- (1.) This criminal appeal has been preferred against the judgment and order dated 17.7.2009 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 268-DB of 2009, by which it has affirmed the conviction of the appellant under Sections 302/376(2)(f) and 201 of Indian Penal Code, 1860 (hereinafter referred as 'IPC') and accepted the death reference made by the Additional Sessions Judge, Yamuna Nagar at Jagadhari vide judgments and orders dated 2.3.2009/6.3.2009 and confirmed the sentence of death.
(2.) Facts and circumstances giving rise to this appeal are that : A. Smt. Roopa Devi (PW.3) wife of Neel Kumar @ Anil Kumar appellant, had gone to her parental home at village Kesri alongwith her minor son on 26.6.2007 leaving her two children i.e. Sanjana, daughter, 4 years old and Vishal, son, 2 years old at her matrimonial home with her husband appellant. She had to return back on the same day but could not return and stayed at her parental home. On the same day, she received information by telephone at 4.00 p.m. from her brother-in-law Ramesh Kumar that her husband had committed rape upon her 4 years old daughter Sanjana. Roopa Devi (PW.3) came back to her matrimonial home on the next day i.e. 27.6.2007 alongwith 5-7 persons including her family members and neighbours and found her daughter Sanjana, victim, in an injured condition. The Panchayat was convened to resolve the problems. However, the Panchayat could not resolve the dispute, therefore, Roopa Devi (PW.3), complainant, returned to her parental home alongwith accompanying persons leaving her injured daughter Sanjana and son Vishal in the custody of the appellant at her matrimonial home. Roopa Devi (PW.3) wanted to take her injured daughter for medical help, but the appellant and his family members restricted her and even tried to snatch her 15 days old son from her. B. Roopa Devi (PW.3) received a telephone call again from her brother-in-law Ramesh Kumar on 28.6.2007 informing her that appellant had killed her daughter Sanjana. She came there alongwith her brother Gulla (PW.4) and lodged the report to P.S. Bilaspur against the appellant for committing the rape on her 4 years old daughter Sanjana on 26.6.2007 and against her brother-in-laws and appellant for committing her murder on 27/28.6.2007 and concealing her dead body. Thus, on her complaint, a case under Sections 376(2)(f), 302, 201/34 IPC vide FIR No. 91 dated 28.6.2007 at Police Station Bilaspur (Haryana) was registered. C. Immediately, thereafter, on the same day i.e. 28.6.2007, on the application moved by the Investigation Officer, the Deputy Commissioner, Yamuna Nagar, authorised Shri Narender Singh, SDM, Jagadhari to pass an order of exhumation of the dead body from the graveyard and on such order being passed, the dead body was recovered from the graveyard. It was photographed and an inquest report was prepared. Dead body was sent for post-mortem examination. The requisite plan of place of recovery of dead body was prepared. The Investigating Officer inspected the place of occurrence on 29.6.2007 and prepared the site plan. The appellant and his brothers were arrested on 30.6.2007. Appellant was medically examined and on his disclosure statement, the Investigating Officer recovered one blood stained bed sheet from his house and further a gunny bag containing one Pajama, blood stained piece of cloth, pant, shirt and one pillow from a rainy culvert near Majaar of Peer on Kapal Mochan Road (Exts. P-23 and P-25). D. After filing the chargesheet, the case was committed to the Court of Sessions and on conclusion of the trial, the learned Sessions Judge vide judgment and order dated 2.3.2009 acquitted all other coaccused but convicted the appellant under Sections 302, 376(2)(f) and 201 IPC and vide order dated 6.3.2009 awarded death sentence under Section 302 IPC, life imprisonment under Section 376(2)(f) IPC and rigorous imprisonment for 3 years for the offence under Section 201 IPC. E. Being aggrieved, the appellant preferred Criminal Appeal No. 268-DB of 2009 in the High Court of Punjab and Haryana at Chandigarh, which was dismissed by the impugned judgment and order dated 17.7.2009 confirming the death sentence upon reference. Hence, this appeal.
(3.) Mr. Shekhar Prit Jha, learned counsel appearing for the appellant, has submitted that appellant has falsely been enroped in the offence by the complainant Roopa Devi (PW.3) as the relationship between the husband and wife had been very strained. Even, subsequently, she filed divorce petition against the appellant. It is quite unnatural that once the complainant Roopa Devi (PW.3) had come from her parental house to her matrimonial home, then, on being informed about the rape by the appellant upon their minor daughter of 4 years of age, the complainant would go back to her parental house leaving the girl in the custody of the appellant and that too, when she was suffering from serious vaginal injuries. Since, the evidence of the complainant and her brother Gulla (PW.4) has been disbelieved in respect of four brothers of the appellant and they have been acquitted, the same evidence could not have been relied upon for convicting the appellant. When the complainant left for her parental house on 27.6.2007, the children had been in the custody of appellant's brother Ramesh Kumar and, therefore, there was no possibility of the appellant committing Sanjana's murder. It is by no means a case which falls in the category of rarest of rare cases warranting the death sentence. The appeal deserves to be allowed.;