon the judgment of Ramraj Versus State of
Chhattisgarh reported in (2010) 1 SCC 573 and Mulla &
Another Versus State of Uttar Pradesh reported in (2010) 3
SCC 508, has observed that the term “imprisonment for life”
which is found in Section 302 of the I.P.C, would mean
“imprisonment for the natural life” of the convict subject to
the powers of the President and the Governor under Articles
72 and 161 of the Constitution of India or of the State
Page 27 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
Government under Section 433-A of the Code of Criminal
Procedure, however, converted the capital punishment into
the punishment for imprisonment of life. In Mulla's case
(supra), the Apex Court has said: “We are in complete
agreement with the above dictum of this Court. It is open to
the sentencing court to prescribe the length of incarceration.
This is especially true in cases where death sentence has
been replaced by life imprisonment. The court should be free
to determine the length of imprisonment which will suffice
the offence committed. Thus, we hold that despite the nature
of the crime, the mitigating circumstances can allow us to
substitute the death penalty with life sentence.” Therefore,
the Apex Court has given the punishment of life sentence,
which may extend to their full life subject to any remission
by the Government for good reasons. Thus, relying upon the
ratio of Ramraj (supra) and Mulla (supra), the Apex Court
in the case of Rameshbhai Chandubhai Rathod (supra)
maintained the same sentence in the similar terms. Therefore,
by the three Judges Bench, the Apex Court recognized that it is
obligatory on the Trial Court to have given a finding as to a
possible rehabilitation and reformation and the possibility
cannot be ruled out that he may be a useful member of the
society in case he is given a chance.
38. The Supreme Court in a judgment rendered in Shankar
Kisanrao Khade vs. State of Maharashtra, (2013) 5 SCC 546,
examined the entire case law where the penalty of death sentence was
Page 28 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
set aside in the case of an offence under Section 376 of IPC. The
Court laid down the aggravating circumstances called "crime test",
mitigating circumstances called “criminal test” and "the rarest of
rare cases test". It was held that the nature, motive, impact of
crime, culpability, quality of evidence, socioeconomic
circumstances, impossibility of rehabilitation are some of the
factors, the Court may take into consideration while commuting the
death sentence into imprisonment for life.
39. A useful reference is also made to a decision in case of
Bhaggi @ Bhagirath @ Naran vs. State of Madhya Pradesh [2024
(0) AIR (SC) 938] wherein the Hon’ble Apex Court in similar such
circumstances; where the age of the victim was aged seven years and
accused was aged forty years committed rape on victim aged seven
years wherein the accused was convicted for the offences punishable
under Sections 376 AB of the IPC, as also under Sections 3 and 4 and
5(m) and 6 of the POCSO Act and sentenced to undergo death penalty
under Section 376 AB of the IPC by the learned Sessions Court
concerned which has been modified by the High Court to the
imprisonment for life which shall mean imprisonment for natural life
and the Apex Court has modified to a sentence of rigorous
imprisonment for a term of 30 years which also includes the period of
sentence already undergone and the period of set off if ordered by the
learned trial Court. Relevant observations made by the Hon’ble Apex
Court while discussing the case laws is quoted hereunder:
“8. Evidently, the decision in Mulla’s case (supra) and a
catena of decisions where death sentence was commuted to the
imprisonment for life including the decisions in Bantu alias
Page 29 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
Naresh Giri v. State of M.P.
2
, Amrit Singh v. State of Punjab
3
and Rameshbhai Chandubhai Rathod (2) v. State of Gujarat
4
were considered by the High Court while commuting capital
sentence to imprisonment for life. A bare perusal of all those
decisions would reveal that those are cases involving rape and
murder of young girls aged between 4 to 12 years. It is true that
after referring to those decisions the High Court, in the instant case
held in paragraph 34 of the impugned judgment thus:-
xxx xxx xxx
11. In the circumstances obtained in this case there can be no
doubt regarding the requirement of deterrent punishment for the
conviction under Section 376 AB, IPC. The only question is
whether the commutation of capital punishment to sentence of life
imprisonment requires further interference. There can be no doubt
with respect to the position that on such commutation of sentence
for the conviction under Section 376 AB, IPC, the other alternative
available is only imprisonment for a period not less than 20 years
with fine. This position is clear from the provision under Section
376 AB, IPC which reads thus:-
“376AB. Punishment for rape on woman under twelve
years of age.—Whoever, commits rape on a woman
under twelve years of age shall be punished with
rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment
for the remainder of that person's natural life, and with
fine or with death:
Provided that such fine shall be just and reasonable
to meet the medical expenses and rehabilitation of the
victim:
Provided further that any fine imposed under this
section shall be paid to the victim.”
12.Thus, a bare perusal of Section 376 AB, IPC would reveal
that imprisonment for life thereunder means imprisonment for
the remainder of the convict’s natural life and the minimum
term of imprisonment under the Section is 20 years. Now,
while considering the question whether further interference
with the sentence handed down for the conviction of the offence
under Section 376 AB, IPC is warranted, it is only
appropriate to refer to a decision of this Court in Shiva
Kumar @ Shiva @ Shivamurthy v. State of Karnataka
5
. In
Shiva Kumar’s case (supra) this Court referred to the decision
Page 30 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
of a Constitution Bench of this Court in Union of India v. V.
Sriharan alias Murugan and Ors.
6
and also the decision in
Swamy Shraddananda (2) alias Murali Manohar Mishra v.
State of Karnataka
7
. Evidently, this Court in V. Sriharan’s
case (supra), upon considering the question whether
imprisonment for life in terms of Section 53 read with Section
45 IPC means imprisonment for rest of life of the prisoner or a
convict undergoing life imprisonment has a right to claim
remission, held after referring to the decision in Swamy
Shraddananda (2) (supra) that the power derived from the
Penal Code for any modified punishment within the
punishment provided for in the Penal Code for any specified
offence could only be exercised by the High Court and in the
event of further appeal only by the Supreme Court.
Furthermore, in paragraph 105 of the said decision it was
held:- “to put it differently, the power to impose modified
punishment providing for any specific term of incarceration or
till the end of the convict’s life as an alternate to death penalty,
can be exercised only by the High Court and the Supreme
Court and not by any other inferior Court.” In Shiva Kumar’s
case (supra) this Court further took note of what was held by
the Constitution Bench in V. Sriharan’s case (supra)
paragraph 104 as well, which reads thus: -
“104. That apart, in most of such cases where death
penalty or life imprisonment is the punishment imposed by
the trial court and confirmed by the Division Bench of the
High Court, the convict concerned will get an opportunity
to get such verdict tested by filing further appeal by way of
special leave to this Court. By way of abundant caution
and as per the prescribed law of the Code and the criminal
jurisprudence, we can assert after the initial finding of
guilt of such specified grave offences and the imposition
of penalty either death or life imprisonment, when comes
under the scrutiny of the Division Bench of the High Court,
it is only the High Court which derives the power under the
Penal Code, which prescribes the capital and alternate
punishment, to alter the said punishment with one either
for the entirety of the convict's life or for any specific
period of more than 14 years, say 20, 30 or so on
depending upon the gravity of the crime committed and
the exercise of judicial conscience befitting such offence
found proved to have been committed.”
13.After referring to the relevant paragraphs from the said
decisions in Shiva Kumar this Court held as follows: -
Page 31 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
“13.Hence, we have no manner of doubt that even in a
case where capital punishment is not imposed or is not
proposed, the Constitutional Courts can always exercise
the power of imposing a modified or fixed-term sentence by
directing that a life sentence, as contemplated by
“secondly” in Section 53 of the IPC, shall be of a fixed
period of more than fourteen years, for example, of twenty
years, thirty years and so on. The fixed punishment cannot
be for a period less than 14 years in view of the mandate of
Section 433A of Cr.P.C.”
14.In view of the decisions referred (supra) and taking
note of the position that when once the conviction is
sustained under Section 376 AB, IPC the fixed term
punishment could not be for a period of less than 20 years.
Evidently, the High Court had referred, in paragraph 33 of
the impugned judgment, to decisions where minor girls
were raped and murdered, but did not pointedly consider
whether for the conviction under Section 376 AB, IPC
involving commission of rape of victim, aged 7 years
not coupled with murder what would be the comeuppance,
after deciding to commute the capital sentence.
15.We have taken note of the hapless situation of the
victim after being taken to a temple by the petitioner-
convict. The evidence would reveal that unmindful of the
holiness of the place he disrobed her and himself and
raped her. When such an act was done by the petitioner,
who was then aged 40 years and X who was then aged only
7 years and the evidence that when PW-2 and PW- 14
reached the place of occurrence, blood was found oozing
from the private parts of the disrobed child. The High
Court had rightly considered the aggravating and
mitigating circumstances while commuting the capital
sentence into life imprisonment which going by the
provisions under Section 376 AB, IPC means rest of the
convict’s natural life. For effecting such commutation, the
High Court also considered the question whether there is
possibility for reformation and rehabilitation of the
petitioner and opined that it is not a case in which the
alternative punishment would not be sufficient in the facts
of the case. But then, it is noted that if the victim is
religious every visit to any temple may hark back to her
the unfortunate, barbaric action to which she was
subjected to. So also, the incident may haunt her and
adversely impact in her future married life.
Page 32 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
16.Then, we are also to take into account the present
age of the petitioner and the fact that he has already
undergone the incarceration. On consideration of all such
aspects, we are of the considered view that a fixed term of
sentence of 30 years, which shall include the period
already undergone, must be the modified sentence of
imprisonment.
17.We have already taken note of the fact that while
commuting the capital sentence to life imprisonment, the
High Court had lost sight of the fact that despite conviction
under Section 376 (2) (i) and under Sections 3/4, Sections
5(d)/6 of the POCSO Act, no separate sentences were
imposed on the petitioner for the offence under Section 3/4
and 5(m)/6 of the POCSO Act by the Trial Court, evidently,
only on the ground that capital sentence is imposed on the
petitioner for the offence under Section 376 AB, IPC.
However, it is a fact that the said aspect escaped the
attention of the High Court. That apart, in terms of the
provisions under Section 376 AB, IPC when a sentence of
imprisonment for a term not less than 20 years which may
extend upto life imprisonment is imposed, the convict is
also liable to suffer a sentence of fine which shall be just
and reasonable to meet the medical expenses and
rehabilitation of the victim which we quantify as Rupees
One Lakh and the same shall be paid to the victim with
respect to the conviction under Section 363, IPC. In that
regard also, there is absolutely no consideration in the
impugned judgment.”
(emphasis supplied)
40. Yet in the recent decision, the Hon’ble Apex Court in case
of Baluru Thippaiah @ Byaluru Thippaiah @ Nayakara Thippaiah
vs. State of Karnatak [2025 INSC 862] after referring to Bachan
Singh (supra) on the aspect of applying the test to be applied while
sentencing the convict and considering the decision in case of Ramesh
A. Naika vs. Registrar General [2025 SCC OnLine SC 575] whereby
the factors to be elucidated that (a) lack of criminal antecedents; (b)
satisfactory conduct in prison; (c) possibility of reformation; as a
criteria, apply to the case like on hand, and partly allowed the appeal
Page 33 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
by altering the death penalty into life imprisonment till the last breath
in prison; without remission. Relevant observations made in
paragraph No.11 to 17 are quoted hereunder:
“11. On the aspect of sentencing, the test to be applied is as to
whether the conduct of the Appellant-convict meets the standard of
‘rarest of rare cases’. This has been the consistent position in
confirmation of sentences of death imposed by the trial courts, ever
since Bachan Singh v. State of Punjab
18
. Swami Shradhanand v.
State of Karnataka
19
, introduced a new position wherein the Courts
were able to impose sentences that fall short of death but at the same
time, keeping in mind the heinousness of the crime by the accused
persons, ensure that the society is not put in danger with the
possibility of such an accused walking free. In para 10 thereof, it was
observed: “The absolute irrevocability of the death penalty renders it
completely incompatible to the slightest hesitation on the part of the
Court.”
With the judgment in Manoj v. State of M.P.
20
came a watershed
moment in the criteria of sentencing. This judgment ensured that if
and when a person is finally sent to the gallows he is only so sent
after due consideration of the entire background of facts and
circumstances that have landed the accused person at the precipice of
death. Under the direction issued therein, the Court is required to call
for reports that detail the social and psychological backdrop of the
Appellant-convict. It was held by the three-Judge Bench as follows :
“249. To do this, the trial court must elicit information from
the accused and the State, both. The State, must—for an
offence carrying capital punishment—at the appropriate
stage, produce material which is preferably collected
beforehand, before the Sessions Court disclosing psychiatric
and psychological evaluation of the accused. This will help
establish proximity (in terms of timeline), to the accused
person's frame of mind (or mental illness, if any) at the time
of committing the crime and offer guidance on mitigating
factors (1), (5), (6) and (7) spelled out in Bachan Singh
[Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980
SCC (Cri) 580] . Even for the other factors of (3) and (4)—an
onus placed squarely on the State—conducting this form of
psychiatric and psychological evaluation close on the heels of
commission of the offence, will provide a baseline for the
appellate courts to use for comparison i.e. to evaluate the
progress of the accused towards reformation, achieved during
the incarceration period.
250. Next, the State, must in a time-bound manner,
collect additional information pertaining to the accused. An
Page 34 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
illustrative, but not exhaustive list is as follows:
(a) Age
(b) Early family background (siblings, protection of parents, any
history of violence or neglect)
(c) Present family background (surviving family members, whether
married, has children, etc.)
(d) Type and level of education
(e) Socio-economic background (including conditions of poverty or
deprivation, if any)
(f) Criminal antecedents (details of offence and whether convicted,
sentence served, if any)
(g) Income and the kind of employment (whether none, or temporary
or permanent, etc.);
(h) Other factors such as history of unstable social behaviour, or
mental or psychological ailment(s), alienation of the individual (with
reasons, if any), etc.
This information should mandatorily be available to the trial
court, at the sentencing stage. The accused too, should be
given the same opportunity to produce evidence in rebuttal,
towards establishing all mitigating circumstances.
251. Lastly, information regarding the accused's jail
conduct and behaviour, work done (if any), activities the
accused has involved themselves in, and other related
details should be called for in the form of a report from the
relevant jail authorities (i.e. Probation and Welfare Officer,
Superintendent of Jail, etc.). If the appeal is heard after a
long hiatus from the trial court's conviction, or High
Court's confirmation, as the case may be — a fresh report
(rather than the one used by the previous court) from the
jail authorities is recommended, for a more exact and
complete understanding of the contemporaneous progress
made by the accused, in the time elapsed. The jail
authorities must also include a fresh psychiatric and
psychological report which will further evidence the
reformative progress, and reveal post-conviction mental
illness, if any.”
12.The High Court did, in accordance with Manoj (supra), call
for the reports. However, we are of the considered view, that the
said reports have not been considered to their full extent. The
Probation Report reveals that the Appellant-convict has no
antecedents; there is mixed opinion on whether he is suitable for
reformation or not. The “Conduct and Behavioural Report”
submitted by the Government of Karnataka, Prisons and
Correctional Services records that he has “good moral character”
and “good conduct” with co-prisoners and prison officials. He has
Page 35 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
also attempted to mend one of the gaps in the fabric of his life i.e.,
literacy by participating in the Basic Literacy Program organized by
the Zilla Lok Shiksha Samiti and passing the same with good rank.
13.The mitigation report reveals difficulties throughout- lack of
paternal/maternal love and care which later became extreme
protectiveness after the death of his brother, difficulties in learning
in school leading to him dropping out, making impulsive decisions in
business often leading to losses, breakdown of the marriage with his
first wife for the reason that neither quite comprehended issues with
substance dependence.
14.Once incarcerated, it appears that mental health struggles have
been a constant and unwelcome companion. He considered making an
attempt to take his own life on two occasions, one when he found out
about the deaths of his entire family and two, when he himself was
sentenced to death.
15.The report further concludes that:
(a)the Appellant-convict has the ability to adapt, engage in
constructive activities, pursue an education despite past difficulty,
continued worry about his daughter (Rajeshwari’s) future, shows
a notable capacity for reform and personal growth;
(b) the Appellant-convict’s continued incarceration has had a
negative impact on Rajeshwari, who is really struggling to cope
with life. Interactions with her, threw light on a gentle, loving side
of the Appellant- convict. She has also reported experiencing
auditory hallucinations which is a direct impact of loneliness she
has been enduring.”
41. In view of the proposition and law laid down by the Hon’ble
Apex Court as discussed in the foregoing paragraphs on the aspect of
category of the “rarest of rare case” whereby, it has been held that if
the convict would be a menace and threat to the harmonious and
peaceful coexistence of the society, it would come under the category
of rarest of rare case; irrespective of the fact that crime may be a
heinous or brutal in nature. Thus, keeping in mind the aforesaid legal
aspect equating with the facts of the case on hand, undoubtedly the
Page 36 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
sentencing part is a difficult one and requires to undertake such
exercise by the Court concerned having jurisdiction to award the
sentence; where the option is between a life sentence and a death
sentence and the Court concerned finds it difficulty in awarding the
sentence, then the appropriate recourse would be to impose the lesser
sentence.
42. Thus, in light of the aforementioned legal position, it is
implicit clear that the death sentence is to be awarded only in
exceptional cases as it is obligatory on the part of the learned Court
concerned to give a finding on the aspect of reformation and the
possibility that the convict will become a useful member to the society
in case he will be given a chance to do so. In nutshell, as per the
guidelines indicated in Bachan Singh’s case (supra) which otherwise
applies to the facts of each individual case while imposing the death
sentence, the Court concerned has to consider the gravity of extreme
culpability, the mitigating circumstances, the social economic
condition of the offender equating the way and the circumstances in
which the crime has been committed; so also the victimisation of the
person involved in the crime and the adverse societal impact of the
crime in question. All these aspects require to be examined by calling
for appropriate report/s and after recording such subjective satisfaction
that there appears such extreme and exceptional circumstances leaving
no room for the Court except to impose the death penalty.
43. In context to the above discussion, if the facts of the present
case is examined, it would appear that convict committed rape on a
Page 37 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
minor girl aged six years by calling her to give Ambli in his house and
while committing rape on her, he pressed her mouth so that she would
not be able to shout and in furtherance of such act the convict also
gave threat to the victim-girl by asking that if the victim discloses
such an act before anyone, he will do it again. 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.
44. Furthermore, the jail record also shows that convict is not
involved in any offence; except the present offence and therefore the
test to be applied for while awarding death penalty in such heinous
offence as discussed herein above after referring to the catena of
decisions of the Hon’ble Apex Court is to observe that there is no
criminal antecedents; convict is having good behaviour in prison and
there would be chances of reformation. In view of the jail report, no
such antecedents are reported and conduct of the convict in the jail is
reported to be good; however learned Special Court has not
undertaken any such exercise to verify the aspect leading towards
reformative measures. Thus, in such circumstance, the proposition laid
down by the Apex Court does warrant to be considered while
Page 38 of 39
R/CC/4/2022 JUDGMENT DATED: 12/12/2025
sentencing which in case requires to be altered to the punishment of
imprisonment of life till the reminder of the life.
45. 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.
45.1 Accordingly, Criminal Appeal No.1525 of 2024 preferred
by the convict – accused is disposed of in aforesaid terms.
46. 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.
(ILESH J. VORA,J)
(R. T. VACHHANI, J)
sompura
Page 39 of 39
Legal Notes
Add a Note....