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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 :-

2

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)

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

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

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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),

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