CHANDRA DHARI SINGH,J. - (1.) Heard Ms. Rashmi Srivastava learned Amicus Curiae for the appellant, Mr. Nagendra Bahadur Singh learned A.G.A. for the State and perused the record.
(2.) This appeal has been filed against the judgment and order dated 18.08.2006, passed by the court of Sessions Judge, Gautam Budh Nagar in Session Trial No. 561 of 2005 (State v. Mahesh) , whereby the accused-appellant was convicted for offence punishable under Sections 376 and 302 I.P.C. and sentenced to undergo an imprisonment for life under Section 376 I.P.C. and also to undergo imprisonment for life and a fine of Rs. 10,000/- for offence punishable under Section 302 I.P.C. In default of payment of fine, he would sentenced for two years. Sentences under both the sections shall run concurrently.
(3.) Brief facts of the case. (I) As per the prosecution story, there is a house of Surendra Singh Goojar situated in Prahlad Colony, Barola, police station Sector-49, Noida, in which several persons, including complainant PW-1 Mohd. Ashfaq and accused Mahesh used to reside on rent in different rooms. (II) In intervening night of 1/2.07.2005, most of the residents of the house were sleeping in court-yard in their respective rooms and complainant Mohd. Ashfaq was also sleeping with his wife and children including his five year old daughter i.e. victim. At about 02:00 a.m., all of them had awakened as it had started raining, at that time complainant found that victim was present on her cot. He started searching the victim but she was traced out, her mother started weeping, whereupon all the residents assembled at her room, but accused Mahesh did come. III. On the next day, the victim was searched out by everybody but she could be traced. On 03.07.2005 at about 05:00 p.m., some residents of the house informed the complainant that bad smell was coming out from the room of Mahesh. On that, the people tried to peep into his locked room through window, but they could see anything properly and then the accused Mahesh was searched and he was found working nearby. He was told by the complainant and other persons that bad smell was coming out from his room and he was asked to open the room. Key of the room was demanded. The accused informed them that the key was with him and tried to run away, but he was apprehended by the people, his personal search was made, the key was found in his pocket. He was brought to his room, which was opened by him and then, it was found that the dead body of victim was wrapped in a gunny bag. The body was in the composed position and was naked . Her underwear, which was stained with blood, was also lying beside her body. IV. The appellant was handed over to the police at police station Sector-49, Noida, where complainant Mohd. Ashfaq was given written report Ex.Ka-1, it was mentioned in the report that the victim was raped before being murdered. On the basis of the report, the case under Sections 376, 302, 201 I.P.C. was registered against the accused and matter was investigated by the police. V. After preparation of the inquest report of the dead body of the victim, it was sent for post-mortem examination. On 04.07.2005, post-mortem examination of the girl was performed by Dr. R.N. Agarwal (PW-4) along with Dr. Ajay Agarwal. During investigation, it was also revealed that in the night of 1/2.07.2005, PW-2 Ibne Ali, who was also the resident in one of the room of the same house had awakened at about 12:30 a.m. for urination and had seen that at the hand-pump, both accused Mahesh and victim were standing. He thought that the girl might have awakened to drink water, as it was quite hot. He again went to sleep and at about 2:00 a.m., the rain had started, due to the rain, PW-2 and other people had awakened, then it was found that the girl was missing. The PW-3 Shafi Alam informed that on 01.07.2005 at about 7:00 p.m., he had seen accused Mahesh on a shop where he was giving some toffees to victim. After concluding the investigation, the Investigating Officer had submitted the charge-sheet against the accused-appellant for offence punishable under Sections 376, 302 and 201 I.P.C. VI. Charges for commission of the offence of Sections 302 and 376 I.P.C. were framed against the accused, who pleaded guilty and claimed trial. VII. The prosecution has examined complainant Mohd. Ashfaq as PW-1, Ibne Alam as PW-2, Shafi Alam as PW-3, Dr. R.N. Agarwal as PW-4, Sub-Inspector R.N. Singh Yadav as PW-5, Constable Surendra Kumar as PW-6 and Sub-Inspector Kamal Singh Yadav as PW-7 respectively, in support of its case. VIII. The trial court after hearing counsel for the parties and perusing the record, the judgment and order dated 18.08.2006 was passed, whereas the appellant was convicted for offence punishable under Sections 376, 302 I.P.C. and sentenced him to undergo imprisonment for life for offence punishable under Section 376 I.P.C. and also undergo imprisonment for life and a fine of Rs. 10,000/- for offence punishable under Section 302 I.P.C. In default of payment of fine, he would undergo further sentence of two years. Both the sentences shall run concurrently. IX. After close of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C., 1973 in which he denied the occurrence and stated that he had been falsely implicated in the case. However, the appellant did produce any evidence in defence. X. Aggrieved by the said judgment and order dated 18.08.2006 passed by the Sessions Court, the jail appeal bearing No. 5466 of 2007 was filed before this court on the ground that the appellant was falsely implicated in this case and prosecution had failed to prove this case beyond reasonable doubt.;