VIJAY BAHADUR GAUR Vs. STATE OF U.P.

JUDGEMENT

(1.) This Capital appeal arises from the judgement of the additional Sessions Judge, Mirzapur, dated 23.7.2011 convicting and sentencing the appellant to death under section 302 I.P.C. and to imprisonment for life together with a fine of Rs.25,000/- under section 376 (2) (f) I.P.C. In default of payment of fine, the appellant is to undergo 20 months additional rigorous imprisonment. He is also sentenced to imprisonment for 5 years and a fine of Rs.5,000/- under section 201 I.P.C. In default of payment of fine under this provision, the appellant is to undergo 5 months additional rigorous imprisonment.

(2.) We have heard Sri Sunil Vashisth, learned Amicus Curiae for the appellant and Sri Akhilesh Singh, learned Government Advocate assisted by Sri Anand Tiwari and Sri R.K. Singh, learned Additional Government Advocates.

(3.) Briefly, the prosecution case was that on 29.12.2009 at about 10.30 a.m., the 5 years old deceased Priyanka had gone along with her brother Sheru aged 7 years to the house of her neighbour, the appellant Vijai Bahadur, who had plucked some guavas from a tree at his door step and given them to the two children. He had asked Sheru, P.W. 2 to go home and had told him that he would be taking Priyanka to her bua's place. Sheru had returned home. After these facts were revealed by Sheru in the evening when he was questioned regarding the whereabouts of his sister, Sheru, and Priyanka's father Ram Moorat, P.W. 3 had made a mobile call to his sister at Lorika making inquiries about the whereabouts of Priyanka. He was informed that neither Priyanka nor Vijai Bahadur had come to her place. Then Ram Moorat and his other family members kept searching for Priyanka and Vijai Bahadur. On 3.1.2010 they learnt that Vijai Bahadur has come to his house, but Priyanka was not with him. Then at about 7 a.m. the informant Chhavinath Gond, P.W.1, grand uncle of Priyanka and Sheru accompanied by his son Ram Moorat, and Shyama Charan and Rambachan Gond went to the house of Vijai Bahadur. Vijai Bahadur was at his baithak (sitting room). They inquired about Priyanka, but he denied having any knowledge about her whereabouts till 11 a.m. However when these persons acted a little strictly with Vijai Bahadur and told him that they intended to take him to the police station Chunar, then he fell on their legs and apologised for his mistake. He said that he should be hanged because he had tried to commit rape on Priyanka in the Arhar, (pigeon pea) field of Om Prakash Vakil. Priyanka had started running. Then fearing that she would disclose this matter at home he had strangulated her neck with a belt resulting in her death. Then, he left for his aunt (Mausi's) place. He had come home on that day for collecting his clothes for going to Mumbai, when he was apprehended. He agreed to take the witnesses to show them the place, where he had strangulated the girl and her dead body was lying. The witnesses had accompanied the appellant to Om Prakash's Arhar field. There Vijai Bahadur showed the naked corpse of Priyanka to the witnesses. Her clothes were lying on her body and her neck was strangulated with a belt. On reaching the dead body Vijai Bahadur started weeping remorsefully saying that he had committed a great sin by murdering the innocent girl child. The witnesses should forgive him. Vijai Bahadur was then taken to the police station, where a report of this incident was lodged on 3.1.2010 at 12.50 p.m. by P.W. 1 Chhavinath (Ext. Ka-1).