In cases involving the imposition of the death penalty, the court must consider the mitigating circumstances and draw a balance sheet between aggravating and mitigating factors before exercising the option of imposing the extreme penalty.

JUDGMENT

Munishwar Nath Bhandari, J. - The Special Court, SC/ST (Atrocities) Cases & POCSO Act, Alwar (Raj.) has convicted and sentenced the accused-appellant with death penalty for the offence under section 376AB IPC. The trial court has thus made reference to the High Court under Section 366 Cr.P.C., 1973 for confirmation of death penalty.

2. The accused-appellant has preferred an appeal to challenge the order dated 18th July, 2018 passed by trial court convicting and sentencing him as under:

Accused-Pintu:

For offence under Section 363 IPC - 5 years' rigorous imprisonment with fine of Rs. 10,000/-, in case of default to pay fine, to further undergo one year simple imprisonment.

For offence under Section 366 IPC - 7 years' rigorous imprisonment with fine of Rs. 20,000/-, in case of default to pay fine, to further undergo two years simple imprisonment.

For offence under Section 376AB IPC - Death penalty.

Brief Facts Of The Case:

3. A report was made with Police Station Laxmangarh, District Alwar (Exhibit-P1) alleging that on 9th May, 2018, while complainant-Suresh Chand was at Village Harsana, victim girl at the age of seven months was left with his bhabhi (Vimla Devi). At around 6.00 PM, acused-Pintu S/o Sohanlal Joshi came at his residence and took away the victim girl. When complainant came to his residence and asked his 'bhabhi' about girl (victim), it was informed that accused-Pintu has taken her away half an hour back. The complainant went to search the girl. When he reached near Football Ground, heard cry of a girl. When he reached to the place of occurrence, saw victim on the lap of accused-Pintu. The accused ran away immediately leaving the victim girl.

The Police registered an FIR for offences under Sections 363, 366A, 376 IPC and sections 3 and 4 of the Protection of Children from Sexual Offences Act (in short "the POCSO Act"). After investigation, the charge sheet was filed. Learned trial court thereupon framed charges for offences under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the POCSO Act. The accused denied the charges thus trial commenced. The prosecution produced 21 witnesses apart from 45 documents to prove the case. The statement of accused was recorded under Section 313 Cr.P.C., 1973 and he produced one witness in defence. The trial court convicted the appellant for offences under Sections 363, 366, 376AB IPC and Section 5(m)/6 of the PoCSo Act vide its order dated 18th July, 2018.

4. Learned counsel submits that prosecution could not bring evidence to prove case beyond doubt. There is variation and contradiction in the statements of witnesses. It is also that tainted investigation was conducted. The sample of semen of accused was taken before his arrest. The memo of sample is not having signature of the Doctor. The trial court should not have believed the evidence to convict the appellant. It is moreso when no semen was shown on the clothes on its recovery while showing blood on it. The semen was put on the clothes of the victim and the accused subsequently. It is after taking sample before arrest.

5. It is also stated that after arrest at 4.30 PM on 10th May 2018, clothes were recovered and sealed at 5.20 PM i.e. within no time and therein, it was shown only bloodstained. The presence of semen has been shown in the FSL report though in the recovery memo, it has not been shown. It clearly shows a tainted investigation to implicate the appellant.

6. The allegation against the appellant is for commission of rape with seven months old girl but no injury has been sustained by her. In fact, the victim was with her aunt and fell down thus sustained injury. The blood came out due to the aforesaid. The appellant was requested to take her to a hospital. He was on the way to the hospital when complainant met him and started shouting. He then made false allegation against the appellant. The blood on accused's clothes came when he was taking girl to the hospital. The aforesaid has not been believed by the t