Syed Nazim Husain Zaidi, J. - (1.) THIS Capital Jail Appeal has been preferred by Superintendent of District Jail, Jalaun at Oral on behalf of convict Omkar Pal against the judgment and order dated 27.8.2007 of Dr. Rajesh Singh HJS, Addi tional Sessions Judge/Fast Track Court No. 2 Jalaun at Orai passed in Sessions Trial No. 138 of 2006 State v. Omkar Pal convict ing the appellant and sentencing him to death penalty under section 302 Indian Pe nal Code, for short IPC, to life imprison ment and fine of Rs. 10, 000/- under section 376 (2) (f) IPC and seven years imprison ment and fine of Rs. 5, 000/- under section 201 IPC. In case of default of payment of fine, further imprisonment of one year un der section 376 (2) (f) IPC and six months under section 201 IPC has been awarded to the appellant. For confirmation of the sen tence of death, Reference No. 22 of 2007 has been received from the learned trial Judge under section 366 (2) Criminal Procedure Code, for short Cr.P.C.
(2.) THE aforesaid Criminal Appeal and reference have been connected and are being disposed of together by the present judgment. The prosecution case, as revealed from the evidence on record, in brief, is that on 18.3.2006 at about 4.30 p.m. Km. Preeti, the eleven years old daughter of complainant PW1 Samrath Pal, had gone to pluck and eat Ber at the side of the pond in the vicinity of her house in village Amkhera, within PS and district Jalaun, but when she did not return till late in the evening, then a search was made but she could not be traced. She was searched out again on the next day and some blood, four fruits of Ber and a ribbon were found lying in the dilapidated house (Khandhar) of Raghubir Pal. The girl was searched around that house and then, at about 2 pm, her dead body was found hidden under the hay in the hay stock room of the bara (house used for tethering cattle and storing hay and agricultural implements etc.) of Kadhorey Pal. After the recovery of the dead body of the girl, PW3 Mohar Singh, PW4 Yadram and few others informed the complainant that on 18.3.2006, at about 5.30 pm when they were sitting at the Lidhori (a long earthen tub like construction made for feeding cattle) of Lalta Prasad then they had seen Omkar Pal coming out of the said Bara and at that time he was smeared with blood and hay and was nervous and on inquiry he told that he had gone to eat Ber at the pond and had slipped there and got injured. The complainant got the report of the incident, Ext. Ka-1 scribed by Udit Nrain Upadhyay and gave it at PS Jalaun at 3.45 pm on 19.3.2006. In the report it was also alleged that Omkar had committed rape with the girl and in order to cause the evidence of the crime disappear, had mur dered her and hid the dead body in the hay. On the basis of the report, PW9 Con stable Clerk Matadin, wrote down Chik FIR, Ext. Ka- 18 and registered a case under sections 376, 302 and 201 IPC at G.D. No.27, Ext. Ka-19 against the appellant. Pw8 Inspector Ram Tirath, the then SHO of PS Jalaun, took the investiga tion of the case in his hands and reached at be of occurrence and got prepared Inquest report, Ext. Ka-2, under-his direction Pw12 Sub-Inspector S.K. Mehra and sent the dead body of the giral for post mortan exanimation with Pw7 Constable Umesh Sharma. The Investigating Officer, for short the I.O. prepared the site plan, Ext. Kar-15 of the place of occurrence and also took In his custody dried leafs and stem of Jwar (Karbi) stained with blood, Material Ext-12, a piece of cloth (handkerchief) stained with blood. Mat. Ext. 13, a ribbon and four fruits of Ber, Mat. Ext.-14 and 15 to 18 respectively, sample of plain earth from the place of occurrence Mat. Ext.-19 and sample of hay of pea, Mat. Ext.-20 and prepared their custody memos Ext. Ka-3 to Ext. Ka-7 respectively.
(3.) PW6 Dr. R. P. Singh conducted the post-mortem examination of the body of Km. Preeti on 20.3.2006 at 4.05 pm and prepared the report Ext. Ka-9. He found the following anti-mortem injuries on her dead body: - 1. A contusion, 2 cm x 1 cm, over the right side of neck, 2. A contusion, 3 cm x 1.5 cm, over the left side of neck at the level of cricoids cartilage. On dissection sub-cutaneous tissues and muscles were found congested. The left side cornua of Hyoid bone was found fractured, 3. An abrasion, 2 cm x 1 cm, over the back of right elbow, 4. An abrasion, 1.5 cm x 1 cm, on the front of left knee, 5. An abrasion, 0.2 cm x 0.1 cm, on the front of the left leg 10 cm below the knee, Multiple abrasions over back of chest left side. Largest abrasion 3 cm x 2 cm, smallest 0.3 x 0.2 cm in an area of 15 cm x 12 cm.,;