STATE OF MADHYA PRADESH Vs. HONEY @ KAKKU

JUDGEMENT

(1.) The present reference and appeal arise out of judgment dated 30.9.2019, pronounced in Special Case No. 2147/2018 by the 15th A.S.J. and Special Judge, Indore whereby, appellant­Honey @ Kakku has been convicted for the offence punishable under Sections 363, 366, 376AB, 302, 201, 376A of I.P.C. and under Section 5(n) read with Section 6 of POCSO Act. The accused has not been sentenced separately under Section 5(n) read with Section 6 of POCSO Act, in view of Section 42 of POCSO Act which provides for sentencing under the provisions of I.P.C., if such provision provides for stiffer sentence and therefore was sentenced under Section 376AB in place of Section 5(n) read with Section (6) of POCSO Act. Ultimately, the appellant has been sentenced under various provisions as under :­

(2.) The prosecution story in short was that on 25.10.2018 Ashu (PW-2) had left his daughter 'A' aged about 4 1/2 years to the coaching classes run by Anamika (PW-7) at Sudama Nagar, Indore at about 5.00 PM and when he came back to fetch his daughter he was told by Anamika (PW-7) that appellant­Honey has already taken his daughter half hour back. Ashu (PW-2) came back and he along with his wife Nitika (PW-1) searched for their daughter but when they could not find her, a missing person report Ex.P/2 and FIR Ex.P/1 were lodged. The FIR was registered as Crime No. 539/2018 under Section 363 of I.P.C. Next day, ie., 26.10.2018 witness Premnath (PW-12) discovered body of a girl child at a spot where Premnath (PW-12) had gone to relieve himself. Premnath (PW-12) gave an intimation, in M.G. Road Police Station which is Ex.P/24. Police arrived at the spot and prepared spot map Ex.P/25. The body of the girl child was found in naked condition. Its hands and legs were visible but trunk was covered with stones. Merg was registered. On receiving such information, the scientific officer Dr. B.L. Mandloi (PW-30) arrived at the spot along with photographer and prepared a report Ex.P/70 and photographs of the spot and the deceased were taken. The identification proceedings were initiated and the father Ashu (PW-2) identified the body as that of his daughter. The identification memo was drawn and a panel of doctors performed postmortem in order to determine the cause of death. As per their report, the death was on account of culpable homicide and the girl child was found to have been sexually violated. Appellant­Honey was nabbed on the basis of statements of Anamika (PW-7). He was arrested on 29.10.2018 and his memorandum statements were recorded on the basis of which his clothes, clothes of the deceased girl child and the stone piece which was allegedly used by the appellant to bludgeon the girl child to death were recovered. Further evidence was collected which involves CCTV footages showing appellant along with the deceased girl child at about the time when the deceased went missing. The investigating agency thereafter went on to establish as to whether the clothes of deceased contained DNAs of appellant and whether other specimen of the deceased also contained the DNAs of appellant. For this purpose the blood sample of appellant was taken and its DNA was isolated in FSL and the same was sought to be matched with DNAs present in the source of the deceased and it was revealed that the clothes of the deceased and her specimen samples show presence of DNA of appellant. The age of the deceased was also determined by the prosecution. Her school bag was also recovered by the prosecution. After investigation charge sheet was filed under the provisions of Sections 363, 366, 366A, 367A, 376AB, 376E, 376(3), 302, 201 of I.P.C. as also under Sections 3/4, 5(n) read with Sections 6, 5(m) read with Sections 6, 5i and 5t of POCSO Act. The presiding officer framed the charges under the provisions of Sections 363, 366, 376AB of I.P.C., Section 5(n) read with Section 6, Section 5(m) of POCSO Act, Sections 302, 201 and Section 376A of I.P.C.,

(3.) The accused abjured his guilt and pleaded innocence in his accused statement and showed inclination to lead defence evidence. However, no defence evidence has been led by him.