- (1.) DEATH sentence awarded by learned Special Judge ec Act/additional Sessions Judge, Agra in Sessions trial No. 83 of 2004 having been confirmed by the allahabad High Court in appeal and in the reference made under Section 366 of the Code of Criminal procedure, 1973 (in short the 'code') this appeal has been filed. The appellant was convicted for offences punishable under Sections 364, 376 and 302 of the indian Penal Code, 1860 (in short the 'ipc' ). The girl who had not seen six summers in life was the victim of sexual assault and animal lust of the accused appellant. She was not only raped but was murdered by the accused appellant.
(2.) PROSECUTION version as unfolded during trial read as follows: The genesis of the prosecution case was the written fir lodged at Police Station Tajganj of Agra District on 4. 10. 2003 at 10. 45 PM by Naresh Kumar (PW 2 ). The occurrence took place at about 9. 30 O'clock the same night in village Basai Khurd within the said police station. The victim was an unfortunate teenaged girl Vaishali of about 5 years. She was the daughter of Vishal. The broad features of the case as culled out from the fir and evidence brought on record is as follows: there was "devi Jagran" at the house of Chandrasen alias Taplu (PW 3) in village Basai Khurd in the eventful night. A number of persons of the locality had assembled there. The informant Naresh Kumar (PW2) alongwith his brother Vishal and niece Vaishali (hereinafter referred to as the 'deceased')had also gone there. Around 9 P. M. the accused Bantu-a neighbour of the informant reached there. After exhibiting playful and friendly gestures with Vaishali with whom he was familiar before because of neighborhood, enticed her away on the pretext of giving her a balloon. Several persons including naresh Kumar (PW 2) and Nand Kishore (PW 6) saw him going away with the girl from the place of "devi Jagran". When vaishali did not return for a long time, a frantic search was made to trace her out by the members of the family. Chandrasen alias Taplu (PW 3) and Sanjiv son of Daulat Ram informed them that they had seen the accused Bantu going with Vaishali hoisted on his waist towards the pond. Around 9. 30 PM they reached near the field of one Dharma in which grown up Dhaincha plants were there. With the help of torches they saw that the accused Bantu was thrusting a stem/stick of Dhaincha in the vagina of Vaishali having thrown her down. An alarm was raised, by them and Bantu was caught red handed in completely naked state. Vaishali was lying on the ground unconscious with a part of stem of dhaincha inserted in her vagina. She was bleeding profusely. She had other injuries also on her person and was not responding at all. She was instantly rushed to S. N. Medical college, Agra where the doctors pronounced her to be dead. Upon interrogation, the accused Bantu allegedly admitted that after committing the rape he inserted stem/stick in her vagina to murder her. On the case being registered, the investigation was taken up by SHO Dalip Kumar Mittal (PW 7 ). Major part of the investigation was conducted by him but the charge sheet came to be submitted by subsequent Investigating officer R. K. Dwivedi (PW 8 ). A panel of two doctors headed by Dr. R. S. Chahar (PW 1) conducted post-mortem over the dead body of the deceased on 5. 10. 2003 at 3 P. M. The deceased was aged about five years and about one day had passed since she died. The following ante mortem injuries were found on her person: 1]. Multiple contusion over face and head, more on right side, ranging in size from. 5 cm to. 5cm x 3cm. Lips were contused with swelling multiple nail marks present over left side on her neck and behind the left ear. 2]. Abrasion 2cm x 4cm present over posterior aspect of both elbows and right wrist. 3]. Labia minora of both sides in posterior parts contused. Hymen ruptured free and clotted blood seen in vagina. 4]. Green wooden stick found inserted in vagine. Length of external part of stick 24 cm. Incompletely broken in two parts. On internal examination, stick of 33 cm length found inside vagina, in continuation with external part of stick. Thus total length of the stick was 57 cm x 8cm in diameter at most of places. Dried blood present on external part of stick. Internal examination revealed that small and large intestine were perforated at places due to insertion of the stick. The stomach contained semi digested food of about 200ml. Free and clotted blood was present in the cavity. The mesenteric vessels in the abdomen were torn due to insertion of wooden stick. Uterus was small in size and was ruptured due to insertion of wooden stick into the vagina. The walls of cervix were lacerated. Slides of vaginal swab were prepared for examination. The wooden stick inserted inside vagina was sealed. No spot of semen was found on the part of the body. Due to precarious condition of vagina, it was not possible to say whether rape was committed or not. In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of ante mortem injuries due to insertion of the wooden stick into the vagina of the deceased. The jeans pant of the accused was sent for chemical analysis to ascertain marks of blood and semen. As per the doctor examining the accused, injuries could be caused by blunt object and were fresh in nature. The accused was fully capable of performing the act of rape. The injury report Ex. Ka-5 was prepared. According to the Doctor since no smegma was found present on the glans penis of the accused and it was clean, it was inferred that he had committed sexual intercourse. Smegma gets removed from the glans penis during sexual intercourse. The abrasions on the genitals of the accused supported his view. The Doctor denied the suggestion that the injuries could be sustained at 7-8 P. M. that night. Rather, he testified that the injuries could be sustained between 10-11 P. M. that night. The defence was of denial and false implication due to enmity of witnesses arising out of land dispute. The accused, however, admitted that he was the neighbour of the informant and that there was a Devi Jagran at the house of Chandrasen alias Taplu (PW 3) in the eventful night. Other facts were denied by him in his statement under Section 313 Cr. P. C. In order to establish the guilt of the accused appellant the prosecution in all examined 8 witnesses. Out of them, Naresh Kumar (PW 2) (informant and uncle of the deceased), Chandrasen alias Taplu (PW 3) and Nand Kishore (PW 6) were material witnesses of fact who supported the prosecution case in its entirety. The trial court observed that the witnesses of fact were not supposed to manufacture false evidence play on the imagination. They truthfully narrated what they saw with their own eyes and their testimonial assertions went a long way to prove the factum of rape having been committed by the accused on the unfortunate child. The trial court found the accused guilty and sentenced him as under: JUDGEMENT_1244_TLPRE0_2008Html1.htm
(3.) SINCE confirmation of death sentence needed approval of the High Court, reference was made to the High Court. In support of the appeal before the High Court it was submitted that the circumstances do not make out the alleged offence. The High Court did not accept it. Placing reliance on the evidence on Naresh Kumar (PW2), Chandrasen (PW3) and three others who had taken the accused to the police station the conviction was accorded. It was noted that the accused was found in a naked condition at the spot and was caught by pw 2,3 and others. He was not wearing any underwear. The pant which he was made to wear before he was taken to the police station was seized by the police and was sent for chemical examination to ascertain marks of blood, semen etc. The chemical examiner in its report found blood stains, sperms and semen on the pant of the deceased.;