The court upheld the conviction for aggravated penetrative sexual assault, emphasizing corroborative witness testimonies, medical evidence, and altered the death sentence to life imprisonment based on mitigating circumstances.

JUDGMENT :

(Per Hon'ble Arvind Singh Sangwan, J.)

1. Reference No. 06 of 2023 has been made by the Court of Special Judge (POCSO Act), Auraiya for confirmation of capital punishment awarded to appellant Prem Naresh in Special Sessions Trial No. 1276 of 2021. The Jail Appeal being Capital Case No.7 of 2023 has been filed by the appellant challenging the judgment of conviction dated 09.02.2023 holding the appellant guilty of offence under Section 376 AB of IPC and Section 5 /6 of POCSO Act and the order of sentence dated 14.02.2023, vide which the appellant was awarded death sentence to be hanged till death with fine of Rs.5,00,000/-(five lacs). In the even of non payment of fine, additional rigorous imprisonment for one year. It is directed that 50% of the payment of fine will be payable to the victim.

2. The Reference and Appeal were admitted. The Trial Court’s record is received and paper books are ready.

3. Heard Sri Rajiv Lochan Shukla, learned Amicus Curiae assisted by Sri Sarvesh Kumar Dubey, Advocate for the appellant, Sri Saurabh Pathak, learned counsel for victim/informant and Sri Patanjali Mishra, learned A.G.A. for the State.

4. With the assistance of learned counsel for the parties, the entire evidence is re-scrutinized and re-appreciated.

5. Facts of the case as per the informant/PW-1 who is the maternal grandfather of the victim (name not disclosed and referred as ‘Victim S’) are as under :

6. On the basis of the written complaint given by Mithalesh (PW-1), Chick F.I.R. was registered as Case Crime No. 516 of 2021 on 20.10.2021 at 17.53 hrs under Section 376 AB of IPC and Section 5 /6 of Prevention of Child from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’)

7. The F.I.R. was registered against the appellant-Prem Naresh aged about 29 years.

8. The victim was sent for medical examination and as per the Medico Legal Examination conducted by Dr. Seema Gupta (PW-2), the injuries found on the body of the victim as reported in the Medico Legal Report are as under :

“Vaginal tear of size 3 x 3 cm at 6 O clock position involvement of anal sphincter and anal canal at upper side fresh bleeding present.

Clotted blood and fresh blood present over perineal region.

Hymen torn.

Perineum tear.

Blood clot present IV degree perineal tear 3 x 3 cm.

Vagina, valva anal sphinceter and anus tear fresh bleeding present”

During medical examination of the victim, Dr. Seema Gupta (PW-2) reported as under :

“Injury present at vagina valva anus vaginal tear present with anal sphinter tear bleeding present from anus and vagina. This may be due to sexual assault.”

On completing the medical examination, PW-2 gave her final opinion which is as under :

“A case of sexual assault vaginal and anus tear, bleeding present.

This may be due to sexual assault.”

9. Thereafter, the police got recorded the statement of mother of the victim under Section 164 of Cr.P.C. (Ex.Ka-4) which reads as under :

10. The statement of victim-S under Section 164 Cr.P.C. was also recorded on the same date i.e. on 20.11.2021 which reads as under :

11. The police arrested the accused and on his pointing out effected the recovery of blue coloured underwear and army coloured lower concealed in a plastic bag. Thereafter, the Investigating Officer sent the vaginal swab which was handed to him by PW-2 along with other articles to Forensic Science Laboratory for DNA examination