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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)
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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
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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),
