R. N. Misra, J. - (1.) -This appeal has been preferred by the appellant Kuldeep alias Bholu against the judgment and order dated 14.9.2005, passed by Shri S. Lal, the then Addl. Sessions Judge, Court No. 3, Bulandshahr in Sessions Trial No. 869 of 2003, by which the appellant has been convicted for the offences punishable under Sections 376 (g) (2) and 302 read with Section 34 of the Indian Penal Code and Section 4/25 of Arms Act. The appellant has been sentenced to death under Section 302 read with Section 34, I.P.C. and fine of Rs. 5,000 only. Further, he has been awarded life imprisonment and fine of Rs. 5,000 only under Section 376 (g) (2), I.P.C. He has further been awarded one year R.I. and fine of Rs. 2,000 only under Section 4/25 of Arms Act and in default of payment of fine, he has been awarded simple imprisonment for 1 year and 5 months. All the sentences have been ordered to run concurrently. Since the death sentence has been awarded to the appellant therefore, the learned Sessions Judge has referred this matter under Section 366 of the Criminal Procedure Code for confirmation by this Court.
(2.) THE facts giving rise to this case are as under : "That the complainant-informant Govardhan was a resident of village Samkola, police station Gulaothi, district Bulandshahr and appellant was a resident of village Naya Bansh situate in the same police station. On 22.8.2003, the complainant-informant alongwith his daughter and wife Smt. Chameli had gone to collect grasses from his agricultural field situate outside of his village. His wife and daughter were returning back home and the complainant-informant stayed at his field. It was about 5.30 p.m., when the daughter and wife of the complainant-informant reached near the arhar field of Sonveer. THE appellant alongwith two others namely Mukesh Kumar alias Sonu and Yogendra met them there. THEy had knives and country-made pistols. THEy dragged the daughter of the complainant-informant in the arhar field and one of them put country-made pistol on the temple of Smt. Chameli. One by one they committed rape upon the daughter of the complainant-informant by gagging her mouth with a 'chunari'. When the victim resisted, she was stabbed by the accused persons. Smt. Chameli raised alarms and the complainant-informant and other villagers who were working in the nearby fields, reached there and saw the incident. THE accused persons ran away from the spot. THE complainant-informant and other villagers brought the victim to Savita Nursing Home situate in Kasba Gulaothi for her treatment but she was declared dead by the doctor." On 22.8.2003 at about 8.15 p.m., the complainant-informant went to the police station Gulaothi alongwith the dead body of the girl and lodged F.I.R. Ext. Ka-1 there. The police registered a case on Crime No. 153 of 2003 under Sections 376 and 302 ,I.P.C. as is evident from chik Ext. Ka-2 and G.D. Ext. Ka-3. Sub-Inspector D. P. Upadhyay prepared the inquest Ext. Ka-16 of the dead body, Photo Ext. Ka-17, letters to R.I. and C.M.O. Exts. Ka-18 and Ka-19 respectively, Challan Ext. Ka-20 and sealed the dead body and sent it for the post-mortem examination. Dr. Dinesh Kumar of District Hospital, Bulandshahr, conducted the post-mortem examination, the report of which is Ext. Ka-4. The Investigating Officer, Upendra Kumar proceeded to the place of occurrence, inspected it and prepared site-plan Ext. Ka-7, took blood stained and plain mud and prepared memo Ext. Ka-8. The salwar of the deceased was also taken by Sub-Inspector D. D. Upadhyay, who prepared the memo Ext. Ka-9. Sri Upadhyay also took in possession a 'chunari' of the deceased and prepared memo Ext. Ka-21. The Investigating Officer arrested all the three accused persons and on 12.9.2003 on the pointing out of appellant, a knife was recovered from the field of Jaswant situate near the place of occurrence. The memo Ext. Ka-11 was prepared by him. All the recovered materials alongwith the clothes etc. of the deceased were sent to the Forensic Lab, Agra, the report of which is Ext. Ka-22. The Investigating Officer recorded the statements of the witnesses and after being satisfied with the evidence, he submitted charge-sheet against all the three accused persons namely Mukesh alias Sonu, Jogendra and Kuldeep for the offences punishable under Sections 376 and 302/34 of the Indian Penal Code, which is Ext. Ka-13. Another charge-sheet under Section 25 of the Arms Act was also submitted by the Investigating Officer, which is Ext. Ka-5. It may be pointed out here that the other co-accused Mukesh alias Sonu and Jogendra were declared juvenile by the competent Board and their cases were separated. The appellant was tried by the learned Sessions Judge, Court No. 3, Bulandshahr. He denied the allegations levelled against him and alleged his false implication in this case. He was charged for the offences punishable under Section 376 (g) (2), 302 read with Section 34, I.P.C. and 4/25 of Arms Act. In support of its case, the prosecution has examined Smt. Chameli P.W. 1, Govardhan P.W. 2 and Dharampal P.W. 3 as eye-witnesses of the occurrence. P.W. 4 Head Constable Sewaram was examined to prove the chik and G.D. of the registration of the case on the basis of written report of the complainant, Dr. Dinesh Kumar P.W. 5 was examined to prove the post-mortem report, Anil Kumar P.W. 6 was examined to prove the registration of the case under Section 4/25, Arms Act on Crime No. 181 of 2003 on the basis of written recovery memo of Sub-Inspector Upendra Kumar. This case was registered on 12.9.2003 at about 11.50 a.m., Constable Manveer Singh P.W. 7 was examined who had transmitted the dead body to the mortuary alongwith the relevant papers, Sub-Inspector Upendra Kumar P.W. 8 was examined as Investigating Officer of the case, Constable Wazid Ali was examined to prove the registration of the Case Crime No 181 of 2003 under Section 25 of the Arms Act, Constable Sheodan Singh P.W. 10 was examined as witness of recovery of knife on the pointing out of the accused and Sub-Inspector D. D. Upadhyay P.W. 11 was examined to prove the inquest and other relevant papers. The accused did not examine any witness in his defence.
(3.) AFTER hearing the parties and considering the evidence on the record, the learned trial court found the prosecution case fully proved and convicted the appellant and passed sentences against him referred to earlier and aggrieved by the same he has preferred this appeal. We have heard the learned counsels for the parties and perused the evidence on record. It may be pointed out here that counsel in amicus curiae was appointed by this Court for the appellant.;