IMTIYAZ MURTAZA, J. - (1.) CHALLENGE in this appeal is to the judgement and order dated 10.9.2008 passed by Addl. Sessions Judge/Special Sessions Judge (E.C. Act) in S.T. No. 1385 of 2006 whereby the appellant has been convicted under sections 302,376, 307, 506 I.P.C. and section 25 of Arms Act and awarded sentences: to be hanged till death and a fine of Rs. 1,00,000/-, imprisonment for life and fine of Rs. 50,000/-, 3 years' R.I. and a fine of Rs. 10,000/-, one year R.I. and again one year R.I. respectively.
(2.) THE substratum of the prosecution case is that on 18.10.2006 at about 12 noon, Rajni daughter of informant Vinod Kumar, aged about 11 years who was studying in Class V had gone to the field for watching the mustard crop, which the first informant had taken on Batai from Jagdish Master. It is further alleged that adjacent to this field, are the tube well and also the field of Sonu with standing sugar cane crop. At about 1 p.m, when the first informant and Lala happened to be near the field of Sonu, they heard the shrieks of his daughter emanating from the sugar cane field of Sonu upon which he and Lala rushed in that direction raising hue and cry. It was about that time that Sonu emerged from the sugar cane field holding in one hand blood stained Khurpi and in another hand, country made pistol. Seeing them, Sonu fired at them but the shot deflected and missed them. It is further alleged that they took shelter in nearby sugar cane field. Hearing reports of fire, the people who were busy working in their respective fields, took to their heels and escaped towards the village. It is further alleged that somehow or the other, the informant and Lala managed to enter the field of Sonu from the other side and found his daughter lying supine with her neck slit. It is further alleged that leaving Lala with his dead daughter, the informant rushed back to the village where he found that the entire village was enveloped in eerie silence. His wife was weeping and wailing. Seeing the informant, she told him that Sonu had come here and after firing 2-3 shots, gave threats that he had finished Rajni and that he would also do away with any one who dared to initiate any legal action against him. He further alleged that while he alongwith Ashwani Sharma was on way to the police station for lodging the report, Sonu once again emerged before them armed with a country made pistol from near a Madhai (small room) and repeated his threats saying that in case they went to lodge the report, he would finish them. Sensing trouble to them, it is further alleged, they retreated to the village and upon return to the village, he dictated the report to Ashwani Kumar and thereafter, he affixed his thumb impression on the report, which is Ext. Ka-1. It is further alleged that he had somehow managed to come furtively to the police station making a detour round the various fields. P.W. 5 S.I Vijai Kumar Singh, prepared the inquest report on the dictation of Yash Pal Singh. He also prepared Challan Lash, Photo Lash, report for C.M.O etc Ex. Ka 5 to Ex ka 10. The dead body was thereafter despatched for post mortem escorted by the police constables Netra Pal Singh and constable Mukesh Kumar. On 26.10.2006, it would appear, accused Sonu was arrested and country made pistol was recovered from his possession and case under section 25 Arms Act was also registered against him. At about 5.50 p.m, Vijai Kumar Singh S.I alongwith S.O. Yashpal Singh and constable Tejvir Singh and constable Kuldeep went to village Kaviyawali in the Jeep alongwith accused person and on his pointing out Khurpi used in the commission of murder was recovered from near the tubewell at about 7 p.m.
(3.) THE post mortem was conducted on 9.10.2006 by Dr. P.M.Gupta P.W. 3. According to the post mortem report, the probable age of the deceased was about 11 years and probable time of her death was 1,1/4th day. In the post mortem report, the condition of body was described as such; "Muscularity average, stoutness, average, Emaciation Nil, rigour mortis passed in upper extremity passing in lower extremity. Decomposition nil. The doctor further opined that libia miner was abraded and swelled. Hymen ruptured at 6 o'clock position. Blood present inside vagina. Two slide of vaginal smear prepared and sent to Senior Pathologist for examination". Following ante mortem injuries were found on the person of the deceased. 1.Incised wound of size 12 cm x 2 cm x bone deep over front and right side of chin. Mandible partially cut. Margin are clean cut. 2.Incised wound of size 8 cm x 2 cm x neck cavity deep just above the thyroid cartilage. Margin are clean cut. Allthe large vessels of right side of neck are cut. Pharnyx is cut. 3.Abraded contusion 4 cm x 2 cm on left side of chest 4 cm above from left nipple at 2 o' clock position. In the stomach, about 100 ml semi digested food was found. The uterus was non gravid. In the opinion of the Doctor, the death was due to shock and haemorrhage as a result of ante mortem injuries. It would appear that after receiving report of post mortem, section 376 IPC was added.;