JUDGMENT M.C. Jain, J.
1. The sole accused appellant Chandrakesh has preferred this appeal against the judgment and order dated 17th March 2005 passed by Sri C.K. Kulshrestha, the then Additional Sessions Judge, Court No. 10, Bundaun in Sessions Trial No. 246 of 2004. He has been convicted under Sections 302, 376 and 201 I.P.C. Death sentence has been passed for the offence of murder punishable under Section 302 I.P.C. For the offence of rape punishable under Section 376 I.P.C. he has been sentenced to life imprisonment and a fine of Rs. 10,000/- In default of payment of fine, further imprisonment of one year has been awarded. Seven years' rigorous imprisonment has been awarded for the offence punishable under Section 201 I.P.C. A sentence of payment of fine of Rs. 5000/- has also been passed for the said offence. In default of payment of fine, six months' further imprisonment has to be undergone by him. All the sentences are to run concurrently.
2. The unfortunate victim was a girl named Manju aged about 8 years, daughter of Mahipal, PW 1. The incident occurred on 1.2.2004 at about 5 P.M. in a field situated in village Majhaula, P.S. Dhanari, District Budaun and the written F.I.R. was lodged by victim's father The prosecution case, as surfacing from the F.I.R. and the evidence adduced in the court, was like this: On the eventful day and time, Manju and her younger sister Preeti aged about 5 years had gone to the sugarcane field, the crop of which had been purchased by Dhanpal- father of the accused from one Gajram. Preeti reached back home with sugarcane stick, but Manju did not return till the fall of night. She was frantically searched in the village and around but in vain. Manju's younger sister Preeti informed that the accused Chandrakesh was there at the above narrated sugarcane field when she and her elder sister had reached there. He sent her back with sugarcane stick, saying that her elder sister (Manju) would be sent back later with more sugarcane sticks. Manju's father Mahipal went to Chandrakesh's house but he was not available. He went to his house again the following morning but he was not found there at that time too. While resuming his search for Manju, he (informant-Manju's father) was informed by a co-villager Rishipal son of Shyam Lal that dead body of his daughter was lying in the field of Lakhan son of Sumeri. He went there and found the dead body of Manju lying naked with her private part bleeding. A hair ribbon had been tightened around her neck. A number of villagers assembled there.
3. The accused had thus forcibly committed rape on Manju and then committed her murder. The written F.I.R. got scribed from Mohan Lal was lodged by the informant Mahipal (father of Manju) at the Police Station on 2.2.2004 at 1.45 P.M. on the basis of which a case was registered and investigation taken up by Narendra Singh SSI PW 5, S.O. of Police Station Dhanari. He prepared inquest report of the dead body of the deceased with other related papers. The dead body after being sealed was sent forpost mortem which was conducted on 3.2.2004 at 3.30 P.M. by Dr. D.V. Shakya PW 3. The deceased was aged about % years and about two days had passed since she died. The following ante mortem injuries were found on her person;
1. Lacerated wound of size 2 x 0.7 cm. X muscle deep at vaginal opening at 6 O' clock position. Hymen membrane found torn and cloned blood present. Smear slide prepared.
2. A ligature mark of size 12 x 1 cm. present front and sides of neck at mid of neck hyoid bone found fractured, fro-th present in trachea. Under ligature mark ecehymosts present.
4. Cause of death was asphyxia as a result of ante mortem injuries. Two glass slides of vaginal smear were prepared for pathological examination. Pathological examination of the same was done by Dr. Neel Chandel PW 2 who reported that vaginal smear was positive for sperms. Slide was also full of RBC.
5. The Investigating Officer took in possession the piece of ribbon with which the neck of the deceased had been tightened and prepared phard (Ex. Ka-10) therefor. He found one pair of Chappals and piece of ribbon in the sugarcane field of Gajram (standing crop of which had been purchased by Dhanpal-father of the accused) and prepared Phard therefor. He also prepared site plan of the place (outside the house of the informant) where the dead body of the deceased had been placed. He also prepared site plan (Ex.Ka-12) of the field of Lakhan Singh where the dead body of the deceased was found. He prepared site plan (Ex.Ka-14) of that sugarcane field of Gajram Singh also standing sugarcane crop of which had been purchased by the accused's father Dhanpal and where the Chappals of the deceased and piece of hair ribbon had been found. The statements of the witnesses were recorded and ultimately the accused appellant was booked for trial.
6. At the trial, the prosecution examined six witnesses. Mahipal PW 1 was the informant and father of the deceased. Dr. Neel Chandel PW 2 had conducted pathological test of the vaginal smear of the deceased whereas Dr. D.V. Shakya PW 3 had conducted autopsy on the dead body of the deceased. The star witness was Km. Preeti PW 4, younger sister of the deceased who had accompanied her to the sugarcane field of the accused on the fateful day. Narendra Singh SSI PW 5 was the Investigating Officer and Awadhesh Kumar Gautam PW 6 was the Constable who had prepared the chick F.I.R. and the G.D. concerning the registering of the case on the basis of the F.I.R. lodged by Mahipal PW1.
7. The accused was examined under Section 313 Code of Criminal Procedure. His defence was of denial. According to him, he had been falsely implicated owing to election rivalry and party factions. His case was that lodging of the report was handiwork of Mohan Master (scribe). However, no oral evidence was adduced in defence but reliance was placed on documentary evidence.
8. On appraisal of the evidence adduced at the trial, the trial court found the case against the accused to be established to the hilt and the impugned judgment came to be recorded which has been challenged by the accused appellant by means of this appeal.
9. The lower court has made reference as per Section 366 Cr.P.C. for the confirmation of the death sentence passed against the accused appellant.
10. We have heard Sri Viresh Misra, learned Senior Advocate assisted by Sri Anil Srivastava for the accused appellant and Sri R.K. Singh ,learned A.G.A. from the side of the State. The record is before us which we have meticulously and carefully perused. We propose to deal with all the relevant aspects of the matter having regard to the arguments raised at the bar in the light of the evidence and other materials.
11. It has first been argued for the accused appellant that the F.I.R. of the case was delayed one. Fore the incident of about 5 P.M. of 1.2.2004 the F.I.R., it has been urged, was belatedly lodged the following day at 1.45 P.M. though the distance of the Police Station was only about 5 kms. We should point out that facts and circumstances of each case are to be viewed before adjudging the F.I.R. to be delayed one. In the present case, naturally it was the first anxiety of the father of the victim to make all out efforts to trace his missing daughter. To his knowledge, his elder daughter Manju aged about 8 years and younger one Km. Preeti PW 4 had gone to the sugarcane field of the accused to take sugarcane sticks. The younger one had returned and informed that the accused Chandrakesh had detained Manju at the field saying that she (Manju) would be sent back with more sugarcane sticks. When his elder daughter Manju did not return home, he could not jump to the conclusion that the worst had happened and that she had been murdered after being raped. There was no enmity between him and the accused Chandrakesh or his family. It has specifically come in his testimony before the court that he had gone to the house of the accused Chandrakesh on the day of the incident also to enquire about his daughter Manju but he was not found there. He again went to his house the following morning but he was not available then also at his house. So, there was nothing unnatural that he first wanted to know about the whereabouts of his daughter Manju from the accused who had detained her at his field on the pretension of being sent later with more sugarcane sticks. Not finding the accused at his house, he continued frantic search for his daughter in the village and at places around but in vain. While so searching his daughter, Rishipal of his village happened to meet him who informed that the dead body of his daughter was lying in the field of Lakhan. He then went to Lakhan's field and found the naked dead body of Manju bleeding from private parts with a ribbon tied around her neck. The news spread in the village like wild fire and a number of persons assembled there. Then he lodged the F.I.R. on 2.2.2004 at 1.45 P.M. So, judged in the right perspective, the F.I.R. narrating all the relevant facts as known to him based on his personal knowledge and what he was told by his younger daughter Preeti after having found the dead body of his daughter in the field of Lakhan on information received from Rishipal, it (F.I.R.) cannot be termed to be delayed one. To say shortly, the whole substratum of the story was given in the F.I.R. which he got scribed by one Mohan. Really speaking, there was no delay in the lodging of the F.I.R.
12. Learned Counsel for the accused appellant simultaneously argued that the F.I.R. was ante-timed. As a matter of fact, this argument is self defeating in the face of earlier argument that the F.I.R. was delayed one. Any way, we wish to say a few words to deal with this argument too. Broadly speaking, if the F.I.R. was to be ante timed, timing of its lodging would have been given much earlier than as 1.45 P.M. on 2.2.2004. It has been argued by the learned Counsel for the accused appellant that in the challan of the dead body though the date of lodging of the F.I.R. has been mentioned as 2.2.2004 but the time of the F.I.R. has not been mentioned. True it is so. But the point of the matter is that the crime No. 18 of 2004 under Sections 302/201/376 I.P.C. as also the name of the accused is found mentioned in this document as well as in other papers (prepared at the time of the inquest proceedings). Not only this, in the main document-inquest report, the time of the F.I.R. is also mentioned. Therefore, it cannot be said by the omission of the time of the F.I.R. in the challan of the dead body that the F.I.R. was ante timed. To err is human. We also note from the cross-examination of the Investigating Officer Narendra Singh SSI PW 5 that he was not interrogated on this aspect of the matter as to why he did not mention the time of F.I.R. in the challan of the dead body. Unless the Investigating Officer was categorically interrogated on this aspect of the matter, the defence could not interpret it in its favour to designate the F.I.R. to be ante timed. In the result, we do not find impressed by this argument either that the F.I.R. was ante timed.
13. Learned Counsel for the accused appellant has raised various arguments to assail the testimony of Mahipal PW 1 and Km. Preeti PW 4. We shall deal with them in the discussion that will follow. But we think it proper to say before proceeding further that it is a case of circumstantial evidence. The law relating to circumstantial evidence was so summarized by the Supreme Court in the case of Vilas Pandurang Patil v. State of Maharashtra .
It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan , Eradu v. State of Hyderabad , Earabhadrappa v. State of Karnataka , State of U.P. v. Sukhbasi 1985 Supp. SCC 79, Balwinder Singh v. State of Punjab Ashok Kumar Chatterjee v. State of M.P. 1989 Suppl.(1) SCC 560). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
14. On the above yardstick, it has to be ascertained as to whether the guilt of Chandrakesh accused was proved clinchingly to the hilt by the circumstantial evidence brought on record by the prosecution. In this context, we propose to deal with the arguments of the learned Counsel for the accused appellant to assail the testimony of Mahipal PW 1 and Km. Preeti PW 4 as also other circumstances relied upon by the prosecution. Mahipal PW 1 is the informant and father of the deceased. He proved the F.I.R. and spoke about what he had been told by her younger daughter Preeti PW 4 (reference whereof has come earlier in the narration of prosecution case). He also emphatically stated that he had gone to the house of the accused on the day of the incident itself as also the following morning but the accused was not available. It is also in his testimony that while he was searching his daughter Manju, Rishipal had told him that the dead body of his daughter was lying in the sugarcane field of Lakhan. He had then gone there and found the dead body of his daughter Manju naked with a ribbon tied around her neck and her private part bleeding. It is a strange feature of the case that no suggestion of any enmity with the accused or his family was made to this witness in his cross-examination. The suggestion rather was that he lodged the F.I.R. under misconception (Galatfahmi). There is nothing on the record that there was any enmity whatsoever between this witness on one hand and the accused or his family on the other.
15. Learned Counsel for the accused appellant then tried to assail his (PW1's) testimony on the premise that his statement went uncorroborated, inasmuch as neither Rishipal nor Lakhan was produced. We do not think that the production of Rishipal or Lakhan was at all necessary. The prosecution is not supposed to multiply the evidence. Rishipal was a witness who had given information to this witness that the dead body of his daughter was lying in the sugarcane field of Lakhan. It is noted from the cross-examination of Mahipal PW 1 that the recovery of the dead body from the field of Lakhan was not challenged by the defence, Therefore, it cannot be doubted that the dead body had been found in the field of Lakhan. Lakhan was the person in whose field the dead body was found. His testimony was, therefore, hardly necessary.
16. Learned Counsel for the accused appellant then argued that there was no witness of the recovery of the dead body from the field of Lakhan and it was also not explained as to why the dead body was removed to the place outside the Chhappar of the informant before the arrival of the police, The argument has no merit and it cannot detain us for long. The worst had happened. There was no point in letting the dead body lie in the field of Lakhan till the arrival of the police. The dead body was lying naked with private part bleeding. Mahipal PW 1 was not a legal expert. In his wisdom and presumably on the advice of the villagers who had assembled there, he brought the dead body outside his Chhappar and then went to lodge the F.I.R. The accused could not make any dent in the prosecution case on this ground.
17. Learned Counsel for the accused appellant urged that the scribe of the F.I.R.-Mohan Lal was also not produced. His production, too, by the prosecution was not at all necessary. The clear reason is that the informant Mahipal PW 1 had throughout been owning the F.I.R. in question which he got scribed by Mohan Lal . The production of the scribe could be necessary in the eventuality of the informant disowning it or if he himself was not available to appear in the witness box. In the present case, since the informant was owning the F.I.R. in question, the production of the scribe Mohan Lal was wholly irrelevant.
18. Learned Counsel for the accused appellant also made it a point of criticism of the testimony of Mahipal PW 1 that the mother of the deceased was also not produced. We see no merit in this submission. There was no point in the mother being examined as witness in the present case, particularly when the victim's father Mahipal PW 1 was produced. Had she been produced, that would have been the testimony of one witness through two mouths.
19. Learned Counsel for the accused appellant then urged that Mahipal PW 1 stated that before lodging the F.I.R. at the Police Station, he had sent the Chaukidar to the Police Station. He pointed out that the Chaukidar was not produced as a witness. Further, it was not known as to with what instructions he had been sent to the Police Station. It is not possible to attach any importance to this argument. The reasons are two fold. First, it is there in the testimony of Constable Awadhesh Kumar Gautam PW 6 that the written F.I.R. at the Police Station was lodged by Mahipal PW 1 on the basis of which he had scribed the Chick and registered the case in the G.D. Mahipal PW 1 himself emphatically owns the lodging of the the written F.I.R. at the Police Station. The Investigating Officer Narendra Singh, SSI PW 5, too, stated that the written F.I.R. (Ex.Ka-4) had been lodged at the Police Station in his presence and he immediately took up the investigation in his hands consequent upon the lodging of the F.I.R. Second, neither Narendra Singh PW 5 nor Awadhesh Kumar Gautam PW 6 had been interrogated on this aspect of the matter as to whether any Chaukidar had reached the Police Station before the lodging of the F.I.R.
20. Learned Counsel for the accused appellant then urged that Gajram was also not produced as a witness by the prosecution. It would be recalled that Gajram was the person of whose field's standing sugarcane crop had been purchased by Dhanpal (father of the accused Chandrakesh). The deceased Manju and her younger sister Km. Preeti PW 4 had gone there to take sugarcane sticks on the day of the incident as is the prosecution case and evidence. It may be stated at the risk of repetition that the accused Chandrakesh was there and sent back the younger one Km. Preeti PW 4 with one sugarcane stick, detaining the elder sister Manju (deceased) on the pretext that she would be sent later with more sugarcane sticks. We note that in the opening part of his testimony Mahipal PW 1 unambiguously stated that Dhanpal had purchased the standing sugarcane crop of his field. We have carefully scrutinized the evidence of this witness and find that this statement was not at all challenged by the defence. Therefore, the production of Gajram was also altogether irrelevant. It stood established that the standing sugarcane crop of the field of Gajram had been purchased by Dhanpal-father of the accused appellant Chandrakesh. It probablises the presence of the accused Chandrakesh there where the two sisters had gone to get sugarcane sticks. With evil design and criminal intention, he sent the younger one (Km. Preeti PW 4) with sugarcane stick, detaining the elder sister Manju on the pretext that he would be sending her later with more sugarcane sticks.
21. The situation boils down to this that the criticism of the testimony of Mahipal PW 1 by the learned Counsel for the accused appellant is unfounded with no merit whatsoever. He has been rightly found to be a trustworthy witness by the trial court. We endorse that his testimony has a ring of truth.
22. Learned Counsel for the accused appellant then criticized the testimony of Km. Preeti PW 4. Indeed, she was the star witness of the prosecution. She was aged about 5 years at the time of the incident which took place on 1.2.2004. Her testimony was recorded on 23.11.2004 in which her estimated age has been recorded as 6 years. She was a child witness. After her preliminary examination, the trial judge recorded his satisfaction that she was capable of understanding the questions and giving rational answers. The gist of her testimony is that on the day of the incident, she and her elder sister Manju had gone to the field of Chandrakesh to take sugarcane sticks. Chandrakesh gave sugarcane stick to her and sent her back, saying that he would send Manju later with more sugarcane sticks. She came back to her house, leaving Manju there. She told this fact to her parents. She (Manju) did not return back by evening. She died. She saw her dead body. She identified the accused Chandrakesh also as the person who had given sugarcane stick to her and sent her back from the field, saying that Manju would be sent later with more sugarcane sticks.
23. So far as the value, which can be attached to the evidence of a child witness, is concerned no fixed rule can be prescribed. Children have good memories and no conscience. Aged witnesses can fabricate story at the moment and can answer the question after giving a thought as to the effect of the answer on the case of their party but there is no such danger in the case of a child witness. Shortly stated, the credit to be given to the evidence of a child witness can be judged after determining his/her competency by way of asking questions to ensure whether the witness understands the questions or not and is giving rational answers to these questions or not. No precise rule can be prescribed.
24. Learned Counsel for the accused appellant has criticised the testimony of this child witness on varied grounds. It has first been urged that there is no corroboration of her testimony. Second, her statement was recorded by the Investigating Officer on 3.2.2004, i.e., a day after the lodging the F.I.R. Third, she was a tutored witness. Fourth, as per her own testimony, the deceased was not last seen exclusively with the accused Chandrakesh. Fifth, she stated that she had informed her parents of the fact of Chandrakesh accused having detained Manju at the field on the pretext of sending her later with more sugarcane sticks the next day of the incident after Daroga had arrived and the dead body was found.
25. Dealing with these submissions, it is significant to point out that often a child is the only witness to a most serious crime who alone can relate without any hitch as to what has actually happened. There are several factors inspiring confidence in the evidence of this witness. It is misnomer to say that there is no corroboration of the testimony of this witness. No doubt, the Investigating Officer stated that he recorded the statement of this witness on 3.2.2004. It could be done on 2.2.2004 also because it was on 2.2.2004 itself when he had conducted the inquest proceedings of the deceased at the door of the informant (where the dead body had been taken from the field of Lakhan). But her examination by the Investigating Officer on 3.2.2004, i.e., the next day, does not cast any cloud on the testimony of this witness. The Supreme Court has held in the case of State of U.P. v. Satish as under:
As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witness. The defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion.
26. In the present case also, the Investigating Officer was not interrogated as to why he did not record the statement of this witness on 2.2.2004. Therefore, the accused appellant cannot attempt to score any point on this premise, Recording of her statement on 3.2.2004 by the Investigating Officer cannot at all be viewed with suspicion. She was the own daughter of the informant. There was no possibility of her not being available later on. Reference has also come in the F.I.R. that she and Manju had gone to sugarcane field of the accused and as to what happened in her presence which she had disclosed to her parents. She cannot be termed to be a tutored witness either by picking up particular sentence from her testimony torn out of context. The statement of the witness has to be read as a whole and due regard is also to be given to this aspect of the matter that she was a child witness. There is also the emphatic statement of her father Mahipal PW 1 that he had gone to the house of Chandrakesh on the day of the incident also and thereafter the next morning but he was not available there. He was not interrogated as to when did he inquire about Manju from his younger daughter Preeti and when did she tell him as to what had happened in her presence at the field of Chandrakesh. The defence chose not to interrogate him in this regard purposely. In the scenario, it was quite natural for the parents to be worried on the non- return of the elder daughter Manju who had gone with the younger one Preeti to the field of the accused Chandrakesh to take sugarcane sticks. The younger one Km. Preeti PW 4 had returned. But as the elder one Manju had not returned, it was quite natural that the younger one would have been asked about the elder one (Manju) and she disclosed as to what happened in her presence.
27. There was unequal duel between a refined lawyer and this child witness. It can justifiably be inferred that she unwittingly stated under the stress of cross-examination in reply to a cleverly worded question that she made disclosure to her parents the next day after Daroga had arrived and after the dead body was found. It could not at all be so, because Daroga had arrived only after the dead body had been found and after the F.I.R. was lodged at the Police Station. The disclosure made by her is found recited in the F.I.R. itself. Therefore, no inference could be drawn to the detriment of the prosecution and in favour of the accused on the basis of the above stray sentence in her cross-examination. It is also important to note that the statement of Km. Preeti PW 4 to the effect that the accused Chandrakesh sent her back with sugarcane stick, saying that he would send her sister Manju later with more sugarcane sticks, was not challenged in her cross-examination.
28. Reference has been made by the learned Counsel for the accused appellant to this part of the statement of Km. Preeti PW 4 that Satya Pal and Shiv Raj were also present at the field of Chandrakesh wherefrom he had given her sugarcane stick. Their fields situate in the neighbourhood of the field of Chandrakesh. Shiv Ram and Satyapal had said to Chandrakesh that he should give sugarcane sticks to Manju also. On the basis of this statement, it has been urged that the evidence of last seen of Manju with Chandrakesh was not exclusive. We are unable to agree. It has specifically been stated by this witness that it was Chandrakesh accused who had given sugarcane stick to her. She also unambiguously stated that it was the accused Chandrakesh who had detained Manju on the pretext that he would send her later with more Sugarcane sticks. She identified him in the court also as the person who had given sugarcane stick to her and had detained Manju on the pretext of giving more sugarcane sticks. So, it was the accused who had allured Manju to stay in his sugarcane field for more sugarcane sticks. It was immediately that Shiv Raj and Satyapal had also told Chandrakesh to give more sugarcane sticks to Manju. The accused himself did not say anything about Satyapal and Shivraj in his statement under Section 313 of Code of Criminal Procedure. Therefore, on global consideration, it cannot be accepted that Manju had not been last seen with accused Chandrakesh exclusively. The testimony of child witness Manju has rightly been believed by the learned trial court. The argument of the learned Counsel for the accused appellant and the criticism against the testimony of Km. Preeti PW 4 cannot hold the ground.
29. Learned Counsel for the accused appellant then argued that the investigation was careless and perfunctory. He supported this argument on the ground that after being arrested the accused appellant was not subjected to medical examination. He made reference to the statement of Dr. D.V. Shakya PW 3 who conducted autopsy on the dead body of the deceased that in the eventuality of rape by a young person over a girl of tender age, there could be possibility of signs of struggle being found on the penis of the rapist. It is to be pointed out that the offence was committed by the accused with full mens rea and intention. With evil design and mind, he detained Manju at his field on the pretext of sending her later with more sugarcane sticks. The younger one Km. Preeti PW 4 was sent back with sugarcane stick so that he could have liberty to succeed in his evil design. The girl Manju was aged about 8 years. The offence was committed on 1.2.2004 and he could be arrested only on 5.2.2004. The statement of Investigating Officer Narendra Singh PW 5 is there that he searched the accused after the lodging of the F.I.R. on 2.2.2004 and continuously made efforts to lay hands on him. He could, however, be attested only on 5.2.2004 at the turn of the way leading to village Makrauli. There could hardly be any possibility of any sign being found on his penis when he (a young man) was arrested after four days. Even if it is taken for the sake of argument that he got some minor injuries on his penis while raping the girl Manju, the same would have healed up within four days in all probalities. It produces no adverse effect on the prosecution case that the Investigating Officer did not subject him (accused) to medical examination. Therefore, the investigation of the case cannot at all be faulted.
30. It has lastly been argued for the accused appellant that he was a juvenile under 18 years of age at the time of alleged crime -1.2.2004, as per the Juvenile Justice (Care and Protection of Children) Act, 2000 and should have been dealt with accordingly. We have examined this aspect of the matter and find no force in it whatsoever. Number of solid facts are lined up to dislodge this contention raised from the side of the accused appellant. To begin with, he was arrested on 5.2.2004 and entry to this effect was made in the G.D. in which his age was mentioned as 20 years. He was produced before the Chief Judicial Magistrate on 6.2.2004 for his remand. He did not say a single word regarding his age. The bail application was moved from the side of accused appellant before the Chief Judicial Magistrate, without mentioning age or claiming himself to be a juvenile. After committal of the case to the court of sessions, bail application was moved by the accused appellant before the trial court without taking this ground. In an affidavit of Jandel (uncle of the accused), being paper No. 439/B sworn on 12.7.2004 it was averred that the accused Chandrakesh was aged about 17-18 years, though the bail application before the trial court was also accompanied by an affidavit (sworn on 9.7.2004) of Dhanpal-father of the accused Chandrakesh in which there was no whisper regarding his age or about his being juvenile. Charges were framed against the accused on 3,7.2004. At that stage also, the question of age was not agitated. Then, an application for declaring the accused as juvenile was made before the Sessions Court on 19.8.2004 (Misc. Case). The report of the doctor was called for. Letter to the Chief Medical Officer Budaun was sent on 16.9.2004, The C.M.O. examined the accused on 20.9. 2004 and made his report on 21.9.2004 that he was aged about 19 years. It clearly shows that he was well over 18 years of age on 1.2.2004 (the date of incident). The report also shows that the Misc. application made by the accused before the Sessions Court for being declared juvenile was dismissed in default on 8.11.2004 as none was present to press it. Not only this, the order sheet of the trial court shows that an application was moved by the accused on 25.8.2004 that his application for declaring him juvenile was pending before the Sessions Court. Thereafter ultimate order of the Sessions Judge dated 8.11.2004 was not brought to the notice of the trial court. However, the complainant Mahipal PW 1 filed before the trial court with his application dated 23.11.2004, certified copy of the order dated 8.11.2004 passed by the Sessions Judge in Misc. Case No. 81 of 2004 whereby the application of the accused for declaring him juvenile was rejected as none was present to press it. The record of the trial court (Fast Track Court) also shows that on 23.11.2004, i.e., after the complainant filed the copy of the order dated 8.11.2004 aforesaid, Mahipal PW 1 was cross-examined from the side of the accused and Km. Preeti PW 4 was also examined and cross-examined on that date. It is thus obvious that to the own knowledge of the accused, his application for being declared as juvenile was rejected by the Sessions Judge. Actually, it was for this reason that the prosecution evidence in the case on that date could be recorded further. The accused did not file any appeal under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 to challenge the rejection of his application by the Sessions Judge on 8.11.2004. It admits of no doubt that the order rejecting his application for declaring him juvenile became final and conclusive. To say in a nutshell, he attempted to claim and be declared as a juvenile but utterly failed to succeed. We also note that in his statement under Section 313 Cr.P.C. recorded on 22.1.2005, he gave his age as 20 years. It would be recalled that the incident took place on 1.2.2004, meaning thereby that he was about 19 years of age at the time of the incident as per his own showing.
31. There is another reason to dislodge his claim for being declared as juvenile. In the trial court, he himself filed certified copy of the voters list in which estimated age of every voter as on 1.1.2003 has been recorded. The name of the accused appellant Chandrakesh son of Dhanpal appears at Serial No. 1033 in which his age has been recorded as 24 years. This is the own document relied upon by the accused himself.
32. Considering all the above facts, emerging from the scrutiny of record and evidence, the contention of the accused appellant is completely baseless that he was juvenile at the time of the incident. It was simply an afterthought coined subsequently to get away from the consequences of the grave criminal act committed by him.
33. The post mortem report of the deceased considered in the light of pathological report clearly indicated that the teenaged girl of about 8 years was raped Her hymn was found torn with the presence of clotted blood. Vaginal smear slide was positive for sperms and full of R.B.C. (Red Blood Cells), After the commission of rape, she had been murdered with tightening of ribbon around her neck. Thus,post mortem report and pathological report well reconcile and are in tune with other evidence and circumstances proved by the prosecution on record.
34. It has come in the testimony of Mahipal PW 1 that Gajram's field (standing sugarcane crop of which had been purchased by Dhanpal-father of the deceased) was only at a distance of 2-3 fields from the field of Lakhan where the dead body of the deceased was found. He gave the distance as about 150 paces. Investigating Officer Narendra Singh PW 5 also stated that the distance between the two fields was only 1/2 furlong. It would be recalled that the deceased had been last seen by Km. Preeti PW 4 in the field of Gajram whereafter her dead body was recovered the following day from the field of Lakahn.
35. It has also to be observed that when the post mortem was conducted on 3.2.2004 at 3.30 P.M. the probable time since death was estimated about two days. Giving margin of six hours in the estimation of the time of death, the murder could have been committed a little after 5 P.M. on 1.2.2004. The trustworthy evidence of Km. Preeti PW 4 is very relevant that at about evening time on 1.2.2004 the accused had sent her back home with sugarcane stick, detaining her elder sister Manju on the pretext that she would be sent back a little later with more sugarcane sticks. His evil mind was at work as he wanted to quench his sexual desire by committing rape on the teenaged girl and to facilitate the commission of the crime, he sent the younger sister pretending that Manju would be provided more sugarcane sticks. That was bait to trap the innocent girl. In this case, the last seen theory will come into play because the time gap between the point of time when the accused and the deceased were last seen together and when the deceased met her death after being ravished was very little or insignificant. The possibility of any other person having committed this crime was completely overruled.
36. Another important circumstance is that the evidence of her having been raped and murdered in that very field (where the accused and the deceased were last seen) had been found by the Investigating Officer. A pair of chappals of the deceased was found there as also piece of hair ribbon, which clearly indicated that after committing rape on the victim in that very field, the accused tightened hair ribbon around her neck. While so doing, a part of the ribbon got torn which could be found by the Investigating Officer there.
37. To hide and conceal the crime committed by him, the accused carried the dead body to the nearby field of Lakhan, distance of which was nearly 100-150 paces. He abandoned the dead body there.
38. To conclude, the following circumstances proved by the prosecution form the complete chain to clinchingly establish the guilt of the accused Chandrakesh that he committed rape on Manju aged about 8 years, then committed her murder by strangulation by tightening hair ribbon around her neck and then abandoned her dead body in the nearby field of Lakhan to screen the evidence of this heinous crime committed by him.
1. on 1.2.2004 at about 5 P.M. Km. Preeti PW 4 and her elder sister Km. Manju (deceased) aged about 8 years had gone to the field of Gajram, standing sugarcane crop of which had been purchased by Dhanpal-father of the accused Chandrakesh. The accused appellant Chandrakesh was present there. He gave a sugarcane stick to Km. Preeti PW 4 and sent her home, saying that Manju would be sent home short while later with more sugarcane sticks. Thus, she was last seen with the accused Chandrakesh. It is clearly established by the testimony of Km. Preeti PW 4.
2. Manju (deceased) did not return after being so last seen with the accused Chandrakesh.
3. When Manju did not return home , her parents became panicky and made enquiry. Km. Preeti PW 4 informed that she and Manju had gone to the above referred sugarcane field wherefrom Chandrakesh accused had sent her back with sugarcane stick, detaining Manju, saying that she would be sent short while later with more sugarcane sticks.
4. Mahipal PW 1 went to the house of Chandrakesh in the evening of 1.2.2004 as also in the morning of 2.2.2004 but he was not available.
5. The dead body of Manju had been found in the field of Lakhan on 2.2.2004 and information in this behalf was given to him (complainant Mahipal) by one Rishipal, while he was searching his daughter.
6. The dead body was found lying naked with bleeding from private part and hair ribbon tightened around her neck. Another piece of the same ribbon was found in the field of Gajram where the accused Chandrakesh had been last seen with Manju by Km. Preeti PW 4. Pair of chappals of Manju were also found in the field of Gajram.
7. As per the medical evidence, hymn membrane was found torn with clotted blood present. Vaginal smear slide was found positive for sperms and full of R.B.C. The medical evidence indicated that she had been raped. Thereafter, she was murdered as there was a ligature mark on her neck and as perpost mortem report the cause of death was asphyxia as a result of strangulation.
8. The probable time of death also reconciled with the time of accused having been last seen with Manju.
9. After committing the crime, the accused Chandrakesh vanished. He was not to be found at his house in the evening of 1.2.2004 and in the morning of 2.2.2004 when the complainant Mahipal PW 1 went there to know the whereabouts of his daughter Manju who had been left at his (accused's) sugarcane field by his younger daughter Km. Preeti PW 4.
10. The Investigating Officer also continuously searched him after the lodging of the F.I.R. but he could be apprehended only on 5.2.2004. The Supreme Court has held in the case of Dhananjay Chatterjee v. West Bengal that abscondence by itself is not a circumstance which may lead to the only conclusion consistent with the guilt of the accused but abscondence of an accused after the occurrence is certainly a circumstance which warrants consideration and careful scrutiny. We should say that this circumstance considered in continuation with other facts and circumstances of the case narrated above, adds a brick of evidence to prove the guilt of the accused.
39. All the incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the accused appellant. Nothing could be highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence of the accused appellant. We should also point out that in his statement under Section 313 of the Code of Criminal Procedure, the accused appellant instead of making attempt to clarify the incriminating circumstances inculpating him and connecting him with the guilt, adopted adamant attitude with blunt and outright denial of everything when those circumstances were brought to his notice. In answer to question No. 9, he stated that he had been falsely implicated due to election rivalry. In answer to question No. 10, he stated that there were party factions in the village and Mohan Master (scribe of the F.I.R.) was instrumental in getting the F.I.R. lodged. This suggestion was not even made to Mahipal PW 1. It spills beyond comprehension that Mahipal PW 1 would falsely implicate the accused at the behest of Mohan without there being any previous history of enmity with him or his family. It also cannot be appreciated that the innocent child witness Km. Preeti PW 4 would tender false evidence against the accused, Her testimony was well tested by cross-examination and has the ring of truth.
40. In view of the above discussion we endorse the finding of the trial Judge that the accused committed the offences under Section 376/302/201 I.P.C.
41. Naturally, the important question arises as to the punishment to be inflicted on him. The trial judge has awarded death sentence to him for the offence under Section 302 I.P.C, with other sentences as mentioned in the earlier part of this order. No doubt, the accused committed a most heinous crime by committing rape over a teenaged girl of about 8 years and then murdered her by tightening hair ribbon around her neck. Thereafter he abandoned her dead body in a nearby field. There can be no doubt about it that he proved himself to be a wolf in human form. He made the teenaged girl to be the object of his sexual desire, an act of extreme perversity. But his being young is an extenuating circumstance in his favour. He was a young man aged about 20-21 years when he committed this crime. Needless to say, legal deprivation of life through death sentence is an exception. When the murderer is too young or too old, the clemency of penal justice helps him. On global consideration of all the facts of this case and attending circumstances, long deprivation of liberty (life imprisonment) would be condign punishment for him and not death sentence.
42. In the ultimate result, we partly allow this appeal. While maintaining the conviction of the accused appellant Chandrakesh under Section 302, 376 and 201 I.P.C., we convert his death sentence awarded for the offence under Section 302 I.P.C. to that of life imprisonment. The sentences passed by the trial court for the other two offences, i.e., under Sections 376 and 201 I.P.C. shall remain unaltered and arc affirmed as such.
43. The reference made by the trial court for confirmation of death sentence is rejected.
44. The accused appellant Chandrakesh is in jail. Chief Judicial Magistrate, Budaun shall ensure that he undergoes the sentences passed against him.
45. Certify the judgment to the court. The compliance be reported within two months.