STATE OF MADHYA PRADESH Vs. IRFAN

JUDGEMENT

(1.) The present reference has been made for confirmation of order of capital punishment of death awarded which is arising out of judgment dated 21.8.2018, pronounced in S.T. No. 88/2018, passed by the 2nd A.S.J. Mandsaur/Special Judge (POCSO) Act whereby, the appellants/accused have been convicted under Sections 363, 366A, 376(2)(m), 376(DB) of IPC and as per Criminal Law (Amendment) Ordinance, 2018, 307 of IPC, (appellant Asif has been convicted and Section 307 read with Section 34 of IPC), as also under Section 5(g) (r) read with Section 6 of POCSO Act, 2012. The overall penal provisions under which the appellants have been convicted and sentenced is tabulated as under:-

(2.) The accused/appellants have filed separate appeals (Criminal Appeals Nos. 7215/2015 and 7269/2018 against the said judgment therefore, the reference and appeals are being taken up for hearing together and are being disposed of by common order.

(3.) As per prosecution story, on 26.6.2018, Kamlabai (PW7), grandmother of the prosecutrix lodged a report at police station City Kotwali, Mandsaur that her grand-daughter studying in 3rd Std. at Saraswati Shishu Mandir School had been missing from her school premises after the classes were over for the day. The police registered case under Section 363 of IPC and enquiry was initiated. On the next day, i.e., 27.6.2018, the prosecutrix was found in injured condition by the witness namely Karan (PW10). When police came to know, the prosecutrix was taken to civil hospital at Mandsaur and was examined. Looking to her serious condition she was referred to M.Y. Hospital at Indore. The prosecutrix was given treatment and operation was performed upon her. She narrated the story to the police as per which it was stated by her that on the day of the incident, after the school was closed down, she was waiting outside the school when a person came and forcibly put some sweet ('Ladu') in her mouth and took her to a secluded spot. He also called another person at the spot. Subsequently, she was undressed, forcibly raped by the person who had taken her while the other person had caught hold of her hands. The police sprung into action and fanned out in search of the miscreants. They searched the spot where the incident had taken place and collected incriminating items from there such as the underwear of the prosecutrix, rocks, a beer bottle, school bag, shoes, blood stained soil and normal soil and sealed the same and sent it to the FSL laboratory. The enquiry was also made from nearby shopkeepers and CCTV footages from 3 shops namely Mayank Fashion Store, Esequare Showroom and Aman Mobile were collected and on finding suspicious movements, the persons and relatives known to the minor prosecutrix and appellant were shown the footages who identified the prosecutrix and the appellants. Panchnamas were drawn. Subsequently TIP parade was carried in jail premises where the appellants were identified by the witnesses who had seen the appellant accompanying the prosecutrix. The prosecutrix who was admitted in serious condition in M.Y. Hospital at Indore, was also shown photo albums carrying photographs of the appellants and other persons bearing similarity in countenances and the prosecutrix rightly identified the appellants from the album as the accused persons who had committed sinister offence against her. The specimens such as oral swab, vaginal slides, vulval pad etc of prosecutrix had been drawn at district hospital at Mandsaur. The sealed specimens were handed over to the Investigating Officer who dispatched them to FSL Laboratory and DNA analysis. The appellants who had been arrested were interrogated by police who gave their separate memoranda leading to recovery of clothes used by them at the time of incident, the vehicle used by appellant Asif were recovered by Investigating Officer. Their blood samples, semen slides, hair including pubic hair, nails etc were collected by Investigating Officer and the appellants were also subjected to medical examination. Appellant Irfan was found to have marks of scratches and teeth-bite on his body and it was also found that his private organ carried redness which was pointer at forcible intercourse on his part. The medical examination of the prosecutrix has already been revealed that she had not only been subjected to violent sexual intercourse, but she was also subjected to very serious assault resulting in injuries to throat, stab injuries on private part and one of her eye was found to be bulging due to compression with affected visibility, the perineum and anus were found to be pierced through and through and a passage was created in her abdomen for bringing out her stools. Due to huge blood loss, her haemoglobin had also plummeted to 6.5. grms dl. After intensive care and operations, she slowly recovered. In the meanwhile, the residual investigation involving statement of witnesses was carried by the police and charge sheet was filed against the appellants.