(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 :-

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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

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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

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