SUDHIR KUMAR SAXENA, J. - (1.) THIS Criminal Appeal has been filed from jail challenging the judgment and order dated 05.12.2008 passed by Sri Alok Saxena, Additional Sessions Judge, Court no. 6, Hardoi, in S.T. No. 452 of 2007 convicting the appellant under Section 367, 302, 201, 377 read with Section 511 IPC and sentencing him with death penalty and a fine of Rs. 1,000/- under Section 302 IPC; rigorous imprisonment for five years with a fine of Rs. 1,000/- under Section 377/511 IPC; rigorous imprisonment for 10 years with a fine of Rs. 1,000/- under Section 367 IPC and three years rigorous imprisonment with a fine of Rs. 1,000/- under Section 201 IPC. Failure to deposit of fine would make him liable to additional punishment of one year rigorous imprisonment. All the sentences were to run concurrently.
(2.) SRI Alok Saxena, Additional Sessions Judge, Court No. 6, Hardoi has also made a Reference under Section 366 Cr.P.C. for confirmation of the death sentence awarded by him in the Sessions Trial No. 452 of 2007 (State Vs. Gaya Lal), P.S. Kotwali Dehat, District-Hardoi. Since in both the matters validity of the judgment and order dated 05.12.2008 is to be examined, they are being disposed of by common order. Appellant Gaya Lal while appearing in the Court had expressed his inability to engage a counsel, as such, Sri Amit Choudhary was appointed Amicus Curiae to represent him.
(3.) HEARD Sri Amit Choudhary, counsel for the appellant, Gaya Lal, Sri Rishad Murtza, Government Advocate for the state and perused the lower court record. Briefly stated the facts are that Gaya Charan lodged a report with the police of police station Kotwali Dehat, District Hardoi against Gaya Lal under Section 364, 302 and 201 IPC (Case Crime No. 120 of 2007) wherein it was stated that his son Sidh Pal aged about six years along with other children had gone towards west of the village at about 5 p.m. on 07.03.2007 for plucking plums (ber) from where Gaya Lal Pasi, resident of the same village enticed Sidh Pal and took him away. Next day, dead body of the boy was found in the wheat field of Chokhe Pasi and his neck was found tied by wheat stalk. Informant suspected that on account of enmity due to brawl that took place an year ago, Gaya Lal had murdered the boy. Vishwanath had seen Gaya Lal in the company of his son. Report was lodged on 8th March, 2007 at about 11 a.m, inquest report was prepared at 11:30 a.m. Suspicion of unnatural copulation was also expressed by signatories of the inquest. Body was sent for post-mortem which was conducted on 08.03.2007 at 4:15 p.m. Duration of death was found to be around one day and cause of the death was expressed by doctor 'due to asphyxia as a result of strangulation'. Following ante-mortem injuries were found on the body of the deceased: I. A ligature of multiple wheat stem present around the neck with its knot present on back of the neck. On removing this ligature, there was found a ligature mark (under neath) of size 18 cm. X 2 to 3 cm., which was abraded, and present around the neck below the thyroid cartilage. Mark of grooved, abraded and contused. II. On dissection, sub-cutaneous tissues were ecchymosed and margins were congested. III. On dissection of neck, the trachea was found duly congested and tracheal rings were found fractured. Small blood clot was also present around the fractured area. After investigation, police submitted chargesheet on 30th May, 2007 whereupon congnizance was taken by Chief Judicial Magistrate, Hardoi on;