SHRI NARAYAN SHUKLA,J. - (1.) Heard Mr.Dharmendra Dhar Dubey, learned Amicus Curiae for the appellant as well as Mr. Nagendra Bahadur Singh, learned Additional Government Advocate for the State.
(2.) The present jail appeal has been directed against the judgment and order dated 25.9.2003, passed by the Additional District and Sessions Judge, Allahabad in Sessions Trial No. 452 of 2002, whereby the appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to rigorous imprisonment for ten years and convicted under Section 302 IPC and sentenced to the imprisonment for life along with fine of Rs. 2000/-, in default to undergo rigorous imprisonment for two months.
(3.) The case of the prosecution, as set up, is that the informant Ramesh Kumar Nishad son of Shiv Lal Nishad, resident of village Beeker, Police Station Ghoorpur, district Allahabad lodged a First Information Report on 15.4.2002 at 09.25 hours at Police Station Ghoorpur, district Allahabad. In his First Information Report he had stated that on 14 April 2002 Roshani, Rakesh son of Awadhesh, Sonkaran son of Mahanand and Daya Ram son of Late Jhallar, residents of his village, had went away towards northern side of the village for grazing buffalo in the drain (Nala). His daughter did not return to house. He searched her, but since it was night he could not trace her out. On 15 April 2002 he went to the house of Rakesh and Sonkaran and asked about her, then they told that on 14 April 2002 at about 2 p.m. Daya Ram was assaulting Roshani by pushing down her in the drain. He had mounted upon her. She was weeping and crying. Then on 15 April 2002 he along with other villagers went there and saw that the dead body of her daughter was lying in the drain in the naked position and her right leg was tight with her neck by her frock. He stated that Daya Ram had committed rape with her and murdered her. On the basis of the First Information Report the police arrested the accused Daya Ram on 17.4.2002, who admitted his guilt and stated that he had hidden her underwear and sleepers behind bushes in the drain. At his instance the sleepers and underwear were recovered from the spot of the incident, that was sealed and recovery memo was prepared in presence of witnesses Shri Ramesh Nishad son of Shiv Lal and Shri Munsi Lal son of Sugai residents of Beekar, Police Station Ghoorpur, Allahabad. The dead body of Roshani was sent for post mortem examination. In the post mortem examination the cause of death was reported as under:- "Cause of death is strangulation leading to asphyxia." The post mortem report also described the ante mortem injuries which are fourteen in number. We quote them as under:- "1. L.W.10x3 cm on Rt. side of Head 6 cm above the Rt. Orbital margin. 2. Contusion 4x 1 1/2 cm on Rt.side of back of neck. 3. L.W. 3X1 cm on upper lip central part. 4. L.W. 4X1 cm on lower lip central part. 5. Contusion on front of neck in upper part 12x3 cm. 6. L.W.over medial end of Lt. Clavicle 3x1 cm. 7. Contusion 5x3 cm on dorsal aspect of Lt. Forearm with fracture of both radius and ulna bone. 8. Contusion 4x1 on Lt. shoulder anteriorly. 9. Contusion on left front of chest 19x10 cm. 10. Contusion 6 x 3 cm on Lt. Front of Thigh middle part. 11. Contusion 7 x 3 cm on Lt. Front of middle leg. 12. Contusion 4 x 2 cm with fracture of humerus of Lt. Arm. (Lot aspect upper part). 13. Contusion 5 x 4 cm on Rt. front of thigh. 14. On Rt. buttock 11x 7 cm abrasion on middle part.";