JUDGMENT

Aftab Alam,J.

1. The appellant Ram Deo Prasad has been awarded death penalty for raping and inflicting injuries to a four year old child causing her death.

2. The prosecution case is based on the statement of one Mohd. Kamruddin Mian made before Sub-Inspector, Birendra Kumar Pandey of Siwan Town P.S. on December 21, 2004 at 8:15 a.m. at the Sadar Hospital, Siwan. Mohd. Kamruddin stated that on the previous night after finishing their meal at about 8:30 p.m. his family had gone to sleep at his house in village Badka Gaon, P.S. Pachrukhi District 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 girl’s mother was sleeping with her infant child. 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. A search started for the girl and then his neighbour, Suman Kumar Sah (PW.2) told them that just a little while ago he had seen the appellant swiftly running away towards east, carrying a girl child in his arms who was crying. As informed by Suman Sah, he (the Informant) and the villagers assembled there proceeded towards east in search (of the child). 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. On going to the child, he found that it was his missing daughter. She was moaning and bleeding from her private parts. The informant further stated that he fully believed that the appellant after committing rape on her child was taking her away with the intent to kill her and to hide the body somewhere.

3. 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 was dispatched to Pachrukhi police station, within the jurisdiction of which the offence was committed, 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.

4. The child Laila Khatoon died at the Sadar Hospital Siwan on the same day and consequently section 302 of the Penal Code was also added to the case.

5. On the following day (December 22, 2004) at 11:00 a.m. the Investigating Officer of the case (PW.4) went to the collector’s office (in Siwan town) for a meeting in connection with the preparations for the elections that were to be held shortly. 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.

6. It did not 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.

7. In course of investigation, the Investigating Officer inspected two sites as “the place of occurrence”; one, the verandah of the Informant’s 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; nothing was found of any significance at either of two places. 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 could have