- (1.) Criminal Capital Appeal No. 1037 has been preferred by Babloo @ Dori Lal against the judgment and order of the Addl. Sessions Judge, Court No. 4, Moradabad, dated 21.1.2004 in ST No. 763 of 2002 (State v. Mohar Singh and Ors.) convicting the appellant and sentencing him to death penalty under Section 302 IPC, to life imprisonment and a fine of Rs. 10,000/- under Section 364 IPC and 7 years' RI and a fine of Rs. 5,000/- under Section 201 IPC. In case of default of payment of fine, four years further imprisonment was awarded to the appellant. For confirmation of the sentence of death, Reference No. 16 of 2004 has been received from the learned Addl. Sessions Judge, Moradabad under Section 366(2) Cr.P.C. From the same judgment Crl. Appeal No. 1339 of 2004 has been preferred by appellant Mohar Singh and Criminal Appeal No. 415 of 2004 has been preferred by Roopa Kumhar and Kalyan Kumhar. Mohar Singh, Roopa and Kalyan have been sentenced to imprisonment for life under Section 302 IPC together with a fine of Rs. 10,000/-Under Section 364 IPC appellants Mohar Singh, Roopa and Kalyan have been sentenced to life imprisonment and a fine of Rs. 10,000/-. Under Section 201 IPC Mohar, Roopa and Kalyan have been sentenced to 3 years' RI and a fine of Rs. 5,000/-. In case of default of payment of fines, the appellants Mohar Singh, Roopa and Kalyan were to undergo 4 years' simple imprisonment.
(2.) The aforesaid appeals and criminal reference have been connected and are being disposed of together by the present judgment.
(3.) The prosecution case in a nutshell, as mentioned in the FIR, was that the daughter of Mohar Singh (son of Harish Chandra), Smt. Krishna, had come to the house of the informant in Kashipur along with her four years old son Kaku in connection with a marriage in the family. On 8.5.2002 at 4 pm Kaku disappeared from the house. A search was made for him by the informant and his relatives, but Kaku was not found anywhere. Prior to this on 6.5.2002 there was a theft in the workshop of the informant. The appellant, Mohar Singh, son of Om Prakash, and Babloo have been made accused by the informant Mohar Singh, son of Harish Chandra, for this theft. They had been apprehended and brass slabs had been recovered from them. Later, they had threatened to take revenge but on the persuasion of the Mohalla people and looking to the ages of the accused, the informant had not initiated any legal action against them and had let them off. When the appellant, Babloo, was questioned with some severity after the disappearance of Kaku, he confessed that he along with appellant Mohar Singh and appellants Roopa Kumhar and Kalyan Kumhar had jointly murdered Kaku and thrown his dead body in the Jayantipur nala where it was lying. On this information by Babloo, the informant and his relatives reached the spot indicated by Babloo. There they found the dead body of Kaku lying there. Thereafter the informant had come to the police station with Babloo. On the way he had met Nanliey and Kishan Lal, who told him that they saw the deceased child Kaku going along with the appellants Mohar Singh, Babloo @ Dori Lal, Roopa and Kalyan on 8.5.2002 at 5 pm. The informant lodged a written report of this incident on 10.5.2002 at 5 pm at P.S. Katghar, Moradabad. Head Constable Satish Chandra registered the case at crime No. 840 of 2002, under Sections 364, 302 and 201 IPC: State v. Mohar Singh and Ors. on the basis of the report on 10.5.2002 at 12.40 pm. At that time PW 5 SSI, P.K. Jain was present. He was also a signatory of the chik FIR (Ext. Ka 11) along with HC Satish Chandra. The details were entered by HC Satish Chandra in GD No. 24 on 10.5.2002 at 12.40 pm. PW 5, SSI P.K. Jain started investigation of this case and entered the chik FIR in the G.D. He, thereafter, reached the place of incident and on the pointing out of the informant he prepared the site plan (Ext. Ka 13) which was in his writing and signature. He also recorded the 161 Cr.P.C. statement of the informant and the witnesses. Prior to the preparation of the site plan he got the dead body of the deceased child taken out with assistance from some witnesses. It was taken into possession by the police. SI Suresh Singh and Inspector Kishan Lal conducted the inquest in the presence of PW 5, SSI, P.K. Jain. The SI Suresh Singh also prepared the necessary papers in connection with the inquest (Ext. Ka-3 to Ka 10). The dead body was handed over to CP Ram Lal and CP Gopal Singh for taking it for postmortem. Thereafter he submitted the chargesheet (Ext. Ka 14) against the appellants Mohar Singh, Roopa, Babloo @ Dori Lal and Kalyan. PW 4, Dr. V.K. Goel conducted the postmortem examination of the deceased Kaku, aged about 4 years, at 10.5.2002 at 3.30 pm at Police Hospital, Moradabad, and prepared a report (Ext. Ka 2). The dead body was of average built. Eyes and tongue were protruding out. Body was in a decomposed condition. Skin was peeling off and the nails and hairs had loosened. The following ante mortem injuries were seen on the dead body: There was a linear abrasion mark at top of neck, 2 1/2 cm below chin and measuring 5 cm x 2 cm in size. There was subcutaneous haemorrhage below this mark in the tissue. There was fracture of the thyroid cartilage below the injury. The time of death was about 3 to 5 days. The internal organs were discomposing. According to the doctor, the cause of death was shock and asphyxia due to ante mortem injury. They were summer months and it was possible that the child had died between 5 to 6 pm on 8.5.2002 by having his neck pressed with some wooden stick. He had received 9 police papers along with the dead body which was in a sealed condition. He returned all the police papers after appending his signature and applying his seal along with his postmortem examination report.;