PAWAN Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THESE three criminal appeals under Section 374 (2) of the Code of Crimi­nal Procedure (for short "Code') from convictions of the four accused and criminal reference under Section 366 of the "Code' for confirmation of sen­tences of death of all of them arise out of the judgment dated 28-6-2004 passed by Sri G.K. Sharma, Additional Sessions Judge/Fast Track Court, Nainital in Sessions Trial No. 166/2003. 2. Brief facts of the case are as fol­lows

(2.) VICTIM of the case Km. Sushma aged about six years was the daughter of informant Amar Singh Bisht (PW4) a migrant labourer from Nepal residing in the locality known as Rajmahal Hotel Compound, Mallital, Nainital. She went missing since 8 A.M. on 25­9-2003 when she left her home to ease herself. Her search by the informant and others did not yield any result till night. According to the prosecution the informant along with his three acquaintants namely Veer Bahadur (PW.2), Puran (PW.3) and Mangal (PW.5) `residents of the same locality decided to sit awake in that locality during the night with a hope that the girl may be found on her return or to be brought there by others in the night. At about 1.00 or 1.30 A.M. (in the night) four persons were seen coming from the side of the road right up to the vacant plot of Sardar Ji in that local­ity. These four person were seen throw­ing the dead body of the girl from gunny bag in the said plot. When they were returning after doing the said job they were arrested by the informant and his companions by raising alarm. These arrested persons disclosed their names as Babu, Aamir, Pawan and Arjun and all of them were stated to have made extra-judicial confession of their involvement in the commission of crime of rape, carnal intercourse, mur­der and causing disappearance of evi­dence by disposing of the dead body of the victim in the said plot. The were then taken to the police station PS. Mallital, Nainital where the informant lodged the written report. Ext. Ka.3, on the basis of which check F. I.R., Ext.Ka.11 was drawn at 2 A.M. on 26­9-2003 to register a case under Sec­tions 302/201/34 I.P.C. against these four accused, vide G.D. Report No.2, Ext. Ka. 12.

(3.) PROSECUTION in order to bring home guilt to the accused relied upon the evidence of eleven witnesses. PWA, Dr. K.S. Dhami held autopsy on the dead body of Km. Sushma at 1:05 PM. on 26-9-2003 and prepared the au­topsy report, Ext. Ka.l. He observed following abnormal features in the dead body and ante-mortem injury: Labia-majora were separated. Hymen ruptured. Reddish secretion was present inside the vagina. Rectum-had laceration and abrasion around the external region. On separation of gluteal fold large rectal canal was visible, which was dilated. The spinsters were damaged and there was blood in the anal ca­nal. Mucosa was also damaged. (Rectal and vaginal smear were taken for test). There was well defined ligature mark on the upper part of neck slightly depressed and encircling the neck horizontally and completely. Colour was reddish and margins were ecchymosed. On dissection of ligature mark there was extravession of blood in to the sub cutaneous tissue under the liga­ture mark as well as adjacent struc­tures. Cynosis present over the face, lips and ears.