IMPORTANT POINT
The court upheld the conviction for kidnapping, gang rape, and murder but commuted the death penalty to life imprisonment due to lack of exceptional circumstances.

JUDGMENT :

ARVIND SINGH SANGWAN, J.

1. Heard Sri Anil Kumar Singh, Sri Dharmendra Singh, Sri Rahul Shrivastva and Sri Sikandar Khan, learned counsel for the appellants, learned AGA for State, Sri Ganesh Shanker Srivastava and Sri Saurabh Gaur, learned counsel for the informant and perused the material available on record.

2. Reference No. 5 of 2021 has been made by the court of Additional Sessions Judge (Rape Case) POCSO Act, Court No. 2, Bulandshahr for confirmation of capital punishment awarded to appellants Zulfikar Abbasi, Israil @ Malani and Dilshad Abbasee in Special Case No. 1844 of 2018 (State Vs. Zullfikarl and others). The jail appeals being Capital Case No. 6 of 2021, 8 of 2021 and 10 of 2021 have been filed by the appellants challenging the judgment of conviction dated 24.3.2021 (as corrected on 26.3.2021), holding them guilty of offence, arising out of Case Crime No. 04/2018, Police Station-Kotwali Nagar, District-Bulandshahr under Section 364, 376D, 302/34, 201, 404 IPC & Section 5G/6 POCSO Act. The trial court has awarded death sentence to the appellants with fine of Rs. 01 lakh each, In case of non-payment of the fine further undergo two years additional rigorous imprisonment. They were also awarded life imprisonment under section 376-D of IPC and Section 5G/6 of POCSO Act with fine of Rs. 50,000/- each and in case of default of payment of fine further undergo one year additional imprisonment, and further under Section 364 IPC were awarded 10 years imprisonment with fine of Rs. 25,000/- and in default of payment of fine, 6 months further imprisonment, under Section 201 IPC, 7 years imprisonment with fine of Rs. 25,000/- and in default of payment of fine to undergo six months further imprisonment, under Section 404 IPC, 3 years imprisonment with fine of Rs. 10,000/-. In default of payment of fine to go further three months imprisonment and it was observed that all the sentences will run concurrently.

3. Brief facts of the case are that the informant Babita Sharma, gave a complaint to the police as Ex-Ka-1 which reads as under:

4. The police recorded chik FIR (Ex-Ka-4) on 2.1.2018 at about 11 pm and started investigation. During investigation on the same day i.e. 2.1.2018 at about 11:30 pm in presence of witness Pushkar Singh, the police effected recovery of a lady cycle (black colour - Wisdom mark, one black colour bag with tycoon logo, one mathematics book, rough copy on which name of (victim Class XII) was mentioned alongwith cover of spectacles with mark Raj Opticals, Laxman Vihar, Main Road, Naka Chungi, Kota, Rajasthan. One pen black colour, one drinking water bottle of 250 ml on which King Orange was marked and one slipper of left foot with red and yellow colour with mark ‘conform’ were also recovered and were taken in possession vide recovery memo Ex-Ka-16.

5. In the meantime, on 3.1.2018 an unknown body of a girl was recovered by the police near a small canal/drain. Panchayatnama was conducted in which one lady Head Constable Geeta inspected the dead body and reported that the victim was wearing black jeans, belt, black colour top, white sweater and red and blue colour undergarments with black string around her neck and bracelet on her left hand and a ring in finger of hand. She was also wearing pink and while colour socks with yellow and black colour dupatta (Scarf).

6. It was reported that no visible injury mark was there on the dead body. The dead body was sent to the hospital for postmortem examination and in the meantime PW-2-Pushpendra, father of the victim reached hospital and identified that the body is of her daughter (victim-A).

7. Thereafter the postmortem was conducted. The police recorded the following injuries on the dead body:

“A.M.I. - (1) Abraded contusion present in the Area of 29 cm x 15 cm on back of chest & Abdomen.

(2) Ligature mark of size 29 cm x 2 cm present on front of neck on and below thyroid Cartilage. Base of mark is brownish & soft. Subcutaneous tissues under the ligature mark is ecc