A.K.PATNAIK, J. - (1.) THIS is an appeal by way of special leave under Article 136 of the Constitution of India against the judgment dated 29.07.2009 of the Allahabad High Court in Criminal Appeal No.7361 of 2007 and in Reference No.26 of 2007 confirming the conviction of the appellant under Sections 364, 376, 377, 302 and 201 of the Indian Penal Code (for short 'IPC') as well as the sentences of imprisonments and death awarded by the learned Additional Sessions Judge.
(2.) THE facts very briefly are that on 19.03.2005, one Radhey Shyam lodged a First Information Report (for short 'FIR') at the Daurala Police Station in District Meerut at 21:15 hours alleging that while his mother Manno and wife Shakuntala were present at house, his neighbour Amit, the appellant herein, took away his daughter Monika, aged 3 years, from his house on the pretext that he would give biscuits to her but neither his daughter nor the appellant returned and when at about 5.00 p.m. the appellant came back to his house, he inquired about the whereabouts of Monika, but the appellant did not reply and ran away. Crime No.90 of 2005 for the offence under Section 364, IPC, was registered. THE appellant was apprehended on 20.03.2005 near the Pawli Khas Railway Station, Modipuram, P. S. Daurala in District Meerut and his shirt, which bore blood-stains on its right arm, was taken off from his person. On the statement of the appellant, the dead body of Monika kept in a plastic bag was recovered from the wheat field in the out skirts of village Palhara in the presence of Radhey Shyam and Iqbal Singh. A pair of green colour chappals, which were blood-stained, were also recovered from the corner of a room of the house of the appellant on the statement of the appellant in presence of Radhey Shayam and Iqbal Singh. THE shirt of the appellant and the chappals, frock, underwear of Monika and a back thread were sent to the Forensic Science Laboratory Uttar Pradesh, Agra, which confirmed presence of human blood and human sperms on some of these materials. After investigation, chargesheet was filed against the appellant under Sections 364, 376, 377, 302 and 201, IPC, and charges were accordingly framed by the learned Additional Sessions Judge, Court No.12, Meerut, and Sessions Trial No.449 of 2005 was conducted. At the trial, Radhey Shyam was examined as PW-1. His wife and mother were examined as PWs-2 and 3. Iqbal Singh, the witness to the seizures made pursuant to the statements of the appellant, was examined as PW-4. Dr. Vikrama Singh, Senior Pathologist, who carried out the post-mortem on the body of Monika, was examined as PW-5 and the Investigating Officer was examined as PW-6. In his statement under Section 313, Criminal Procedure Code (for short 'Cr.P.C.'), the appellant denied having committed the offences but no evidence was adduced by him in his defence. The trial court considered the evidence, heard the arguments and found the appellant guilty of the charges under Sections 364, 376, 377, 302 and 201, IPC. After hearing the appellant on the question of sentence, the trial court imposed the punishment of life imprisonment and a fine of Rs.5,000/- for the offence under Section 364, IPC, and a further sentence of six months if the appellant failed to pay the fine. For the offence under Section 376, IPC, the trial court also imposed the punishment of life imprisonment and a fine of Rs.5,000/- and on failure to pay the fine, a further sentence of six months. For the offence under Section 377, IPC, the trial court also imposed the punishment of life imprisonment and a fine of Rs.5,000/- and on failure to pay the fine, an additional sentence of six months' imprisonment. For the offence under Section 201, IPC, the trial court imposed a sentence of five years imprisonment and a fine of Rs.2,000/- and on failure to pay the fine, an additional sentence of two months' imprisonment. The trial court took the view that this is one of those rarest of rare cases in which the appellant was not eligible for any sympathy of the Court and imposed the sentence of death and a fine of Rs.5,000/- on the appellant for the offence under Section 302, IPC. The High Court, as we have already noted, has not only confirmed the convictions under Sections 364, 376, 377, 302 and 201, IPC, but also the sentences awarded by the trial court. At the hearing of the appeal, learned counsel for the appellant submitted that PW-3 was the only person who was witness to the appellant taking away Monika from the house of PW-1, but PW-3 was an aged woman and she has admitted in her cross- examination that she cannot see with her right eye. He submitted that PW-3 was an interested witness inasmuch as she was the grandmother of Monika and her evidence should not be relied on. He argued that no Test Identification Parade was conducted during investigation for the witness to identify the appellant. He further submitted that no independent witnesses were taken by the Police for recovery of the articles and instead the father of Monika (PW-1) was made a witness to the recovery of various articles and there is evidence to show previous enmity between PW-1 and the appellant and PW-1 has planted this case against the appellant. He also argued that the weapon by which Monika was killed has not been recovered and hence there is no proof that the appellant has committed the offence under Section 302 IPC.
(3.) LEARNED counsel for the State, on the other hand, took us through the evidence of PWs-1, 2, 3 and 4 as well as the three memoranda of recovery made on 20.03.2005 pursuant to the confessional statements of the appellant admissible under Section 27 of the Evidence Act as well as the report of the Forensic Science Laboratory to show that the trial court rightly convicted the appellant and the High Court rightly confirmed the conviction under Sections 364, 376, 377, 302 and 201, IPC. We may first consider the contention of the learned counsel for the appellant that the evidence of PW-3 who saw the appellant taking away Monika from her lap should not be relied on. PW-3 is no doubt the grandmother of Monika but she is not an interested witness. As has been held by this Court in State of Rajasthan v. Smt. Kalki and another [(1981) 2 SCC 752], Myladimmal Surendran and others v. State of Kerala [(2010) 11 SCC 129] and Takdir Samsuddin Sheikh vs. State of Gujarat and another [(2011) 10 SCC 158], an interested witness must have some direct interest in having the accused somehow convicted for some extraneous reason and a near relative of the victim is not necessarily an interested witness. There is no evidence to show that PW-3 was somehow interested in having the appellant convicted. PW-3, however, is an aged woman and she has admitted in her cross-examination that she cannot see with her right eye but she has also stated in her cross-examination that she can see with her left eye and the sight of her left eye has not diminished on account of old age and she can fully see everything and can also pass a thread through the eye of the needle and that she does not use spectacles and can see without spectacles. Hence, the evidence of PW-3 that the appellant came to her house and took away Monika from her lap on the pretext of giving biscuits to her cannot be disbelieved.;