The judgment emphasizes the need to consider aggravating and mitigating circumstances in capital punishment cases, and the requirement to establish the rarest of rare case for awarding the death penalty.

J.K. MAHESHWARI, J

Being aggrieved by the judgment dated 19/06/2018 passed in Special Sessions Trial No.16/2017 by the Second Additional Sessions Judge Khurai, District Sagar convicting the accused for the charge under Sections 376A, 302, 342, 201/511 of the Indian Penal Code (hereinafter shall be referred to as “I.P.C”) so also for the offence under Section 6 of the Protection of Children From Sexual Offences Act, 2012 (hereinafter shall be referred to as “POCSO Act”) and directing him to undergo death sentence, rigorous imprisonment for life, rigorous imprisonment for three years and three years with fine and default stipulation, the Criminal Appeal No.5015/2018 has been filed under Section 374(2) of the Code of Criminal Procedure (hereinafter shall be referred to as “Cr.P.C”) by the accused/appellant and for confirmation of the death sentence, Criminal Reference No.5/2018 has been made by Second Additional Sessions Judge Khurai, District Sagar under Section 366(1) of the Cr.P.C.

2. As per the prosecution story, on 13/04/2017 at about 11:00 am, a nine year old girl rushed towards the field near the Power House and the alleged hut of the accused to collect Mahua from the trees and when she did not return back, her neighbour and relatives started searching her and on seeing them near the Power House, the accused ran away from his hut. The mother of the prosecutrix, namely, Dameti (PW.2) entered into the hut under apprehension and saw the body of her daughter is tied in a white plastic bag. She immediately called her husband complainant Laxman (PW.1). The body of the prosecutrix tied in a white plastic bag was also seen by Gokal (PW.3), Khushal (PW.5), Kanhaiya, Pravesh Rani, However, keeping the dead body of the girl on floor, they visited to the Police Station to lodge the report. The merg intimation was registered vide Exhibit P/1 and thereafter the first information report was lodged by Laxman (PW.1) vide Exhibit P/2.

3. On the basis of the information, the police investigation commenced and they immediately rushed towards the spot. Statements of the witnesses were recorded. Naksha Panchayatnama was prepared vide Exhibit P/4. The seizures of the white plastic bag, shirt and clothes of the girl including her chappal were made. The postmortem of the dead body of the deceased/prosecutrix was conducted by Dr. Rohit Pant (PW.7) vide Exhibit P/7. The accused was arrested by the Police on 15/04/2017. The slides of the vaginal-swab of the prosecutrix and the semen of accused were prepared and sent to the Forensic Scicence Laboratory for examination. Certain articles from “A” to “I” were sent for D.N.A. examination vide Exhibits P/31, P/32, P/33 to which the reports have been received vide Exhibits P/34, P/35. After completion of the investigation, the Challan was filed to the Court of Judicial Magistrate First Class Khurai, District Sagar but as the case was triable by the Court of Sessions, therefore, it was committed to the Court of Sessions wherefrom it was received to the Second Additional Sessions Judge Khurai, District Sagar for trial.

4. The Trial Court framed the charges against the accused under Sections 376A, 302, 342, 201/511 of the IPC and Section 6 of the POCSO Act. The charges were read over to the accused, who abjured his guilty and demanded for trial taking the defence of false implication because he belonged to the tribal community in the village and residing separately from the family.

5. The Trial Court found it to be a case of circumstantial evidence. The Court relying upon the testimony of Laxman (PW.1), Dameti (PW.2) and Gokal (PW.3), Ravishankar (PW.4), Khushal (PW.5) recorded the finding that while they were making search of the prosecutrix near the Power House, the accused ran away from his hut. The Trial Court also relied upon the testimony of Dr.Rohit Pant (PW.7), who conducted the postmortem of the deceased/prosecutrix vide Exhibit P/7 and Dr.S.Jain (PW.8), who conducted the medical examination of a