Sanjiv Khanna, J. - (1.) APPELLANT Tasleem @ Hattu by the impugned judgment dated 25th May, 2012 has been convicted for murder and rape of his sister aged about 12 years on 23rd August, 2008. The appellant has also been convicted under Section 506 and 201 of the Indian Penal Code, 1860 (IPC, for short). By order on sentence dated 26th May, 2012, the appellant has been sentenced to undergo imprisonment for life and fine of Rs.5,000/ - and in default of payment to undergo rigorous imprisonment for one year for the offence under Section 302, IPC; rigorous imprisonment for a period of 10 years and fine of Rs.3,000/ -, and in default of payment to undergo rigorous imprisonment for a period of six months under Section 376(2)(f), IPC; rigorous imprisonment for a period of three years and fine of Rs.1,000/ -, and in default of payment to undergo rigorous imprisonment for a period of three months for the offence under Section 506, IPC; rigorous imprisonment for a period of three years and fine of Rs.1,000/ - and in default of payment rigorous imprisonment for three months for the offence under Section 201, IPC. The sentences are to run concurrently. The aforesaid conviction arises out of charge sheet filed in FIR No. 294/2008, P.S. Bawana.
(2.) THE prime witnesses in the present case are Salman @ Nevla (PW4), brother of the appellant and the victim, Shamsuddin (PW7), father of the appellant and the victim, and Amit (PW2), friend of Salman (PW4). Police registered the FIR (Ex.PW10/A) after Shamsuddin (PW7) made a written complaint (Ex. PW7/A) to the effect that he has six sons, and the victim was her only daughter aged about 11 -12 years. Shamsuddin (PW7) in his examination deposed that on 23.8.2008, the victim was not well and was suffering from fever. At about 4.30 -5 PM, the appellant Tasleem came to PW7's work place at Begumpur and informed that something had happened to the victim. At that time, PW7 had asked the appellant to take his sister to the hospital. However, when PW7 returned home, he came to know that the victim had expired. The appellant Tasleem had taken the victim to the hospital and then brought her back. The victim was buried in the graveyard at Mangolpuri on 24th August, 2008. On 25th August, 2008, a number of children had come at their house on the occasion of Teeja. On the said date, Salman (PW4) revealed that the appellant Tasleem had killed the victim by gagging her mouth with a pillow and a towel. Salman (PW4) also informed Shamsuddin (PW7) that the victim had been sexually abused by the appellant before she was killed. Thereafter, along with the police and others, he (PW4) had gone to the graveyard and body of the victim was exhumed. The police also took into possession the clothes worn by the victim, i.e. one kurta, one salwar, one towel (gamchha) and one shawl, and the same were sealed vide memo, Ex.PW7/B. On the next day, police had come to their house and had seized one mattress and two pillows vide memo, Ex.PW7/C. The exhumed dead body of the victim was identified to be that of his daughter by Shamsuddin (PW7) and, thereafter, the same was taken under custody by the police vide memo, Ex.PW7/D, for post mortem.
(3.) STATEMENT of Salman @ Nevla (PW4) aged about 15 years affirmatively supports the prosecution version. He has testified that on 23rd August, 2008, his father had gone to work and he along with his friends including Amit (PW2) was playing outside their house. At about 2 PM, the appellant Tasleem came there and took the victim with him holding her hand. After about 15 minutes, the victim came back and had told them that the appellant Tasleem was pressing/gagging her mouth with a pillow. The victim stayed back. After about 20 minutes, the appellant came back and asked the victim to accompany him. The victim was hesitant and refused, but was forcibly taken away. The victim returned and protested that the appellant was pressing/gagging her mouth. Salman (PW4), thereupon, left the victim in the house of one Vinod. However, the appellant came there at about 3 PM and took the victim with him. The appellant had asked PW4 to fetch a rickshaw for returning the TV and VCD which he had taken on hire. PW4 requested his friend Amit (PW2) to fetch a rickshaw and PW4 proceeded towards his house. PW4 found that the house was bolted from inside and he could hear sound of TV. On peeping through the window, he saw that an obscene movie was being played on TV and the appellant had sexually assaulted the victim. The victim had protested and warned that she shall inform her father. The appellant, undeterred, had warned her that she would be killed. The appellant caught the victim by her neck. The victim was made to lie down on the mattress and, thereafter, the appellant took off his pants and raped her. The appellant had put a towel/angocha inside the mouth of the victim and had pressed/gagged her face (mouth) with the towel. After sometime, the appellant put on his pant and went away through the door. PW4 then went back to Vinod's house. The appellant also came to the house of Vinod and handed over the keys of their house to PW4. PW4 was directed by the appellant to go to their house but remain quiet as the victim was sleeping. PW4 along with Amit (PW2) went to the house and saw that the victim was lying on the mattress with one pillow on her face. They removed the pillow to notice that the victim was not breathing. PW4 started weeping. The appellant thereupon came there and was told that the victim had died. The appellant did not show any remorse nor did he shed any tears. The appellant, thereafter, had called their father. Salman (PW4) wanted to narrate the incident to his father but kept quiet, afraid that he too would get killed. He (PW4) narrated the incident to his father only on 27th August, 2008. We notice that Salman (PW4) in his statement has also incorrectly asserted that his father had met the police on 27th August, 2008. However, the wrong date given by Salman (PW4) would not, in our opinion, dent the prosecution case. On being questioned by the Additional Public Prosecutor, PW4 deposed that he was illiterate and did not remember the exact dates. This error was corrected by PW4 in his cross -examination. PW4 identified the mattress and pillows which were used by the appellant at the time of commission of offence and were subsequently seized and marked as Ex.P2 and Ex.P3. PW4's statement was also recorded under Section 164 of the Code of Criminal Procedure, 1973 (CrPC, for short) which was marked Ex.PW4/A. The said statement (Ex.PW4/A) is no different.;