Pappu vs State Of U.P. on 6 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 28.8.2017

Delivered on 06.10.2017

Case :- CAPITAL CASES No. – 6601 of 2016

Appellant :- Pappu

Respondent :- State Of U.P.

Counsel for Appellant :- Suresh Singh, Rahul Mishra Amicus Curiae

Counsel for Respondent :- G.A.

AND

Reference No.13 of 2016

Hon’ble Shashi Kant Gupta,J.

Hon’ble Prabhat Chandra Tripathi,J

(Delivered by Hon’ble Prabhat Chandra Tripathi,J.)

1. We have heard Sri Rahul Mishra, learned Amicus Curiae for the appellant and Sri Rajeev Gupta, learned A.G.A. for the State of U.P.-respondent.

2. This case has come-up before this Court on two counts:-

“Firstly, under Chapter XXVIII Submission of Death Sentences for Confirmation, under Section 366 Cr.P.C. Sentence of death to be submitted by Court of Session for confirmation [Chapter IX Rule 64 General Rules (Criminal)] and secondly, as a Criminal Appeal.”

3. This criminal appeal has been preferred by the accused person- appellant Pappu against the impugned judgement and order of the then learned Additional Sessions Judge, Court Number No.2, Kushinagar At Padrauna dated 8.12.2016 in Sessions Trial No.414 of 2015, arising out of Case Crime No.840 of 2015, under Sections 376, 302, 201 I.P.C. and Section 3/4 The Protection of Children From Sexual Offences Act, 2012, Police Station Kasya, District Kushinagar, whereby the accused person-appellant Pappu has been convicted under Section 302 I.P.C. and has been punished with death penalty and a fine of Rs.20,000/- (Rupees Twenty Thousand) only has also been imposed. In case of default of payment of fine, the accused has been sentenced to undergo an additional sentence of simple imprisonment of five years and accused person-appellant Pappu has been convicted under Section 376 I.P.C. and has been awarded sentence of ten years Rigorous Imprisonment and a fine of Rs.10,000/- (Rupees Ten Thousand) only. In case of default of payment of fine, the accused has to undergo an additional sentence of simple imprisonment of two years, accused person-appellant Pappu has been convicted under Section 201 I.P.C. and has been awarded a sentence of Rigorous Imprisonment for seven years and also a fine of Rs.5000/- (Rupees Five Thousand) only. In case of default of payment of fine, the accused person-appellant Pappu has been awarded an additional sentence of one year simple imprisonment and also convicted the accused person-appellant Pappu under Section 5/6 The Protection of Children From Sexual Offences Act, 2012 and has been awarded a sentence of ten years Rigorous Imprisonment and a fine of Rs.10,000/- (Rupees Ten Thousand) only. In case of default of payment of fine, the accused person-appellant Pappu will undergo an additional sentence of two year of simple imprisonment.

4. The written F.I.R. in Hindi Vernacular is enumerated as below:-

“The applicant-Nisha wife of Manoj Harijan, resident of village Sabaya Khas, Police Station Kasya, District Kushinagar moved a written First Information Report before the Inspector, In-charge, Police Station Kasya, District Kushinagar on 4.5.2015 at 12:35 P.M. that Yesterday, on 13.5.2015 in the evening time her daughter Amrata aged about 7 years was playing in the neighbourhood of her home along with Ashana daughter of her neighbour Rajendra Dhobi, Rinka daughter of Mishri and other small children of neighbourhood. At that time, approximately at 6:30 P.M., native of her village and of her caste Pappu son of Ram Preet on the pretext of plucking Lychee took her daughter Amrata towards the southern side of home alongwith him and deterred the rest of the children, who were playing with her from the place by giving them Toffee. Her sister Anita and several other persons of neighbourhood had seen Pappu taking away her daughter. When it became dark after sometime she started searching her daughter then the children, who were playing alongwith her daughter and her sister Anita and persons of vicinity told that Pappu was carrying Amrata alongwith him in the orchard of Lychee towards southern side. She went to the house of Pappu in the evening, night and morning of that day but Pappu was not found at his home. She was searching her daughter till that time. Nothing could be found. She had full confidence that Pappu; on the pretext of plucking and making to eat the Lychee had taken her away alongwith him and had committed rape upon her, thereafter murdered her and concealed her corpse at some lonely place. She had given the information so the report may be lodged and proper action might be taken.”

5. Upon written information of the informant, First Information Report was lodged in Case Crime No.0840 of 2015, under Sections 376, 302, 201 I.P.C. and Section 4 The Protection of Children From Sexual Offences Act, 2012, Police Station Kasya, District Kushinagar against the named accused person Pappu son of Ram Preet, resident of village Sabaya Khas, Police Station Kasya, District Kushinagar.

6. The prosecution has produced the following documentary evidence:-

“(i) Written F.I.R. (Exhibit Ka-1), (ii) Fard memo of arrest of accused Pappu relating to case crime no. 0840 of 2015, under Sections 376, 302, 201 I.P.C. and Section 4 The Protection of Children From Sexual Offences Act, 2012 and recovery of corpse of the deceased Amrata and her clothes (Exhibit Ka-2), (iii) Fard recovery memo of one T-shirt, one underwear from the place of occurrence relating to case crime No.0840 of 2015, under Sections 376, 302, 201 I.P.C. and Section 4 The Protection of Children From Sexual Offences Act, 2012, Police Station Kasya, District Kushinagar (Exhibit Ka-3), (iv) Fard of taking of possession of one underwear of accused Pappu son of Ram Preet, resident of village Sabaya Khas, Police Station Kasya relating to case crime No.0840 of 2015, under Sections 376, 302, 201 I.P.C. and Section 4 The Protection of Children From Sexual Offences Act, 2012, Police Station Kasya, District Kushinagar (Exhibit Ka-4), (v) Inquest report (Exhibit Ka-5), (vi) Form 13 (Exhibit Ka-6), (vii) Photo Nash (Exhibit Ka-7), (viii) Letter sent to Reserve Inspector, Police Lines, Kushinagar (Exhibit Ka-8), (ix) Letter sent to Chief Medical Officer, District Kushinagar (Exhibit Ka-9), (x) Sample Seal (Exhibit Ka-10), (xi) Post-morterm report of Amrata (Exhibit Ka-11), (xii) Copy of General Diary No.30, dated 14.5.2015, time 12:35 hours, Police Station Kasya (Exhibit Ka-12), (xiii) Chik F.I.R. (Exhibit Ka-13), (xiv) Site plan of recovery of corpse of deceased Km. Amrata (Exhibit Ka-14), (xv) Site plan of recovery of clothes of the deceased (Exhibit Ka-15), (xvi) Letter of Superintendent of Police, Kushinagar to the Director, Forensic Science Laboratory, Varanasi (Exhibit Ka-16), (xvii) Letter of the Investigating Officer, dated 1.8.2015 regarding sending of underwear, T-shirt, vaginal swab of the deceased Km. Amrata and underwear of accused Pappu (Exhibit Ka-17), (xviii) Charge-sheet (Exhibit Ka-18).

7. The prosecution has produced following oral evidence:-

“P.W.-1 Nisha, P.W.-2 Km. Anita, P.W.-3 Km. Ashana, P.W.-4 Ambedkar, P.W.-5 Sub-Inspector Rakesh Kumar Singh, P.W.-6 Dr. Himanshu Kumar, P.W.-7 H.C.P. Nagendra Singh and P.W.-8 Police Inspector Gyanendra Nath Shukla.”

8. Statement of the accused person-appellant Pappu was recorded under Section 313 Cr.P.C.

9. In his defence, the accused person-appellant has produced following oral evidence:-

“D.W.-1 Shamim.”

10. Learned Amicus Curiae for the accused person-appellant has advanced his arguments on the following points:-

“The prosecution has not produced any independent witness. The investigation is partisan, erroneous, baseless and site plan is a total mismatch. The informant was known to the present accused-appellant. This is a case of rediscovery. The name of scribe of the F.I.R. is not written. F.I.R. had been lodged upon the dictation of the Police. F.I.R. is ante-timed. Concealing the corpse near the river is not natural. Corpse could have been thrown in the river water. There were no signs of dragging of dead body. No disclosure statement was prepared. It is not clear that how the clothes worn by the deceased were identified. The weight of the deceased girl was 28 Kilograms and it was difficult to carry her dead body for such a long distance of one and quarter Kilometers. The pieces of hair and skin could have been trapped in the nails of the accused person. Name of Smt. Nisha has been mentioned before the column of the name of the person, who has firstly informed about the recovery of the dead body in the Police Station in the inquest report (Exhibit Ka-5). P.W. 1 Nisha has first time deposed in her cross-examination that Pappu used to consume wine daily. P.W. 1 Nisha is not an eye-witness. No identification of clothes of the deceased girl Amrata had been done by P.W. 2 Anita. When Pappu met after the incident then why he was allowed to go away and why these facts were not mentioned in the F.I.R. and why F.I.R. was lodged so late? Why Amrata (deceased girl) was allowed to go alongwith a drunkard like accused person Pappu?. No mother or aunt could allow any girl child to go away with a drunkard that too, at the dark hours. No clothes were found in the orchard of Lychee. P.W. 3 Km. Ashana in her cross-examination has stated that the children were playing in front of the door of Ram Pravesh, whereas P.W.-2 Km. Anita has deposed that the children were playing in front of the house of Gokul Gupta. P.W. 3 Km. Ashana has deposed that she came to know in the morning that Amrata has been done to death and thrown away. This is a case of manipulated rediscovery. Evidence of last seen is weak. P.W. 4 Ambedkar has put his signature on the Fard Recovery Memo at the Police Station, thus, recovery is false. P.W. 5 Sub-Inspector Rakesh Kumar Singh is a witness of inquest. He has deposed that inquest memo was prepared with his opinion and opinion of the Investigating Officer. This is a case of circumstantial evidence. Witnesses of last seen are P.W.1 Smt. Nisha, P.W.2 Km. Anita and P.W. 3 Km. Ashana. Recovery of dead body is rediscovery. Fard recovery memo and memo of arrest were not prepared on the spot. P.W. 6 Dr. Himanshu Kumar has stated that ‘Jerm found on the whole body’. There is no opinion about the rape. Lastly, on a query raised by this Court from the learned Amicus Curiae that in case conviction of the accused person-appellant Pappu is upheld by this Court also what would be his arguments with regard to the quantum of sentence?. To this, learned Amicus Curiae quipped that in that case death penalty would only suffice to meet the ends of justice.”

11. Defence witness D.W.1 Shamim has deposed that P.W. 3 Km. Ashana is deposing against the accused person Pappu due to enmity.

12. Learned Amicus Curiae for the accused person-appellant has also cited following Rulings:-

“(i) Jaharlal Das Versus State of Orissa 1991 Supreme Court Cases (Cri) 527 (Criminal Appeal No.276 of 1991, decided on April 12, 1991) and (ii) Aghnoo Nagesia Versus State of Bihar 1966 AIR 119, decided on 4.5.1965.”

13. Learned A.G.A. for the respondent State of U.P. has cited following Rulings:-

“(i) Raja alias Rajinder Versus State of Haryana (2015) 11 Supreme Court Cases 43 (Criminal Appeal No.486 of 2010, decided on April 10, 2015) and (ii) Kishore Bhadke Versus State of Maharashtra (2017) 3 Supreme Court Cases 760 (Criminal Appeals No.467 of 2010 with Nos.854 of 2010 and 11 of 2015, decided on January 3, 2017).”

14. The cardinal rule about the ‘last seen’ evidence has been crystallised (BRIT. Eng.) in the Rulings as herein enumerated as below:-

“(i) Prakash Versus State of Rajasthan 2013 CRI.L.J. 2040 (Supreme Court) (Criminal Appeal No.26 with 27 of 2008, decided on 22.3.2013), (ii) Shankar Kisanrao Khade Versus State of Maharashtra 2013 CRI.L.J.2595 (Supreme Court) (Criminal Appeal Nos.362-363 of 2010, decided on 25.4.2013).

15. The examination-in-chief of witness informant P.W. 1 Smt. Nisha mother of the deceased minor girl Amrata is verbatim quoted as below:-

” ih0MCyw01

18-4-11

U;k;ky; vfr0 l U;k;k/kh’k dksVZ ua0¼2½] dq’kh0

,l0Vh0ua0 414@15

ljdkjiIiw

uke irk lk+{kh Jherh fu’kk w/o eukst] mez25] vkj@vks lc;k] Fkkukdl;k] ftykdq’kh- us ‘kiFkiwoZd c;ku fd;k %

?kVuk gq;s lky Hkj ugh gqvk lky Hkj iwjk gksus okyk gSA esjh yM+dh ve`rk mez 7 o”kZ dks iIiw xkSre 6-30@7-00 cts ds vklikl cqykdj ys x;k FkkA igys VkQh f[kyk;k fQj yhph rksM+us ds cgkus esjh yM+dh dks nf{k.k ds rjQ xkao ds ys x;kA esjh yM+dh vU; cPpksa ds lkFk njokts ij [ksy jgh FkhA esjh yM+dh dks tc cqykdj ys x;k rc eaS o esjh cgu vfurk o vU; cPps tks mlds lkFk [ksy jgs Fks ns[ksA tc yM+dh ?kj okil ugh vk;h rc geyksx jkr Hkj [kksts ysfdu irk ugh pykA tc esjh yM+dh ugh feyh rc Fkkuk dl;k es nwljs fnu nj[okLr fy[kokdj nh Fkh ftl ij eqdnek dk;e gqvkA esjh yM+dh dks iIiw us xyr dke djds gR;k djds nsofj;k jksM ij unh ds fdukjs tgka yksxksa dk nkg laLdkj gksrk gS ogka ij Qsd fn;k FkkA esjh cPph ugh feyh rc iIiw ds ?kj tkdj iwNh rks mldh iRuh crk;h fd iIiw xM+k djds irk ugh dgk x;s gSA iIiw ‘kkjkc ihrk gS ges tkudkjh gSA tc iqfyl iIiw dks idM+h rFkk iwNrkN dh rc iIiw yk’k cjken fd;kA esjs thtk rFkk esjs cM+s ikik yk’k dh igpku fd;s FksA tc eqdnek fd;k x;k rc njksxk th esjk c;ku fy;s FksA yM+dh dks ys tkus okyk txg Hkh eSa njksxk th dks fn[kk;h FkhA yM+dh yk’k dk iksLVekVZe gqvk Fkk rFkk iapk;rukek gqvk FkkA layXu ikoyh rgjhj lk{kh dks fn[kk;k x;k lk{kh us rLnhd djrs gq;s ml ij cus vius gLrk{kj dh igpku fd;k izn’kZ d1 Mkyk x;kA”

16. The examination-in-chief of P.W. 2 Km. Anita who is sister of P.W.1 Smt. Nisha is verbatim quoted as below:-

“ih0MCyw02

02-05-16

U;k;ky; vfr0 l U;k;k/kh’k dksVZ ua0¼2½] dq’kh0] iMjkSukA

,l0Vh0ua0 414@15

ljdkjiIiw

uke irk lk+{kh dq0 vfurk] mez19 o”kZ] is’kk?kjsyw dk;Z] Mh@vks feJh yky] vkj@vkslc;k] ih0,l0dl;k] dq’kh0 us ‘kiFkiwoZd c;ku fd;k

?kVuk 13-05-2015 ‘kke 06-30 cts dh gSA esjh cgu yM+dh ve`rk mez 7 o”kZ esjs ?kj ds cxy esa xksdqy xqIrk ds ?kj ds ikl cPpksa ds lkFk [ksy jgh FkhA ogh ij iIiw xkSre vk;k vkSj lkFk es [ksy jgs vklWuk uke dh yM+dh dks chl :i;s dk uksV fn;k rFkk VkQh eaxok;k rFkk VkQh cPpksa dks ckVk fQj lHkh cPpksa dks Hkx;k rFkk mlesa ls esjh nhnh dh yM+dh ve`rk dks jksddj ihB ij cSBkdj yhph ds rksM+us ds cgkus ysdj pyk x;kA ;g lc eS viuh f[kM+dh ls ns[kh FkhA tc esjh cgu dh yM+dh jkr rd ?kj ugh vk;h rc ge yksx mldh ryk’k ‘kq: fd;k ysfdu jkr es feyh ugh nqljs fnu Fkkus ij lwpuk esjh nhnh lwpuk nhA

iIiw xkSre dks iqfyl idM+ dj ys x;h og iqfyl ds lkFk tkdj yk’k iqy ds ikl ls kM+h es ls yk’k cjken fd;kA iIiw xkSre esjh cgu yM+dh ve`rk ls xyr dke djds ekjdj mldh yk’k kM+h esa Nqik fn;k FkkA njksxk th us esjk c;ku fy;k FkkA rFkk iwNrkN fd;k FkkA”

17. The examination-in-chief of P.W. 3 Km. Ashana who was aged about 10 years old at the time of her oral testimony in the court and also who was allegedly playing with the deceased minor girl Amrata is verbatim quoted as below:-

“ih0MCyw03

18-08-16

ljdkjiIiw

,l0Vh0ua0 414@15

dq0 vkluk iqh jktsUnz] mez10 lky] f’k{kk vtZu] lk0lc;k] Fkkukdl;k] tuindq’khuxjA

l’kiFk c;ku fd;k fd

¼1½ iz’u rqe fdl fo esa i+rh gks

mRrj izkbejh fo lc;k esa i+rh gwWA

¼2½ iz’u rqEgkjs ?kj esa dkSudkSu yksx jgrs gS

mRrj esjs ?kj esa esjh eEeh ikik eSa vkSj esjs HkkbZ jgrs gSA

iz’u 3 rqe ftl txg vk;h gks og dkSu lk LFkku gS

mRrj U;k;ky; esa vk;h gwWA

iz’u 4 fdruk le; gks jgk gS

mRrj ?kM+h esa fdruk le; gqvk gSA le; ns[kuk ugh tkurh gwWA

iz’u 5 rqEgkjh tUefrfFk D;k gS

mRrj ekywe ugh gSA

cky lk{kh dks lqudj ledj mldk lqlaxr mRrj nsus es le{k gSA vfHk;kstu i{k dks okyh lk{kh ds ijh{k.k dh vuqefr iznku dh x;h gSA

?kVuk gq, vkt ls 1 o”kZ gqvk ‘kke dk le; Fkk eS [ksy jgh Fkh esjs lkFk ve`rk xksyw eqLrkd lUrjk [ksy [ksy jgs Fks iIiw xkSre ogka ij vk;k vkSj eqs 20@:i;s fn;k vkSj dgk fd feBkbZ cPpks dks ykdj ckV nksA eSus 4@dh feBkbZ ykbZA vkSj 1600 lksyg :i;k iIiw dks okil dj fn;k mlds ckn iIiw xkSre us dgk fd pyks fyph rksM+dj f[kykrs gSA ve`rk dks ihB ij cSBkdj ysdj pyk x;k geyksx lkFk es tk jgs Fks rks MkVdj Hkxk fn;k mlds ckn geyksx viusvius ?kj pys x;sA lqcg irk pyk fd ve`rk dks ekj djds Qsd fn;k gSA ;g ckr eSus njksxk dks crk;h FkhA”

18. The witness-informant P.W.1 Smt. Nisha is mother of the deceased minor girl Amrata. She has deposed in her examination-in-chief that one year has not completed since the incident. Her daughter Amrata aged 7 years was carried-away by Pappu Gautam at 6:30/7:00 P.M. First of all, he gave her toffee to eat. Thereafter, on the pretext of plucking the Lychee he took-away her daughter towards southern side of the village. At that time, her daughter was playing alongwith other children in front of the door. When he called and took-away her daughter then she and her sister Anita and other children who were playing alongwith her at that time had seen it. When the girl did not return then they searched her throughout the night but nothing could be known. When her daughter could not be traced out, then she presented an application which was scribed by someone else; in Police Station Kasya next day, on which the case was registered. Pappu after committing rape upon her daughter had murdered her and thrown her at the banks of the river where cremation rites are performed at Deoria Road. When her daughter could not be found, then she enquired at the house of Pappu where his wife told that Pappu after a tiff had gone to some place which is not known to her. Pappu consumes wine they know. When Police arrested Pappu and enquired then Pappu made the recovery of the corpse. Her brother-in-law (gainer) and her uncle (Bade Papa) had identified the corpse. When the case was registered Darogaji had recorded her statement. She had shown the place to Darogaji from where the girl was taken. Post-mortem was conducted upon the dead body of her daughter and inquest was also performed.

19. P.W.2 Km. Anita is sister of P.W.1 Smt. Nisha. She has deposed in her examination-in-chief that the incident was of date 13.5.2015 at 6:30 P.M. (evening), Amrata aged 7 years daughter of her sister was playing alongwith other children at her neighbourhood near the house of Gokul Gupta. Pappu Gautam came there and handed over currency note of Rs.20/- (Twenty) to a girl named Ashana who was playing with her (Amrata) and asked to bring toffee and distributed to all the children. Thereafter, he (Pappu) deterred all the children and stopped the girl Amrata daughter of her elder sister, took her on his back and on the pretext of plucking Lychee had taken her away. All these (events) she had seen from her window. When the daughter of her sister did not turn-up till the night then they started to search her but she could not be found in the night. Her elder sister informed at the Police Station on the next day. Police had arrested Pappu Gautam. Alongwith Police he made the recovery of the dead body near the bridge inside the bushes. After committing the rape upon Amrata the daughter of her sister and after killing her, Pappu Gautam had concealed her dead body inside the bushes.

20. In the examination-in-chief of P.W. 3 Km. Ashana who was aged about 10 years old at the time of her oral testimony in the court and also who was allegedly playing with the deceased minor girl Amrata at the time of incident, after preliminary intelligence was testified by the trial court, has deposed that the incident occurred one year ago in the evening. She was playing alongwith Amrata, Golu, Mustak and Santara. Pappu Gautam reached there and handed over Rs.20/-(Twenty) to her and asked her to bring the sweets and distribute amongst the children. She bought sweets of Rs.4/-(Rupees Four) and rest of Rs.16/-(Rupees Sixteen) she returned to Pappu. Thereafter, Pappu Gautam said to go for plucking the Lychee to eat. He took-away Amrata on his back. They have also accompanied but he scolded and deterred them to go. Thereafter, all of them went their homes. In the morning she came to know that Amrata was done to death and thrown away. She have told Darogaji this fact.

21. Certain excerpts have been indicated by the learned Amicus Curiae in the cross-examinations of P.W. 1 Smt. Nisha, P.W. 2 Anita and P.W. 3 Km. Ashana a minor girl of 10 years to shake their testimony. In her cross-examination P.W.1 Smt. Nisha mother of the deceased girl Amrata has categorically stated that:-

“iz’u % vkidh cgu vfurk us fdrus ctsA fdl fnu crk;k fd vkidh yM+dh xk;c gks x;h gS

mRrj % 6-30 cts iIiw cPph dks ys x;s] mlds ckn ge [kksts ,d] 11@2 ?kaVk rd mlds ckn iIiw ds ?kj iwNus x;s rks mldh iRuh dgh fd lk;a ls gh esjs ifr xM+k djds ?kj ls ckgj gSA

vfurk o eSus iIiw dks yM+dh dks ys tkrs gq;s ns[kk FkkA igys iqfyl pkSdhnkj iz/kku dks lwpuk ugh fn;k x;kA igys cPph dks [kkstus dk dke fd;k x;kA iwjs jkr geyksx cPph dks [kkstrs jgsA yM+dh dh ejus lwpuk esjs thtk o firk th crk;sA tc iIiw dks iqfyl idM+h rHkh ekywe gqvk fd esjh cPph ej x;h gSA esjs thtk ds crkus ij eSa Fkkus ij nj[okLr ugh nh FkhA ?kVuk ds le; esjs ikl eksckby ugh FkkA eS ugha crk ldrh fd iqfyl iIiw dks dgka ls idM+ dj yk;hA tc iIiw fxj¶rkj gksdj x;k rc eSa ?kj ij FkhA eSa nj[okLr ,d yM+ds ls cksydj fy[kok;h ftruk eSa cksyh og mruk gh fy[ksA eSa larq”V bl ckr ls gq;h fd eS tks cksyh ogh esjs nj[okLr esa fy[kk gSA eS tks ckr nj[okLr es fy[kk;h Fkh ogh ckr eSa njksxk th dks Hkh crk;h FkhA ge nksuksa yksx ¼esjh cgu o eSa½ iIiw dks cPph dks ys tkrs ns[ks ,Slk ckr njksxk th esjs c;ku es ugh fy[ks rks eSa bldk dkj.k ugha crk ldrh gwWA njksxk th ;g ckr fy[ks gS fd esjh cgu us iIiw dks esjh o cPph ds ys tkrs ns[kk gS rks fy[kk gS rks ;g lgh gSA eaS njokts ij lquh Fkh o ns[kh Fkh fd iIiw cPph dks VkQh o yhph ds cgkus ys tk jgk gSA eSus vius nj[okLr esa ;g ckr fy[kok;k gS fd eqs fo’okl gS fd esjh cPph dks iIiw gh ys x;k gSA ;g ckr blfy;s lgh gS fd iIiw esjs lkeus gh esjh cPph dks ys x;k FkkA

iz’u % vkius tc iIiw dks ys tkrs gq;s viuh osVh dks ns[kk mlds okotwn nwljs fnu foyEc ls Fkkus ij nj[okLr nh bldk dkj.k crk ldrh gS

mRrj % igys eS viuh cPph dks [kkstrh jgh ugh feyus ij vxys fnu nj[okLr nhA

viuh cPph dks jkr Hkj iwjs xkao es [kkstrh jghA iwjs xkao esa njnj eS [kkstrh jgh fdldk fdldk uke crkÅA xkao ds yksxksa dks eSa igpkurh gwWA iwjs jkr eSa [kksth fdldkfdldk uke crkÅA iwjs xkao ds yksxksa dk uke eS ugha crk ikÅaxhA iIiw T;knk fnu ls ‘kjkc ihrk gSA ‘kjkc ihdj dgh fxjrs gS ;k ugh ;g ekywe ugh gS ysfdu ‘kjkc ihrs gSA iIiw Msyh ‘kjkc ihrs gSA bl ?kVuk ds igys iIiw ds ?kj ls gekjs ?kj O;ogkj lekU; FkkA tc iIiw idM+k x;k rFkk ?kj ds yksx crk;s o cqyk;s rc eS yk’k ns[kus igqaphA igys eS iqy ij gh x;hA rFkk mlds ckn Fkkuk x;sA ‘kke ds 56 cts dk le; Fkk mlh le; iIiw idM+k x;k FkkA ?kVuk ds nwljs fnu yk’k feyh FkhA tc yk’k ns[kh rc cPph dk vkW[k ,d fudy x;k u’k Hkh vkW[k ds fups fudyk FkkA iSj Hkh VwV x;k FkkA yk’k dks tkuoj Hkh ugh [kk;s FksA esjh cPph dk xyk Hkh ,SBk gqvk FkkA eSa yk’k dks ns[kdj jks;hA”

22. P.W.2 Km. Anita in her cross-examination has deposed that:-

“cPps xksdqy xqIrk ds njokts ij [ksy jgs FksA esjs f[kM+dh ls cPps tgka [ksy jgs Fks og nqjh pkj ikWp dne gSA ftl le; eSa cPpkas dks [ksyrs gq;s ns[k jgh Fkh ml le; esjs ikl Fkh esjh cgu tgka eSa [kM+h Fkh ogh cSBh FkhA esjh cgu dk uke fu’kk nsoh gSA eSa vius cgu ls cPph ds xk;c gksus dh ckr ,d ?ka.Vs ckn crk;hA ge yksx cPph dks ,d Ms ¼1] 11@2 ½ ?kaVs ckn [kkstuk ‘kq: fd;sA iIiw xkSre cPph dks nf{k.k fn’kk esa ysdj x;kA igys yhph ds [ksr esa ns[kus ds x;s rFkk mlds ckn iIiw ds ?kj Hkh [kkstus x;sA iIiw ?kj ij ugh feyk FkkA iIiw dh iRuh ?kj ij feyh og oksyh fd irk ugha dgk xM+k djds iIiw x;k gSA le; es yM+dh gkQ p lwpuk nsus ds fdrus nsj ckn yk’k feyh gedks ;kn ugh gSA ckn es iqfyl okys iIiw dks idM+s rFkk iwNrkN fd;s rks og crk;k fd ;g ;gka ij cPph dh yk’k gSA iwjs xkao ds yksx gYyk fd;s Fks fd ;gh yk’k feyh gSA esjk thtk yk’k dks mBk;s ns[kk x;k es og esjs nhnh dh yM+dh FkhA iqfyl okys yk’k mBkus ds fy;s ckssysA iqfyl ds yksx geyksxksa dks yk’k ds ikl ugh tkus nsrs FksA FkksM+h nwj ls geyksx ns[k jgs FksA yk’k ds ikl ls dksbZ gfFk;kj cjken gqvk ;k ugh gedks ugh ekyweA esjs thtk ¼thtk½ ds vykok ogka ij xkao ds o dbZ xkao ds yksx bdV~Bk gks x;s FksA ekSds ij geyksx cM+s ikik dks ugh ns[ksA ge yksx jks jgs FksA dc x;s geyksx ugh ns[k ik;sA lHkh yksxksa us yk’k dh igpku fd;k FkkA vEcsMdj izlkn thtk uke gS lhjh izlkn cM+s ikik dk uke gSA iIiw us yM+dh dks chl :i;k fn;k Fkk ysfdu iIiw fdrus :i;s dh VkQh [kjhnk Fkk eqs ugh ekyweA ftl nqdku ls iIiw VkQh [kjhnk Fkk ogka njksxk th [kqn iwNrkN fd;s FksA njksxk th VkQh [kjhnus okyh ckr ,d yM+dh vkluk crk;h Fkh rFkk eSa Hkh crk;h FkhA eSa ugh tkurh fd iIiw fdrus dk VkQh [kjhnus dks dgkW Fkk ysfdu bruk tkurh gwW fd og chl :i;s dk uksV yM+dh dks VksQh [kjhnus ds fy;s fn;k FkkA tks cPps VkQh [kjhnus x;h Fkh og fdrus :i;s okil iIiw dks nh eS ugha ns[kh FkhA iIiw dc dgka idM+k x;k og eS ugh tkurhA iIiw FkksM+k cgqr ‘kkjkc ihrk gSA ?kVuk ds igys iIiw ds ?kj ls esjs ?kj ls dksbZ xM+k bR;kfn ugh gqvk FkkA”

23. P.W. 3 Km. Ashana who was aged about 10 years old at the time of her oral testimony in the court and also who was allegedly playing with the deceased minor girl Amrata in her cross-examination has stated that:-

“jke izos’k dks njokts ij [ksy [ksy jgh Fkh jke izos’k ds ?kj ds ?kj ds ihNs ve`rk dk ?kj gSA chp esa ccyw dk ?kj gSA iIiw dk ?kj jke izos’k ds ?kj ds cxy esa gSA 7-00 cts ‘kke dks iIiw us ge yksxksa dks MkVk fQj jke izos’k ds njokts ij geyksx [ksy [ksyus yxs yxHkx 5 ?kaVs rd [ksy [ksyrs jgsA mlds ckn ge yksx ?kj pys x;sA [ksy jgs Fks rks ml le; ve`rk Hkh Fkh eS esjs cM+s ikik dh yM+dh vkSj pkpk dh yM+dh rFkk HkkHkh dh yM+dh Fkh ge lHkh yksx ?kj pys x;sA esjs ?kj ij iIiw ls eqykdkr gqbZ Fkh ml le; esjs eEeh ikik HkkbZ vkSj eSa ekStwn FkhA esjs ikik us iIiw ls ckr ugh fd, ve`rk dks mBkdj ysdj pys x;s esjs eeh ikik us Hkh ns[kk Fkk mlds ckn ve`rk ls eqls eqykdkr ugh gqbZ Fkh ve`rk dh e`R;q dh lwpuk lqcg mBus ds ckn irk pyk fd ve`rk dh e`R;q gks xbZ gSA ve`rk ds e`R;q dh lwpuk nhnh uhrk us crk;h ftl le; uhrk us ckr crk;h Fkh ml le; mldh cgu lquhrk ekStwn Fkh tc eSus lquhrk ls iwNh rks mlus dgk fd ve`rk ej xbZA vuhrk o lquhrk ve`rk dh ekSlh gS ve`rk ds ekrk dk uke fu’kk gSA

vkt esjh eEeh dpgjh es vk;h gSA eSa eEeh ds lkFk ugh vkbZ gwWA vuhrk ds lkFk vk;h gwWA iqfyl okys cqykus x;s Fks vuhrk lquhrk us tc crk;k fd ve`r ej xbZ gS rks eSa mu yksxksa dks lkFk yxHkx 10-00 cts ml LFkku ij xbZ tgka ij ve`rk dh yk’k iM+h FkhA ogka ij dkQh yksx bdV~Bk Fks mlds ckn eS Fkkuk ij xbZ Fkh Fkkus ij essjs thtk ysdj x;s Fks thtk dk uke ugh crk ldrh gwWA og uhye ds ifr gS Fkkus ij mlh fnu eqls iwNrkaN gqvk Fkk ;g ckr eSa njksxk th dks crk;h Fkh yk’k ns[kdj vk;h gwWA blds ckn nksokj njksxk th eqls iwNrkN fd;s Fks njksxk th iwNrkN ds fy, fl[kk, i+k;s ugh Fks xkao ds fdlh vkneh us fl[kk;k i+k;k ugh FkkA”

24. At the first blush, the argument of the learned counsel for the accused-appellants appears to be attractive but on close scrutiny, it is of no avail because the rustic background of these witnesses should also be kept in mind. They are deposing after more than of year of the alleged incident. Their testimony found to be natural and trustworthy and not the result of tutoring.

25. The argument of the learned Amicus Curiae of delay in lodging the F.I.R. is repelled by the fact that the witness-informant P.W. 1 Smt. Nisha mother of the deceased minor girl Amrata and P.W. 2 Km. Anita sister of P.W. 1 Smt. Nisha were making frantic search throughout the night for the minor girl and they turned no stone unturned in this expedition. When they failed in this Herculean task then immediately thereafter lodged the F.I.R.

26. In case of Satpal Singh Versus State of Haryana (2010) 8 Supreme Court Cases 714 it has been held:-

“16. However, no straight jacket formula can be laid down in this regard. In case of sexual offences, the criteria may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that:

“ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon”

17. In State of H.P. Vs. Prem Singh (2009) 1 SCC 420 Court considered the issue at length and observed as under:-

“So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR.”

18. Thus, in view of the above, the delay in lodging FIR in sexual offences has to be considered with a different yardstick. If the instant case is examined in the light of the aforesaid settled legal proposition, we are of the considered opinion that the delay in lodging the FIR has been satisfactorily explained.”

27. The same principle has been reiterated by the Supreme Court in Ashok Surajlal Ulke Versus State of Maharashtra (2011) 15 Supreme Court Cases 174:-

“5. We have considered the arguments of the learned counsel. We are of the opinion that in a case of rape the fact that the FIR had been lodged after a little delay is of very little significance. There can be no doubt that an allegation of rape, and that too of a young child 15 years of age, is a matter of shame for the entire family and in many such cases the parents or even the prosecutrix are reluctant to go to the police to lodge a report and it is only when a situation particularly unpleasant arises for the prosecutrix that an FIR is lodged. We also see from the evidence that P.W. 2 had first gone to the Head Master of the School (in which the accused was a teacher) and he had advised him to wait for a few days to see if something could be done in the matter and it was only after having failed to get any reply from the Head Master that an FIR was lodged.”

28. P.W. 6 Dr. Himanshu who conducted the post-mortem of the deceased Amrata, has deposed on oath in examination-in-chief as follows:-

“On 15.5.2015 he was posted at C.H.C. Tamkuhiraj and on that day his duty was at Post-morterm House District Hospital and he conducted the post-morterm upon the dead body of the deceased Amrata aged about 7 years daughter of Manoj, resident of Sabya, Police Station Kasya which was brought by C.P. No.600 Constable Om Prakash and Chowkidar Brijkishor, Police Station Kasya. He started the post-mortem on 15.5.2015 w.e.f. 3:05 hours and completed at 04:05 hours.”

29. The post-mortem on the dead body of the deceased Km. Amrata aged about 7 years was conducted by P.W. 6 Dr. Himanshu Kumar and following injuries were found:-

“External Examination:-Rigor mortis upper and lower limb pass out.

External General Appearance:- Tongue protruded mouth eye (L) closed, eye (R) protruded.

External Injuries:-

(1) Contusion 5 cm x 3 cm on the around (R) side of eye. (2) Contusion 10 cm x 3 cm on the (R) side face. (3) Contusion 7 cm x 3 cm on the posterior aspect of (R) arm. (4) Contusion 12 cm x 5 cm on the front of chest. (5) Lacerated wound 3 cm x 1 cm on the anus. (6) Protracted trunk. (7) Eye protracted (R) side. (8) Loss of hair (on the head). (9) Germ found on the whole body. (10) Contusion 5 cm x 3 cm on the (R) side parietal region. (11) Contusion 3 cm x 2 cm on the (L) side parietal Region.

Genital Organs:- Vagina is found in tear position and clotting present. Vaginal swab is taken and seal and sent to lab.

Times since death:- About 2 and 3 days.

Immediate Cause:- Death is due to hemorrhage and shock as a result of Ante-mortem injury.”

30. P.W.6 Dr. Himanshu Kumar has deposed on oath in his cross-examination that vagina was in tear position and blood clotting was present. Time since death was within two-three days.

31. P.W. 4 Ambedkar is uncle (Mausa) of the deceased minor girl Amrata. In his cross-examination, this witness has deposed that he was uncle (Mausa) of the deceased girl Amrata. The mother of Amrata has informed him on telephone that her daughter is not traceable since evening. After hearing this, he came to the house of Amrata at Sabaya. He accompanied them at the house of Pappu but Pappu was not available at his home. Pappu was arrested and interrogated by Darogaji in his presence. Pappu told Darogaji that after commission of rape upon Amrata, he murdered her and thrown her. He could show that place. The dead body of Amrata was recovered at the indication of accused Pappu near the drain and bushes by Darogaji in his presence. At the instance of accused Pappu, Darogaji recovered underwear and T-shirt of the deceased girl Amrata. Darogaji took the underwear of the accused under cover in front of him. One eye of Amrata was missing and due to taking her away by dragging there were marks of injuries. The inquest report of the deceased Amrata was prepared before this witness. Fard recovery memo of corpse of deceased Amrata was also prepared in his presence which has been marked as Exhibit Ka-2 and Fard recovery memo of one T-shirt and one underwear was marked as Exhibit Ka-3. Fard recovery memo of underwear of accused Pappu has been marked as Exhibit Ka-4 was also proved by this witness.

32. Much emphasis has been laid upon by learned Amicus Curiae that after the alleged recovery of underwear and T-shirt, those were sealed at the Police Station, thereafter, witnesses had appended their signatures. Although, he has stated that colour of the underwear of the deceased girl was black.

33. Certain flimsy and baseless questions were put to this witness in his cross-examination e.g. where underwear and T-shirt were sealed?

34. The suggestion which was made to this witness near the end of the cross-examination at the later part of it proved insidious to the accused person-appellant.

35. Lastly, nothing could be brought-out to shake his testimony in the cross-examination.

36. Following Rulings are important on the point of ”Related and Independent Witness”:-

“(i) Tarjinder Singh v. State of Haryana, AIR 1994 Supreme Court 503 (ii) Namdeo v. State of Maharashtra (2007) 14 Supreme Court Cases 150 (iii) Bathula Nagamalleswar Rao Ors. v. State, Rep. by Public Prosecutor, AIR 2008 Supreme Court 3227 (iv) Ram Chander and Ors. v. State of Haryana, AIR 2017 Supreme Court 568”.

37. It is clear that oral evidence of a close relative who is a natural witness cannot be characterized as an “Interested Witness”.

38. P.W. 5 Sub-Inspector Rakesh Kumar Singh has proved the inquest report (Exhibit Ka-5), form 13 (Exhibit Ka-6), photo nash (Exhibit Ka-7), letter sent to Reserve Inspector, Police Lines, Kushinagar (Exhibit Ka-8), letter sent to Chief Medical Officer, District Kushinagar (Exhibit Ka-9) and sample Seal (Exhibit Ka-10). This witness is a witness of formal nature.

39. P.W. 7 H.C.P. Nagendra Singh is also a witness of formal nature. He has proved the copy of General Diary No.30, dated 14.5.2015, time 12:35 hours, Police Station Kasya (Exhibit Ka-12) and chik F.I.R. (Exhibit Ka-13). This witness in his cross-examination has stated that informant arrived at the Police Station alongwith brother-in-law (Bahnoi) Ambedkar. She handed-over the written application. Except her brother-in-law (Bahnoi) nobody was with her. Learned Amicus Curiae has vehemently argued that P.W. 1 Smt. Nisha in her cross-examination has narrated that she and her sister went to Police Station. None else went to Police Station and unsuccessfully tried to demonstrate that this is a major contradiction. But such type of contradictions fortify the natural deposition of P.W. 1 Smt. Nisha.

40. P.W. 8 Police Inspector Gyanendra Nath Shukla is the Investigating Officer of this case. He has reiterated the contents of the written F.I.R. (Exhibit Ka-1). He has prepared the Fard memo of arrest of accused Pappu relating to case crime no. 0840 of 2015, under Sections 376, 302, 201 I.P.C. and Section 4 The Protection of Children From Sexual Offences Act, 2012 and recovery of corpse of the deceased Amrata and her clothes (Exhibit Ka-2), Fard recovery memo of one T-shirt, one underwear from the place of occurrence relating to case crime No.0840 of 2015, under Sections 376, 302, 201 I.P.C. and Section 4 The Protection of Children From Sexual Offences Act, 2012, Police Station Kasya, District Kushinagar (Exhibit Ka-3), site plan of recovery of corpse of deceased Km. Amrata (Exhibit Ka-14), site plan of recovery of clothes of the deceased (Exhibit Ka-15), letter of Superintendent of Police, Kushinagar to the Director, Forensic Science Laboratory, Varanasi (Exhibit Ka-16), letter of the Investigating Officer, dated 1.8.2015 regarding sending of underwear, T-shirt, vaginal swab of the deceased Km. Amrata and underwear of accused Pappu (Exhibit Ka-17) and charge-sheet (Exhibit Ka-18).

41. This witness P.W. 8 Police Inspector Gyanendra Nath Shukla, Investigating Officer of this case, in his examination-in-chief has proved the underwear of the accused person Pappu marked as material Exhibit 01 and T-shirt and underwear of the deceased minor girl Amrata marked as material Exhibit 02 and material Exhibit 03 and cloth in which these material exhibits were sealed was marked as material Exhibit 04. In his cross-examination, this witness has stated that Fard of arrest of accused person Pappu and Fard recovery memo of underwear and T-shirt of the deceased girl Amrata and Fard recovery memo of underwear of accused person has been prepared as one document and has also stated that Fard recovery memo of dead body and arrest memo and Fard recovery memo of T-shirt, underwear of the deceased girl has been preferred as one document. Fard recovery memo of underwear of accused person has been prepared separately upon which witnesses Shree and Ambedkar have appended their signatures.

42. As far as objections raised regarding application of Section 27 The Indian Evidence Act, 1872 is concerned. It is apt to say that Section 27 of the Evidence Act is an exception to Section 25 of the Act. Section 25 mandates that no confession to a police officer while in police custody shall be proved as against a person accused of any offence. Section 27, however, provides that any fact deposed to and discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

“(13) Information is ‘genus’ while discovery of fact or instrument is species and to put it in other words information is the cause and discovery of fact is its effect. 1992 UP Cri R 521 (410) (All).”

43. Learned trial Judge has legally and correctly interpreted the ocular testimony of the witnesses. Here the accused took police party and pointed out the place from where dead body of the deceased was recovered, in absence of explanation by accused as to how dead body was kept and concealed there, court can draw inference that it was accused who murdered deceased and concealed dead body and such interpretation is not inconsistent with principle embodied in Section 27 of Evidence Act.

44. In the present case, the declarant accused person was in the custody of the police and alleged information received from the accused person was made in consequence of his statement which resulted into the recovery of the dead body of the minor girl at the pointing out of the accused person.

45. Only this component or a portion which was immediate cause of the recovery of the corpse of minor girl would be legal evidence and not the rest. This may therefore pro tanto (to that extent) permits the derivative use of custodial statements in the ordinary course of events.

46. Learned Amicus Curiae has umpteen times reiterated this argument that prosecution side has to prove its own case. Unabatedly, it should also be kept in mind that accused person is also charged under Section 5/6 The Protection of Children From Sexual Offences Act, 2012.

47. Section 29 The Protection of Children From Sexual Offences Act, 2012 is referred to as herein below:-

“29. Presumption as to certain offences.-Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”

48. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to over come the presumption.

“Presumptions are commonly grouped into three classes: firstly, conclusive or irrefutable presumptions of law, presumption as juris et de jure, which are conclusions which by law must be drawn from certain facts and which cannot be rebutted by any contrary evidence, and which are consequently not truly matters of evidence but rules of law. These include e.g., the presumption that no child under 10 years of age can be guilty of a criminal offence.

Secondly, there are rebuttable presumptions of law (praesumptiones juris), which are conclusions which, by law, are required to be drawn in the absence of evidence to the contrary, such as that a person accused is of sound mind and responsible for his conduct.

Thirdly, there are presumptions of fact (praesumptiones facti), which are conclusions which a Judge of fact may draw from other proved facts. The strength or weakness of a particular presumption of fact depends on the circumstances and the presence or absence of alternative explanation.”

49. Wills’ Principles of Circumstantial Evidence. Combined English Indian Edition. Seventh Edition. November, 1936 English, V.R.M. Gattie, … Indian, M. Krishnamachariar, … Co-ordinated by C.M. Young. (Page 345).

“(2) When it is said that circumstantial evidence must be exhaustive and must exclude the possibility of innocence, “exhaustive” must not be taken to mean that any incident short of the actual killing must be proved by positive evidence; and “possibility” must not be treated as signifying “physical possibility”. Were the words so treated convictions on circumstantial evidence would become, in practice, impossible; and, therefore, we take the word “possibility” to mean a high degree of probability, that a prudent man, considering all the facts and realising that the life or liberty of the accused person depends upon the decision, feels justified in holding that the accused committed the crime (Thakar Das v. Emp., 38 I.C. 759).

50. In response to letter of Superintendent of Police, Kushinagar to the Director, Forensic Science Laboratory, Varanasi (Exhibit Ka-16) and letter of Investigating Officer, dated 1.8.2015 regarding sending of underwear, T-shirt, vaginal swab of the deceased Km. Amrata and underwear of accused Pappu (Exhibit Ka-17), report of Joint Director, Forensic Science Laboratory, U.P., Ramnagar, Varanasi dated 11.8.2016 to Circle Officer, Kasya, Kushinagar letter no.187-Bio-15, crime no.840/15, under Sections 376, 302, 201 I.P.C. 3/4 POCSO Act, 2012, (State v. Pappu), Police Station Kasya, dated 4.8.2015. The result has been noted, upon the underwear (Kachchi) of the deceased girl that spermatozoa and human semen were found.

51. Post-mortem report of the deceased minor girl Amrata has mentioned several ante-mortem injuries upon her body and right side eye was protracted:

“Genital Organs:- Vagina is found in tear position and clotting present. Vaginal swab is taken and seal and sent to lab.

Times since death:- About 2 and 3 days.

Immediate Cause:- Death is due to hemorrhage and shock as a result of ante-mortem injury.”

52. The post-mortem report of the deceased minor girl Amrata confirms the commission of rape upon her at the relevant time mentioned in the First Information Report.

53. Following rulings are relevant in this case:-

(i) Raju Versus State of Haryana (2001) 9 Supreme Court Cases 50 (Criminal Appeal No.581 of 2000, decided on May, 2, 2001) (ii) State of U.P. Versus Devendra Singh (2004) 10 Supreme Court Cases 616 (Criminal Appeal No.617 of 1998, decided on April 13, 2004) (iii) State of U.P. Versus Satish (2005) 3 Supreme Court Cases 114 (Criminal Appeals Nos.256-57 of 2005, decided on February 8, 2005) (iv) Kamta Tiwari Versus State of M.P. (Criminal Appeal No.267 of 1996, decided on 4.9.1996).

54. Thus, the ocular testimony of P.W.1 Smt. Nisha, P.W. 2 Km. Anita and P.W. 3 Km. Ashana is wholly reliable and trustworthy. We see no reason to disbelieve the testimony of P.W. 6 Dr. Himanshu Kumar. The oral evidence of P.W. 6 Dr. Himanshu Kumar fully supports prosecution version. The medical evidence of P.W. 6 Dr. Himanshu Kumar who conducted the autopsy found that the death of Km. Amrata aged about 7 years minor girl had taken place due to ante-mortem injuries and the time of death mentioned in the post-mortem report (Exhibit Ka-11) corresponds to the time mentioned in the F.I.R. (Exhibit Ka-1) as well as in the ocular testimony of P.W. 1 Smt. Nisha, P.W. 2 Km. Anita and P.W.3 Km. Ashana.

55. Now, we have to scrutinize and analyse the alibi which has been taken by the accused-appellant. Defence witness D.W.1 Shamim has deposed that due to some land there was enmity between Rampreet, and Rajendra Dhobi and Manoj.

56. These all are cooked-up, baseless and false story. No cogent documentary evidence could be produced for sale of the alleged land by Rampreet to Gokul. Moreover, how the accused person Pappu was concerned with that alleged land deal, is not explicit.

57. Accused person-appellant Pappu in his statement under Section 313 Cr.P.C. has stated that he has been falsely implicated due to enmity.

58. In this case the evidence adduced was found sufficient to sustain the conviction and we find no good ground to take a different view from the one taken by the court below and also with the findings and views by giving our reasons mentioned supra. Onus probandi has been fairly discharged by the prosecution.

59. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. It is a crime against humanity. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country’s future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. It is necessary for the courts to have a sensitive approach when dealing with cases of child rape. The effect of such a crime on the mind of the child is likely to be life long. A special safeguard has been provided for children in Article 39 (e) [(f) of the Constitution of India, 1950.

60. The sex maniacs are prowling in the society like wild wolves to quench their sinful bodily lust. They leave no stone un-turned. In this evil pursuit they even do not spare infants and children.

61. In this case, the accused person-appellant Pappu who belonged to the same caste, social strata and native place of the deceased minor girl Amrata; allured her to provide her Lychee apparently as a prelude to his sinister design which resulted in her kidnapping, brutal rape and gruesome murder-as the numerous ante-mortem injuries on her person testify; which culminated in concealing her dead body near the banks of the river beside the bushes and innocent helpless and hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position to win her trust. His culpability is of enormous proportion and arouses a sense of revulsion in the mind of the common man.

62. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a ‘rarest of rare cases’ where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society’s a abhorrence of such crime.

63. Taking an overall view of all the facts and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In vain, we have searched for mitigating circumstances-but found aggravating circumstances aplenty.

64. Records of this case reveal that accused person-appellant Pappu is a married person. In his statement recorded under Section 313 Cr.P.C. his age has been mentioned as 35 (Thirty Five) years whereas in the post-mortem report of the deceased girl Amrata her age has been mentioned as 7 (Seven) years. This clearly proves that in between the accused person-appellant Pappu and the victim girl Amrata there was a generation gap. This beastly act of the accused person-appellant Pappu shakes the confidence of society and tears to shreds the warp and woof of the social fabric.

65. No other points have been raised before us by the learned Amicus Curiae for the appellant.

66. In view of the foregoing discussions, the appeal is found to be devoid of any merit. The appeal thus fail and is accordingly dismissed on merits.

67. The impugned sentence of death passed by the then learned Additional Sessions Judge, Court Number No.2, Kushinagar At Padrauna dated 8.12.2016 in Sessions Trial No.414 of 2015, arising out of Case Crime No.840 of 2015, under Sections 376, 302, 201 I.P.C. and Section 3/4 The Protection of Children From Sexual Offences Act, 2012, Police Station Kasya, District Kushinagar, whereby the accused person-appellant Pappu has been convicted under Section 302 I.P.C. and has been punished with death sentence is hereby confirmed and reference made by the then learned Additional Sessions Judge, Court Number No.2, Kushinagar At Padrauna is hereby allowed. However, in compliance with under Section 415 The Code of Criminal Procedure, 1973 the execution of the sentence to be postponed until the period allowed for preferring such appeal before the Supreme Court has expired, or, if an appeal is preferred before the Supreme Court within that period, until such appeal is disposed of by the Supreme Court.

Before parting with this case, it may be noted that since it was a jail appeal, Sri Rahul Mishra, Advocate was appointed as Amicus Curiae to argue this appeal on behalf of the accused person-appellant Pappu.

Sri Rahul Mishra, Amicus Curiae shall be paid a sum of Rs.10,000/- (Ten Thousand) towards his remuneration as already ordered by this Court vide its order dated 11.5.2017.

Order Date :- 06.10.2017

S.Sharma

 

 

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