IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON’BLE SHRI JUSTICE VIVEK AGARWAL &

HON’BLE SHRI JUSTICE RAMKUMAR CHOUBEY CRIMINAL APPEAL NO. 3732/2025 ATUL NIHALE Versus THE STATE OF MADHYA PRADESH &

CRIMINAL REFERENCE CAPITAL NO. 2/2025 IN REFERENCE Versus ATUL NIHALE ------------------------------------------------------------------------------------------

Appearance:

Shri Sanjay K. Agrawal, Senior Advocate assisted by Shri Mihir Agrawal, Advocate – amicus curiae for the accused.

Shri Nitin Gupta, Public Prosecutor for the State.

................................................................................................................................................

Reserved on : 19.11.2025 Delivered on : 22.01.2026

........................................................................................................................

JUDGMENT

Per : Justice Ramkumar Choubey, Heard finally.

2. The appeal under Section 415 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity “BNSS”) filed by the accused against conviction and sentence and the reference for confirmation of death sentence under Section 407 of BNSS submitted by the Special Judge, Bhopal designated under the provisions of the Protection of Children from Sexual Offences Act, 2012 (commonly known as “POCSO Act”) are decided by this common judgment. Firstly, we will conclude the appeal filed by the accused.

3. The appellant-accused, vide judgment dated 10.03.2025 passed by the learned Special Judge in Special Case No.303/2024 (State of Madhya Pradesh v. Atul Nihale), stood convicted and sentenced, as depicted in the listicle chart below:-

4. To unravel the exactitude of occurrence, it is expedient to enter into the facts of the case, which would surely navigate the path to dispense justice. Suffice it to say that the mother of deceased girl-child (PW2) made a complaint to the Station House Officer, Police Station Shahjahanabad, Bhopal, on 24.09.2024 to the effect that her daughter, aged about five years was missing. On the anvil of said complaint, Sub Inspector Anant Kumar Pandey (PW1) recorded a missing-person report at No.48/2024 (Ex.P/1) and against unknown person, an FIR bearing Crime No.525/204 was registered. During the course of investigation, statements of witnesses were recorded and a map showing area (Ex.P/3) was prepared. While search operation on 26.09.2024 around Multi-area, the police personnel noticed some unpleasant/disagreeable smell. In the pursuit of finding a probability, they reached to ransack Flat F-2 of Block No.A-1, Bajpai Nagar, Eidgah Hills, Bhopal where co-accused Basanti, mother of the appellant and Chanchal, sister of the appellant objected, but the police personnel forcibly entered the flat and on a thorough search, a white plastic tank kept in the bathroom was found containing a dead body of a girl-child. The corpse was identified by her father (PW5) and elder brother of father (PW6). Two panchnama (Ex.P/15 & P/16) and spot-map (Ex.P/17) were prepared and the corpse was sent for medical examination. A team of three doctors of Forensic Department of All India Institute of Medical Science (AIIMS), Bhopal has conducted the autopsy and opined the cause of death due to injuries in pelvis region, which were ante-mortem in nature and there was sexual assault and the death was homicidal in nature. Then, swab of vaginal smear and anus smear, clothes, nails, hair, etc. were seal-packed for DNA analysis and same were collected by the police vide seizure memo (E.P/62).

4.1 At later stage, a Special Investigation Team (SIT) was constituted and Assistant Commissioner of Police Ankita Khatarkar (PW7) was appointed as Investigating Officer. The appellant/accused was taken in to custody and on the basis of his disclosure vide memorandum (Ex.P/6) recorded under Section 23 of the Bhartiya Sakshya Adhiniyam, 2023, certain articles, viz. black-coloured T-shirt, Capri, white-shirt and a knife were recovered and seized vide seizure memo (Ex.P/7). The s