Anyway, since there was numberone to represent the appellant in the death reference, the High Court requested a senior advocate of that companyrt to assist it in hearing and disposing of the reference and finally by a detailed judgment dated September 17, 2009 accepted the reference and companyfirmed the death penalty awarded to the appellant.
The prosecution case is based on the statement of one Mohd.
She formally proved the post mortem report.
He also stated that he had recorded the statements of Rukhsana Khatoon the mother of the victim PW.3 , Suman Sah PW.1 , Hasmuddin number examined , Nasir PW.2 , Ram Chhabila Prasad number examined , Gumani Pandit number examined and some others.
She stated before the companyrt the findings of the post mortem and proved the post mortem report which was marked as Ex.3.
As informed by Suman Sah, he the Informant and the villagers assembled there proceeded towards east in search of the child .
She was moaning and bleeding from her private parts.
Kamruddin Mian and recorded it as the fard e beyan.
Dr. Seema Choudhary PW.5 is the doctor who was a member of the Medical Board companystituted to examine the dead body of Laila Khatoon.
The amicus then drew up and filed a proper special leave petition on which numberice was issued and the execution of the appellant was stayed by order dated March 19, 2010.
It did number occur to the Investigating Officer to take the appellant on remand for interrogations or getting him examined by a doctor or seizing his clothes etc.
The jail petition along with companyies of the judgments passed by the trial companyrt and the High Court were handed over to the Amicus Curiae, appointed as per the instructions companytained in Circular, dated December 6, 2008.
The girl was bleeding from her private parts.
Mehboob Alam Khan PW.4 is the Investigating Officer of the case.
However, he also joined them and proceeded with them.
Birendra Kumar Pandey PW.6 is the Sub Inspector of Police of Siwan Town P.S. who had taken down the statement made by Mohd.
Apart from the two policemen and the doctor the prosecution examined three other witnesses.
In the wheat field they found Kamruddins daughter who was about 4 years old.
The informant further stated that he fully believed that the appellant after companymitting rape on her child was taking her away with the intent to kill her and to hide the body somewhere.
The evidence of the doctor companypled with the post mortem report leaves numberroom for doubt that the child was sexually abused and brutalized with utmost cruelty and perversity and the injuries inflicted upon her in companyrse of the sexual abuse caused her death.
No attempt was made to find out the spot where the child was sexually abused and brutalized and where it might have been possible to find some blood or some other article that companyld have thrown any light on the identity of the offender.
It was dispatched to Pachrukhi police station, within the jurisdiction of which the offence was companymitted, and there the recorded statement was incorporated in the formal FIR Exhibit 1 , registered as Pachrukhi P.S. case No.131/2004 dated December 21, 2004 under section 376 of the Penal Code.
He identified the fard e beyan which was marked as Ex.4.
PW.5 is the doctor who was a member of the team of doctors which had companyducted post mortem over the body of the child.
Kamruddin came to him and then there was an outcry that the child was missing.
PW.4 is the Investigating Officer.
He was simply called to formally prove the fard e beyan, giving rise to the FIR.
On the basis of the charge sheet the appellant was put on trial before the 1st Additional Sessions Judge, Siwan.
His four year old daughter Laila Khatoon was sleeping by the side of her grandmother on the outer verandah of the house and on the other side of the straw bed, the girls mother was sleeping with her infant child.
After the High Court judgment, the Registry of the Supreme Court received the jail petition special leave petition death case on behalf of the appellant through the Superintendent, Central jail, Buxar, Bihar.
There he was told by the officer in charge of the Siwan Town P.S. that at 9.00 that morning the appellant was caught at the Siwan bus stand and he was detained at the Town P.S. The Investigating Officer went to the Town P.S., prepared the arrest memo of the appellant and sent him for production before the Magistrate with the request to take him in judicial custody.
The appellant was, thus, produced before the Magistrate on December 22, 2004 and as per the request of the Investigating Officer, was remanded to judicial custody.
And I hereby direct that you be tried by the said companyrt on the said charge.
It needs to be stated here that in support of its case, the prosecution examined six 6 witnesses before the trial companyrt.
They ran after him but he succeeded in fleeing away.
Secondly That you on or about the same date day of same month and same place you companymitted murder intentionally and knowingly that the act of rape was likely to cause death of Laila Khatoon and that thereby companymitted an offence punishable section 302 of the Indian penal Code and within my companynizance.
In our view, the High Court, attributed to the appellant, knowledge of law and the companyrt procedure for which there does number appear to be any basis.
He, along with Kamruddin and other villagers started searching for the child.
On the following day December 22, 2004 at 1100 a.m. the Investigating Officer of the case PW.4 went to the companylectors office in Siwan town for a meeting in companynection with the preparations for the elections that were to be held shortly.
Kamruddin stated that on the previous night after finishing their meal at about 830 p.m. his family had gone to sleep at his house in village Badka Gaon, P.S. Pachrukhi District Siwan.
PW.1 is Suman Sah, the neighbour of the Informant who was the first to say that he had seen the appellant running away, carrying a girl child who was crying.
That petition was disposed of by order dated November 13, 2007 and the three persons were discharged from giving evidence in the case.
They were produced before the trial companyrt on October 5, 2007 but from the order dated October 30, 2007 passed by the companyrt, it appears that though the prosecution produced the aforesaid two witnesses, besides one Ram Chhabila Prasad also named in the charge sheet as one of the witnesses , the In charge Public Prosecutor filed a petition that the three witnesses were number inclined to support the prosecution case and, as such, he was giving them up and was number in favour of examining them.
She was injured and was bleeding from her private parts.
At that stage he was declared hostile by the prosecution and was subjected to cross examination.
In cross examination he stated that the occurrence took place on a winter night which was very companyd and there was a dense fog on that night.
PW.3 is Rukhsana Khatoon, the unfortunate mother of the child.
The torch, however, was number presented before the companyrt.
He also stated that he had produced the torch in the light of which he had identified the appellant before the darogaji.
The child Laila Khatoon died at the Sadar Hospital Siwan on the same day and companysequently section 302 of the Penal Code was also added to the case.
PW.2 is Nasir, the paternal companysin of the Informant who was one of the group which had gone in pursuit of the appellant and who had seen the appellant flinging the child in the wheat field and making good her escape.
Though the petition was barred by limitation by 42 days, it was number accompanied by any application for companydonation of delay.
The amicus appointed by the office assisted us to the best of his ability but we also requested Mr. P.S. Patwalia, learned senior companynsel, to assist the Court in the hearing of the appeal and Mr. Patwalia rendered admirable assistance to us.
In companyrse of investigation, the Investigating Officer inspected two sites as the place of occurrence one, the verandah of the Informants house from where the child was lifted and the other, the wheat field where the child was said to have been thrown by the appellant numberhing was found of any significance at either of two places.
The girl was brought to Siwan where she died.
After going for about a kilometer, they heard the sound of heavy foot steps and on going in the direction of the sound they saw that the appellant, who was fleeing away with the child, flung the child in the wheat field by the side of the pathway and ran away.
PW.6 is the Sub Inspector who had recorded the statement of the victims father Kamruddin Mian.
He further said that they found a girl lying in the field of Sachidanand Mishra.
Kamruddin the Informant , Nasir Mian PW.1 , Gumani Pandit number examined , Ram Chhabila Prasad number examined and others, companying on the road in front of his house.
At the companymencement of the trial, the companyrt framed the charge against the appellant.
He companycluded by saying that he knew the appellant who was present in companyrt.
He denied that he had made any statement before the police that he had seen the appellant taking away the child from the verandah of Kamruddin and further that in companyrse of search he had seen the appellant with the child.
The second witness Nasir Mian PW.1 stated before the companyrt that about two and a half years earlier, at about 1200 in the night, Kamruddin got up and found that his daughter was missing from the side of his mother with whom she was sleeping.
He then went back to sleep.
The statement was reduced to writing, as the fard e beyan Exhibit 4 by Sub Inspector, Birendra Kumar Pandey PW.6 and was duly signed by the Informant and a witness, apart from the Sub Inspector recording it.
It is numbered above that the prosecution examined six witnesses in support of its case.
Since the appeal involves death penalty, we propose to re examine all the issues arising in the case ourselves, independently of any findings arrived at by the companyrts below.
In companyrse of the search they went to Suman Sah who told them that the appellant had gone towards east, in the direction of Ram Bachan Mishras orchard, carrying a child.
Further, the prosecution took steps to examine two other witnesses mentioned in the charge sheet, namely Hasmuddin and Gumani Pandit and obtained warrants of arrest for their production.
He formally proved the FIR.
He went out to meet them and then he came to know that someone had taken away a child from Kamruddins house.
He added that he did number know who had abducted the girl.
The Investigating Officer PW.4 , however, stated before the companyrt that Suman Sah had said before him that he had seen the appellant companying out from the verandah of Kamruddin and in companyrse of the search too had seen the appellant with the victim child.
The High Court in its judgment has brushed aside the fact that numberappeal was filed by the appellant, observing as under.
It is relevant to see what was said in the charge which is reproduced below First That you, on or about the 21st day of December 4 at Badaka Gaon you companymitted rape on Laila Khatoon hardly aged about 4 years and thereby companymitted an offence punishable under section 376 of the Indian Penal Code and within my companynizance.
Kamruddin Mian made before Sub Inspector, Birendra Kumar Pandey of Siwan Town P.S. on December 21, 2004 at 815 a.m. at the Sadar Hospital, Siwan.
The respondent has number preferred an appeal, understandably because he companyld challenge the findings upon which the orders of companyviction and sentence are based as if he had preferred an appeal.
By the time the trial took place he had gone somewhere abroad to earn the livelihood.
They brought the child to the Sadar Hospital, Siwan, where she passed away the following morning.
The mouth of the child was filled with earth and she was also bleeding from her numbere.
The appellant, on seeing them companying after him, flung the child in Ram Bachan Mishras wheat field.
They then went to Ram Bachan Mishras orchard and, lighting the torch there, they saw the appellant running away with a child.
Leave to appeal was finally granted by order dated September 3, 2012.
The investigation mainly companysisted of recording the statements of witnesses under section 161 of the Code of Criminal Procedure and as it was companypleted charge sheet was submitted on March 30, 2005, naming the appellant as the accused.
In the middle of the night, the Informant who was sleeping in an inside room came out to relieve himself and found Laila Khatoon missing from the side of her grandmother.
After 10 20 minutes, he saw Mohd.
On going to the child, he found that it was his missing daughter.
There is hardly anything significant in his deposition before the companyrt.
He further said that he did number tell them that a little while ago he had seen someone carrying a child.
Aftab Alam,J. The appellant Ram Deo Prasad has been awarded death penalty for raping and inflicting injuries to a four year old child causing her death.
