JUDGMENT : (Ritu Bahri, J.) : The present Reference has been sent by the F.T.C/Addl. District & Sessions Judge/Special Judge (POCSO), Dehradun in judgment and order dated 31.01.2019 passed in SST No. 57 of 2016, State v. Rajesh @ Jitender, whereby the respondent – Rajesh @ Jitender has been convicted for the offences punishable under Sections 364, 302 & 377 of the Indian Penal Code, 1860 and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012. 2. A charge-sheet, under Sections 364, 302 & 377 IPC and Section 5/6 of the POCSO Act was presented in the Court against Rajesh @ Jitender. Investigation was carried out on a tehrir/ statement given by the complainant on 12.05.2016 at 03:00 P.M. 3. The case set up by the prosecution was that on 12.05.2016, around 03:00 P.M., the son of the complainant came crying on the roof of the house, where the complainant, along with his wife and other labourers, were working, and the contractor was also present. The son told that Rajesh @ Jitender caught the victim and took him away. The complainant, his wife and the contractor went to search the victim, and there they saw that Rajesh had laid down the victim on the ground and had strangulated him. On the spot, the child’s knicker was put off; there were blue marks and scratch marks on his neck. Thereafter, on information, other people also gathered and information was given to the Police. Rajesh @ Jitender was intoxicated and public had thrashed him. The son was taken to Doon Hospital. 4. After investigation was conducted by Sub-Inspector Vinod Singh Gusain, charge sheet was sent and charges were framed. The prosecution examined the following witnesses before the Trial Court : P.W.-1 Contractor P.W.-2 S.I. Sanjay Mishra P.W.-3 Constable 532 Prateek P.W.-4 S.I. Maan Singh P.W.-5 Dr. Alok Jain P.W.-6 Constable 1418 Yogendra Bhandari P.W.-7 Complainant/ Victim's father P.W.-8 Victim's mother P.W.-9 Constable Subhash Rana P.W.-10 Victim's brother P.W.-11 Constable 1229 Arun Kumar P.W.-12 S.I. Vinod Singh Gusain 5. The prosecution examined the following witnesses before the Trial Court : P.W.-1 Contractor P.W.-2 S.I. Sanjay Mishra P.W.-3 Constable 532 Prateek P.W.-4 S.I. Maan Singh P.W.-5 Dr. Alok Jain P.W.-6 Constable 1418 Yogendra Bhandari P.W.-7 Complainant/ Victim's father P.W.-8 Victim's mother P.W.-9 Constable Subhash Rana P.W.-10 Victim's brother P.W.-11 Constable 1229 Arun Kumar P.W.-12 S.I. Vinod Singh Gusain 5. In the documentary evidence, case property Gamcha Material Ex.Ka.-1, underwear or kacchi Material Ex.Ka.-2, Bundle Ex.Ka.-3, Inquest Report Ex.Ka.-1, Challan of dead body, sample of dead body, sample of seal and report of R.I. Ex.Ka.-2 to Ex.Ka.-5, C.M.S Report Ex.Ka.-6, Post-mortem Report Ex.Ka.-7, chik F.I.R. Ex.Ka.-8 , Original G.D. of case registration Ex.Ka.-9, the G.D of the admission of the accused Ex.Ka.-10, and the G.D. of the arrival of the information regarding the incident received the control room Ex.Ka.-11, receipt of goods carried to Forensic Science Laboratory as case property Ex.Ka.-12, receipt form of the case property Ex.Ka.-13, recovery memo of the underwear of the deceased child and the gamcha used by the accused Ex.Ka.-14, blood sample of the accused Ex.Ka.-15, Charge sheet Ex.Ka.-16, Site plan of the incident spot Ex.Ka.-17, Arrest and Information Memo of the accused Ex.Ka.-18, F.S.L. Report Ex.Ka.-19 and the sample of seal Ex.Ka.-20 were filed. 6. The statements of the accused, under Section 313 Cr.P.C., were recorded, in which the accused, while falsifying the prosecution plot, has stated that he has been falsely implicated. In his defence, the accused examined the following witnesses: D.W.-1 Sher Singh D.W.-2 Himself D.W.-3 Dr. Manoj Kumar D.W.-4 Gajram Singh D.W.-5 Lallu Singh 7. The prosecution witnesses, who were present when the information was given to the mother of the victim, are P.W.-1 Contractor, P.W.8- Victim’s mother, P.W.-7 Complainant/ Victim’s father and P.W.-10 Victim’s brother, who had given the information to his parents. 8. P.W.-1 Contractor has consistently stated that on 12.05.2016, work was going on in one Saklani’s house on Nawada Road. The contractor had fired Rajesh @ Jitender, who used to work on the same site, because he used to drink a lot of alcohol. The elder brother of the victim came crying and said Jitender @ Rajesh had taken away his younger brother at around 02:30 hrs. Thereafter, P.W.-1, and all the above-said witnesses went to search the younger son, and they saw Rajesh @ Jitender coming out of the bushes at some distance. The elder brother of the victim came crying and said Jitender @ Rajesh had taken away his younger brother at around 02:30 hrs. Thereafter, P.W.-1, and all the above-said witnesses went to search the younger son, and they saw Rajesh @ Jitender coming out of the bushes at some distance. They found the child in the bushes, who did not have knickers on his body. The age of the younger son was three years. When Rajesh @ Jitender was coming out of the bushes, his pants were opened. He was caught, and many people from the public gathered. They assaulted him. When they saw the child, the child was not moving. It seemed that the child had passed away and, thereafter, the information was given to the police. 9. The official prosecution witnesses are P.W.-2 S.I. Sanjay Mishra, P.W.-3 Constable 532 Prateek, P.W.-4 S.I. Maan Singh, P.W.-6 Constable 1418 Yogendra Bhandari, P.W.-9 Constable Subhash Rana, P.W.-11 Constable 1229 Arun Kumar and P.W.-12 S.I. Vinod Singh Gusain. 10. The above-said witnesses deposed that, during investigation, a Panchnama was prepared of the dead-body kept in the mortuary of the Doon Hospital. As per the opinion given by the Doctor, the death was due to strangulation. The dead-body was sealed, along with a seal in a white cloth, and the dead-body was sent for postmortem. The Doctor was also asked to tell if any molestation was done on the private part of the victim. The age of the deceased victim was three years. As reflected in the Panchnama Exhibit Ka-1, there was no weapon on the spot, which related to sexual assault. 11. In investigation, it was also found that (i) there were many linear scratches on the body which were in the anterior and medial part of the right thigh. There were multiple scratches on the lateral part of the left thigh as well. Few linear abrasion marks were present over both legs and foot and some of these abrasions are crescentic. (ii) Multiple linear abrasions were present over his right arm and forearm. One abrasion of 2x3 cm present over right elbow joint. (iii) Multiple abrasions present all over left arm and forearm dorsal aspect. (iv) 6x3 cm abraded contusion with swelling on the right side of the neck, which was on the skin over the thyroid cartilage area around thyroid crossing over to the left side. One abrasion of 2x3 cm present over right elbow joint. (iii) Multiple abrasions present all over left arm and forearm dorsal aspect. (iv) 6x3 cm abraded contusion with swelling on the right side of the neck, which was on the skin over the thyroid cartilage area around thyroid crossing over to the left side. (v) A crescentic abrasion just below Injury No. 4 on the left side of the neck. (vi) There was an abrasion with swelling on the left side of the neck, and lot of abrasions in an area of 5x4 cm, which was in the left angle of the jaw below. On cutting Injury No. 4, the base of the injury was soft and brown in colour. When the upper skin was removed at Injury No. 4, the tissues and muscles beneath the skin were found congested. 12. As per the internal examination - the brain and its membranes were congested. The lungs and plewa on both sides were congested. The mucosa of the larynx, trachea and bronchi was congested. The right side of the heart was full of dark blood. The organs inside the abdomen were congested. As per the opinion, the cause of death of the deceased was due to strangulation. Before the murder, anal intercourse was also done on the deceased antemortem. Two dry swabs, and two wet swabs were taken from the anus of the deceased. Two slides with dry swabs were taken from in and around the anus. The wet swabs that were taken from anal orifice were sealed. 13. As per the postmortem report Ex.Ka.-7, the case was that of sodomy and murder, and all the injuries on the body of the deceased were ante-mortem, just prior to the death. The case property related to Case Crime No. 89/16, Thana Nehru Colony v. Rajesh alias Jitender, under Sections 302 & 377 IPC and Section 5/6 POCSO Act in Forensic Science Laboratory Panditwadi at Number 563/16 dated 26.05.2016. 14. The case property was produced by Constable Subhash Rana, and had been sealed. Thereafter, the report of Forensic Science Laboratory was received as under : “Enclosed- 1- Sealed examination reports (02 page). 2- Exhibits after examination sealed in two cloth parcels. 3- Specimen of seal. 14. The case property was produced by Constable Subhash Rana, and had been sealed. Thereafter, the report of Forensic Science Laboratory was received as under : “Enclosed- 1- Sealed examination reports (02 page). 2- Exhibits after examination sealed in two cloth parcels. 3- Specimen of seal. The DNA test performed on the exhibits provided is sufficient to conclude that, the DNA obtained from the Exhibit – 1 (blood sample of accused) is matching with the DNA obtained from the Exhibits- 2,3 and 4 (wet swab of deceased, dry swab of deceased and two slides of deceased).” 15. As per the FSL, the DNA of the accused has been found on the body of the deceased. The DNA report has further been proved by P.W.-5 Dr. Alok Jain, who stated that the slides and swabs (dry and wet) were taken from the anus of the deceased, and as per the DNA report, DNA of the accused was found on the sample taken from the anus. The Doctor also stated that there were marks of abrasion all around the anal passage. The anal passage had become wide and two fingers were able to go through it. There were triangular lacerated wounds in the mucous membrane, inside the sphincter NI of the anus, with its base at the orifice of the anal passage leading to the rectum. 16. As per the Arrest Memo (Ex.Ka.-9), it is clear that the accused had been arrested on 12.05.2016 at 08:00 hours, and as per Information Memo (Exhibit Ka-18), the accused was informed about his arrest on Mobile No. 7669741144. The medical of the accused was also conducted on 12.05.2016 at 09:20 p.m. Hence, the arrest of the accused was immediately after the death of the victim on 12.05.2016. The DNA report has also been proved by D.W.-3 Dr. Manoj Kumar. As per the said witness, there was no tampering in the dry and wet swabs, and in the slide and blood samples sent. Even the accused, in his statement under Section 313 Cr.P.C., has accepted that the blood samples were taken in the Court. Hence, the DNA report had been correctly made, and there was no occasion to give an adverse finding. As per the postmortem report, and the FSL report, the accused had molested the victim. Even the accused, in his statement under Section 313 Cr.P.C., has accepted that the blood samples were taken in the Court. Hence, the DNA report had been correctly made, and there was no occasion to give an adverse finding. As per the postmortem report, and the FSL report, the accused had molested the victim. The deceased was found in a semi-naked condition at the incident spot, and the undergarments of the deceased were recovered on pointing out by the accused. 17. After going through the entire evidence, the charges leveled against the accused, under Section 377 IPC and Section 6 of the POCSO Act were proved, as per the oral evidence given by P.W.-1, P.W.-7, P.W.-8 & P.W.-10, and as per the medical evidence post-mortem report (Ex.Ka.-7) has been proved by P.W.-5, DNA Report has been proved by D.W.-3, Forensic Science Laboratory’s evidence presented by the defense side itself. QUANTUM OF SENTENCE 18. The accused has been convicted for life imprisonment, along with a fine of Rs. 50,000/-, under Section 6 of the POCSO Act, and he has been sentenced to death for the offence under Section 302 IPC. 19. Counsel for the appellant has argued vehemently, but has not been able to find any dent in the prosecution’s case, whereby the investigation has not been carried out in a proper manner. The entire circumstantial evidence, and the medical evidence is very tight, and there is no scope of interference in the findings given by the Trial Court, with regard to the conviction of the appellant-accused. 20. The Hon’ble Supreme Court in B.A. Umesh v. Union of India and others, Criminal Appeal No. 1892 of 2022 (arising out of SLP (Crl.) No. 890 of 2022, decided on 04.11.2022) has also examined the issue whether delay in execution of death sentence could be a sufficient ground for substituting death sentence by imprisonment for life. 21. In the above matter, the Hon’ble Supreme Court was examining the case, where the execution of death sentence was due to the delay, which took place in execution of the death sentence, due to pendency of mercy petition and reference was made to a judgment of Ajay Kumar Pal v. Union of India and another, (2015) 2 SCC 478 . In the above matter, the Hon’ble Supreme Court was examining the case, where the execution of death sentence was due to the delay, which took place in execution of the death sentence, due to pendency of mercy petition and reference was made to a judgment of Ajay Kumar Pal v. Union of India and another, (2015) 2 SCC 478 . In that case there was a delay of 03 years and 10 months, which was found to be inordinate and the delay was not attributed to the accused/ petitioner, but the delay was found on account of functionaries and authorities in question. 22. In paragraph 14 of the above-said judgment, the Hon’ble Supreme Court observed as under : “Paras 44 and 48 of the decisions of this Court in Shatrughan Chauhan and another v. Union of India and others, (2014) 3 SCC 1 , which were quoted in Ajay Kumar Pal (supra), had laid down that undue long delay in execution of death sentence would entitle the condemned prisoner to pray for commuting the death sentence to that of life imprisonment. The individual cases were thereafter dealt with in Shatrughan Chauhan (supra) and paragraph 105 onwards of said decision show that in cases where there was a delay of 12 years (para 118), 9½ years (para 137), 9½ years (para 147), 7 years and 8 months (para 161), 5 years and 8 months (para 175) and 7 years and 5 months (para 209), the benefit of commutation was extended by this Court.” 23. In the case before the Supreme Court the mercy petition was received by the Central Government on 03.03.2011, and it was disposed of on 15.05.2013. In between, the Ministry of Home Affairs, Government of India, forwarded the mercy petition to the Principal Secretary, Home Department, Karnataka so that the Governor, Karnataka could consider the mercy petition. Thereafter, in the meantime, on 09.03.2011, in Writ Petition No. 52 of 2011, preferred by the accused-appellant, the Hon’ble Supreme Court granted stay of execution of death sentence. Before the Central Government authorities, the State Cabinet on 07.05.2012, decided to approve the note prepared by the Home Department recommending rejection of mercy petition. The Governor also rejected the mercy petition on 06.06.2012, and subsequently, the matter was referred to the Central Government on 30.08.2012, and finally, the Hon’ble President, after considering the mercy petition, rejected the mercy petition on 12.05.2013. The Governor also rejected the mercy petition on 06.06.2012, and subsequently, the matter was referred to the Central Government on 30.08.2012, and finally, the Hon’ble President, after considering the mercy petition, rejected the mercy petition on 12.05.2013. Hence, a period of 02 years and 03 months was taken to dispose of the mercy petition. 24. In A.G. Perarivalan v. State through Superintendent of Police and another, 2022 SCC Online SC 635, a bench of three Judges of the Hon’ble Supreme Court had commuted the sentence of death to life in a petition filed under Article 161 of the Constitution of India, keeping in view the fact that the petition remained pending for 2½ years with the Hon’ble Governor, despite recommendation of the State Cabinet for remission of the sentence. 25. In the facts of the present case, the appellant herein was a daily-wager, already leading a deprived life in the society. He is not a person with any criminal history/ background. He has not done this act for any financial gain, and even in the custody, if he is kept for 20 years, it would be the duty of the Prison Department to give him good counseling, so that his mindset can become more positive, and he could relate to the society, when he comes out of the jail. 26. A reference, at this stage, can be made to a report given by three counselors, who had gone to the Model Jail Chandigarh, and had interacted with 140 POCSO inmates, out of which 07 had temperamental issues, 08 had personality issues, 08 were influenced by peer pressure, 03 were influenced by intoxication (use of alcohol/substance). In their report, they have given the following reasons, why the inmates committed this crime: “After conversing with the inmates under POCSO act, it was observed that 44 cases out of 140 seemed to have other reasons behind committing the crime such as bad parenting, low decision making, low coping skills, emotional instability and problem solving skills.” 27. Following interventions and suggestions were given in the said report : “Psychological Counselling has the theory of Carl Rogers with a focus centred on the person, his feelings, conflicts and perceptions, believing in the potential of man and consequently in the ability to grow and give new meanings to his life. Following interventions and suggestions were given in the said report : “Psychological Counselling has the theory of Carl Rogers with a focus centred on the person, his feelings, conflicts and perceptions, believing in the potential of man and consequently in the ability to grow and give new meanings to his life. Counselling is often seen as a practice that provides "solutions" to small or large behavioural misalignments or even gives clear instructions for the patient to make decisions. Currently, counselling is seen as a learning process with the objective of adapting the subject according to the values that it attributes to life. The human being carries capacities and potentialities that can be measured and developed and therefore has the potential for evolution and change, so the counsellor must assume the role of model, organizing rules of conduct, social values and habits. However, the main objective of Psychological Counselling is to reduce the risks to the client's health derived from concrete changes, developing uniqueness and accentuating individuality, modifying negative behaviours, improving the client's quality of life in addition to the humanization of the services. It is therefore, realized by the three counsellors that some interventions can be introduced in the counselling process with the inmates, which is maximum 30-40 mins per session with per inmate in jail which can help the inmate’s retrospect, analyse and recognise. Providing an inmate counselling might help him/her in recognizing his/her capabilities and competencies which will further help in Personality development and modifying their behaviour which is accepted in society. With the right conduct and procedure counselling can help the inmates in many ways such as improving their mental health, recognizing their abilities, work on their capabilities and improve behaviour.” 28. In the present case also, one of the reasons given in the above-said report of the counselors is the basis for committing crime by the appellant. In this backdrop, it is the advice of the counselors that 40 minutes session should be given to an inmate, so that he may reform, and come out and lead a normal life. 29. In the present case, the judgment of conviction came on 28/31.01.2019, and the reference is being taken up now for final disposal, after a gap of almost five years. Hence, this Court proceeds to commute the death sentence to life imprisonment. 30. 29. In the present case, the judgment of conviction came on 28/31.01.2019, and the reference is being taken up now for final disposal, after a gap of almost five years. Hence, this Court proceeds to commute the death sentence to life imprisonment. 30. Accordingly, Criminal Appeal No. 52/2019 is partly allowed, and the death sentence of the appellant is being commuted to that of imprisonment for life, with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 20 years without remission. The other terms of sentences awarded to the appellant, including fine amount and default stipulations, also stand confirmed. All the substantive sentences awarded to the appellant shall run concurrently. 31. Resultantly, Criminal Reference No. 01/2019 is answered accordingly. 32. Pending application(s), if any, also stand disposed of accordingly.