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A division bench of Justice Bela M Trivedi and Justice A.C. Rao dismissed a petition filed by the convict challenging the judgement passed by the Additional Sessions Judge and Special Judge (POCSO which convicted the appellant for the offences punishable under sections 302, 363 366 376AB, 377 and 201 of the Penal Code, 1860 and Sections 3(a), 4, 5(a), 5(r) and 6 of the POCSO Act, 2012 and sentenced him to death for the offences namely under Section 302, 307AB of the Penal Code. The appellant was also of offences under the Atrocities Act.
In the present case it was submitted before the Special Court that the appellant had been residing in the house owned by Shyam Narayan Pandey. The appellant stayed on the ground floor while the complainant resided on the first floor of the same building as a tenant. Between 8-8.30 on 14/10/2018, the appellant kidnapped the minor daughter of the complainant, who was aged 3 years and 6 months. The appellant took her to his room, raped her and then killed her by throttling. The body of the victim was then put in a gunny bag, and then put inside the room. The room was then closed and the appellant fled. Later due to investigation purposes, the police broke open the door to find the little girl’s body in a decomposed state. Sufficient evidence was then collected and a suit filed against the appellant. Ater evaluating the staggering evidences presented to the Court, the Judge passed the order of death against the appellant. Aggrieved, the appellant filed an instant petition.
The counsel for the appellant argued that the entire basis of convicting the appellant was circumstantial evidence. It was submitted during the cross examination that the room of the appellant had a shutter and hence the possibility of placing of the gunny bag through the shutter could not be ruled out. The counsel further pointed out that the mitigating circumstances had not been considered. He based his arguments on the Supreme Court judgment of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 and Machhi Singh. v. State of Punjab, (1983) 3 SCC 470 claiming that not considering the mitigating circumstances was a gross violation. The counsel also referred to various cases stating that this was not the rarest of the rare cases
The counsel for the respondent claimed that although it was circumstantial evidence, the respondent had proved them beyond any reasonable doubt. The appellant had also run away and had to be later arrested in Bihar. The trustworthy evidence thus convicted the appellant not leaving any scope of proving his innocence.
The Court believed that the diabolical nature of the crime and the remorseless act on the defenseless girl left the Court with no option but to award death punishment to the appellant. The HC dismissed the appeal and upheld the judgement of the Special Court.
Anil Surendrasingh Yadav v. State of Gujarat, R/Criminal Appeal No. 1973 of 2019.
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