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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
CRIMINAL APPEAL No. 1579 OF 2020
Between :-
SANTOSH MARKAM S/O
BUDDHU SINGH MARKAM,
AGED ABOUT 34 YEARS,
OCCUPATION 6th VHAHINI
S.S.B. JABALPUR KI E
COMPANY
KEMP
NARSINGHPUR ME TRED R.
1398 (KUK) AT PRESENT ME
KENDRA
JAIL
NARSINGHPUR (M.P.) ME
NIRUDH, PERMANENT R/O
GRAM GHONTA, THANA
BIJADANDI,
DISTRICT
MANDLA (MP).
.…Appellant
(BY SHRI NARENDRA NIKHARE, ADVOCATE)
AND
THE STATE OF MADHYA
PRADESH THROUGH THE
P.S. NARSINGHPUR (M.P.)
….Respondent
(BY SHRI YOGESH DHANDE, GOVERNMENT ADVOCATE)
CRIMINAL REFERENCE No. 01 OF 2020
Between :-
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IN REFERENCE
RECEIVED
FROM
5TH
ADDITIONAL SESSIONS JUDGE &
SPECIAL JUDGE NARSINGHPUR
(M.P.)
.…Appellant
(BY SHRI AJAY GUPTA, AMICUS CURIAE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
AND
SANTOSH MARKAM S/O
BUDDHU SINGH MARKAM,
AGED ABOUT 34 YEARS,
OCCUPATION 6TH VHAHINI
S.S.B. JABALPUR KI E
COMPANY
KEMP
NARSINGHPUR ME TRED R.
1398 (KUK) AT PRESENT ME
KENDRA
JAIL
NARSINGHPUR (M.P.) ME
NIRUDH, PERMANENT R/O
GRAM GHONTA, THANA
BIJADANDI,
DISTRICT
MANDLA (MP).
….Respondent
(By SHRI NARENDRA NIKHARE, ADVOCATE)
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Reserved on
:
01/09/2022
Delivered on
:
05/09/2022
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Narendra Nikhare,Advocate General
Sujoy Paul, J. :
The validity of judgment dated 24/01/2020 passed in
S.T.No.22/2019 is under question in this reference and in the criminal
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appeal filed by the appellant whereby the Court below held the appellant
guilty for committing offences under Section 376(AB) of Indian Penal
Code and directed to impose death sentence. The appellant was also held
guilty for committing offence under Sections 366 and 324 of Indian Penal
Code for which he was directed to undergo sentence of 10 years R.I. and
3 years R.I. respectively with default stipulations.
FACTUAL BACKDROP :
2.
The parents of the prosecutrix/victim are beggars. They were
residing in a vacant place/jail ground near Bus Stand Narsinghpur. The
incident had taken place in the intervening night of 24/06/2019 and
25/06/2019. Four days before the incident, certain other relatives of
victim also reached the ground where victim and her parents were
staying. They were also staying with the family of the victim.
3.
As per the prosecution story, on 24/06/2019 at around 10:00 P.M.
the parents of victim, the victim and her younger sister went to sleep. At
around 2:30 A.M., the mother of victim (PW-3) found that victim is
sleeping in her bed. However, again when she awake at around 3:00 A.M.
she found that victim is missing from her bed. She raised an alarm and
her husband (PW-1) and brother-in-law (PW-26) also came out of their
slumber. The parents and relatives searched nearby places but could not
find the victim.
4.
On 25/06/2019 at about 7:00 A.M., a man on a bicycle approached
them and informed that a small girl is lying under a tamarind (Imli) tree.
The parents of victim, brother-in-law (PW-26) and other relatives and
neighbour Sarita reached the place and found that under the said tree, the
victim (PW-2) is lying. There were marks of bruises on her face and lips.
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There was bleeding from her private parts. In 108 ambulance, the victim
was taken to District Hospital Narsinghpur where she informed that a
man had forcibly taken her, put a piece of cloth in her mouth and sexually
assaulted her.
5.
In turn, Assistant Sub-Inspector J.N. Gyarsiya (PW-4) received an
information from District Hospital Narsinghpur about the said incident
and accordingly, Dehati Nalisi (Ex.P/11) was recorded. On the basis of
said Dehati Nalisi, offences under Sections 363, 366(A), 376(3),
376(AB), 323 and 324 of Indian Penal Code read with Sections 3(a), 4,
5(i), 5(m), and 6 of Protection of Children from Sexual Offences
(POCSO) Act, 2012 were registered against the appellant vide Crime
No.448/2019.
6.
During the investigation, a site map was prepared. From the scene
of crime, a blood stained stone, empty water bottle, five half burnt pieces
of ‘bidi’, half burnt match sticks were recovered. On 25/06/2019 itself
during the treatment of victim, her frock was recovered and vaginal slide
was prepared and handed over to Sub-Inspector J.N. Gyarsiya.
7.
Considering the serious condition of victim, she was referred to
Netaji Subhash Chandra Bose Medical College Hospital, Jabalpur. The
statement of witnesses were recorded. During the investigation, CCTV
footage of certain roads near jail crossing were obtained. The footage
from Camera F-1, F-2, F-3, F-4/PTZ were recovered. Duration of which
was between 1:49 to 1:55 AM, 2:42 to 2:45 AM and 4:39 to 4:44 AM.
The relevant photographs were prepared based on CCTV footage. The
CCTV footage/photographs were shown to various persons. In turn, two
cops namely Rajkumar, Constable Driver No.107 and Vikrant Jatt,
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Gunman SAF Constable No.486 identified the person who was carrying
the victim as Santosh Markam, Cook Trade Constable No.1398.
8.
On the basis of suspicion, appellant was asked to join investigation
and on 27/06/2019, his one full check shirt, Blue full pant, Maroon belt,
Blue underwear, White socks and Black shoes were recovered. The
appellant was sent for medical examination to District Hospital
Narsinghpur. Appellant’s semen slide was prepared and his blood s