In cases relying on circumstantial evidence, doubts should favor the accused, and the recovery of incriminating articles must be unimpeachable for conviction.

JUDGMENT :

Goutam Bhaduri, J

1. The present Appeal is against the judgment of conviction and order of sentence dated 23.07.2021 passed by the Additional Sessions Judge (FTC), Kondagaon, District Kondagaon in POCSO Case No.21/2018 (CG) whereby, the Appellant has been convicted for the offence under Sections 363, 302, 376 and 201 of IPC as also under Section 4 of the Protection of Children from Sexual Offence Act, 2012 (for short ‘the POCSO Act’) and sentenced to undergo RI for 7 years with a fine of Rs.1,000/- on each count under Sections 363 and 201 IPC and to undergo imprisonment for life with fine of Rs.1,000/- under Section 302 IPC. Since maximum sentence was prescribed under Section 4 of the POCSO Act, the Appellant has been sentenced only under Section 4 of the said Act to undergo imprisonment for life till his natural death with usual default stipulation and not under Section 376 IPC.

2. Case of the prosecution is that on 12.06.2018, Complainant-BP (PW-1) lodged a written report alleging that on 11.06.2018, his minor daughter aged about 4 years, while playing in village GTP went missing since 3 pm on the basis of which, missing report was lodged under Section 363 IPC. Subsequently, on 14.08.2018, at village GTP, the dead body of the child was found floating in a pond near the stone mines. Therefore, on the basis of the same, initial merg was registered and the dead body was sent for postmortem. After postmortem and investigation, as per the prosecution, at the instance of the accused/Appellant, who is the grand father of the deceased, the clothes i.e. the lungi and frock were recovered and after recording the statement of the witnesses, the Appellant was arrested and charge sheet was filed against him under Sections 363, 376, 302 and 201 IPC and under Section 6 of POCSO Act.

3. During the course of trial, the Appellant abjured his guilt and claimed to be tried and his statement was recorded under Section 313 of Cr.P.C. In order to prove its case, the prosecution has examined as many as 15 witnesses and exhibited 33 documents. Charges were framed under Sections 363, 376, 302 and 201 IPC as also under Section 4 of the POCSO Act. The learned trial Court, after evaluating the evidence and facts, convicted the accused/Appellant as aforesaid. Hence this Appeal.

4. Shri Dangi, learned Counsel for the Appellant submits that admittedly, there is no eye-witness to the incident and the entire case is based on the incriminating articles recovered on the basis of the memorandum i.e. a lungi of the accused/Appellant and a frock of the deceased, which were hidden under the mud but the evidence would show that the recoveries were made from an open place. He further submits that learned Sessions Judge further proceeded to convict the Appellant on the basis of the statement of BP (PW-1), who is his son, who deposed against his father and reasons have been assigned as to why the son would depose against his father and such analogy would defeat the criminal jurisprudence without any proof. He further submits that the recovery so made by the prosecution would show that the Appellant has been falsely implicated in as much as the FSL report also does not support the prosecution. He placed reliance on Bijender Alias Mandar vs. State of Haryana reported in (2022) 1 SCC 92 and Vijay Thakur vs. State of Himachal Pradesh reported (2014) 14 SCC 609 and submits that the nature of recovery on which the Appellant has been convicted by the aid of circumstantial evidence does not prove the case of prosecution. Therefore, the impugned judgment requires to be interfered with and the Appeal may be allowed by acquitting the accused/Appellant.

5. Per contra, Shri Nayak, learned State Counsel supported the impugned judgment of conviction and submitted that recovery of the incriminating article i.e. the lungi had a particular identification and the same was proved by BP (PW-1), the son of the accused/Appellant. He further submits that as the incriminating article was