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‘He is doing Namaz several times’: Orissa High Court commutes death sentence of Sheikh Asif Ali, who was convicted for rape and murder of a 6 year old girl

The court remarked, "Keeping in view the ratio laid down in the decisions discussed above, it is borne out of the record that the offence was committed against a girl child aged about six years in a most horrendous, devilish and barbaric manner, but the case is based on circumstantial evidence and there is no material on record that the crime was committed in a pre-planned manner.”

On 20th June, the Orissa High Court commuted the death sentence of Sheikh Asif Ali to life imprisonment from death sentence. Asif is convicted of rape and murder of a six-year-old girl. The court noted in the judgment that Asif was consistently offering Namaz several times a day and he was ready to accept the punishment as “he has surrendered before God”. The court took his readiness to accept his punishment as a sign of remorse and potential to reform.

The Bench comprising of Justice SK Sahoo and Justice RK Pattnaik stated, “The punishment should not be disproportionately great is a corollary and it is dictated by the same principle that does not allow punishment of the innocent, for any punishment over what is deserved for the criminal conduct is punishment without guilt. There is no cogent evidence that the appellant is beyond reform and rehabilitation,” while commuting the death sentence to life imprisonment.

The incident

On 21st August 2014, the young victim and her minor cousin went to buy chocolates at around 2 PM. By 3 PM the girl did not return which worried her family. They called the villagers and initiated a search for her. The 6-year-old was found naked and unconscious in a narrow part of Sheikh Khairuddin’s house. She was rushed to a primary health care centre from where she was referred to SCB Medical College and Hospital in Cuttack. While she was being taken to the hospital, the victim succumbed to her injuries.

The victim’s cousin disclosed later that Sheikh Asif Ali and Sheikh Akil Ali had forcibly taken her away. A complaint in the matter was filed by the victim’s family leading to a case being registered against the accused under Sections 302, 376-D, and 376-A of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act.

During the investigation and based on the postmortem report of the deceased, it was found that the accused in the case gagged the mouth of the deceased and lifted her in arms to take her away. They raped the 6-year-old child and then strangulated her to death.

Trial and Orissa High Court observations

Though the trial court convicted the accused under the said Sections of IPC and POCSO, the Orissa High Court, upon re-examination of evidence and testimonies acquitted Sheikh Akil Ali of all charges due to lack of evidence. In the case of Sheikh Asif Ali, the court said, “The prosecution failed to establish the charge under section 376-D of the IPC against the appellant Sheikh Asif Ali. He is acquitted of such charge but found guilty under sections 302, 376-A of the IPC, and Section 6 of the POCSO Act.”

Rationale for commutation

While commuting the sentence, the Orissa High Court noted that there was a lack of cogent evidence that indicated Asif was beyond reform and rehabilitation. The court emphasised that capital punishment should be reserved for the “rarest of rare” cases where life imprisonment is insufficient.

Despite acknowledging the heinous nature of the minor girl rape, the Court highlighted the circumstantial basis of the case and the absence of premeditation. The court remarked, “Keeping in view the ratio laid down in the decisions discussed above, it is borne out of the record that the offence was committed against a girl child aged about six years in a most horrendous, devilish and barbaric manner, but the case is based on circumstantial evidence and there is no material on record that the crime was committed in a pre-planned manner.”

The court noted, “It seems that both the appellants noticed the deceased in the company of cousin brother while they were returning after purchasing chocolates and then the deceased was lifted away and she was subjected to rape during the course of which she sustained injuries on different parts of her body and her death was due to shock and haemorrhage as a result of injuries to genital track which were fatal in the ordinary course of nature. No harm has been caused to the minor cousin while lifting away the deceased even though the appellants must have been aware that is likely to disclose their misdeeds before the family members and others.”

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