RAJESH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE instant appeal has been filed by the accused appellant Rajesh against the order passed by the Additional sessions Judge (Fast Track Court), Hisar, in Sessions Case No. 106 of 2004 decided on 26. 11. 2007. By the impugned judgment the accused appellant Rajesh has been held guilty of having committed rape on Monika and thereafter, having committed her murder with the help of an axe. He has accordingly been convicted under Sections 376,302 and 452 of the Indian Penal Code. By a separate order passed on 29. 11. 2007, the accused/appellant was sentenced to death under Section 302 of Indian Penal Code. The trial Court concluded that the instant case falls squarely within the category of "rarest of the rare" cases warranting the sentence of death. He was accordingly ordered to be hanged by the neck till his death. The death sentence awarded to the accused/appellant rajesh is subject matter of confirmation at the hands of this Court vide Murder Reference No. l of 2008. The accused/ appellant rajesh has also been sentenced to imprisonment for life, and to pay a fine of Rs. 1,000 under Section 376 of the Indian Penal Code. In case of default in payment of fine, he has been ordered to undergo further rigorous imprisonment for two months. Additionally, the accused/appellant Rajesh has been sentenced to undergo rigorous imprisonment for one year under Section 452 of the Indian Penal Code. All the substantive sentences awarded to the accused/ appellant rajesh have been ordered to run concurrently. Independent of Murder Reference no. l of 2008, the accused/appellant Rajesh has also preferred Cri A. No. l028-DB of 2007 wherein he has impugned the order passed by the Additional Sessions Judge (Fast track Court) Hisar, referred to above.

(2.) THE prosecution version of the incident is based on the statement of Udheyvir dated 13. 7. 2004 to ASI Ved Singh PW8. In his aforesaid statement/ complaint Udheyvir disclosed that he had three children. His two elder children were sons and the youngest child was a daughter named Monika. Monika was about 9 years old on 13. 7. 2004 udheyvir claims to have left his residence in the morning at about 6. 30 a. m. for doing labour on a tractor trolley. Udheyvir's wife bhagwani left the house at about 8. 30 a. m. , so as to fetch fodder from the fields for the buffaloes. Udheyvir's eldest son Anil had gone to school. Only his younger son Gobind pw3 and his daughter Monika were left at his residence. About 9. 00 a. m. his younger son Gobind PW3 also went out of the house so as to ease himself. When Govind PW3 returned to the house, he saw his sister monika lying injured on the bed. Gobind pw3 immediately rushed to call his grandmother. The complainant Udheyvir was told by Jaibir that his daughter Monika had received head injuries. Udheyvir, therefore, returned back to his residence. In the meantime, Chandi Ram and some other persons had taken the complainant's daughter monika to Janta Hospital at Barwala, whereafter, Udheyvir also reached the said hospital. A CT scan was suggested. Accordingly, Monika was taken to CHC Hisar for the said purpose. After the CT scan Monika was brought back to Janta Hospital, barwala where the doctor after examining her declared her dead. In his complaint udheyvir alleged that some unknown person had entered in his house and committed rape on his daughter Monika. Fearing his identification at the hands of Monika, the said person had then killed her by hitting a "kulhari" on her head. On the basis of the aforesaid complaint, first Information Report bearing No. 207 was registered at Police Station Barwala in Police District hisar on 13. 7. 2004 at 8. 30p. m. The special report of the case was sent to the Judicial magistrate 1st Class, Hisar on 14. 7. 2004 at 12. 10 a. m. SI Manbir Singh PW9 on being informed by ASI Ved Singh PW8 reached janta Hospital, Barwala where he found that ASI Ved Singh PW8 had already completed the inquest proceedings. SI Manbir Singh PW9 took upon the investigation of this case from that point. He visited the place of occurrence i. e. the residence of the complainant Udheyvir in village Panihari and prepared the rough site plan of the place of occurrence along with marginal notes. He took into his possession a blood stained "gadda", blood stained earth from the place of occurrence, and prepared sealed parcels thereof. He also recorded the statement of udheyvir i. e. the complainant. Exhibit P 18, as well as, the statement of ASI Ved Singh pw8. On 14. 7. 2004 he along with EHC shamsher Singh PW 4 and HC Ram Kishan again visited the place of occurrence at village Panihari and made investigation in connection with occurrence. EHC Shamsher singh PW4 produced before SI Manbir singh PW9 a parcel containing the "salwar" of Monika as also vial of swab and one envelope containing papers. The same were taken into possession. He also recorded the supplementary statement of Miya Singh pw6 who produced before him the accused/ appellant Rajesh. SI Manbir Singh interrogated the accused/appellant Rajesh who made his confessional statement Ex. P5. He then arrested the accused/appellant Rajesh. On his interrogation Rajesh made a disclosure statement which led the police in his village Panihari wherefrom he got recovered a "kulhari" from underneath the fodder in his house. The same was taken into possession vide recovery memo Ex. P6.

(3.) ON 15. 7. 2004, SI Manbir Singh PW9 got conducted the medical examination of the accused/appellant Rajesh from CHC barwala. After his medical examination, the underwear of the accused was taken into possession vide recovery memo Ex. P4. On the same day i. e. on 15. 7. 2004, the accused got recovered one 'payjama' and one 'banyan' which were concealed in an iron box in his house. The same were taken into possession vide recovery memo Ex. P26. According to the report of the Forensic Science laboratory, Madhuban dated 25. 10. 2005, ex. P31, the blood-stained 'kulhari' and 'salwar' on serological analysis reveal that the material was disintegrated and accordingly no conclusion could be recorded in connection therewith as per Ex. P32. However, ex. P31 revealed blood on the 'bichona', 'salwar' and vaginal swab. No semen was detected from the vaginal swab. However, human semen was detected from the underwear and the 'payjama' produced by the accused/appellant Rajesh. Neither blood nor semen could be detected on the 'banyan',