STATE Vs. MOHIT DUBEY

JUDGEMENT

(1.) This reference is made by Sessions Judge, Bageshwar under Section 366 of Code of Criminal Procedure, 1973 (For short Cr.P.C.) seeking confirmation of sentence of death awarded by said Court to Mohit Dubey (convict/appellant) under Section 302 of Indian Penal Code (for short IPC). The trial court has further convicted the accused under Section 376 and 201 IPC. The convict has been sentenced to imprisonment for life and directed to pay fine of ` 20,000 (twenty thousand) under Section 376 IPC. He has been further sentenced to undergo rigorous imprisonment for a period of seven years and also directed to pay fine of ` 10,000 (Ten Thousand) under Section 201 IPC. The convict Mohit Dubey has preferred the criminal appeal against the judgment and order dated 23.09.2009 passed by Sessions Judge, Bageshwar in Sessions Trial No. 10 of 2009, whereby the appellant Mohit Dubey has been convicted, as mentioned above, under Sections 302, 376 and 201 IPC, and sentenced as mentioned above. Both reference made by the Court, and appeal preferred by the convict/appellant, are being heard and disposed of together.

(2.) Heard learned counsel for the appellant and learned Amicus Curiae for the appellant/convict, and learned counsel for the State.

(3.) It is a case of commission of murder of a minor girl aged 4 years, after committing rape on her. Prosecution story in brief is that on 2.1.2009, Megha (deceased) along with another kid Reena and PW3 Pankaj Dubey (aged 9 years) went to the house of accused Mohit Dubey and asked him to give marbles (KANCHE). The other children came back from the house of Mohit Dubey but Megha remained there. She was not seen thereafter and a search was made for her by her father. It is pertinent to mention here that accused Mohit Dubey is cousin of the deceased. Next day, on 3.1.2009, PW1 Hem Chandra Dubey (father of the deceased) gave a report (Exhibit A-1) at Police Station ? Baijnath (district Bageshwar) stating that his daughter Megha was missing from 1:00 p.m. (on 2.1.2009). It is further mentioned in his report that on 3.1.2009, that one Kewalanand Pandey, who saw dead body of the girl near a culvert, told him about said fact. The complainant/Hem Chandra Dubey suspected that his daughter has been murdered and her body has been set on fire. On 3.1.2009 thereafter, another report was made by PW2 Uma Kant (grand father of the deceased) at the aforesaid Police Station that one Kewalanand Pandey (PW10), who had gone to ease out himself has reported that he has seen a dead body of a girl in a burned condition, which appears to have been thrown to conceal the body. On the basis of the report of PW1 Hem Chandra Dubey, Crime No. 3 of 2009 was registered relating to offence punishable under Sections 302 & 201 IPC against unknown persons at the Police Station. A check report (Exhibit A-5) was prepared at the Police Station. Investigation was taken up by PW14 Inspector Rami Ram. Soon after the crime was registered, the police went to the spot , took dead body of the deceased girl in their possession and prepared inquest report (Exhibit A-9) and sealed the same. Also, photo of the dead body (Exhibit A-10), Police Form No. 13 (Exhibit A- 11), Sample Seal (Exhibit A-12), letter to Chief Medical Officer (Exhibit A-13) requesting for post mortem examination were also prepared by the Police. Dead body was sent for post mortem examination on 3.1.2009. On the very day, at about 7 p.m. Post mortem examination was conducted by a team of three doctors, namely, Dr. D.S. Nabiyal, Dr. S. Ram and Dr. D.P. Singh (PW6). In the autopsy report, the team of Doctors found III degree and VI degree burn ante mortem injuries on the body of the deceased. In the opinion of the Medical Officers, cause of death was shock due to extreme burn injuries. The Investigating Officer interrogated the witnesses and inspected the spot and prepared a site plan (Exhibit A-14). During investigation, it was revealed that deceased was last seen in the house of accused on 2.1.2009. Prosecution case is that on 5.1.2009, accused Mohit Dubey made extra judicial confession to Uma Kant Dubey (PW2) and prayed him that he be pardoned. After the arrest of accused, he was medically examined by PW8 Dr. Mukesh Joshi, who found redness and swelling over the mucocuntaneous junction of his penis. The team of Medical Officers, who had conducted autopsy on the dead body of the deceased, had taken external organ vulva whole burn with internal part of generic and kept it preserved for analysis. After completion of investigation, Investigating Officer submitted charge sheet (Exhibit A-27) against accused Mohit Dubey for his trial in respect of offence punishable under Sections 376, 302 and 201 IPC. 3. The Chief Judicial Magistrate, Bageshwar on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the accused to the Court of Sessions for trial. Learned Sessions Judge, on 20.4.2009 after hearing the parties, framed charge of offences punishable under Section 302, 201 and 376 IPC against accused Mohit Dubey, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Hem Chandra Dubey (complainant/father of the deceased), PW2 Uma Kant (grand- father of the deceased) before whom extra judicial confession is said to have been made, PW3 Pankaj Dubey (aged 9 years) a neighbour, who stated that the deceased was last seen with the accused on 2.1.2009, PW4 Kundan Singh Rawat, who stated that accused was seen taking a sack, PW5 Nandan Singh Dosad, who saw accused setting the sack on fire near the place where garbage is thrown, PW6 Dr. D.P. Singh one of the Medical Officers, who conducted post mortem examination, PW7 Daan Singh, in whose presence ash was taken by the Investigating Officer from the place where the dead body was found, PW8 Dr. Mukesh Joshi, who examined private parts of accused, PW9 Head Constable Pooran Singh, who prepared check report and made necessary entry in the General Diary, PW10 Kewalanand Pandey, who first of all saw the dead body lying in burned condition, PW11 Head Constable Ravindra Singh who made entry in the General Diary of the report given by Uma Kan Dubey, PW12 Gokula Nand, witness of inquest report, PW13 Sub Inspector Pani Ram, who prepared inquest report and PW14 Inspector Rami Ram, who investigated the crime. The oral and documentary evidence were put to the accused under Section 313 Cr.P.C. in reply to which, he alleged ignorance relating to the evidence adduced by the prosecution on the witnesses. He pleaded that a false case has been initiated against him due to enmity. However, no evidence in defence was adduced. The trial court after hearing the parties found accused Mohit Dubey guilty of charge of offence punishable under Sections 302, 376 and 201 IPC. After hearing on sentence, the trial court awarded sentence of death under Section 302 IPC, against the convict Mohit Dubey. He was further sentenced to imprisonment for life and fine of ` 20,000 (Twenty Thousand) under Section 376 IPC, and rigorous imprisonment for a period of seven years and a fine of ` 10,000/- (Ten Thousand) under Section 201 IPC. For confirmation of the sentence of death, record of the case was submitted to this court under Section 366 Cr.P.C. Convict has also preferred an appeal against the judgment and order dated 23.09.2009 passed by the Sessions Judge, Bageshwar in Sessions Trial No. 10 of 2009, whereby the appellant was convicted and sentenced, as mentioned above.