“The manner in which the offence is committed is not barbaric and brutal.”

The Madhya Pradesh High Court has yet again commuted the death sentence in a rape case, this time to a man accused of raping a five-year-old.

Rajkumar Kol, an autorickshaw driver, was sentenced to death by a Sessions’ court in Katni District after he was found guilty of raping a five-year-old after a trial that reportedly lasted just five days. The conviction was under Sections 376(AB) and 366 of the Indian Penal Code.

On his appeal, the bench comprising of the Chief Justice Hemant Gupta and Justice Vijay Kumar Shukla, referring to medical reports, observed that the act of the accused inserting finger into the private part of the prosecutrix amounts to rape under the definition of Section 375 of IPC but the manner in which the offence is committed is not barbaric and brutal.

It said: “Though the offence is condemnable, reprehensible, vicious and a deplorable act of violance but the same does not fall within the aggravating circumstances namely extreme depravity and the barbaric manner in which the crime was committed.”

The bench further said that it is not a case in which the alternative punishment would not be sufficient to the facts of the case. It said: “Taking into consideration the totality of the facts, nature, motive and the manner of the offence and further that nothing has been brought on record by the prosecution that the accused was having any criminal antecedent and the possibility of being rehabilitation and reformation has also not been ruled out. Nothing is available on record to suggest that he cannot be useful for the society. “

The bench then commuted the sentence to rigorous imprisonment for a period of 20 years and fine of Rs. 10,000.

Section 376(AB) of the Indian Penal Code provides for death penalty as maximum punishment for rapists of girls below 12 years of age. It was only some days ago, the High court had commuted death sentence to a man convicted of raping a 7 year old girl. This is the second instance where the High court is commuting the sentence due to lack of aggravating circumstances viz. extreme depravity and the barbaric manner in which the crime was committed.

In this case also, the bench reiterated that the ‘rarest of rare’ test still applies. It said: “Newly inserted Section 376-AB in the Penal Code provides that in the case of rape with a woman under 12 years of age, minimum rigorous imprisonment has been provided not less than twenty years which may extend to imprisonment for life which shall mean natural life and with fine. Thus, the test for awarding the death sentence in the case of woman under 12 years of age shall be still the same which has been laid down in the various judgments prior to the amendment i.e. ‘rarest of rare case’.”