IMPORTANT POINTS
(1) On the date when accused is convicted, he is under shock and hearing him on question of sentence on same day is not doing justice with him.
(2) Accused cannot be awarded both the sentences at the same time under the IPC as well as under the POCSO Act for the same offence.

JUDGMENT

Pankaj Bhandari, J.—Present D.B. Criminal Death Reference No.03/2021 has been moved by the Special Judge, POCSO Court, Jhunjhunu (Rajasthan) for confirmation of death sentence dated 17.03.2021 given to accused – Sunil Kumar in Sessions Case No.11/2021 – State of Rajasthan Versus Sunil Kumar, FIR No.0087/2021 registered at Police Station Pilani, District Jhunjhunu. Aggrieved by the judgment of conviction dated 16.03.2021 and the order of sentence dated 17.03.2021, accused – Sunil Kumar has preferred D.B. Criminal appeal No.66/2021. By the aforesaid judgment of conviction dated 16.03.2021, accused was convicted for offence under Sections 366(A), 376(2)(i)(j)(m), 376(AB) of IPC and Section 5(m)/6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”), in alternate Section 376(AB) of IPC and 5(m)/6 of POCSO Act. For offence under Section 366A of IPC, he was sentenced for 10 years imprisonment and a fine of Rs.25,000/-and in default of payment of fine, to further undergo 3 months additional imprisonment. For offence under Section 376(2)(i)(j)(m) of IPC, he was sentenced for life imprisonment till his natural life and a fine of Rs.25,000/-and in default of payment of fine, to further undergo 3 months additional imprisonment. For offence under Section 376(AB) of IPC, he was sentenced for life imprisonment till his natural life and a fine of Rs.25,000/-and in default of payment of fine, to further undergo 3 months additional imprisonment. For offence under Section 5(m)/6 of POCSO Act, he was awarded death penalty. All the sentences were directed to run concurrently.

2. Succinctly stated the facts of the case are that a written report (Exhibit-P9) was given to the SHO by Rahul (PW-5), brother of the victim, aged about 16 years. The said report reads as under:

(Matter in other language)

3. The said report was received by the SHO, Government Hospital, Chidawa. As per the report, the incident took place on 19.02.2021. The police registered FIR bearing No.87/2021 (Exhibit-P72) at 04:04 AM on 20.02.2021. The police investigated the case and the sample of the victim was obtained. Her ‘nikar’ was seized vide Exhibit-P4. Site plan of the place of incident was prepared. Accused was arrested on 20.02.2021. His underwear was seized vide Exhibit-P30. His vest was also seized vide ExhibitP37. Scooty which was used for abducting the child was seized vide Exhibit-P40. Seat covers and foot board of the scooty were seized vide Exhibit-P41. CCTV footages were also obtained. Accused was subjected to test identification parade. Samples of the accused were taken on FTA Card and all were forwarded to the State Forensic Science Laboratory and a report was obtained. Police after due investigation submitted charge-sheet against the accused. Accused denied charges and sought trial upon which 27 witnesses were examined and as many as 115 documents were produced as Exhibit-P1 to P115 on behalf of the prosecution. Explanation of the accused appellant was recorded under Section 313 Cr.P.C. Three documents (Exhibit-D1 to D3) were exhibited in defence. After hearing the counsel for the accused appellant as well as State, the trial Court vide its judgment of conviction dated 16.03.2021 has convicted the accused for the aforesaid offences and after hearing the accused on question of sentence vide order of sentence dated 17.03.2021 has awarded death penalty to the accused, therefore, he has preferred an appeal against the said conviction and sentence order before this Court.

4. It is contended by Mr. P.C. Jain, Advocate, appearing for the accused appellant that the police has acted in a hot haste. Report was lodged on 19.02.2021, FIR was registered on 20.02.2021. Within 12 days, the charge-sheet was filed on 04.03.2021 and plea of the accused was recorded on 04.03.2021 and thereafter, within a week, statements of 27 witnesses were recorded and explanation of the accused was also recorded. Within a week thereafter, the