STATE OF GUJARAT Vs. TUKNA BUDHIYA DAS

JUDGEMENT

(1.) The death reference has come up before this Court for confirmation of a death sentence awarded to the appellant by judgment dtd. 2/1/2020 passed in Sessions Case No.278 of 2017, whereby, the Additional Sessions Court, Surat has convicted the appellant - Tukna Gudia Das, under Ss. 302, 376(2)(i)(n), 315 of Indian Penal Code and Sec. 4, 5(j)((ii)(n) and 6 of the POCSO Act and vide order dtd. 10/1/2020 awarded death sentence.

(2.) The appellant-accused herein has also questioned the legality and correctness of the judgment of conviction and order of death sentence by preferring conviction appeal (Criminal Appeal No.531 of 2021).

(3.) The prosecution case, in a nutshell, is that, the appellant Tukna Das, is father of minor deceased. He migrated from Orissa and stayed at Surat with the family. It is the case of prosecution that, the appellant had sexually abused his minor daughter and out of the said sexual abuse, the deceased got pregnant and in order to save the family from public humility and disrespect, initially deceased was taken to private clinic and thereafter, on 29/6/2017, on the pretext of medical treatment, she was taken by the accused at the Chowpati Area of Surat, where the accused had purchased bhajiya (snacks) from the shop of PW-20 and then, took the deceased at the farm of Madan Patel (PW-10) where she was done to death by strangulation. On the second day of the incident i.e. on 30/6/2017, the farm owner (PW.10) saw the dead body of the deceased and informed the Dummas Police Station, Surat. The accidental death being registered and the dead body thereafter, sent for post-mortem. It was revealed that, the deceased was killed by throttling and at relevant time, she was carrying a pregnancy. The biological samples of the deceased as well as the unborn child for DNA Analysis being taken by the P.M. Doctor. The dead body was kept in morgue up to 5/7/2017. On the basis of cause of death, the IO Mr. Nakum (PW-23), himself lodged an FIR against the unknown person for the offence of murder. The appellant accused and other family members were living in the rented premises in the Pandesara area of Surat. The wife of the appellant and his brother was in search of deceased and the accused appellant was not revealing the whereabouts of the deceased. They contacted the owner of the house Mr. Rabari and with the aid of Mr. Rabari, they approached the Pandesara Police Station and accordingly, after due inquiry, it was reveal that the deceased was the daughter of the appellant and the dead body of her being identified by the mother and brother of the accused. The Dummas Police, upon preliminary inquiry, came to know that the appellant had abused sexually the deceased, as a result, she got pregnant and in order to save himself from this act, she had been done to death by act of throttling. The accused came to be arrested on 6/7/2017 and during the remand period, his blood sample for DNA profile being taken by the Civil Hospital, Surat. The IO during the investigation, recorded the statements of the material witnesses, drew the discovery panchnama under Sec. 27 of the Evidence Act, whereby the accused appellant voluntarily pointed out the place of occurrence and the shop where he had purchased snacks. After transfer of the IO, the investigation was handed over to Mr. Makwana (PW-24) and upon receiving the DNA test reports and other reports from the FSL, the chargesheet against the accused for the aforesaid offences came to be filed. As the case was exclusively triable by the Court of Sessions, it was committed to the Court of Sessions at Surat. The Sessions Court framed the charges against the appellant-accused. He did not admit the charge and claimed to be tried.