J U D G M E N T

(Passed on 08/09/2021)

Per Rajeev Kumar Shrivastava, J.:

This judgment shall govern the disposal of Criminal Reference Case No. 05/2020 as well as Criminal Appeal No. 4965/2020, as both arise out of judgment dated 16.09.2020 passed by Fifth Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Gwalior (MP) in Special Sessions Trial No. 122/2017.

2. As per Criminal Reference Case No.05/2020, Fifth Additional Sessions Judge & Special Judge (Protection of Children from Sexual Offences Act, 2012), Gwalior (MP) vide judgment dated 16.09.2020 in Special Sessions Trial No. 122/2017, having found the accused guilty under Sections 363, 377, 302, 201 (Part-1) of IPC and under Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act'), has inflicted penalty of death sentence and has submitted the matter for confirmation under Section 366 of Cr.P.C.

3. Criminal Appeal No.4965/2020 has been filed by the accused from jail against the aforesaid judgment, whereby he has been convicted and sentenced as under :-

CRA No. 4965/2020 Yogesh Nath @ Jogesh Nath Vs. The State of MP

Convicted under Sections	Act	Imprisonment	Fine	In default, punishment
363	IPC	07 Years RI	Rs.2,000/-	01 month RI
3/ 4	POCSO 10 Years RI		Rs.2,000/-	01 month RI
302	IPC	Death Sentence	-	-
201 Part-I	IPC	07 Years RI	Rs.2,000/-	01 month RI
377	IPC	As per para 101 of trial Court's judgment

It was also directed in the judgment that all the punishments of imprisonment shall run concurrently.

4. The short facts of the case are that on 28.04.2017, Ashok Adiwasi along with his family members, his wife Jasoda, daughters Pooja, Arti and sons Daulat & deceased 'A', attended the marriage ceremony of Varsha, who is the daughter of Dharmendra. Deceased 'A' was aged around 10 years. After attending the marriage function Ashok Aadiwasi returned back home with his family members excluding deceased 'A'. As deceased 'A' was missing, hence Ashok Aadiwasi tried to search the deceased 'A' but his efforts left in vain. On the next day morning, he was informed that dead body of deceased 'A' is found in the dug of village Bara and the body of deceased 'A' is nude. This information was furnished to the Police Station Bahodapur. On account of that, Hemlata, Sub-Inspector of Police Station Bahodapur reached on the spot and recorded Dehati Nalishi. On the basis of Dehati Nalishi, thereafter FIR was set into motion at CRA No. 4965/2020 Yogesh Nath @ Jogesh Nath Vs. The State of MP Crime No. 260/2017 and offence was registered under Sections 377, 302, 201 of IPC and under Section 3/4 of POCSO Act, on

29.04.2017, i.e., Ex.P/15.

5. After registration of FIR, investigation was set into the motion and blood-stained soil, plain soil, one check design light blue coloured shirt, one black pant, one towel (safi) were seized and two packets of Chuski from the pant-pocket were seized vide Ex.P/2 by Hemlata Jatav (PW-13). Lash Panchnama (Ex.P/3) was prepared in the presence of witnesses Ashok Aadiwasi, Mohd. Jamiluddin, Sharif Khan, Gagan Singh and Kallu. Spot map was prepared on 29.04.2017, i.e., Ex.P/4. Post-mortem was done wherein the doctor had opined that death was homicidal in nature. Ante-mortem injuries were found over the body caused by hard and blunt object. There was evidence of penetrative anal assault (anal injury was evident). Accused was arrested by Ex.P/11. Viscera of the deceased was collected and sent for forensic examination. DNA were collected. Accused was medically examined by Ex.P/9, wherein the doctor had opined that the accused was young, healthy male person, his secondary sexual characters were well developed. Nothing was suggestive that the accused was unable to perform sexual intercourse. One reddish CRA No. 4965/2020 Yogesh Nath @ Jogesh Nath Vs. The State of MP gray coloured underwear was taken from the body of accused. Pubic hairs were collected. Two semen slide

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