JUDGMENT

Munishwar Nath Bhandari, J. - This judgment would answer the reference sent by the Court of Special Judge, Protection of Children from Sexual Offences No.1, Jhalawar (Rajasthan) for confirmation of death sentence. Since, the accused has also preferred an appeal, thus while hearing death reference, the appeal was also heard and is decided by this common judgment. The accused has been convicted and sentenced by the trial Court as under :

"For offence under Section 363 IPC - Seven years rigorous imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo one year rigorous imprisonment.

For offence under Section 366A IPC - Ten years rigorous imprisonment with fine of Rs. 20,000/-, in case of default to pay fine, to further undergo two years rigorous imprisonment.

For offence under Section 376(2)(i) IPC - Life imprisonment for remainder of his life with fine of Rs. 20,000/-, in case of default to pay fine, to further undergo two years rigorous imprisonment.

For offence under Section 376A IPC - Death sentence

For offence under Section 302 IPC - Death Sentence with fine of Rs. 20,000/-, in case of default of payment of fine, to further undergo two years rigorous imprisonment."

Since death penalty has been given to the accused, it has been referred to the High Court for confirmation as per Section 366 Cr.P.C., 1973

Brief facts of the case :

2. An FIR was registered by the Police Station Kotwali, Jhalawar on a written report of Rajesh s/o Devi Lal. In the written report dated 14th February, 2018, it was mentioned that the complainant Rajesh went to attend a programme in a temple while his children went to a "Mela". The complainant came back to Jhalawar. His daughter, at the age of six years, was found missing. The complainant and his relatives made search of the daughter but she was not found and, accordingly, the report was made. The delay in making report was explained, as the complainant was making search of the daughter at his own and when she could not be traced out, the report was made.

3. The FIR was initially registered for the offence under Section 363 IPC. A day after registration of FIR, the dead body of the girl was recovered and, accordingly, the investigation was made for the offence under Sections 363, 366A, 376, 376A and 302 IPC apart from Section 5 (i,m)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act"). After the investigation, charge sheet was filed for the offence under Sections 363, 366A, 376, 376A and 302 IPC apart from Section 5 (i,m)/6 of the POCSO Act. After taking cognizance, the matter was remitted. The trial Court, thereupon, framed charges for the offence under Sections 363, 366A, 376, 376A and 302 IPC apart from Section 5 (i,m)/6 of the POCSO Act. The charges were explained to the accused, which were denied by him, thus the trial commenced. The prosecution produced twenty five witnesses apart from fifty two documents to prove their case. The statement of the accused was recorded under Section 313 Cr.P.C., 1973 After marshalling the evidence, the trial Court convicted the accused and sentenced him, as described earlier.

4. The complainant Rajesh was examined by the prosecution as PW - 1. It was stated that he is a resident of "Chhoti Raipur". On 14th February, 2018, there was a festival of "Shivratri", thus he went to a temple while his two daughters, out of which one was at the age of six years, went to a "Mela". The daughter of the complainant, who was at the age of six years, did not return. They made a search of the girl but she could not be traced out. In between the accused Modsingh met, who had given money to him for liquor and both of them consumed it. When the girl could not be traced out, a report was made to the police. The dead body of the girl was thereupon recovered on the next morning in the agricultural field of Mohan Lal. The police was accordingly informed. A blood stained cement plastic bag (Katta) was lying near the de