JUDGMENT S.K. Agarwal, J.
1. This appellant was convicted under Section 302, I.P.C. and sentenced to death by learned IV Additional Sessions Judge, Shahjahanpur, Sri C.N. Misra, vide his judgment and order dated 31-8-2000. He had also forwarded a reference No. 1 of 2001. The appellant has submitted his appeal from jail. The appeal was filed beyond 281 days. It was sent through the jail authorities on 14-9-2000. It was admitted on 21-7-2001 after the dealy was condoned.
2. Sri A.B.L. Gour was appointed as amicus curie for the appellant on 28-1 -2002.
3. The brief facts of the case are that a young girl, Km. Monu alias Meenakshi daughter of the informant, Hari Shanker Sharma, aged about 10 years, went for the repair of her wristwatch to the market at about 4.00 p.m. on 8-11-1995. When she did not return for a considerable length of time, the family members being anxious set out in her search. Till 9.00 p.m. they could not get any whereabouts of her so a report (Dariaft hall) was lodged by PW 1, the father of the girl, at P.S. Kotwali, at about 9.30 p.m. on 8-11-1995 itself . The appellants and other members of the locality continued their search for her for the whole night and the next morning. In the process they came across a gunny bag, with a hand peeping out of it, in a Nala near the house of Deleep Kumar during noon. When the informant opened the gunny bag, it was found to contain the dead body of his daughter, Km. Monu alias Meenakshi in a naked state. It bore marks of sharpened weapon on her neck.
4. After examining the body he prepared his report and took it to the police station. It was handed over by him there and a check report was prepared on its basis by PW 10 Head Moharir Kamal Kishore. This report is Ext. Ka-1. After formalities of the registration of the case were complete PW 11 S.I. Brij Mohan commenced its investigation. He visited the spot, took out the dead body from the Nala and prepared a memo of inquest. He had also conducted a search of the house of the accused in his absence and recovery of a pair of Hawai Chappal and a wristwatch belonging to the deceased girl was made from the house of the appellant in the presence of witnesses Devendra Kumar and Vimal Kishore Dixit. The recovery memos of these articles are Exts. Ka-2 and Ka-3. The wrist-watch is material Ext. 1. And the pair of' Chappal is Ext. 2. Bloodstained earth and simple earth was also taken from the floor of the room and sealed in separate containers. It was sent for chemical examination to the Serologist, whose report shows that it contained human blood. The report of the Serologist is Ext. K-15 on record.
5. After completion of the investigation the police had submitted a charge sheet against the appellant. As earlier stated, trial ended into conviction for the offence of murder and rape and the appellant was sentenced to death.
6. The corpse of the deceased was subjected to post mortem examination on 10-11-1995 at about 3.15 a.m. by P.W. 9 Dr. P.K. Gupta who found the following injuries on her person :-
1. Lacerated wound 7.5. cm. x 1.5 cm. x bone deep on the left side skull 3 cm. above the left ear.
2. Lacerated wound 10 cm. x 4.5 cm. x bone deep on the front of of skull 2.5 cm. above the base of nose.
3. Incised wound 1.5 cm. x .5 cm. x muscle deep on the right check 1 cm. below the right eye.
4. Incised wound 2 cm. x .5 cm. x muscle deep on the right cheeks 1 cm. below injury No. 3.
5. Incised wound 11.5 cm. x 2.5 cm. x tissue deep on the front and both sides of neck 4 cm. below the chin.
6. Incised wound 0.8 cm. x 0.5 x bone deep on the right little finger tip posteriors.
7. Multiple abrasions in an area of 4.5 cm. x .5 cm. or the right knee anterior.
8. Abrasion 1.5 cm. x 3 cm. on the left knee anterior.
Her post mortem report shows that lacerations were present around the vagina with a rupture of the hymen membrane. The Medical Officer has collected the smear of vaginal fluid and it was sent to Pathologist, District Hospital for determination of rape.
7. The clothes of the deceased girl and some portions of tin drums which were found stained with blood were also taken into possession by the police officer by its memo Ext. Ka-6 on 9-11-1995.
8. In the present case following circumstances are available to us :-
(1) that the deceased girl left her house . for the repair of her wristwatch to the market at about 4.30 pm. (2) the evidence of PW 1 Hari Shanker Sharma and his wife PW 3 Smt. Munni Devi, discloses about the recovery of the dead body from the Nala flowing near the house of Dileep and also recoveries of the pair of Chappal, wristwatch, bloodstained earth and simple earth and other articles from the house of the appellant.
(2) The last seen evidence of two witnesses against him with the deceased.
9. PW 2 Mahesh Chandra Shukla is a witness of recovery of the dead body and preparation of the inquest memo. PW 4 Vijay Kumar Srivastava is also a witness of recovery of the dead body and the sealing of gunny bag by the Investigating Officer in which dead body was found PW 5 Ram Pal Singh is a witness of the fact of his having seen the deceased going with the accused-appellant to his house. He also deposed about the fact that no other family member was present at that time in his house. They had gone to take a dip in the Ganges on the particular date and the house was in exclusive possession of the appellant alone. He also stated about the fact that there was strong friendship between the uncle of the deceased girl and this appellant and they were on visiting terms. The girl used to visit the house of the appellant frequently as the appellant was residing in the same locality in her vicinity. This is a circumstance of the appellant being last seen with the girl on that day soon after she set out from her house.
10. P.W. 6 is Dr. V.K. Gupta, He examined the vaginal smear sent by P.W. 9. According to him there was no sperm found by him in it. The report submitted by him is Ext. Ka-6 on the record. There is no evidence that rape was committed on her from the vaginal smear, though it was fully corroborated from her post-mortem examination report, especially injury No. 9 found on the corpse of the young girl. At least it exposes that an attempt was made.
11. P.W. 7 is Harendra Singh. He had seen the appellant carrying a gunny bag at about 12.00 in the night intervening 8/9-11-1995. He made an enquiry from the appellant who told him in response that he is taking ground-nut in the bag. He had seen him going towards the Nala from where the dead body was ultimately recovered during the noon hours on the following morning. The witness thereafter proceeded to his house. He was returning from the place of his employment.
12. P.W. 8 is Devendra Kumar Saxena. He is a witness of recovery of the pair of Havai Chappal, wristwatch, bloodstained portions of the two drums and also bloodstained and simple earth from the floor, a brick from the wall of the house stained with blood, bloodstained cow-dung and lime meant for whitewash (Chuna).
13. As earlier said, P.W. 9 is the Autopsy Surgeon Dr. P. K. Gupta and P. W. 10 is Head Moharir Kamal Kishore Bajpai, who had registered the case and prepared the G.D. Entry etc. pertaining to such registration. P. W. 11 is the Investigating Officer of this case.
14. The appellant denied these charges and claimed his involvement on account of enmity. He produced no evidence. He was tried and convicted as discussed above. He did not examine any evidence.
15. The statements of P. Ws. 1 and 3 are on the point of the deceased going to get her wristwatch repaired from the market. No doubt they have also disclosed that the recovered pair of Chappal and wristwatch belong to the deceased. They also proved recovery of bloodstained tin pieces of the drums, bloodstained earth from the house of the accused-appellant and some other articles including the discovery of the dead body from the Nala concealed in a gunny bag. The evidence of P.W. 1 is criticized seriously by the learned amicus curie on these recoveries that the statement of P. Ws. 1 and 3 cannot be relied upon especially about the recoveries made from the house of the appellant. It. has come in the evidence of this witness that he had been at the mortuary when these recoveries were effected. Police came to the spot at about 4.30 p.m. He had gone to lodge the report in the meantime. He did not accompany the dead body when it was sent for post mortem. It is further stated by him that he went to mortuary where the post-mortem of his daughter was conducted at about 7/8.00 p.m. He came to his house for a minute or two to inform his wife and left for the mortuary immediately thereafter. The post-mortem was conducted during midnight at about 2.30 or 3.00 a.m. He continuously stayed there. He returned after the body of his daughter was cremated. He did not go to Kotwali thereafter. His statement was twice taken by the I.O., once at the time of lodging of the report and thereafter cremation of the body. He was called to the police station and on the next day after the cremation he was again questioned by the I.O. On both the occasions the enquiry was made from him at the police station. No signature of his on any paper was obtained at the police station. He further stated that in that gunny bag some scales of the groundnut were also found. Whether they were taken in custody by the police he did not know. According to him he had seen the house of the appellant only from outside and he had never gone inside. He had gone inside the house of the appellant in connection with the murder of his daughter only. On one or two occasions in the past also he went there. He, in a very categorical manner, alleged that he was present in the house of the appellant when the recoveries were made from there by the I.O. There was a lock placed on the latches of the door of the room from which the pair of Chappal was recovered. The lock was broken open before the recovery. The broken lock was not taken into custody by the police and was left on the spot. The floor of the room from where blood was taken was made of mud. Blood and some other things were also taken into custody from that room. Bloodstained earth and simple earth were sealed is separated containers. The wristwatch was also sealed in a cloth. There were only three rooms in the house of the appellant and on the side only tiles were drawn. The room from where the Chappal was recovered is another room in its north. Its door opens in the west. He was not able to tell the names of the residents of the houses which are in the south of this room. His house in the east of the house of the appellant is at some distance. The site map was prepared on the same date on which these articles were recovered from the house of the appellant. He denied that nothing was recovered from the house of this appellant in his presence. He had proved the report which he had given to the S.H.O. of the concerned police station about the disappearance of his daughter the previous night. He further admitted that this report was prepared by Hari Om Sharma on his dictation. It is proved as Ext. Ka-24. He admitted that he saw the complete dead body of his daughter only when the gunny bag was opened. She had a injury on her neck in front. Inside the gunny bag blood was there. Her naked body was smeared with blood. He denied that he did not make any Gumsudgi report about his daughter at P.S. Kotwali. He also denied that the F.I.R. was prepared after discovery of the body in consultation with the police.
16. Coming to the statement of P. W. 3 Smt. Munni Devi Sharma, wife of the informant, we find that almost all the facts that were averred by her husband were repeated by her. She had also stated that the wrist-watch and the pair of Chappal were recovered from the house of the appellant. Blood was there on the wall and the floor. She had identified the wristwatch like her husband . She also had identified the pair of Chappal to be that of her daughter. She claimed that she had gone to the spot from where the dead body was recovered which was in a gunny bag and one hand outside it. The gunny bag was not completely stained with blood. It was lying in water. There was mud in the drain but the body was not stained with mud since it was in the gunny bag. Her statement was recorded after recovery of the dead body but she could not give out its precise date. The information about the dead body lying in the Nala was received by them at about 2.00 p.m. She admitted that passage goes through her house to Chowk market but the road that leads from the house of the appellant is going straight to Chowk market. The strap of the watch was black in colour but she was not able to give out the colour of the dial of this watch. She also claimed that P. W. 5 Ram Pal Singh used to supply milk at her house. He supplies it every day. Presently also milk is being taken from Ram Pal Singh. Normally it is supplied during the morning hours and on need it is given in the evening as well. On the date when her daughter disappeared Ram Pal came to her house along with other people of the locality. They had all gone out in her search. They searched for her daughter through out the night. A report of Gumsudgi was lodged by her husband in the evening itself. She pleaded ignorance whether she had given out to the I.O. In her 161, Cr.P.C. statement of fact of Ram Pal having seen her daughter going with the appellant. Her husband had gone to the mortuary. The body was brought to her house in the night itself. The dead body was sent to the mortuary from the Nala and she immediately returned to her house and remained there throughout the night. She admitted that similar wristwatch and pair of Chappal are available in the market, but clarified that she could very well identify these articles as her daughter was using the same regularly. She admitted that she told to the I.O. that her brother-in-law is a friend of the appellant. She denied that she is deposing against the appellant on account of the Brahmins of the locality persuaded her to do so. She also denied the defence suggestion that she wanted to usurp the house of the appellant. They are Brahmin and the appellant belongs to Kahar community.
17. From the statement of these two witnesses we do not find any serious infirmity in their evidence. The Challenge to the presence of P. W. 1 at the time of recovery of several articles including wristwatch and pair of Chappal from the house of the appellant cannot be seriously accepted. His clear statement is that he had left for the mortuary at. about. 7/8.00 p.m. and the postmortem was conducted around the mid night. The dead body, according to P. W. 3, was brought to her house in the night itself. She stated clearly that her husband had gone to the mortuary in the evening. In these circumstances, we find no reason to disbelieve the evidence furnished by this witness that the recoveries of the incriminating articles from the house of the appellant were made in his presence. They fully corroborate each other on the point of their daughter going to get her wristwatch repaired from the market (Chowk). Therefore, we find that they are implicity reliable and we accept their evidence. In cases of this nature it is but natural that such minor variations do occur. A careful scrutiny of their evidence leaves hardly any room to doubt their presence at the time of these recoveries from the house of this appellant. Their house is not far from the house of the appellant, therefore, their presence is most probable.
18. P.W. 2 Mahesh Chandra Shukla has given the evidence of the discovery of dead body from the Nala and also preparation of its inquest memo, which is Ext. Ka-4 on the record. He also stated that the gunny bag was independently sealed by the I.O. Groundnut scales were also sealed along with the gunny bag incident. The recovery memo of the same is Ext. Ka-5. According to him when the body was sealed it was 6.00 or 6.30 p.m. The inquest memo was prepared in the light of gas-lantern. He had named other witnesses of inquest also. He denied the suggestion that he is deposing under influence of police. He otherwise has no enemies against him.
19. Vijay Kumar Srivastava, P. W. 4, is another witness of the inquest. He denied any knowledge about the thread by which the gunny bag was stitched. He was shown Ext. 3, the gunny bag. He said that it is in the same state in which it was sealed. He stated that the gunny bag had holes, which were there on the date when the dead body was recovered from it. He also corroborated P. W. 3 that when the inquest was prepared and the body was sealed it was evening, but claimed that sunlight was still available. The body was taken out in his presence from the Nala. The bag was about a feet out of the drains when it was noticed. He did not remember that when this bag was taken out from the the drain blood was still trickling from it or not. Blood was visible in the neck injury. He denied the suggestion that nothing was recovered in his presence and he is deposing falsely under the police pressure. He also, like P. W. 2, admitted that he had signed only two pages. His evidence in our opinion is reliable. He had no motive against the appellant to depose falsely.
20. P. W. 5 Ram Pal is witness of the most important circumstances of having seen the deceased girl in the company of the appellant going to his house. He further stated that thereafter whereabouts of Monu alias Meenakshi were not known. On the next day her dead body was found in a gunny bag in the drain in the same locality. The police was called. He admitted that he had told the I.O. that he had seen Monu going with the appellant to his house on the same day. He is also a witness of recoveries from the house of the appellant. He further corroborated the fact that the appellant was not Present at the time of recoveries in his house. The house was lying uninhabited at that time. There was blood on the floor and on the wall and the pair to Chappal and the wristwatch belonging to the deceased were also recovered from a room of the house of the appellant. He had established the fact that the relation between the uncle of the deceased and this appellant were very cordial. They used to take liquor togather. They were on visiting terms and this is why the deceased used to visit the house of the appellant. He further stated that the appellant was the only occupant of the house on the fateful day. His other family members had gone to take a dip in the Ganges. The appellant took advantage of this and committed rape upon Monu and also caused her murder. The informant, according to him, had two daughters. The eldest is known as Soni and the yougest one, the deceased, was known as Monu. He stated clearly that he regularly pass through the house of the informant because it is in his rout. According to him only one pathway passes from south to east that is in front of the house of the appellant and there is no other pathway. This pathway further goes in the east to the drain where the dead body was abandoned and recovered. There were houses in the vicinity of the house of the appellant. He stated in cross-examination that he had seen the deceased in the company of the appellant going to his house at 4.30 p.m. He saw him along with her just two houses from his house. This fact was revealed by him to the I.O. that he saw appellant going to his house. He was at that time coming back with his buffaloes. He did not explain the omission of this fact of his coming with the bufalloes. He further stated that when he was passing with his buffaloes several men of the locality were standing in the lane. He had named amongst them Anil, Prem Babu, Pappu, specifically. These persons are living in the vicinity of the appellant. House of Papu is adjacent to the house of the appellant. Naresh and Prern Babu reside in front of each other. This house is just live steps from the house of the appellant. He and other witnesses held no talks with the appellant. He had not informed Hari Shanker and his wife of this fact that he had seen the deceased going with the appellant because he did not get that much of time. He denied that he was speaking about the brother of the informant being on good terms with the appellant on being tutored. He also described the clothes that the deceased had worn at that time but had failed to give out the colour of her garments. In his statement to I.O. he did not say about the presence of other witnesses. He saw that the dead body of Ku. Monu and identified her. He saw her at the police outpost at about 8.00 pm. He disclosed the above said fact of the deceased going with the appellant to the I.O. at about 5.00 pm. Thereafter no statement of his was taken down by the I.O. His statement was recorded at that very time. He remained at this house until 10-11.00 pm. He went back to the house after seeing the dead body. When the I.O. again visited him at about 11.00 pm. he enquired from him about the house of Sadhu. He accompanied I.O. to his house. Hari Shanker. Mahesh Chandra also went with him. The house of the appellant was locked at that time. The key to the main gate was obtained from Lajja Ram, a neighbour of the appellant and he opened the door with that key. His signatures were never taken by the I.O. on any paper. He denied the suggestion about the recovery of blood and pair of Chappal. He is stating on being tutored is also denied. He also denied the fact that he did not go to the spot. He also denied that he never visited the house of the appellant with the S.I. He also denied that he is on visiting terms with the local police station. He also denied that he ever in the past appeared for the police in any case. He further stated that the appellant has three brothers and sisters. One of his brothers has died. All the brothers are living in this very house. Except the appellant his other brothers are married and they have children. The daughter of Gappu, a brother of the appellant, is about 15/16 years at present. He denied the defence suggestion that he had teased the elder sister, Mina, of the appellant and the appellant may have assaulted him on that score. He also denied any enmity with the appellant. He also admitted that he had shown the I.O. the spot where he had seen the appellant and the deceased together.
21. There is another witness, P. W. 7 Harendra Singh. He had also deposed about his having seen the appellant moving with a gunny bag on his back at about 12.00 on the night intervening 8/9-11 -1995 near the school. At that time he was returning from the place of his employment. He was going to his house by the same road. He made an enquiry from him, 'what is in the gunny bag'. The response of the appellant was that he is carrying groundnut. Then the appellant proceeded towards the drain and he went to his house. Next day when the dead body of 'Monu was recovered from a gunny bag then he realised that appellant was carrying the bag containing this dead body and had abandoned it in the drain. He further admitted that he disclosed this fact to the family members of the deceased and also to the I.O. After discovery of the dead body. He admitted that his house is in the east of the house of appellant and only 2/3 houses intervene in between . His house is situated on the same route. He further stated that just 30./40 steps from the house of the appellant a road leads to east and via school it goes to Chhota Chowk market. He further stated that in the Keranganj market and Chhota Chowk market there are watch shops. He clearly stated that he passes through the same road for his house which is just in front of the house of the appellant. This road is not narrow. There ,is no road in the east of the house of the appellant. In the north of the appellant's house there is a Montessori School. This school is just 28-30 steps away from the house of the appellant. He did not know who owns this Montessori School. This school abuts the road. He was working at the time of occurrence at Rawatpur Transport. It had two offices, one near the Mission School and the other at Char Khamba. He was working at the shop near Mission School. The road that leads to the Mission School joins the road that comes from Keranganj market. When he saw the appellant he was returning from his office. He admitted that in his statement to I.O. he did not spelt that he was returning from the office when he saw the appellant near Montessori School. He was going towards the Nala. When he saw the appellant he was just 25-30 steps away from his house. The appellant was facing him. He failed to disclose the name of the person who resides in front of the house of the appellant in the south. In the west of this house Lajja Ram's house is. In the north of Lajja Ram's house by the side of the drain several houses are there. One of them is Guddu's, he could not disclose any name other than Guddu. He clearly stated that he had shown that place to the I.O. from where he saw the appellant. He admitted that he went to see the dead body in the Nala at about 3.00/4.00 p.m. It was in a gunny bag at that, time and at that place. The informant and many other persons were present. The police arrived at the scene of occurrence at about 5.00 p.m. He informed the informant and the police about his having seen the appellant in the night with a gunny bag on his back. He admitted that this fact was disclosed by him to the informant after arrival of the police Inspector at the spot. He admitted that he told the I.O. about this fact about 9.00 p.m. But in his statement the fact that he saw the appellant passing by the side of Montessori School was not disclosed. Some 50/60 steps away from the house of the informant the dead body was recovered from the Nala. This drain is in the east. The pathway goes from the house of the informant upto the Nala. He denied that he is on visiting terms with the informant. He also denied that he had deposed for the police in several cases. He admitted that several houses intervene in between the house of the appellant and the informant. This fact was not told by him to the I.O. He denied that he had not seen the appellant with the gunny bag on his back and is deposing on account of being a neighbour of the informant falsely. He also denied that there is no passage for his house from near the Nehru Mission School. He also denied that there is no passage for his house in front of the house of the appellant. He admitted that his service is private and his duty commences from 9.00 a.m. and it ends at about 11.00 in the night. Generally he is released from his office around 11.00 p.m. He is a Munim and prepares the bills at the company. He stated that on the date when he had seen the appellant at about 12.00 in the night the last bill that he had prepared was at about 11.00/11.30 p.m. It had not been summoned by the Court and, therefore, he did not bring it. It was prepared for a party of District Ghaziabad. He did not inform the I.O. about the bill business. He also did not inform the I.O. that he is an employee of the above said transport company. He denied the defence suggestion that he was not working at the above said transport company.
22. Thus, from the statement of these two witnesses, P.W. 5 Ram Pal Singh and P.W. 7 Harendra Singh, it is explicit that the deceased was seen by P.W. 5 at about 4.30 p.m. in the company of the appellant going towards' his house. It is further clear from the statement of P.W. 7 that he had seen him moving towards the Nala, from where the dead body ultimately was recovered the next day in the afternoon, with a gunny bag on his back. The body was recovered from that very gunny bag next day. Thus, the evidence of these two witnesses is of serious importance to the prosecution and from their cross-examination nothing tangent was brought about to discredit testimony. P.W. 7 was a resident of the same locality, just separated by 2/3 houses from the house of the appellant. Thus the probable inference is that he had seen him moving with a gunny bag on his back at about 12.00 in the night. There is hardly anything to negate it in his evidence. P.W. 5 Ram Pal Singh is a milkman and it was the time for his return after grazing his cattle. His statement that he was returning with his cattle when he saw the appellant in the company of Ku. Monu cannot be lightly brushed aside. He is also a witness of recovery from the house of the appellant. He has very clearly stated that the appellant was exclusively in possession of the house on the date of incident. Handing over key to a neighbour by the appellant was yet another important piece of evidence occurring in his statement. The key was taken from that neighbour by this very witness and it was he who opened the main door of the house of the appellant. These facts remained un-assailed in cross-examination of this witness. Omission in his statement of same minor facts to the I.O. is of no consequence. The I.O. might not have asked from him these details. He is a rustic village witness. These people are always in awe of policemen. Moreover, 161, Cr.P.C. statements are recorded cursorily. Only basic features of the case are elicited and pen down therein. They are not received from the vision of a cross-examiner. Only facts relevant for the workout of the case are elicited. This is why they are not made admissible in evidence. In these circumstances, we hold that the evidence of these witnesses is reliable and can be acted upon safely by us.
23. P.W. 6 is Dr. V.K. Gupta. He had proved that there was no sperm found in the vaginal smear of the deceased. This statement is used by learned counsel for the appellant to prove that no rape was committed upon the victim. However, we are not eye to eye with this submission. A perusal of the post-mortem examination report and the injuries noted therein, especially injury No. 9, proves that the deceased was criminally assaulted. Number of lacerations were present on her vagina. Her hymen membrane was found ruptured. Since the body was lying in water in a gunny bag the vaginal smear may have lost the sperms due to continuous flow of water over it. Bleeding was also profuse. These circumstances are more than enough to hold that rape was committed or an attempt to commit it was positively made on her. Penetration is undoubtedly established. This is enough in law to hold that rape was committed. Failure to complete the act is not necessary in law. The accused being known was left with no option but to kill her. This is what was done in the present case. The recovery of bloodstained earth and blood from the tin drums and from the wall, recovery of one pair of Chappal and her wristwatch from his house furnish further sufficient circumstantial evidence to the Court to come to the conclusion that the deceased was criminally assaulted in this very house before she was brutally vanquished. This witness was never challenged by the defence on this score. These articles sent to the chemical examiner, especially articles Nos. 1. 3 to 6, 9 and 10 contained human blood. These articles are soil, brick, stone piece, pieces of tin drums stained with blood drawn from the drums, and the gunny bag, ribbon on the Chhoti. Some of these articles were on the person of the deceased and some of them were recovered from the house of the appellant. Article No. 1, which was shown as unstainted, soil, was found stained with blood. These facts further land assurance to the fact that she was brought in this house and was criminally assaulted here before she was violently battered in order to avoid his nomination in the offence.
24. P.W. 8 is Devendra Kumar Saxena. He is also a witness of the recovery of the dead body of deceased from the Nala on 9-11-1995. He is a resident of that very locality. When the dead body was recovered, many policemen and the people of the locality were present. The I.O. completed the formalities of the discovery of the dead body at the spot. The dead body was found concealed in a gunny bag. These facts are available from evidence. He also proved the fact of search conducted at the house of the appellant. He has proved the recoveries like as earlier stated by other witnesses (P.Ws. 1, 3 and 5). He is a signatory of the recovery memo of the pair of Chappal, wristwatch, blood found on the drums, which was taken in possession after cutting such pieces from the drums by the I.O. He also proved the . discovery of the plain earth and bloodstained earth, bloodstained cement plaster taken from the wall, bloodstained brick, Gobar and lime. He also proved the recovery of a broken part of a hand-grinder (Chakki). All these recovery memos bear his signatures. They are Exts. Ka-2 to Ka-8. He admitted in cross-examination that he had seen the dead body at the police outpost. He was an employee of Shree Shanker Product. He used to go there at about 8.00 a.m. and return back at about 6.00 p.m. He had been on duty on the date of discovery of the dead body. He came back from his duty at about 6.30 p.m. He had seen the dead body in a sealed condition. Before his arrival to the spot of discovery the body was already sealed and its papers were prepared. He did not. sign the paper at the police outpost. The informant is known to him, but he is not his neighbour. He lives in another locality. He knew the appellant also. His house is 6/7 houses away from the house of the informant. It is third house from the house of the appellant. In front of the house of the appellant, there is house of Lajja Ram. In the east house of Ram Chandra is there, which is contiguous to his house. In the south house of Ram Saran Shukla son of Dwarika Prasad is there. Adjacent to Lajja Ram's house, house of Sheo Saran Shukla is there. Thus he had given a correct topography of the houses surrounding the house of the appellant. He had seen 3 S.Is., one Inspector and 5/6 police constable at the house of the appellant. They had come on a jeep but the jeep was abandoned at a considerable distance from the house of the appellant. The house was bolted from outside. The lock was broken. He did not know how it was broken. He had given correct picture of the internal position of the house of the appellant. From a close scrutiny of his evidence we do not find any material on the basis of which we can discard his testimony. No animus was alleged against him. He has absolutely no affinity with the deceased's family. In the circumstances, there was no motive for him to depose falsely against this appellant. Recoveries of various articles including blood from his house, therefore, stand proved beyond reproach.
25. So far as P.W. 9 P. K. Gupta is concerned, he conducted autopsy on the person of the deceased girl. His evidence categorically establishes that injury No. 1 indicates that the deceased was subjected to. rape before she was done to death. No cross-examination on this aspect was conducted by the defence. In the circumstances, the fact that she was ravished first and then killed is established beyond any doubt. We have already discussed this subject in earlier part of our judgment in detail.
26. P.W. 10 Kamal Kishore Bajpai is Head Constable. He prepared the check F.I.R. etc. He had also sent the special report to the senior officers. From his cross-examination nothing material is available which may come to the rescue of this appellant. He was suggested that the report of Gumsudgi (missing) of the girl lodged by the father on 8-11-1995 was taken down much later under the pressure of the senior officers. This suggestion was categorically denied by him. There is no other evidence to establish it. P.W. 1 has corroborated him on this fact.
27. P.W. 11 Brij Mohan Mishra was the Sub-Inspector, who investigated the case. He reached the spot at about 5.00 p.m. after reaching there he got the inquest memo prepared from S.I. Nagar, which is Ext. Ka-4. The gunny bag, from which the dead body was recovered, was also taken into possession and a fard recovery of the same was got prepared through S.I. Nagar by him. It is Ext. Ka-5. He also recorded the statement of the witnesses of inquest and also Vijay Kumar Srivastava and Mohan Shukla. He then inspected the place from where the dead body was recovered. Its site plan, Ext. Ka-16, was prepared. Since the scale of groundnut was found in the gunny bag, he tried to locate those persons who used to sell groundnut. On enquiry he came to know-that Sita Ram alias Sappu appellant used to sell groundnut. He then went to his house. The house was found locked. On enquiry he learnt that the appellant gave the key of his house to his neighbour Lajja Ram before leaving it. He then obtained the key of the house from Lajja Ram in the presence of public witnesses, informant and others. The lock of the house was opened with that key and on entry he found the floor of the house smeared freshly with cow-dung. Inside the room he found a pair of Chappal belonging to a child. He took it into his custody. Its recovery memo, Ext. Ka-2, was prepared. On a close examination of the floor of the room, smeared freshly with cow-dung, blood was found. The walls had also blood mark. The tin drums had also blood marks. This blood must have splashed from battering of her head. Photographer arrived at the scene of occurrence and took snaps of the room. He also took into possession a bloodstained piece of brick and the tin pieces having blood from the drums. He then prepared its recovery memo, Ext. Ka-6. Simple earth and bloodstained earth along with broken pieces of brick, blood soaked plaster and a part of stone-grinder as also the soil smeared with cow-dung from the floor were taken into custody. It's recovery memo is Ext. Ka-7, A plastic wristwatch, citizen make, black dialed, belonging to a child, was also recovered from the room. Its recovery memo is Ext. Ka-3. He recorded the statement of P.W. 5 Ram Pal Singh. He also prepared the site map of the spot where the deceased girl was first ravished and then killed. The site map is Ext. Ka-17. He then tried to search out the appellant but he could not be traced. Thereafter on 10-11-1995 evidence of other witnesses was recorded. Harendra Singh's statement was recorded on 11-11-1995. Evidence of other witnesses was also recorded and finally the charge-sheet was submitted against this appellant by him. He has also proved Ext. Ka-10, the report regarding Gumsudgi, lodged by P.W. 1, the first informant, on 8-11-1995 before the discovery of the dead body the previous night. According to him the memos were prepared in the light of a petromax. He also claimed that he had recorded the statements of Vijay Kumar Srivastava, Mahesh Chandra Shukla, Lajja Ram and Raj pal Singh at the place from where the dead body was recovered. He had very clearly stated that amongst the groundnut sellers he could only know the name of the appellant. He further admitted that his brother was also selling groundnut. He stated that there is sufficient distance between the house of the informant and the appellant. The house of the informant was near the Nala from where the dead body was discovered. He further stated that he had recorded the statement of the brother of the informant Kishan Lal on 10-11-1995. He admitted that Munni Devi (P.W. 3) did not disclose to him that Ram Pal had seen her daughter going with the accused. He had further claimed that Ram Pal did not disclose to him that when he had seen the appellant he was going with the deceased. He was coming back with his buffaloes. He further stated that he did not question him about it. He further admitted that he did not feel it necessary to verify this fact from other witnesses present there also. He admitted that he did not record the statements of the neighbour of the appellant, viz. Anil, Prem Babu and Pappu. He further claimed that their houses are not in the immediate vicinity of the house of the appellant, therefore, he made no enquiries from them. He denied that he had gone to the house of Ram Pal in the night of discovery of the dead body nor he visited him later on. Ram Pell is a resident of Mohalla Rangmahal. P.W. Devendra is a resident of Mohalla Ghuran Tallian. He further stated that 2/3 houses intervened between the house of this witness and the informant. He further stated that when he had visited the house of the appellant for investigation he was accompanied by two S.Is. and two constables. He further admitted that when he was effecting the recoveries, some more constables from the police outpost reached there. All the policemen were in uniform. Recovery of Chappal and other articles were effected in the presence of the witnesses. He had correctly described the internal topography of the house. He admitted that the statement of P.W. 7 Harendra Singh was recorded by him on 11-11-1995. His statement was recorded at the scene of occurrence. It is also admitted to him that this witness had not shown him the place from where he saw the appellant going. He further admitted that this witness had not given out any cogent reason for his coming to this place nor he made any such enquiry from him. No cross-examination of this witness with regard to the recoveries of articles was made. In the circumstances, the recoveries from the house remained virtually undisputed. No cross-examination regarding their absence or presence of the appellant was made at all from any witness and this witness especially at the house. In these circumstances, it is difficult for us to hold that these recoveries, as alleged by learned counsel for the appellant, were fake and could not be relied upon against this appellant. So far as the recovery of the bloodstained pieces of tin drums, bloodstained wall plaster, Chappal and wristwatch belonging to the deceased from the house of the appellant is concerned, we have no doubt about their having been made from his house. They were found stained with human blood. The serologist established it beyond doubt.
28. The only question that now engages our attention is whether the offence could be fixed upon the appellant. Our conclusion is that the offence of rape and murder was committed by this appellant and none else. From the evidence of the prosecution witnesses, especially P.W. 5 Rani Pal Singh and P.W. 7 Harendra Singh, it is established clinchingly that it was this appellant who was seen by them moving with the girl on the fateful day, i.e. 8-11-1995 in between 4.00 and 5.00 p.m. and afterwards in the night with a gunny bag on his back towards the Nala. Ram Pal was categorical that the key from Lajja Ram, a neighbour living in front of the house of the appellant was taken by the I.O. and the house was opened in the presence of the public witnesses including the informant and the above said facts were discovered there by the I.O. Recoveries from the house were made including that of bloodstained earth, plaster from the wall, tin pieces from the drums, piece of brick stained with blood and a part of the stone grinder. Apart from these articles pair of Chappal and the wristwatch which she was going to get repaired were also recovered from the same house. It has also come in evidence that other family members of the appellant had gone to take a dip in the Ganges on that day and were not present in the house. The appellant was the only occupant of the house at the relevant time. There is evidence of P.W. 5 that it was he who had given the key to Lajja Ram and the I.O. took it from him. It is no doubt true that the prosecution had not cared to examine Lajja Ram as a witness to establish this fact beyond any reproach. In our opinion in the presence of such strong pieces of evidence, absence of examination of Lajja Ram to corroborate the fact that key was given to him by the appellant is of no consequence. The appellant has not given out anything in his defence, nor the witnesses were cross-examined regarding his exclusive possession of the house on the fateful date. Witness P.W. 5 and the I.O. were left wholly uncross-examined on key aspect. The appellant was arrested by the public on 6-10-1996. His claim that he was working in the house of Inspector Mishra of P. S. Kotwali and on non-payment of his wages he had made complaint to the senior officer against him therefore he was maliciously involved in this case is a pure cock and bull assertion. It apparently came to be made belatedly on legal advice. He further stated that some Brahmins of his locality wanted to usurp his house, therefore, the informant, in collusion with the police had got him nailed in the present offence. The other witnesses deposed against him because they are neighbours of the informant. Ram Pal teased his sister in the past a little before the occurrence. He had Marpit with him. Therefore, he had falsely deposed against him. There is absolutely nothing brought on record by the appellant in support of his defence assertions. Most of these defence assertions were not put. to the witnesses. So far as P.W. 5 Ram Pal is concerned, he had denied the suggestion that he had ever teased the sister of the appellant and a quarrel between them on that account had ever taken place. She too was not examined for the reasons best known to the appellant.
29. In view of the above discussions, we are of the opinion that the offence against the appellant is fully established. Mere non-examination of Lajja Ram does not cause any impediment in the establishment of the offence against him. Undoubtedly, it is an irregularity, but it does not cut much ice. His statement undoubtedly was recorded under Section 161, Cr.P.C. Failure to offer any explanation even at the time of his arrest is a material circumstance establishing the complicity of the appellant in the offence. Non-examination of any member of his family in his defence that other members were present in the house is also an important fact militating heavily against the appellant. It further lends assurance to the prosecution story with regard to the offence against this appellant. In view of these discussions we are of the opinion that the offence against the appellant is clearly made out. The conviction, therefore, is upheld for the offence under Sections 302, 376 and 201, I.P.C.
30. Now coming to the question of confirmation of death sentence, we have our reservations. The appellant was convicted on 31-8-2000. This appeal came up for hearing before us on 22-4-2002. The offence is dated 8-11 -1995. The appellant was arrested by the police on 6-11-1996. He has been in jail all along and must be in the solitary cell. He filed his appeal from jail. The offence, no doubt, was dastardly and serious in nature. It exposed the beast in him. A young bud was nipped prematurely by him. The girl was sacrificed in her teens on the altar of his lust due to his depraved mental state. He was unmarried. From his statement he was aged about 22/23 years when the incident occurred. The circumstances indicate that he was keeping an eye on the girl for satisfaction of his lust from before and finally on the fateful day, i.e. 8-11-1995, he executed his nefarious design into practice. He ravished and killed the young girl aged about 11/12 years no doubt. However, taking into consideration the length of incarceration and also the fact that he was a young unmarried man, though possessed depraved mind, in our opinion ends of justice would be suitably met if his death sentence is reduced to life imprisonment. This may give him an occasion to feel the pinch of his misdeed and repent the same all his life.
31. Policy of eye for an eye and tooth for tooth always does not bear desired fruits. Delay in execution mitigates the rigor. Public memory fades very fast. Generally with the passage of time sympathy towards such convicts is also aroused. In such crimes if the trials and hearing of such appeals taken place within a time frame say a year or two execution of such extreme penalties may pay rich dividend and set a sense of fear in the minds of people with such depraved mentality. It may deter them but long delays completely wipe out this effect even if the extreme penalty is confirmed and executed.
32. . In the circumstances adverted to above, this appeal is dismissed. We reduce the sentence of death to rigorous imprisonment for life under Section 302, I.P.C. and confirm the sentences awarded by the trial Court under Sections 376 and 201, I.P.C. All the sentences, as directed by the trial Court, shall run concurrently.