STATE OF BIHAR Vs. BIRENDRA YADAV

JUDGEMENT

(1.) Capital punishment inflicted on the two accused, namely. Birendra Yadav and Binod Yadav by the Additional Sessions Judge, Fast Track Court No. 1. Bhagalpur in Sessions Trial No. 379 of 1999 has necessitated this reference under Section 366 of the Code of Criminal Procedure. The two accused aggrieved by the judgment of conviction and order of sentence have preferred appeal which has been registered as Criminal Appeal No. 692 of 2004.

(2.) Both reference and the appeal were heard together and are being disposed of by this common judgment.

(3.) Prosecution started on the basis of the statement given by PW 6 Ramesh Yadav before the Sub-Inspector of Police of Pirpainti Police Station on 5.8.1998. The aforesaid statement was given by the informant in a Sugarcane field where the dead body of his daughter Nilam Kumari was lying. According to the informant on 4.8.1998 he had gone to his house at 7'O clock in the morning in connection with some domestic works whereas his wife Chinta Devi and the daughter Nilam Kumari aged about eight years were alone at the temporary dwelling house in Madhuban Diyara. At 7.30 a.m. on 4.8.1998 said Nilam Kumari had gone out for cutting grass but when she did not return till 9.30 a.m. her brother PW 4 Sunil Kumar Yadav along with their mother went searching for her in the nearby agricultural field but she could not be found. They presumed that she might have gone to the village either by boat or swimming. At 5'O clock in the evening on 4.8.1998 when the informant came to his temporary residence at Madhuban Diyara he came to know about aforesaid fact and having found that she had not gone to the house at Madhuban Tola they went to search her along with other persons. In the morning he found her dead body lying in the eastern ridge of the sugarcane field of co-villager Kailash Yadav situated at a distance of about 300 yards to the north-east of the temporary house at Madhuban diyara. He found deep black wound on the right side of forehead as also on the right cheek and blood had trickled down from her nose and mouth. According to him semen was also stuck in her private parts. Accordingly, the informant came to the conclusion that his daughter Nilam Kumari was murdered after committing rape on her. In the First Information Report he suspected the hand of the two accused herein in commission of the crime, as their houses are situated near the temporary dwelling house of the informant and are infamous and men of licentious character. According to the informant they had absconded in suspicious manner since the occurrence. On the basis of the aforesaid information Pirpainti Police Station Case No. 145 of 1998 was registered under Sections 376 and 302/34 of the Indian Penal Code and the investigation was entrusted to PW 7 Radha Mohan Singh. Sub-Inspector of police who had recorded the statement of the informant. Police after investigation submitted charge-sheet under Sections 376, 302 and 201/34 of the Indian Penal Code. After the learned Magistrate took cognizance of the offence and ultimately the case was committed to the Court of Sessions for trial where they have been charged for committing rape on Nilam Kumari in furtherance of their common object punishable under Section 376/34 of the Indian Penal Code.