IMPORTANT POINTS
In absence of evidence of sexual assault, POSCO cannot be invoked.
When the offence is not gruesome, not coldblooded murder, nor is committed in a diabolical manner, the court will impose life imprisonment.

ORDER

These appeals are presented by the convicted accused/appellant (hereinafter referred to as ‘accused’) against the judgment dated 1.9.2016 passed by the High Court of Judicature at Rajasthan in D.B. Criminal Murder (Death) Reference No. 01 of 2015, D.B. Criminal Appeal Nos. 970 of 2015 and D.B. Criminal Jail Appeal No. 1011 of 2015. By the impugned judgment, the High Court confirmed the judgment dated 18.9.2015 passed by the District and Sessions Judge, Pratapgarh, imposing capital punishment in Sessions Case No. 149 of 2013 for committing offences punishable under Section 302 IPC, and under Sections 3 and 4 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’).

2. The case of the prosecution in brief is that the minor daughter (X) of the informant Prabhu Lal, aged about 8 years, was taken at around 4.00 p.m. on 5.7.2013 while she was playing along with other children at the informant’s house. She was taken away by the accused on the pretext of giving her chocolates from a shop. However, the minor victim (X) did not come back. The informant, his brother Bhanwar Lal, and other family members were not in the house that evening at the relevant time and they were informed about the incident subsequently by the informant’s niece Lali when they came back to their house. They searched for the girl throughout the night, however in the morning to the informant’s dismay, the body of X was found near the house of Nagji, son of Gautam Meena. The first information was lodged at 1.00 p.m. on 6.7.2013 by the father of X, with the allegations of rape and murder against the accused. The Trial Court upon evaluation of the material on record, convicted the accused for the offences punishable under Section 302 IPC, and under Sections 3 and 4 of POCSO Act, vide judgment dated 18.9.2015 and passed the sentence of capital punishment. Consequently, the Trial Court made reference to the High Court under Section 366 of Cr.P.C. for the confirmation of this death sentence. The accused also preferred appeals against the judgment and order of conviction, and sought for acquittal. The reference was allowed, and the appeals filed by the convicted accused came to be dismissed by the High Court.

3. The learned counsel for the accused taking us through the material on record submits that the Trial Court is not justified in convicting the accused for the offences under Section 302 IPC as well as under Section 4 of the POCSO Act. The case rests on circumstantial evidence and these circumstances are not duly proved. He further argues that the chain of circumstances is not complete and, therefore, the accused is entitled for acquittal. He also submits that, absolutely no evidence is found on record against him for the offences under Sections 3 and 4 of the POCSO Act. Lastly, he submits that the imposition of capital punishment on the accused is illegal, and the case at hand is not a rarest of the rare case.

Per contra, the learned counsel for the State argues in support of the judgments of the courts below.

4. The present case rests on circumstantial evidence. The evidence of PWs 1, 2, 3 and 4 clearly prove that the mother of the deceased was treating the accused as her own brother, and on the eve of Rakhi festival, she even used to tie Rakhi on the hand of the accused. Hence, the child of the informant was treating the accused as a maternal uncle and this fact was also known to all the villagers because the accused used to visit the residence of the informant as one of their relatives. All the family members of the informant trusted the accused. Since the deceased was treating the accused as her uncle, she did not have any reason to disbelieve or doubt the offer made to go with him for getting the chocolates.

5. PW2, Lali @ Lalita has deposed that the accused came to the house of the informant and took his daughter with him. PW4, Chameli also has deposed that, on the date of the incident, the accused took the mino