IN REFERENCE Vs. KAMLESH @ GHANTI

JUDGEMENT

(1.) The Sessions Judge, Datia by the impugned judgment dated 22.7.2013, in Sessions Trial No. 85/2013, has sentenced the appellant to death for committing the offence of rape and murder of a 7 year old girl and has referred the matter under section 366 of the Code of Criminal Procedure, for confirmation of the death sentence. The appellant has been convicted for offences under sections 376(A), 302, 201, 363 and 366(A) of the Indian Penal Code and has been sentenced to death; death and fine of Rs. 5,000/- five years rigorous imprisonment and fine of Rs. 5,000/-, five years rigorous imprisonment and fine of Rs. 5,000/- and, seven years rigorous imprisonment and fine of Rs. 5,000/- respectively. In addition, appellant has also been convicted under section 4 of the Child Protection Act, and sentenced to imprisonment for life and fine of Rs. 5000/-. Challenging the same judgment of the learned Sessions Judge, appellant Kamlesh @ Ghanti has also filed an appeal under section 374 of the Code of Criminal Procedure.

(2.) Since the Reference and the Appeal arise out of the same judgment, both are being decided by this common judgment.

(3.) It is the case of the prosecution that complainant Gulzar Singh, father of the child in question, is resident of village Dongarpur. He has a kirana (grocery) shop in his house. It is alleged that on 18.4.2013, at about 7.00 in the evening, accused Kamlesh @ Ghanti came to the shop and purchased 'bindol' (packet of beedi) and gutka. The accused was staying with his cousin and her husband Ramsewak Kushwaha in the same village. He was known to the family of Gulzar Singh. The family of Gulzar Singh consisted of his wife, son aged about 14 years and his minor daughter, aged seven years. It is stated that near the house, there is a Chahootra. At about 7 P.M. on the day in question i.e... 18.4.2013, the child was playing on the Chahootra, her mother was sitting nearby and the father and son were in the shop when accused Kamlesh @ Ghanti came to the shop, purchased bindol and gutka. While returning he went to the child and told her that the jwar procession in connection with Navratri festival is going on in the village and if she was interested, he could take her. It is stated that the child was tempted to go with him for seeing the festive procession. The parents did not object to the same, as the child was known to the appellant and used to call him 'Mamaji' (uncle). Accordingly, it is said that the appellant picked up the child in his arms and went towards the handpump, on his way to the village where the procession was to pass by. Thereafter, it is said that father of the child PW-1 Gulzar Singh also went to see the procession. When he returned back to the house after about two hours, he was informed by his wife that the girl child has not returned after seeing the procession. It is alleged that Gulzar Singh, father of the child, went in search of his child to the village. However, as he did not see the child or appellant Kamlesh @ Ghanti, he came back to his house after about two hours. He anticipated that the child will be dropped back by the appellant. However, they did not come in the night. Next day, early in the morning around 6.00 A.M., Badri Kushwaha-resident of the village, came to the house of Gulzar Singh and informed that dead body of the child is lying in the agricultural field of Badri Kushwaha. On hearing this they rushed to the field, where they saw the dead body of the child lying, blood was oozing out of her mouth, nose and her kurti and undergarment were drenched with blood. Immediately, Gulzar Singh recognized his daughter and informed the authorities of Police Station Goraghat on phone (mobile). Immediately, thereafter, the police authorities came to the spot, the Panchnama of the dead body was prepared, all the required Formalities were completed and based on the statement of the witnesses, the appellant was arrested and put to trial.