The violation of Section 273 Cr.P.C. by examining prosecution witnesses in the absence of the accused led to the remand of the case for re-examination of witnesses and the statement of the accused under Section 313 Cr.P.C.

JUDGMENT :

SANJAY YADAV, J.

Fifth Additional Sessions Judge & Special Judge [Protection of Children From Sexual Offences Act, 2012], Gwalior (M.P.), vide judgment dated 06.07.2019, in Special Case No.122/2017, having found the accused person guilty under Sections 363, 302, 201 IPC and under Section 3/4 of Protection of Children From Sexual Offences Act, 2012 has inflicted penalty of death sentence and has submitted the matter for confirmation forming subject-matter of Criminal Reference Case No.09/2019. The accused also has preferred an appeal vide Criminal Appeal No.6086/2019 under Section 374 Code of Criminal Procedure, 1973, being aggrieved by the conviction and imposition of death penalty.

2. Dead body of an average male child approximately 10 years of age was found in a deep pit in village Baran, near Laxminarayan Crusher, on the morning of 29.04.2017. On being informed, police party came to the spot led by Sub-Inspector Hemlata Singh (PW-13) Police Station Bahodapur, District Gwalior (M.P.), at 09:30 am. On the spot, she met Ashok Adiwasi (PW-1). The body was stark naked; there were injury marks. Inquest report (Ex.P/4) was prepared in presence of Ashok Adiwasi (PW-1), Mohd. Jamiluddin (PW-11), Shareef Khan, Mangal Singh and Kallu Adiwasi (PW-12). The body was sent for the post mortem which was performed by Dr. Sarthak Juglan and Dr. Heeralal Manjhi (PW-7). As per post mortem report (Ex.P/10) following injuries were found on the body of the deceased:

Ante mortem injuries:

1. Abrasion present along margins of upper and lower eyelid along entire perimeter;

2. Abrasion present along lateral 1/3 of upper lip including at joining area of left lateral angle of mouth size 3.2 x 1.6 cm;

3. Lacerated wound over floor of mouth size 3.5 x 1.5 cm;

4. Multiple abrasion present over chest various in size 0.5x0.5 to 1x1 cm;

5. Contusion present over left illiac crest size 3.5x2.5 cm;

6. Multiple abrasion present over back of body various in size 0.2x0.1 cm to 1.5x 1 cm;

7. Abrasion present left shoulder size 3x2 cm;

8. Abrasion (graze) present over posterior trunk over left of mid-line in lumber region in an area 8x6.5cm. There are small size superficial laceration skin present;

9. Two bruise present over anterior abdominal wall above pubic bone size 1x1 cm each 2 cm apart. Lower border of mandible on entire right side neck multiple small abrasion scattered on the left hand side of neck the mark is in form well defined abrasion running laterally slightly upwards and following lateral contour of neck posteriorly where it is visible as interrupted series of abrasion crossing mid-line and meeting its counter part on right hand side, which can be traced frontly on dissecting muscular layer of neck deep reddish in colour.”

As per opinion of the doctor, the cause of death was due to asphyxia as a result of compression of neck by ligature. Ligature mark appears to be of strangulation. Ante mortem injuries over head also evidently caused by hard and blunt object. Death is homicidal. Evidence of penetrative anal assault present. Carnal injury present. Doctor collected (1) Tabize and thread (2) Nail scrape (3) Nail mud (4) Mini DV (5) Anal Swab (6) two bottle viscera (i) stomach and its contents (ii) pieces of liver, spleen, kidney (7) Salt (8) Seal. The material was sealed, packed and handed over to the police constable concerned.

3. The investigating officer Hemlata Singh (PW-13) who had reached the spot recorded Dehati Nalisi Marg (Ex.P/1) on 29.04.2017 on the report of Ashok Adiwasi (PW-1) who informed that on 28.04.2017 in the evening at 6 pm his elder son Sanjay Adiwasi, the deceased, aged 10 years, was present in the marriage ceremony of his brother-in-law's daughter, Varsha, in the neighbourhood. His other children Arti, Pooja (PW-4), Daulat had taken their meals and come back home. But Sanjay (Deceased) did not come. And despite search in neighbourhood in night, but did not find him. In the morning of 29.04.2017, someone from Baran village who had go