Hon’ble M.C. Jain, J.—This is a capital case. The accused-appellant Bantu has been convicted under Sections 364, 376 and 302 l.P.C. by the impugned judgment and order dated 24-12-2005, passed by Sri Alok Kumar Bose, Special Judge (E.C. Act)/Additional Sessions Judge, Agra in Sessions Trial No. 83 of 2004. The sentences passed against him are as under :

S.N. Section under which Quantum of punishment

punishment awarded

1. 364 l.P.C. 10 years’ rigorous imprisonment with a fine of Rs. 10,000/- with stipulation of two years’ further simple imprisonment in default of payment of fine.

2. 376 l.P.C. Life imprisonment with a fine of Rs. 15,000/- with stipulation of three years’ further simple imprisonment in default of payment of fine.

3. 302 l.P.C. Death Sentence

2. The genesis of the prosecution case was the written F.I.R. lodged at P.S. Tajganj of Agra District on 4-10-2003 at 10.45 P.M. by PW 2 Naresh Kumar. The offence took place at about 9.30 O’clock the same night in village Basai Khurd within the said Police Station. The victim was an unfortunate teenaged girl Vaishali of about 5 years. She was the daughter of Vishal.

3. The broad features of the case as coming to surface from the F.I.R. and evidence brought on record may be noted for proper appreciation. There was “Devi Jagran” at the house of PW 3 Chandrasen alias Taplu in village Basai Khurd in the eventful night. A number of persons of the locality had assembled there. The informant PW2 Naresh Kumar alongwith his brother Vishal and niece Vaishali deceased had also gone there. Around 9 P.M., the accused Bantu neighbour of the informant reached there. After exhibiting playful and friendly gestures with Vaishali with whom he was familiar from before because of neighbourhood, he (Bantu accused-appellant) enticed her away on the pretext of giving her a balloon. Several persons including PW 2 Naresh Kumar and PW 6 Nand Kishore saw him going away with the girl from the place of “Devi Jagran”. When Vaishali did not return within reasonable time, a frantic search was made to trace her out by the members of the family. PW 3 Chandrasen alias Taplu and Sanjiv son of Daulat Ram informed them that they had seen the accused Bantu going away with Km. Vaishali hoisted on his waist towards the pond. Around 9.30 P.M., they reached near the field of one Dharma in which grown up Dhaincha plants (a type of bushy shrubs) were there. With the help of torches, they saw that the accused Bantu was thrusting a stem/stick of Dhaincha in the vagina of Vaishali, having thrown her down. An alarm was raised by them and Bantu was caught red handed in completely naked state. Vaishali was lying on the ground unconscious with a part of stem of Dhaincha inserted in her vagina. She was bleeding profusely. She had other injuries also on her person and was not responding at all. She was instantly rushed to S.N. Medical College, Agra where the doctors pronounced her to be dead. Upon interrogation, the accused Bantu allegedly admitted that after committing rape upon her, he inserted stem/stick in her vagina to murder her.

4. On the case being registered, the investigation was taken up by PW 7 S.H.O. Dilip Kumar Mittal. Major part of the investigation was conducted by him but the charge-sheet came to be submitted by subsequent Investigating Officer PW 8 R.K. Dwivedi.

5. A panel of two doctors headed by PW 1 Dr. R.S. Chahar conducted post-mortem over the dead body of the deceased on 5-10-2003 at 3 P.M. The deceased was aged about 5 years and about one day had passed since she died. The following ante mortem injuries were found on her person:

(1) Multiple contusions over face and head, more on right side, ranging in size from .5 cm to .5 cm x 3 cm. Lips were contused with swelling. Multiple nail marks present over left side on her neck and behind the left ear.

(2) Abrasion 2 cm x 4 cm present over posterior aspect of both elbows and right wrist.

(3) Labia minora of both sides in posterior parts contu