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 6^th 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 :-

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 -------------------------------------------------------------------------------------------------------

J U D G M E N T

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 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.

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 investigati