Amar Saran, J. - (1.) -This capital criminal appeal has been preferred by appellant Chailu against his conviction and sentence to imprisonment for life under Section 376, I.P.C. and to sentence of death under Section 302, I.P.C. by judgment and order dated 11.10.2006, passed by the Additional Sessions/Special Judge, Court No. 21, Shahjahanpur. A reference No. 11 of 2006 for confirmation of death sentence against the appellant has also been received from the Sessions Judge.
(2.) WE have heard learned counsel for the appellant, Sri K. N. Raha and the learned A.G.A. for the State, and perused the judgment and record of this case. The prosecution case was that the deceased, Km. Branti, aged about 13 years, had gone to collect the harvested tilli from her field on 16.10.1999 at 9 a.m., alongwith her mother, Smt. Leelawati. When they were returning back near the field of Natthu Lal Pandit, they saw the appellant standing there armed with a country-made pistol. He threatened Smt. Leelawati that if she raised any alarm then he would murder her. He thereafter toppled the bundle of tilli from the head of the deceased and pulled her into the sugarcane field of Natthu Lal Pandit. Meanwhile, Smt. Leelawati ran home raising an alarm and thereafter, Mahesh and other villagers reached the field. Then they saw the appellant running away. The bundle of tilli was lying on the mend. When Smt. Leelawati and others proceeded into the field they saw the dead body of the deceased lying there and she had been throttled with her own dupatta. From her private parts blood was flowing. Then Smt. Leelawati sent Mahesh to call the informant Ram Naresh, brother of the deceased, who was at his arhat (wholesale shop) and disclosed the incident to him. Then Ram Naresh proceeded to the police station, got the report scribed by Rampal and lodged the same at P.S. Puwayan, which was 5 km. away on 16.10.1999 at 4 p.m. H. M. Rajpal Singh prepared the chik report (Ext. Ka-2) and also entered the information in the G.D. (Ext. Ka-3). S.I. Subhash Sharma, who was present at the police station, started investigation and proceeded to the spot where he got the inquest (Ext. Ka-4) conducted by Veer Singh. He obtained the dupatta, which was tied round the neck of the deceased, and prepared its recovery memo (Ext. Ka-6) which was scribed by S.I. Veer Singh. After preparing the relevant documents he sent the dead body for post-mortem. The post-mortem was conducted on 17.10.1999 at 3.50 p.m. at the District Women's Hospital, Shahjahanpur, by Dr. Rakesh Dubey. The doctor found the following ante-mortem injuries on the deceased : 1. Abraded contusion 10 x 7 cm. on the right cheek involving upper and lower lid. 2.Abrasion 2.5 cm. x 1 cm. on the left angle of mouth. 3.Abrasion 0.5 x 0.5 cm. on the left cheek 2 cm. outside left nostril. 4.Abraded contusion with multiple small abrasions on left cheek and chin extending upto neck on right side of neck 18 x 8 cm. 5.Abrasion 2 cm. x 1 cm. on the back of left elbow. 6.Abrasion 1.5 cm. x 1 cm. on the back of right elbow.
(3.) THE hymen of the deceased was lacerated and blood was present on both thighs. THE brain, lungs, liver, spleen and kidneys were congested and the hyoid bone and tracheal rings were fractured and the larynx and trachea were congested. THEre was 150 cm. of pasty food material present in the stomach. THE slide of vaginal smear was prepared and was sent to the pathologist, District Hospital, Shahjahanpur. THE cause of death was asphyxia due to ante-mortem strangulation. THE deceased could have died at 9 a.m. on 16.10.1999 and it was possible that she might have been raped prior to her murder. After recording the statements of the witnesses Ram Naresh and Smt. Leelawati, he prepared the site-plan (Ext. Ka-11). After the accused was arrested on 20.10.1999 (vide G.D. marked as Ext. Ka 12), the investigation was transferred on 1.11.1999 to another S.I. Krishna Baghel, P.W. 5, who submitted the charge-sheet (Ext. Ka-13) on 13.11.1999. THEreafter the case was committed and the charges framed against the appellant under Sections 376 and 302, I.P.C. on 29.2.2000, to which he pleaded not guilty and claimed to be tried. The prosecution has examined one eye-witness P.W. 2 Smt. Leelawati, who was the mother of the deceased Branti. P.W. 1 Ram Naresh, the brother of the deceased, was the informant of the case. He is not an eye-witness. P.W. 3 S.I. Subhash Sharma was the first Investigating Officer, who investigated the case. P.W. 4 Dr. Rakesh Dubey conducted the post-mortem on the deceased. P.W. 5 S.I. Krishna Baghel was the second Investigating Officer who submitted the charge-sheet.;