JUDGMENT :

Manoj Misra, J.

1. By the impugned judgment and order dated 18.01.2021 /20.01.2021 passed by Special Judge (Pocso Act)/ Additional District and Sessions Judge, Ghaziabad in Case No.313 of 2020, arising out of Case Crime No.1470 of 2020, P.S. Kavi Nagar, District Ghaziabad, the appellant has been convicted under Sections 302, 376-A, 376-AB, 201 IPC and Section 5(i)(M)/6(1) of Protection of Children from Sexual Offences Act (Pocso Act) and as the offences punishable under Sections 376-A, 376-AB IPC and Section 5(i)(m)/ 6(1) of Pocso Act were offences of the same nature, upon noticing that the sentence under Section 5(i)(m)/ 6(1) of the Pocso Act is greater, in light of the provisions of Section 42 of the Pocso Act, the appellant has been punished as follows:-

(i) Death penalty under Section 5(i)(m)/6(1) of Pocso Act;

(ii) Imprisonment for life as well as fine of Rs. 1,00,000/-under Section 302 IPC; Seven years R.I. as well as fine of Rs.50,000/-under Section 201 IPC, coupled with default sentence of additional one year.

2. As death penalty was awarded by the trial court, the trial court submitted a reference under section 366 of the Code of Criminal Procedure, 1973 for confirmation of death penalty, which has been registered as Reference No.3 of 2021.

3. The convicted accused requested the Jail Authorities to forward his appeal against the order of conviction and sentence, as a result whereof, the Jail Superintendent, District Jail, Ghaziabad has forwarded the appeal of the appellant vide letter dated 25.01.2021 giving rise to Capital Cases No.4 of 2021.

4. This appeal was earlier heard by a Bench comprising Pankaj Naqvi, J. and Naveen Srivastava, JJ. After hearing the counsel for the parties, on 19.07.2021 the judgment was reserved. However, instead of pronouncing the judgment, the matter was directed to be listed for further hearing and, ultimately, was directed to be put up before appropriate Bench. Thereafter we heard the matter and reserved the judgment. But before we could deliver the judgment our Bench was dissolved, consequently, the judgment could not be delivered. Whereafter, the matter was again nominated to us by order of the Chief Justice dated 24.11.2022. On 9.12.2022 we heard the matter again and reserved the judgment, which is now being delivered.

5. We have heard Sri Vinay Saran, learned Senior Counsel, as Amicus Curiae, assisted by Sri Pradeep Kumar Mishra, for the appellant; and Sri J.K. Upadhyay, learned AGA, for the State.

6. Considering the nature of the crime, we are not disclosing the name of the victim /members of her family including the witnesses of that area therefore, wherever required they have been described by a pseudo name or their witness number.

INTRODUCTORY FACTS

7. A written report (Ex. Ka-1) was submitted by PW-1 (the father of the victim) at P.S. Kavi Nagar, District Ghaziabad on 20.10.2020, at 14.34 hrs, giving rise to Case Crime No.1470 of 2020. The written report was scribed by nephew of the informant, namely, PW-3. In the written report it is alleged as follows: that the informant is a resident of Bihar; he had been residing with his wife and children in a rented accommodation in the industrial area of Kavi Nagar, District Ghaziabad, which is owned by X; that the accused-appellant, who is also a resident of Bihar, had been regularly visiting informant’s house for the last 10 years; that on 19.10.2020, the informant, the accused-appellant and two others, namely, ‘Y’ and ‘Z’ were having drinks (liquor) at / near informant’s house; during the course of the drinking session, the accused-appellant at about 8.00 pm went to informant’s room, asked informant’s wife (PW-2) to handover informant’s younger daughter i.e. the victim, aged about 2½ years, and took the victim away under the pretext that he would play with her; that when the informant entered his room, his wife (PW-2) told the inf