JUDGMENT :

Sameer Jain, J.

1. Harendra (the appellant) was convicted under Sections 302, 201, 376-AB IPC and Section 5(m)/6 of Protection of Children from Sexual Offences Act, 2012 (for short POCSO Act) vide judgment and order dated 14.7.2021 and 15.7.2021 passed by Special Judge (POCSO Act), Bulandshahar in Sessions Trial No. 625 of 2021 and has been awarded following punishment :

1. Under Section 302 IPC, death penalty with a fine of Rs. One lacs and in default additional one year simple imprisonment;

2. Under Section 201 IPC, seven years R.I. with a fine of Rs. Twenty Thousand, and in default four months simple imprisonment; and

3. Under Section 5(m)/6 of POCSO Act read with Section 376 AB IPC, death penalty.

All sentences to run concurrently.

2. As the trial court awarded death penalty to the appellant (Harendra) under Sections 302 IPC and Section 5(m)/6 of POCSO Act read with Section 376 AB IPC, it has sent a reference for confirmation of death penalty, which has been registered as Reference No.9 of 2021.

3. Against the aforesaid judgment and order, the appellant has submitted his appeal from Jail, which has been forwarded by the Superintendent of Jail, Bulandshahar vide letter dated 21.7.2021. This appeal has been registered as Capital Cases No.12 of 2021. The appellant has prayed that the judgment and order of conviction and sentence recorded by the trial court be set aside and that he be acquitted of all the charges.

4. Considering the nature of the crime, we are not disclosing the name of the victim, members of her family as well of the witnesses of that area (locality) and, therefore, wherever required, they have been described by their witness number.

5. To represent the appellant, who could not engage a private counsel, Sri Arun Kumar Singh Deshwal, Advocate has been appointed as Amicus Curiae by the High Court, Legal Aid Services Committee.

INTRODUCTORY FACTS :

6. Prosecution case, in brief, is that on 28.2.2021 at about 18.46 hours (6.46 PM) PW-1 lodged a First Information Report against the appellant under Section 363 IPC at Police Station Anoopshahar, District Bulandshahar vide Case Crime No. 104 of 2021. As per the First Information Report, on 25.2.2021, at about 4.00 PM, the daughters of PW-1, namely, PW-4, aged about 15 years, and the deceased, aged about 12 years, went along with their mother (PW-2) to fertilize their field. In the meantime, the deceased went to the house of Ram Niwas (father of appellant) to have water. When she did not return, her mother (PW-2) sent PW4 to look for her but she (PW-4) could not find the deceased in the house of Ram Niwas though she noticed the door of the house of Ram Niwas bolted from inside. PW-2 thought that the deceased must have gone back home. But when PW-2 returned from the field after about an hour, she did not find her daughter i.e. the deceased at home. When PW-1 returned back, PW-2 narrated the entire incident to him. Immediately whereafter, PW-1 went to the house of Ram Niwas but did not find his daughter (deceased) there. By alleging that from that very day the son of Ram Niwas, namely, Harendra (appellant), is also missing, FIR was lodged by PW-1 expressing suspicion against Harendra (the appellant) that he has vanished with his daughter (deceased).

7. On 2.3.2021, an application (Ext.Ka-2) was submitted by PW-1 stating therein that on 28.2.2021 he lodged a report against Harendra (the appellant) son of Ram Niwas under Section 363 IPC at Police Station Anoopshahar on suspicion whereas, on 2.3.2021 when PW-1 along with Rajni Sadhwi, Bhola Chaudhari, Vishnu Chaudhari, Rajveer, Veerpal entered the house of Ram Niwas in search of the deceased, they found soil near the latrine freshly laid. When he stepped on it, his foot sank. Suspecting something amiss the soil was dug/removed with “a spade”. They then discovered dead body of the deceased lying there. By stating as above and by claiming that the body of the deceased is lying at the spot, prayer was made for appropriate acti