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