The conviction and death sentence for aggravated sexual assault and murder were upheld due to overwhelming evidence, including eyewitness accounts and DNA analysis, establishing the heinous nature of the crime against a minor.

JUDGMENT :

SHAILENDRA SHUKLA, J.

1. The present reference and appeal arise out of judgment dated 17-12-2018, pronounced in Special Case No. 3/2018, by the Second ASJ and Special Judge (POCSO Act), Jaora, District Ratlam whereby, accused Waris has been convicted under the provisions of sections 376(2)(f), 376(2)(n), 376-AB, 302 and 201 of Indian Penal Code and section 5/6 of POCSO Act and has been sentenced as under :—

Provision of Indian Penal Code Sentence Section 376 -AB Indian Penal Code Death sentence (to hang till death) with fine of Rs. 5000/-. One year RI if fine not paid. Section 302 of Indian Penal Code Death sentence (to hang till death) with fine of Rs. 5000/-. One year RI if fine not paid. Section 201 of Indian Penal Code RI for a period of 5 years with fine of Rs. 5000/-

2. The accused has not been sentenced separately under section 376(2)(f), 376(2) of Indian Penal Code and section 5/6 of POCSO Act in view of section 71 of Indian Penal Code, which provides for imposing sentence in an offence, which provides for more severe punishment.

3. The admitted facts are that Salma Bi was the third wife of accused and that the deceased girl-child ‘A’ (name withheld) was the daughter of Salma Bi born out of previous marriage of Salma Bi and that Salma Bi had brought girl-child ‘A’ along with her to the house of accused after ‘Nikah’. It is also admitted that Salma Bi wanted to cremate girl-child ‘A’ at Jaora and the dead body of deceased girl-child ‘A’ was carried to Jaora (Ratlam) from Kushalgarh. It is further admitted that the girl-child ‘A’ had suffered burn injuries on her heel and that the accused had brought deceased girl-child ‘A’ to Madhav Singh hospital for dressing.

4. On 23-4-2018, Amit Tolani (PW24) while posted as Station House Officer in Police Station Piploda received a call on his mobile phone that accused Waris Khan, has caused death of his daughter girl-child ‘A’ by assaulting her and the deceased is being taken for being cremated. This information was recorded in Rojnamcha Sanha (Exhibit P/38). Witness proceeded to the house of accused Waris at Kushalgarh, but found the same locked and thereafter went to Jaora Civil Hospital and from there went to the house of Jahur Khan who was relative of Salma Bi (PW1) , the wife of Waris. The body of the deceased was retrieved and ASI Virender Singh Kushwaha (PW16) was directed to conduct post-mortem examination.

5. Just prior to this, the deceased girl-child ‘A’ had been brought to Civil Hospital at Jaora by the accused and was shown to duty doctor S. L. Kharadi (PW8). The doctor found the deceased as having been brought dead with multiple abrasions. He prepared his MLC report Exhibit P/4, which was sent to ASI T. M. Sankhla (PW15), who was on duty in Civil Hospital at Jaora. On the basis of this report, Shri Sankhla instituted merg on zero, which is Exhibit P/9.

6. Meanwhile, ASI V. S. Kushwah (PW16), who had been directed by Amit Tolani to conduct post-mortem of deceased girl-child ‘A’, proceeded to Civil Hospital at Jaora. There he met T. M. Sankhla, who handed him over the documents pertaining to merg registered as 0/2018.

7. T. M. Sankhla (PW15), filled up the safina form Exhibit P/10 and drew Naksha Panchayatnama Exhibit P/11 and gave an application Exhibit P/1 to Dr. Chandra Pratap Rathore (PW6) posted as medical officer in Civil Hospital, who conducted post-mortem of deceased on 24-4-2018 and he along with two other panel doctors drew P.M. report Exhibit P/2 and short P.M. report Exhibit P/3 and opined that the deceased has been subject to sexual violence and the death was a result of asphyxiation caused by throttling.

8. ASI V. S. Kushwaha carri