S.C.Nigam, J. - (1.) UNDER challenge is the judgment and order dated 11.2.2008, passed by learned Sessions Judge, Gautam Budh Nagar in S. T. No. 400 of 2004, State v. Sunil, under Sections 376 and 302, I.P.C., P. S. Sector 58, N.O.I.D.A., district Gautam Budh Nagar by which the appellant-Sunil has been found guilty under Sections 302 and 376, I.P.C. He has been sentenced to death by hanging till death under Section 302, I.P.C. He has been further sentenced to rigorous imprisonment of 7 years and a fine of Rs. 5,000 under Section 376, I.P.C. In default of payment of fine, he shall undergo further imprisonment for one year.
(2.) SINCE learned Sessions Judge, G. B. Nagar has passed the sentence of death to the appellant-Sunil, the proceedings have been submitted to this Court for confirmation of death sentence awarded to the appellant-Sunil. The prosecution story as unfolded during the trial is that the first informant-Mande, P.W. 1 and his wife Smt. Satto were sleeping on the terrace of their house in the intervening night of 9/10.9.2004. The deceased-Monica aged about 7 years, daughter of the first informant and his son Sachin aged about 4 years were sleeping in a room of the house in the ground floor. Master Sachin at about 1 a.m. in the night came on the terrace of the house where the first informant and his wife were sleeping. He awoke his parents and informed them that his sister Monica was missing from the cot where she was sleeping. The first informant and his wife alighted from the terrace and started making search for Km. Monica. They went towards the 'gher' of Vishambhar. There, the couple heard the cries of Km. Monica. The cries of Km. Monica also attracted the attention of Chaman Singh-P.W. 2, brother of the first informant and Lillu who also joined the first informant and his wife. When the first informant-Mande-P.W. 1, his wife Smt. Satto, his brother, Chaman Singh-P.W. 2 and Lillu son of Kiran Singh reached near the 'gher' of Vishambhar, they saw the appellant-accused coming out of the 'gher' of Vishambhar. The appellant was given a hot chase by them but to no avail. These persons thereafter entered into the 'gher' of Vishambhar and saw that Km. Monica was lying dead there. It is alleged that the appellant-accused first committed rape upon Km. Monica and then pressed her neck. Km. Monica was found dead inside the 'gher' of Vishambhar. The first informant-Mande-P.W. 1 gave a written report Ext. Ka-1 in the police station on 10.9.2004 at about 1.50 a.m. on the basis of which a criminal case bearing Case Crime No. 259/04, under Section 376 and 302, I.P.C. was registered against the appellant-accused-Sunil and the first information report-Ext. Ka-2 was prepared. The disclosure of this was made in G. D. No. 7 dated 10.9.2004 at about 1.50 a.m. by H.M.-85-Kalu Ram-P.W. 3 the copy of which is Ext. Ka-3.
(3.) THE investigation of this was taken up by the then S.O., Ajay Kumar of P. S. Sector-58, district G. B. Nagar on 10.9.2004. He first recorded the statements of H. M.-58-Kalu Ram, the first informant-Mande, Chaman Singh, Lillu, Smt. Satto and Kaushal Kumar. THE Investigating Officer-P.W. 8 Ajay Kumar thereafter inspected the scene of the occurrence with the help of the first informant and Lillu. This was the place from where the deceased was allegedly picked up by the appellant-accused. He prepared the site plan Ext. Ka-11. THEreafter on the same day he visited the scene of the occurrence where Km. Monica after rape was allegedly killed. He prepared the site plan of the place which is Ext. Ka-12. THE Investigating Officer thereafter collected the plain and blood stained earth from the place of occurrence and kept it in two different containers and sealed them. He also prepared the fard-Ext. Ka-9. He thereafter instructed S.I. Satish Kumar Paliwal, P.W. 9 to prepare the inquest report. The appellant was arrested on 14.9.2004. On the pointing out of the appellant-accused, a pant of the appellant-accused which he had worn at the time of the alleged occurrence was recovered from inside the house of the appellant-accused. The pant was taken into custody and a fard was prepared which is Ext. Ka-8. He also collected the salwar and kurta of the deceased-Monica. He on 18.9.2004 recorded the statements of Veer Singh and Pawan Yadav. He on 25.9.2004 sent the plain and blood stained earth, pant, shirt of the appellant-accused, salwar and kurta of the deceased for chemical examination to Joint Director, Vidhi Vigyan Prayogshala, U. P., Agra. Human blood was found in all the articles sent for chemical examination. The sperms were found on the pant of the appellant-accused and on the salwar of the deceased.;