Digest? Yes PRADEEP NANDRAJOG, J. (Oral)

1. Vide impugned judgment and order dated 10.8.2009 the appellant has been convicted for the offence punishable under Section 302 IPC. The appellant has been acquitted of the charge for the offence punishable under Section 376 IPC and Section 201 IPC.

2. Briefly stated, the case of the prosecution is that deceased Sabina Khatoon, aged about 8 years, left her house at around 10:00 AM on 20.1.2006 and did not return home. Her dead body was noted by somebody near Ganda Nala, Madhav Setu on Naraina Road, information whereof was passed on at the local police station where the same was noted vide DD No.7 at around 12:30 noon on 23.1.2006. Mohd.Mustafa, father of Sabina Khatoon, also received the information of the dead body of a young girl being found and accordingly he reached the spot. He made the statement Ex.PW-2/C to the police officer who had reached the spot, as per which Mohd.Mustafa told the investigating officer that his daughter Angoori was married to the appellant and was having a matrimonial dispute and therefore had returned to her parental home. Her son was with the appellant. He i.e. Mohd.Mustafa had sent Sabina Khatoon to the house of the appellant at around 9-9:30 AM on 20.1.2006 to fetch her nephew, but she never returned. Hence, he sent his son Chand PW-3, to the residence of the appellant and Chand returned and informed him that the appellant had told Chand that after scolding Sabina he had sent her back. That Chand further told him that the appellant did not permit Chand to look or peep inside his house.

3. Needless to state, the FIR was registered for the offence of murder. Since it was suspected that Sabina was raped offence punishable under Section 376 IPC was also included. Appellant was apprehended.

4. But before Mohd.Mustafa made the statement Ex.PW-2/C, on 20.1.2006 he had lodged a missing person’s complaint Ex.PW-2/A, which reads as under:-

“DD No: 43 B dated 20.1.2006, PS Patel Nagar, Delhi. Statement of Mohd.Mustafa S/o Mohd.Muslim, R/o A-532, Katputli Colony, Delhi: Information missing girl: Time 7:30 PM. Aforesaid person came to police station in person and stated that his daughter Sabina Khatoon D/o Mohd.Mustafa, R/o A-532, Katputli Colony, Delhi aged 8 years, colour fair, height about 3 feet, round face, thin built and wearing a red salwar and a pink coloured kurti left at about 10:00 AM from the house. I have no suspicion on anybody. Search may kindly be made. Statement has been read over and the same is correct.”

5. After the appellant was apprehended, as claimed by the prosecution, he made a confessional-cum-disclosure statement admitting his guilt and got recovered a chappal from his house which chappal was identified in Court by the father of Sabina Khatoon as that of his daughter.

6. Needless to state, the evidence of the prosecution was Sabina Khatoon visiting the house of the appellant and going missing thereafter as also the recovery of the chappal of Sabina Khatoon from the house of the appellant.

7. Holding in para 30 of the impugned decision that he need not discuss the evidence of last seen for the reason the accused has admitted said fact, learned Trial Judge has proceeded to convict the appellant.

8. While admitting the appeal we had wondered as to wherefrom the learned Trial Judge noted in para 30 of the impugned decision that he need not discuss the evidence of last seen inasmuch as the accused has admitted said fact. No such admission was made by the appellant when he was examined under Section 313 Cr.P.C. Accordingly, we had directed that a letter of request be sent requiring the learned Trial Judge to inform this Court as to wherefrom said finding of fact has been noted by him.

9. A response has been received from the learned Trial Judge informing that since witnesses of the prosecution who deposed that Sabina Khatoon had gone to the house of the appellant were not cross-examined on said point, in his opinion, the appellant admit