JAI PRAKASH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Present appeal is filed against the judgment and order dated 26/28.08.2019 passed by Special Judge, (POCSO) in Special Sessions Trial No. 119 of 2018 whereby learned Trial Court was pleased to convict the accused / appellant under section 5/6 of POCSO Act and under section 376 (AB), 377, 302, 201 of IPC and sentenced to undergo imprisonment for whole life and to pay a fine of Rs. 20,000/- and in default to undergo additional rigorous imprisonment of 2 years under section 6 of the POCSO Act; sentenced to undergo 5 years of imprisonment and to pay fine of Rs. 5,000/- and in default, to undergo additional rigorous imprisonment of 6 months under section 201 of IPC; and sentenced capital punishment and to pay a fine of Rs. 30,000/-and in default, to undergo additional rigorous imprisonment of 2 years of rigorous imprisonment under section 302 of IPC.

(2.) Brief facts of the case are that the informant is from Madhya Pradesh and belongs to lower strata of the society. The accused/appellant as well as informant both are labourers and were residing on separate temporary huts at ongoing construction site. An F.I.R. was lodged by PW1 father of the victim on 28.07.2018 with Police Station - Sahaspur, Vikas Nagar, District - Dehradun stating therein that he is a labour and is residing in a hut in the premises of under construction building of Shivalik Engineering College. It was further alleged that he is an employee/labour of contractor Kulbhushan and is residing with his wife and younger daughter (deceased victim) in the aforesaid hut. His brother (Shivcharan) along with his wife (Somwati) and their two children are also residing in the aforesaid huts. He used to go for labour work along with his wife but for the last two days he could not go for work/duty on account of heavy rain. It was also contended that his daughter (deceased victim) was playing with children of his brother. At about 12.30 p.m., his daughter went missing and was not seen with the children of his brother. When he enquired about his daughter from the children of his brother, they informed him that Jai Prakash Tiwari took them to his hut and gave them Rs. 10/- each and sent both of them to purchase things but detained the deceased victim. Somwati (PW13) also informed him that she had also seen Jai Prakash Tiwari along with the children going towards his hut. Jai Prakash was holding hand of deceased victim. After some time children of his brother came back and informed their mother that Jai Prakash had given them Rs. 10/- each. When he (PW1) went to Jai Prakash, enquiring whereabouts of his daughter, he was informed by the accused Jai Prakash that deceased victim left his place after taking Rs. 10/-. Thereafter, he along with others started searching for deceased victim. And during the search Mohd. Alam Nair informed that deceased victim was found beneath the empty cement bags (katta) inside the hut of Jai Prakash. It was further alleged in the F.I.R. that Yogesh and Suresh sons of contractor Lallan were also residing with Jai Prakash Tiwari in his hut. Yogesh and Suresh had gone for work on the fateful day. However, Jai Prakash remained alone in his hut. It was further contended that Jai Prakash committed murder of his daughter after committing rape. After committing the crime, Jai Prakash ran away. On the basis of aforesaid information, FIR was registered against accused Jai Prakash.

(3.) After lodging the FIR, the Investigating Officer started investigation and prepared the inquest report on 28.07.2018; sent the body of deceased/victim for postmortem. PW4 Dr. Chirag Bahuguna conducted the postmortem examination on 29.07.2018. In the post mortem report cause of death is shown as "manual throttling by hand causes asphyxia". The Investigating Officer also prepared a site plan and recorded the statement of witness under section 161 of Cr.P.C. Statements of PW1 father of the deceased victim, PW2 Kulbhushan, PW6 Yogesh Kumar and PW3 Nayar Azam were also recorded under Section 164 Cr.P.C by the Magistrate. The Investigating Officer arrested the accused Jai Prakash Tiwari and prepared memo of arrest and memo of information of arrest. After completion of investigation, the Investigating Officer submitted the charge-sheet against the accused.