Court emphasized the application of circumstantial evidence principles where all links confirmed the appellant's guilt in the kidnapping, sexual assault, and murder of a minor, upholding a death sentence.

JUDGMENT :

The reference under section 366 of the Code of Criminal Procedure, 1973 has been submitted to this Court by the learned 3^rd Additional Sessions Judge -cum- Presiding Officer, Children’s Court, Cuttack (hereinafter ‘the trial Court’) in Special G.R. Case No.44 of 2018 for confirmation of death sentence imposed on Mohammad Mustak (hereinafter ‘the appellant’) by the judgment and order dated 18.09.2019/19.09.2019 and accordingly, DSREF No.04 of 2019 has been instituted. CRLA No.817 of 2019 has been filed by the appellant challenging the self-same judgment and order of conviction passed by the learned trial Court.

The appellant faced trial in the trial Court for commission of offences under sections 363/364/376AB/302 of the Indian Penal Code (hereinafter ‘the IPC ’) read with section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter ‘POCSO Act’) on the accusation that on 21.04.2018 evening at about 6.30 to 7.00 p.m. in village Jagannathpur under Salipur police station, he kidnapped the minor granddaughter of the informant (hereinafter the ‘deceased’), aged about six years from the lawful guardianship of her parents in order that she might be murdered and that he committed rape on the deceased on the verandah of Jagannathpur Nodal U.P. School (hereinafter ‘the school’) and also committed her murder.

The learned trial Court vide impugned judgment and order dated 18.09.2019/19.09.2019 though acquitted the appellant of the charge under section 364 of the I.P.C., but found him guilty for the offences punishable under sections 363/ 376AB/302 of the I.P.C. read with section 6 of the POCSO Act and awarded him death sentence for the offence under section 302 of the I.P.C. so also for the offence under section 376AB of the I.P.C. and sentenced him to undergo R.I. for a period of seven years and to pay a fine of Rs.20,000/- (rupees twenty thousand), in default, to undergo further R.I. for one year for the offence under section 363 of the I.P.C., however no separate sentence was awarded for the offence under section 6 of the POCSO Act in view of the section 42 of the said Act. The sentences awarded to the appellant were directed to run concurrently.

Since both the DSREF and the criminal appeal arise out of the same judgment, with the consent of learned counsel for both the parties, those were heard analogously and are disposed of by this common judgment.

Prosecution Case

2. The prosecution case, as per the first information report (hereinafter F.I.R.) (Ext.7) lodged by P.W.4 Masud Ahmed, is that on 21.04.2018, while he had been to read Namaz in the evening, there was a power cut in his village Jagannathpur. After reading the Namaz, he returned home and found that his deceased granddaughter was not there in the house for which he asked his daughter-in-law about the deceased, to which the daughter-in-law replied that the deceased might be wandering nearby. The daughter-in-law of P.W.4 herself went to search for the deceased but could not locate her and accordingly, she informed P.W.4. In order to find out the deceased, P.W.4 searched here and there and also informed the neighbours about the non-availability of the deceased for which the neighbours also joined him to trace out the deceased but they could not get her. At that time, three young boys came on a motor cycle and informed P.W.4 that the deceased was lying in a naked condition on the school veranda with bleeding injuries. Getting such information, the villagers rushed to the school and shifted the deceased to the Salipur Hospital and then the deceased was referred to S.C.B. Medical College & Hospital, Cuttack (hereafter ‘S.C.B.M.C.H, Cuttack’) f