2006 Supreme(All) 1823

[2006(6) ADJ 5 (NOC)(DB)]
ALLAHABAD HIGH COURT
(Division Bench)
BEFORE : M.C. JAIN AND K.K. MISRA, JJ.
CHANDRAKESH ....Appellant
Versus
STATE OF U.P. ......Respondent
(Criminal Appeal No. 1386 of 2005, decided on 14th July, 2006)

Headnote:(A) (Indian) Penal Code, 1860—Sections 302, 376 and 201—Murder and rape—Death penalty—Reference made for confirmation—Victim aged about 8 years—Medical evidence supports prosecution version—Sperm found in vaginal smear of victim—FIR not ante-timed as not agitated before trial Court—No previous enmity between appellant and victim’s family—Creditworthiness of child witness not doubtful—Who had seen rather left her elder sister victim with accused, under pretext of sending her later with more sugarcane sticks—Non-medical examination of offender is not fatal—As he was arrested after four days of occurrence—Post-mortem report and pathological report well reconcile—Are in tune with other evidence and circumstances proved by prosecution on record—Last seen theory is significant and affirmed by child witness—On global consideration of all facts and circumstances—Long deprivation of liberty would be condign punishment for accused-appellant—Hence, conviction modified.

       (B) FIR—Time of lodging—Omission in challan of dead body—Question whether FIR ante-timed—Could have been agitated before trial Court—Not before High Court.

       (C) FIR—Scribe of—When his/her production is not necessary—Since informant was owning FIR in question—Non-production of scribe was wholly not relevant.

       (D) Witness—Child witness—Testimony of—His/her competency can be adjudged by way of asking questions to ensure its reliability—No precise rule can be prescribed.

       (E) Witness—Child witness—Testimony of—Appreciation of evidence/statement—It has to be read as a whole—Due regard is also to be given to this aspect of matter that she was a child witness.

       (F) Criminal trial—Rape—Non-medical examination of offender—Effect of—Offender as a young man arrested after four days of commission of offence—Investigation of case cannot at all be faulted.

       (G) Criminal trial—Death sentence—Question of—Accused committed rape and murder of victim girl aged 8 years—Although, an act of extreme perversity—But, accused being young is an extenuating circumstances in his favour—Legal deprivation to life is proper.