ANUJ SHARMA Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS APPEAL HAS BEEN ASSIGNED TO ME FOR THIRD JUDGE OPINION ON ACCOUNT OF DIVERGENCE OF OPIN­ION BETWEEN THE JUDGES NAMELY HON.S.S.KULSHRESTHA AND HON.B.A.ZAIDI JJ.AS THEY WERE THEN) ON THE ISSUE LIMITED TO QUANTUM OF PUNISHMENT.ONE OF THE HON.JUDGE (HON.S.S.KULSHRESTHA) AFTER RECORDING CONVICTION, ARTICULATED HIS VIEW LEANING IN FAVOUR OF DEATH PENALTY WHILE THE OTHER JUDGE (HON.B.A.ZAIDI) MADE STRONG PLEA HOLDING THAT THIS CASE DID NOT FALL WITHIN THE CATEGORY OF THE RAREST OF THE RARE CASES.HOWEVER, THE DISSENTING JUDGE (HON.B.A.ZAIDI) CONCURRED WITH THE CONCLUSIONS REACHED IN THE JUDGMENT PREPARED BY HON.S.S.KULSHRESTHA

(2.) The appeal in hand has its genesis in the judgment and order of the Trial Court dated 15.2.2007 rendered in S.T. No. 435 of 2006 under sections 302, 376 (2) (Cha) and 201 IPC whereby the appellant has been visited with the penalty of death under section 302 IPC and again convicted and sentenced the appellant to the impris­onment for life under section 376 (2) (Cha) IPC together with a fine of Rs. 10,000/-. The appellant has further been convicted under section 201 IPC and sentenced to seven years R.I together with a fine of Rs. 5000/-. 3. Before I dilate upon and deal with the views taken by respective Hon. Judges in the matter, it would be appropriate to recapitulate the facts as are necessary for the disposal of this appeal. 4. The victim in the instant case is a tiny girl aged 3 years and six months, namely, Tanu daughter of Devendra Singh, and at this callow age she was fated to be raped and murdered by a sexual maniac, an indeed tragic incident executed with diabolical ingenuity. A brief resume of the facts as are necessary are that on 18.2.2006 at about 6 p.m. the girl had strayed outside the house while playing and when she was not seen for quite long time, an assiduous search was undertaken for tracing her by the family members who were joined by other co-villagers but it yielded no tangible result. On 19.2.2006, two of the villagers namely, Paramvir and Yogendra Singh, divulged upon recalling that they had seen the girl in the lap of Anuj Sharma on 19.2.2006 between 6 and 6.30 p.m. and that the accused was seen proceeding in the direction of the road from the direction of Gher of Veer pal. On the basis of this infor­mation, the appellant was sent for through Surajpal who was interrogated by the in­formant alongwith Om Prakash, Rajendra, Jaipal etc. It is further alleged that initially, the appellant pleaded ignorance but subse­quently, he gave up and blabbed about what really happened stating that he had committed grave mistake as he had raped the girl and subsequently, she was strangu­lated to death and buried her body at a place adjacent to the wall by digging a pit and upon this revelation, the appellant was taken to the indicated place where the body was recovered. In the meantime, it is fur­ther alleged, the appellant tried to escape but he was caught hold of and was also given thrashing by the villagers. The report was lodged at Police Station Gulaoti which was registered under sections 302, 376, 201 IPC. 5. The investigation of the case was taken over by S.O. B.P. Singh. A police posse consisting of S.I. Shiv Pal Singh, S.I. Devpal Singh, Constable Veerpal, Consta­ble Manesh, Aqil Ahmad were rushed to the village on Jeep. S.I. Ranveer Sharma and Constable Dhaneshawar Singh and Home-guard Dal Chand reached the place of occurrence by motor cycle. The police personnel pacified the crowd and recorded the statement of Devendra Singh. S.I. Ran-vir Singh was called upon to conduct in­quest on the dead body. Necessary for­malities were observed and the body was sent for post-mortem escorted by Constable Dhaneshwar and Home Guard Dal Chand. 6. The post-mortem was conducted in the motuary by Dr. R.K. Dabre on 20.2.2006 at 8.30 a.m in the presence of Dr. B.K. Gaud and Dr. Reeta Singh. The Doc­tors conducting post-mortem opined that the girl was aged about 3 three and half years. The Doctor namely Dr. R.K. Davray P.W.4 who conducted the post-mortem on the dead body on 20.2.2006 found the fol­lowing ante mortem injuries.

(3.) The accused also suffered injuries and he was examined of Dr. G.D. Gaur. Dr G.D. Gaur was arrayed as D.W.I and he found following injuries on the person o accused Anuj Sharma.