The court upheld the conviction for aggravated penetrative sexual assault on a minor, modifying the death sentence to life imprisonment without remission, emphasizing the heinous nature of the crime.

JUDGMENT

G.S.Sandhawalia, J.

The present judgment shall dispose of the criminal appeal filed by the sole appellant and the reference which has been submitted to this Court by the Additional Session Judge, (Fast Track Special Court), Sirsa keeping in view the death sentence awarded to the convict subject to the confirmation under Section 28(2) and Section 366 Cr.P.C. in FIR No.124 dated 28.09.2020 lodged under Sections 376(2)(n), 376(f), 376AB, 506 IPC and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short 'the POCSO Act'), P.S. Women Sirsa. Vide the impugned judgment dated 23.11.2022, the Special Court held that the prosecution has been able to prove its case beyond reasonable doubt against the accused, who is the father of the victim, who was around 12 years old on the date of the incident on the intervening night of 26/27th September, 2020 having been born on 18.08.2008 and, therefore, held the appellant guilty under Section 6 of the POCSO Act and also under Section 506 IPC.

2. The matter was put up on the quantum of sentence on the next day and placing reliance upon various judgments and keeping in view the fact that the violator of the minor girl was the guardian himself and, therefore, no liberal attitude should be taken and the incident had taken place within the house, the sentence of death was awarded under Section 6 of POCSO Act and for 7 years apart from the fine imposed under Section 506 IPC to the tune of Rs.50,000/- which was to be disbursed to the victim as compensation under Section 357 Cr.P.C. A recommendation was also given under Section 357A Cr.P.C. to the District Legal Services Authority, Sirsa for awarding compensation of Rs.5,00,000/- to the victim.

3. The reasoning which prevailed to record the conviction and the passing of the extreme order of death penalty was that the factum of the aggravated penetrative sexual assault having been done was proved from the statements of the PW-1- the victim, PW-7-the mother Gurmeet Kaur, PW-5 Sukhdeep Kaur, the neighbourer. Thus, the appellant was held guilty of having committed the aggravated penetrative sexual assault/rape on the intervening night on the cot in his own house and the material witnesses having withstood lengthy cross examination and their statements remaining unshaken and consistent at all stages prevailed with the Trial Court. The medical evidence in the form of the examinations of the victim and the witnesses and the statement given by her and the fact that there were blood stains present on the pajami and there was a small tear present along with bleeding were the grounds which the Trial Court kept in mind. The DNA report also having supported the said charge as such with human semen being detected on bed sheet (Ex.3) and having matched with the DNA profile from the blood sample of the accused was reasoning given keeping in view the provisions of Section 29 of the POCSO Act and the appellant having failed to rebut the presumption. It was also noticed that no defence evidence as such had been led and neither any plausible defence had been put to the main witnesses, the victim, the mother, the neighbourer and to the Investigating Officer. The factum of the birth certificate having been proved by the concerned witness appearing for the Municipal Council, Sirsa and which had matched with the school record as such to show that her age was 12 years having been born on 18.08.2000 and, therefore, she was a child under Section 2(d) of the POCSO Act and her statement had been recorded under Section 164 Cr.P.C. also wherein she had, at the initial stage also, stated the manner in which the violation has taken place was the reason as such which had prevailed with the trial Court.

4. Keeping in view the conviction recorded, we are of the considered opinion that the following two questions of law would arise for consideration:-

(i). Whether the conviction is liable to be sustained?

(ii). Whether the sentence of death as such is l