- (1.) IMTIYAZ Murtaza, J. This appeal is directed against the judgment and order dated 13. 3. 2006 passed by Addl. Sessions Judge, Fast Track Court No. 1, Gorakhpur in S. T. No. 457 of 2004, State v. Ghantoo whereby the appellant is convicted and sentenced to death under section 302 I. P. C. and further convicted under section 376 I. P. C. and sentenced to undergo R. I. for 10 years and a fine of Rs. 3,000/ -.
(2.) THE brief facts of the case are that the informant Pardeshi had gone to village Bankatwan on 6. 8. 2004 along with his family members. His daughter-in-law and daughters Sambhawati and Subhawati were alone in the house. Km. Sambhawati, aged about 15 years had gone to take fodder from the fodder house. On hearing her shrieks her daughter and daughter-in-law rushed and saw that the appellant Ghantoo was coming out from the fodder house and ran away. His daughter and daughter-in-law had seen him running away and his daughter Km. Sabhawati was lying dead in the fodder house. He suspected that his daughter was raped and on account of that she died. THE report was entered in the G. D. Sub Inspector B. P. Misra reached at the place of occurrence along with S. H. O. Ajeet Kumar Singh and other police personnels and on the direction of S. H. O. he started inquest proceedings. After the inquest the dead body was handed over to Con. Kanhaiya Lal Yadav and Homeguard Suresh Prasad. THE inquest report is Ext. Ka-2 and letter to C. M. O. , letter to R. I. , challan lash and photo lash are Exts. Ka-3 to Ka-6. Head Constable Sahendra Kumar Yadav had registered the case on the basis of report which is Ext. Ka-7, G. D. entry is Ext. Ka-8. S. H. O. Ajeet Kumar Singh, P. S. Ahirauli Bazar commenced the investigation. Sri B. P. Mishra, S. I. prepared the inquest report on his direction. He also recorded the statements of the inquest witnesses and prepared the site plan which is Ext. Ka-11. On 9. 8. 2004 he recorded the statements of witnesses Subhawati, Urmila, Samai and Panmati. He also dispatched the vaginal swab for pathological examination. After the conclusion of the investigation he submitted the charge sheet under sections 376 and 302, I. P. C. which is Ext. Ka-12. Dr. R. S. Mishra had conducted the pathological examination of vaginal swab and found spermatozoa in its report which is Ex. Ka-9. Dr. R. A. L. Gupta had conducted the postmortem examination on 7. 8. 2004 on the dead body of Km. Sambhawati. He noted following ante-mortem injuries: 1. Ligature mark 12 cm. x 1 cm. over front of neck, below thyroid cartilage. 2. Contusion 6 cm. x 4 cm. over (Rt.) cheek. Contusion 4 cm. x 4 cm. over (Lt.) cheek. On cutting Haematoma present and on cutting ligature mark, there is congestion present underneath and extravasations of Blood on Both carotid region, Trachea congested having Bloody froth. Hyoid Bone fractured. In his opinion the cause of death was due to asphyxia as a result of strangulation. 3. After the submission of the charge-sheet, the case was committed to the Court of Sessions. The Sessions Judge had framed charges against the appellant under sections 302 and 376, I. P. C. to which he denied and claimed trial. The prosecution in order to support its case examined 8 prosecution witnesses. The case of the defence was of denial. It was suggested that at the instance of informant, Pardesi P. W. 2 and P. W. 3 are falsely deposing against him. The defence had examined 2 defence witnesses. The Sessions Judge had convicted the appellant, as aforesaid. Hence this appeal. We have heard Shri Rajeev Chaddha, learned Counsel for the appellant and Sri Arunendra Singh, learned A. G. A. for the 'state. It is contended by learned Counsel for the appellant that the appellant has been falsely implicated in this case. The presence of eye-witnesses is highly doubtful as no independent witness has supported the prosecution case and Sessions Judge had wrongly convicted the appellant on the basis of conjecture and surmises. It was further submitted that the statement of P. W. 2 Urmila was recorded by the Investigating Officer in which she had given a totally different version and did not implicate appellant and the Sessions Judge wrongly ignored the said statement. On the basis of evidence on the record no offence under section 302, I. P. C. is made out against the appellant.
(3.) IN order to appreciate the submissions of the Counsel for the appellant we have to examine the testimonies of the witnesses. P. W. 1 Pardeshi deposed that on the date of occurrence he had gone along with his wife to village Bankatwa for performing the death ceremony of his son-in-law Sohan. His two daughters namely, Subhawati and Sambhawati remained in the house along with his daughter-in-law Urmila. When he returned after the ceremony his daughter and Urmila told him that Sambhawati had gone to a shanty where fodder was kept and appellant had committed rape and thereafter killed her by strangulation. After committing the crime he ran away after removing the wall of the bricks. He saw the dead body of his daughter. He scribed the report by Devendra Kumar and lodged the same at the police station, which is Ext. Ka-1. INvestigating Officer had also prepared the inquest on the dead body of his daughter. P. W. 2 Urmila deposed that on the date of occurrence his father-in-law Pardeshi, mother-in-law Chandmati and brother-in-law Ram Bhawan and his wife had gone to village Bankatwa. She was in the house along with his two sisters-in-law, namely, Subhawati and Sambhawati. At about 2 to 2. 30 p. m. they heard the cries of Sambhawati. She along with Subhawati had gone in the room where the fodder was kept and saw that the appellant was committing rape and thereafter he had strangulated Sambhawati. Seeing them he ran away from the room. P. W. 3 Subhawati was a child witness and she was found competent to give evidence by the Sessions Judge. She deposed that on the date of occurrence she, her sister-in-law Urmila and sister Sambhawati were in the house. His father, mother, elder brother Ram Bhawan and his wife Sirjawati had gone to perform the death ceremony of her brother-in-law. At about 2-2. 30 p. m. Sambhawati had gone to bring fodder from a room. Ghantoo reached there and committed rape. Hearing her cries she reached there and saw the occurrence and called her sister-in-law Urmila and found that his sister was trying to cry but Ghantoo was pressing her neck and seeing them accused appellant ran away from the eastern side. They reached in the room and saw that Sambhawati was lying dead. After some time his father, mother, brother and sister-in-law returned and the dead body of Sambhawati was brought outside the room. P. W. 4 S. I. B. P. Srivastava deposed that on 6. 8. 2004 he was posted at P. S. Gulharia. He had entered the information of Pardeshi in G. D. and thereafter he along with S. O. Ajit Kumar Singh reached at the place of occurrence and on the direction of S. H. O. he had prepared the inquest on the dead body. After conclusion of the inquest proceedings the dead body was sealed and handed over to constable Kanhaiya Lal and Surejendra Prasad for carrying it to the mortuary. The inquest memo is Ext. Ka-2. Letter to C. M. O. , letter to R. I. , Challan Lash and Photo Lash are Exts. Ka-3 to Ka-6. P. W. 5 H. C. Sahendra Kumar Yadava deposed that he had entered the information given by Pardeshi in the G. D. No. 45. After the registration of the information in the G. D. , S. H. O. , Ajit Kumar Singh, S. I. B. P. Srivastava, constable Kanhaiya Singh Yadav, H. C. Suresh Prasad and constable Ram Deo Yadav reached at the place of occurrence. Copy of the G. D. entry is Ext. Ka-7. After the receipt of the post-mortem report on 8. 8. 2004 Case Crime No. 522 of 2004 was registered under sections 376 and 302 I. P. C. against Ghantoo. A copy of the G. D. entry is Ext. Ka-8. P. W. 6 Dr. R. S. Misra had conducted the examination of vaginal swab and he found dead spermatozoa and the report of vaginal swab examination is Ext. Ka-9. P. W. 7 Dr. R. A. L. Gupta had conducted the post-mortem examination of the deceased. P. W. 8 S. H. O. Ajit Kumar Singh is the INvestigating Officer of the case. The defence has examined two witnesses. D. W. 1 Makatu deposed that daughter of Pardeshi had died about one and a half year back. Her dead body was taken out from a room by Kashi Nath and Tushar. On the date of occurrence wife of Jhinnu Beldar had died. He was present in his house. Other villagers had gone to attend the cremation. D. W. 2 Vinod Kumar Singh deposed that on 6. 8. 2004 wife of Jhinnu had died and cremation had taken place about 2-2. 30 p. m. Several persons attended her cremation. When the dead body of the wife of Jhinnu was taken away from the village, Sambhawati had died. The dead body of Sambhawati was taken out of house and at that time Pardeshi was not present.;