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2008 DIGILAW 643 (PNJ)

Rajesh v. State Of Haryana

2008-03-05

JAGDISH SINGH KHEHAR, SHAM SUNDER

body2008
Judgment J.S.Khehar, J. 1. The instant appeal has been filed by the accused appellant Rajesh against the order passed by the Additional Sessions Judge (Fast Track Court), Hisar, in Sessions Case No.106 of 2004 decided on 26.11.2007. By the impugned judgment the accused appellant Rajesh has been held guilty of having committed rape on Monika and thereafter, having committed her murder with the help of an axe. He has accordingly been convicted under Sections 376,302 and 452 of the Indian Penal Code. By a separate order passed on 29.11.2007, the accused/appellant was sentenced to death under Section 302 of Indian Penal Code. The trial Court concluded that the instant case falls squarely within the category of "rarest of the rare" cases warranting the sentence of death. He was accordingly ordered to be hanged by the neck till his death. The death sentence awarded to the accused/appellant Rajesh is subject matter of confirmation at the hands of this Court vide Murder Reference No.1 of 2008. The accused/ appellant Rajesh has also been sentenced to imprisonment for life, and to pay a fine of Rs. 1,000 under Section 376 of the Indian Penal Code. In case of default in payment of fine, he has been ordered to undergo further rigorous imprisonment for two months. Additionally, the accused/appellant Rajesh has been sentenced to undergo rigorous imprisonment for one year under Section 452 of the Indian Penal Code. All the substantive sentences awarded to the accused/ appellant Rajesh have been ordered to run concurrently. Independent of Murder Reference No.l of 2008, the accused/appellant Rajesh has also preferred Cri A.No.l028-DB of 2007 wherein he has impugned the order passed by the Additional Sessions Judge (Fast Track Court) Hisar, referred to above. 2. The prosecution version of the incident is based on the statement of Udheyvir dated 13.7.2004 to ASI Ved Singh PW8. In his aforesaid statement/ complaint Udheyvir disclosed that he had three children. His two elder children were sons and the youngest child was a daughter named Monika. Monika was about 9 years old on 13.7.2004 Udheyvir claims to have left his residence in the morning at about 6.30 a.m. for doing labour on a tractor trolley. Udheyvirs wife Bhagwani left the house at about 8.30 a.m., so as to fetch fodder from the fields for the buffaloes. Udheyvirs eldest son Anil had gone to school. Monika was about 9 years old on 13.7.2004 Udheyvir claims to have left his residence in the morning at about 6.30 a.m. for doing labour on a tractor trolley. Udheyvirs wife Bhagwani left the house at about 8.30 a.m., so as to fetch fodder from the fields for the buffaloes. Udheyvirs eldest son Anil had gone to school. Only his younger son Gobind PW3 and his daughter Monika were left at his residence. About 9.00 a.m. his younger son Gobind PW3 also went out of the house so as to ease himself. When Govind PW3 returned to the house, he saw his sister Monika lying injured on the bed. Gobind PW3 immediately rushed to call his grandmother. The complainant Udheyvir was told by Jaibir that his daughter Monika had received head injuries. Udheyvir, therefore, returned back to his residence. In the meantime, Chandi Ram and some other persons had taken the complainants daughter Monika to Janta Hospital at Barwala, whereafter, Udheyvir also reached the said hospital. A CT scan was suggested. Accordingly, Monika was taken to CHC Hisar for the said purpose. After the CT scan Monika was brought back to Janta Hospital, Barwala where the doctor after examining her declared her dead. In his complaint Udheyvir alleged that some unknown person had entered in his house and committed rape on his daughter Monika. Fearing his identification at the hands of Monika, the said person had then killed her by hitting a "kulhari" on her head. On the basis of the aforesaid complaint, First Information Report bearing No.207 was registered at Police Station Barwala in Police District Hisar on 13.7.2004 at 8.30 p.m. The special report of the case was sent to the Judicial Magistrate 1st Class, Hisar on 14.7.2004 at 12.10 a.m. SI Manbir Singh PW9 on being informed by ASI Ved Singh PW8 reached Janta Hospital, Barwala where he found that ASI Ved Singh PW8 had already completed the inquest proceedings. SI Manbir Singh PW9 took upon the investigation of this case from that point. He visited the place of occurrence i.e. the residence of the complainant Udheyvir in village Panihari and prepared the rough site plan of the place of occurrence along with marginal notes. He took into his possession a blood stained "gadda", blood stained earth from the place of occurrence, and prepared sealed parcels thereof. He also recorded the statement of Udheyvir i.e. the complainant. He took into his possession a blood stained "gadda", blood stained earth from the place of occurrence, and prepared sealed parcels thereof. He also recorded the statement of Udheyvir i.e. the complainant. Exhibit P 18, as well as, the statement of ASI Ved Singh PW8. On 14.7.2004 he along with EHC Shamsher Singh PW 4 and HC Ram Kishan again visited the place of occurrence at village Panihari and made investigation in connection with occurrence. EHC Shamsher Singh PW4 produced before SI Manbir Singh PW9 a parcel containing the "salwar" of Monika as also vial of swab and one envelope containing papers. The same were taken into possession. He also recorded the supplementary statement of Miya Singh PW6 who produced before him the accused/ appellant Rajesh. SI Manbir Singh interrogated the accused/appellant Rajesh who made his confessional statement Ex. P5. He then arrested the accused/appellant Rajesh. On his interrogation Rajesh made a disclosure statement which led the police in his village Panihari wherefrom he got recovered a "kulhari" from underneath the fodder in his house. The same was taken into possession vide recovery memo Ex. P6. 3. On 15.7.2004, SI Manbir Singh P.W. 9 got conducted the medical examination of the accused/appellant Rajesh from CHC Barwala. After his medical examination, the underwear of the accused was taken into possession vide recovery memo Ex. P4. On the same day i.e. on 15.7.2004, the accused got recovered one payjama and one banyan which were concealed in an iron box in his house. The same were taken into possession vide recovery memo Ex. P26. According to the report of the Forensic Science Laboratory, Madhuban dated 25.10.2005, Ex. P31, the blood-stained kulhari and salwar on serological analysis reveal that the material was disintegrated and accordingly no conclusion could be recorded in connection therewith as per Ex. P32. However, Ex. P31 revealed blood on the bichona, salwar and vaginal swab. No semen was detected from the vaginal swab. However, human semen was detected from the underwear and the payjama produced by the accused/appellant Rajesh. Neither blood nor semen could be detected on the banyan. 4. On the completion of investigation, challan was presented in the Court of Judicial Magistrate 1st Class, Hisar on 8.9.2004. No semen was detected from the vaginal swab. However, human semen was detected from the underwear and the payjama produced by the accused/appellant Rajesh. Neither blood nor semen could be detected on the banyan. 4. On the completion of investigation, challan was presented in the Court of Judicial Magistrate 1st Class, Hisar on 8.9.2004. The Judicial Magistrate 1st Class, Hisar arrived at the prima facie conclusion that a case under Sections 452, 376 and 302 of the Indian Penal Code was made out against the accused/appellant Rajesh. Since the offences under Sections 302 and 376 of the Indian Penal Code, are exclusively triable by the Court of Session, the Judicial Magistrate 1st Class, Hisar by his order dated 31.9 .2004 committed the case for trial to the Court of Session. 5. The Additional Session Judge, Hisar, by his order dated 13.1.2005 charged the accused/appellant Rajesh for having committed rape upon Monika under Section 376 of the Indian Penal Code. He was also charged of having committed the murder of Monika under Section 302 of the Indian Penal Code. Additionally, on account of having entered the house of Udheyvir, he was charged of house-trespass under Section 452 of the Indian Penal Code. 6. The accused/appellant Rajesh was then confronted with the charges levelled against him. He pleaded not guilty and claimed trial. 7. During the course of trial, the prosecution examined a number of witnesses. A brief description of the statements of the witness produced by the prosecution is being summarized hereunder. First of all HC Raj Pal was examined as PW1. He tendered into evidence his sworn affidavit Ex. P1. A perusal of his affidavit reveals that on 13.7.2004 one parcel containing blood stained gadda, one vial containing bloodstained earth, and one parcel of kulhar stained with blood were duly sealed were handed over to him by the doctor. On 14.7.2004, one parcel containing underwear of the accused Rajesh sealed by the doctor along with one parcel containing payjama and banyan were also sealed and were handed over to him by SI Manbir Singh PW9. He also stated that he handed over the case property given to him from the Malkhana of the police station to the Director, Forensic Science Laboratory, Madhuban. The statement of Constable Rajinder Kumar was recorded as PW2.He tendered into evidence his affidavit Ex.P2. He also stated that he handed over the case property given to him from the Malkhana of the police station to the Director, Forensic Science Laboratory, Madhuban. The statement of Constable Rajinder Kumar was recorded as PW2.He tendered into evidence his affidavit Ex.P2. A perusal of his affidavit reveals the handing over of the case property to constable Rajinder Kumar PW2 and its delivery as per directions. The prosecution then produced Gobind as PW3. It would be pertinent to mention that Gobind is the brother of the deceased Monika. When his statement was recorded he was 11 years. Before recording his statement, the trial Court put various questions to Gobind. After asserting the competence of Gobind to make a statement, the trial Court directed that his statement be recorded on oath. In his statement Gobind PW3 recorded the factual position as had been expressed by the complainant Udheyvir in his statement dated 13.7.2004 to ASI Ved Singh PW8. Gobind FW3 also asserted that the accused/appellant Rajesh was having an axe in his hand when he found him leaving their residence, when he was returning to his house, after about ten minutes after easing himself. He also asserted that he had called his grandmother to his house after having seen Monika lying injured on the bed. The statement of EHC Shamsher Singh was recorded as PW4. He tendered into evidence his affidavit Ex. P3. A perusal of the affidavit Ex. P3 reveals that after the culmination of the postmortem examination on the dead body of Monika, the doctor had handed over to him one parcel containing clothes, one vial containing swabs, one sealed envelope containing papers, as also, the post-mortem report. On 14.7.2004, he had handed over the aforesaid parcel and the post-mortem report to SI Manbir Singh PW9. The statement of EHC Jagdish Kumar was recorded as PW5. He asserted that the medical examination of the accused/ appellant Rajesh was conducted at the CHC Barwala. After his medical examination the doctor had handed over to him a parcel of underwear of the accused which he had taken into possession vide recovery memo Ex. P4. The prosecution then produced Miya Singh PW6. It would be pertinent to mention that Miya Singh PW6 was the uncle of the deceased Monika, being the real brother of her father Udheyvir. P4. The prosecution then produced Miya Singh PW6. It would be pertinent to mention that Miya Singh PW6 was the uncle of the deceased Monika, being the real brother of her father Udheyvir. Miya Singh PW6 affirmed that the accused/appellant Rajesh had made an extra-judicial confession to him when he had taken his buffaloes to the village pond. He asserted that the accused/appellant Rajesh had informed him that he had put his finger into the private parts of Monika. The accused/ appellant Rajesh also accepted before Miya Singh PW6 that when he tried to commit rape on Monika, she raised an alarm and threatened him, that she will disclose the incident to her parents. He also asserted that the accused/appellant Rajesh confessed that in order to save himself from detection, he had caused injuries to Monika with an axe lying nearby. Additionally, at the request of the accused/appellant Rajesh, Miya Singh PW6 facilitated his arrest. Miya Singh PW6 also supported the prosecution case on all material points. The statement of Dr. Dalel Singh was recorded as PW7. In his statement he asserted that he had examined the accused/appellant Rajesh at Government Hospital, Hisar, and he found that his auxiliary hair and pubic hair were well developed. His penis scrotum and testicles were also well developed, cremastic reflex was also present and there were no injuries on his genitals. 8. He accordingly concluded that there was nothing to suggest that he could not perform sexual intercourse. Having conducted the medico-legal examination of the accused/appellant Rajesh, Dr. Dalel Singh PW7 handed over a parcel containing a red coloured underwear of the accused/appellant. The statement of SI Ved Singh was recorded as PW8. He deposed that on 13.7.2004 on having received a ruqqa from Janta Hospital Barwala, he had reached the said hospital where he had recorded the statement of the father of Monika i.e. Udheyvir. He further stated that he had prepared the inquest report of the dead body of Monika Ex. P13, and recorded the statement of Miya Singh PW6. He also asserted that thereafter SI Manbir Singh PW9 took over the investigation of the case whereupon he along with SI Manbir Singh PW9 had gone to village Panihari, and inspected the place of occurrence, and made various parcels during the course of investigation. P13, and recorded the statement of Miya Singh PW6. He also asserted that thereafter SI Manbir Singh PW9 took over the investigation of the case whereupon he along with SI Manbir Singh PW9 had gone to village Panihari, and inspected the place of occurrence, and made various parcels during the course of investigation. He again joined the investigation of the case on 15.7.2004 after the medical examination of the accused/appellant Rajesh. At this occasion he had taken one parcel containing the underwear of the accused/appellant Rajesh into possession vide recovery memo Ex. P4. On the same day, in pursuance of the disclosure statement of the accused/appellant Rajesh Ex. P5, he had recovered a payjama and banyan concealed underneath an iron box in his house. The same were taken into possession vide recovery memo Ex. P16. The prosecution then produced Dr. Subhash Sharma as PW10. On 13.7.2004, Dr. Subhash Sharma PW10 had conducted the medico-legal examination of Monika as Medical Officer at Anant Ram Janta Hospital, Barwala. He asserted that the patient had been brought to him in an unconscious and non-responsive state and that the patient had involuntary movements of the limbs. He further asserted that Monika had the following injuries on her person when she was brought to the Janta Hospital Barwala: "1. Head was moderately swollen in both the parietal regions. Small lacerated wound seen in both parietal regions. It was slightly larger from the left side. On pressing the scalp of this side dark blood was coming out of the wound along with whitish fatty material (brain matter). The vault was depressed on the left side of the scalp (head injury) bleeding. 2. Lacerated wound over forehead region anterio-medial plain placed longitudinally irregular in shape though margins were clear fracture underlying bone were seen. It was measuring about 5 cm x 1 cm x 1.3 cm deep. 3. Lacerated wound forehead region right side about 3cm x 1 cm with irregular margins. 4. Wound just below right lower eye-lid horizontal about 3 cm x 1/2 cm 1/2 cm clear margins. 5. Lacerated wound upper limb. Mucosa was badly torn." 9. He also asserted that injury No.1 was declared dangerous to life and injuries No.2 and 3 were grievous in nature. The state-ment of ASI Dharam Pal was recorded as PW11. His statement is formal in nature inasmuch as he had recorded the First Information Report under reference. 5. Lacerated wound upper limb. Mucosa was badly torn." 9. He also asserted that injury No.1 was declared dangerous to life and injuries No.2 and 3 were grievous in nature. The state-ment of ASI Dharam Pal was recorded as PW11. His statement is formal in nature inasmuch as he had recorded the First Information Report under reference. Constable Raju Draftsman appeared as PW 12. He had prepared the scaled site plan Ex. P29 after visiting the place of occurrence on the pointing out of Gobind PW3 (the brother of the deceased), as also on the pointing out of Udheyvir i.e. the father of the deceased. The statement of Dr. J.B. Sharma was recorded as PW 13. He had conducted the postmortem examination along with Dr. Himani Kansal on the dead body of Monika on 14.7.2004. During the course of his statement, he inter alia made the following observations: "1. Stitch wound on the right upper lip. Stitch wound right temporal area. Stitch wound right forehead in mid line. 2. Stitch wound below left eye with bluish contusion. 3. Stitch of the left brital area." 10. On examination underlying bone was depressed with fracture multiple were present. On dissection haematoma 7 x 3.5 cm was present on the left side parietal area with underlying brain matter was teared and the bone was fractured in multiple pieces. Bleeding from the nose, mouth and ear were present. haematoma were present on the right parietal area 6 x 4 cm. Brain matter was teared. 11. Haematoma on posterior parietal was present with fracture bone. Rest of the organs of the stomach intestine liver spleen and kidney were found normal on examination. 12. Organs of generation and external genitalia shows mild contusion on the 02 left side of the growing area on the concerned muscle because of tear of deep muscles on dissection underlying subcutaneous hematoma was present. Labia, majaura and minora were not developed. Hymen was ruptured... 13. Dr. J.B. Sharma PW 13 also asserted that during the course of her examination two vaginal swabs were taken and were sent for semen analysis. He also stated that her salwar was also sent for semen analysis. In his report he opined that in his opinion the probable cause of death was the head injury suffered by Monika to the vital part of her brain. He also stated that her salwar was also sent for semen analysis. In his report he opined that in his opinion the probable cause of death was the head injury suffered by Monika to the vital part of her brain. He also asserted that the said injury was ante-mortem in nature and was sufficient in the ordinary course nature to cause death. After recording the statement of Dr J.B. Sharma PW 13, the prosecution evidence was closed by order. 14. The statement of the accused/appellant Rajesh was then recorded under Section 313 of the Code of Criminal Procedure. He denied as incorrect, the incriminating evidence appearing on the record of the case, which was put to him. In his defence, he asserted that a false case had been foisted on him and that the prosecution witnesses had deposed falsely. He also asserted that he was innocent. 15. The trial Court then afforded an opportunity to the accused/appellant to lead evidence in his defence. Despite the opportunity granted to the accused/appellant Rajesh, he did not lead any evidence in his defence. 16. The Additional Sessions Judge (Fast Track Court) Hisar delivered the judgment in Sessions Case No.106 of 2004 on 26.11.2007. The accused/appellant was held guilty of having committed rape on Monika and as such guilty of the offence under Section 376 of the Indian Penal Code. He was also found guilty and accordingly convicted for having committed the murder of Monika under Section 302, of the house-trespass under Section 452 of the Indian Penal Code, and was accordingly convicted for the same. On 29.11.2007, the Additional Session Judge (Fast Track Court), Hisar, heard the accused/appellant Rajesh on the question of sentence. By a separate order dated 29.11.2007 the Additional Sessions Judge (Fast Track Court), Hisar, arrived at the conclusion that the instant case is one in the category of rarest of rare cases and accordingly the accused/appellant was sentenced to death. He was ordered to be hanged by the neck till his death under Section 302 of Indian Penal Code subject to confirmation by this Court. The accused appellant was further sentenced to imprisonment for life and a fine of Rs.1,000 for having committed the offence under Section 376 of the Indian Penal Code. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for a period of two months. The accused appellant was further sentenced to imprisonment for life and a fine of Rs.1,000 for having committed the offence under Section 376 of the Indian Penal Code. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for a period of two months. Additionally, he was directed to undergo rigorous imprisonment for one year for having committed the offence under Section 452 of the Indian Penal Code. All the substantive sentences were directed to run concurrently. 17. A perusal of the evidence produced on behalf of the prosecution as well as the judgment rendered by the Additional Sessions Judge (Fast Track Court) Hisar, reveal that while convicting the accused/appellant Rajesh reliance was primarily placed on the eye-witness account of Gobind PW3, the minor brother of the deceased Monika, who had seen the accused/appellant Rajesh leaving their house with a kulhar in his hand after the commission of the crime. The trial court also observed that there was no reason to disbelieve the statement of Gobind PW3 because he and his sister Monika were alone in the house, and that, he had left Monika in the house only for a duration of ten minutes, and on his return he had seen the accused/appellant Rajesh leaving their house with a blood stained Kulhari in his hand. Reliance was also placed on the extra-judicial confession made by the accused/ appellant Rajesh to Miya Singh PW6 wherein he had taken the responsibility of the entire occurrence on himself. The trial Court was of the view that there was no reason to doubt the veracity of the statement of Miya Singh PW6 on account of the fact that the accused/appellant Rajesh had trusted him even for the purpose of facilitating his arrest. Reliance was also placed on the disclosure statement made by the accused/appellant Rajesh which led to the recovery of the kulhari used by accused/appellant Rajesh for the commission of the crime, as also, the recovery of clothes worn by him on the date of the occurrence. Additionally, reliance was placed on the report of the Forensic Science Laboratory, Madhuban which affirmed the presence of semen on the clothes of the accused/appellant Rajesh. 18. In order to assail the findings recorded by the trial Court, learned counsel for the accused/appellant has advanced a number of submissions. Additionally, reliance was placed on the report of the Forensic Science Laboratory, Madhuban which affirmed the presence of semen on the clothes of the accused/appellant Rajesh. 18. In order to assail the findings recorded by the trial Court, learned counsel for the accused/appellant has advanced a number of submissions. He has also pointed out various reasons to conclude the improbability in the prosecution case. The issues canvassed by the learned counsel for the accused/appellant are being summarized hereunder. 19. The first contention of the learned counsel for the accused/appellants is that it would be improper keeping in view the facts and circumstances of this case to rely on the statement of Miya Singh PW6. In this behalf it was submitted that as per the statement of Miya Singh PW6 the accused appellant Rajesh had made an extra-judicial confession to him acknowledging the commission of the crime. It is the vehement contention of the learned counsel for the accused/appellant, that Miya Singh PW6 is a close relation of the deceased Monika. It is pointed out that Miya Singh PW6 was the real brother of Udheyvir i.e. father of the deceased Monika. It is also submitted that it is absolutely unlikely for a person who has committed a heinous crime, as the one in the present case, would go to a close relation of the victim of the crime and make a confessional statement before him. In this behalf, it is pointed out from the testimony of Miya Singh PW6 that the accused appellant Rajesh had made the confessional statement on 14.7.2004 at about 4.30 p.m. whereas the crime under reference was committed at 9.00 a.m. on 13.7.2004. 20. On the issue in hand, learned counsel for the accused/appellant has placed reliance on a Division Bench judgment rendered by this Court in Hari Kant v. State of Haryana 1999(2) RCR (Criminal) 94. and invited our attention to the following observations recorded in paragraph 6 of the aforesaid judgment: "6... The prosecution in its endeavour to secure conviction against the appellants relies on the joint confession made by the appellants before Jogi Ram PW2 and Kunj Bihari PW3 as also on the statement of Vidyarthi PW4, who is stated to have last seen the child of Sham Bihari. No motive has been alleged or proved against the appellants. The prosecution in its endeavour to secure conviction against the appellants relies on the joint confession made by the appellants before Jogi Ram PW2 and Kunj Bihari PW3 as also on the statement of Vidyarthi PW4, who is stated to have last seen the child of Sham Bihari. No motive has been alleged or proved against the appellants. It may also be mentioned that the police could not trace the dead body of Aspatali son of Sham Behari. The question that arises in the present case is as to whether the prosecution can secure conviction on the basis of joint extra-judicial confession made by the appellants and the evidence of child having been last seen by PW4 Vidyarthi with the appellants. After giving our anxious thoughts to the statements made by Jogi Ram PW2, Kunj Bihari PW3 and Vidyarthi PW4 and after hearing the learned counsel representing the parties, we are of the view that chain of circumstances in this case is not complete so as to return a finding that the appellants alone were responsible for causing the death of Aspatali son of Sham Bihari." 21. Keeping in mind the observations of the Supreme Court, as have been noticed in Harikants case (supra) we are of the view that it is impossible to expect anybody to make an extra-judicial confession in respect of the nature of the crime allegedly committed by the accused appellant Rajesh in this case, and that too, so soon after the crime had taken place, whilst tempers are very high and there is no likelihood or expectation of forgiveness specially by a person so closely related to the person against whom the crime had been committed. One cannot also overlook the fact, that when the occurrence took place Monika was about 9 years old, she was allegedly sexually violated, and thereafter, brutally murdered. At that juncture the accused/appellant could not have been in a frame of mind to have gone to a close relation of the deceased so as to make an extra-judicial confession when the accused/appellant Rajesh decided to kill Monika, the sole consideration was to save himself from detection in view of the alarm raised by Monika that she would disclose the incident to her parents. A day later there was no reason for him to have made the confessional statement. 22. A day later there was no reason for him to have made the confessional statement. 22. The second contention of the learned counsel for the appellant is that the statement made by Gobind PW3 should also not be taken into consideration as the same was totally unreliable. In this behalf, it is the contention of the learned counsel for the appellant that although Gobind PW3 had allegedly seen the accused/appellant Rajesh leaving his house after the occurrence with a kulhari in his hand, he did not inform anyone about the same. In this behalf, it is pointed out that even in the First Information Report the father of the deceased Monika i.e. Udheyvir who was also the father of Gobind PW3 did not disclose the identity of the accused/appellant Rajesh. It is therefore pointed out that Gobind PW3 had not even told his father for a period of 12 hours after the occurrence that the accused/appellant Rajesh had been seen by him leaving their house with a kulhari in his hand. According to learned counsel, if Gobind PW3 had told anyone about the fact that he had seen the accused/appellant Rajesh leaving the house with a Kulhari in his hand, the said factual position would have immediately been conveyed to Udheyvir, the father of the deceased Monika. Since Udheyvir did not make any mention about the accused/appellant in his statement made to ASI Ved Singh PW8, it is reasonable to infer that Gobind PW3 did not disclose that fact to anyone at all. Reference was also made by the learned counsel for the appellant to the fact that when the statement of Gobind PW3 was recorded by the police during the course of investigation under Section 161 of the Code of Criminal Procedure, and even at this juncture, he had not stated that he had seen Rajesh coming out of their house with a kulhari in his hand. 23. It is also necessary to deal with the third contention advanced by the learned counsel for the appellant along with the second contention noticed in the foregoing paragraph. Insofar as the alleged statement made by Gobind under Section 161 of the Code of Criminal Procedure is concerned, the veracity thereof is also a subject matter of serious doubt at the hands of the learned counsel for the accused/appellant Rajesh. Insofar as the alleged statement made by Gobind under Section 161 of the Code of Criminal Procedure is concerned, the veracity thereof is also a subject matter of serious doubt at the hands of the learned counsel for the accused/appellant Rajesh. In order to show that the statement of Gobind PW3 recorded by the police under Section 161 of the Code of Criminal Procedure on 13.7.2004 is fabricated, learned counsel for the accused/appellant Rajesh has invited the Courts attention to two facts. Firstly, that none of the investigating officers has stated anything about the recording the statement of Gobind PW3 under Section 161 of the Code of Criminal Procedure on 13.7.2004. Secondly the Courts attention has been invited to the statement of the investigating officer SI Manbir Singh PW9 wherein during his cross-examination he stated: "... I also enquired from various persons about the matter. Miya Singh met me at about 5.30 p.m. on 14.7.2004. I did not know about the accused of the present case prior to the meeting of Miya Singh on 14.7.2004 at 5.30 p.m. 24. At this juncture, it would be relevant to extract the statement made by Gobind PW3 under Section 161 of the Code of Criminal Procedure, which is available on the record of the trial Court as Ex. D1 :, "Case FIR No.207 dated 13.7.2004, U/ s 352/376,302 IPC, PS Barwala. Statement of Gobind son of Udheyvir Singh, caste Jat, r/o Panihari, under Section 161 Cr.P.C. Stated that I am the resident of the above address. I read in 5th class. We are two brothers and one sister Monika. Eldest brother is Anil. Today, my parent do labour work. My father Udheyvir had gone to do labour work. My mother had gone to bring grass for animals. It was about 8.30 a.m. when I and my sister Monika were at the house. I had gone out to ease myself and my sister Monika at house. After easing myself when I came to my house, I saw Rajesh son of Dashmi, caste Harijan Chamar, resident of the village going out. When 1 came in the house, I saw my sister Monika lying on a cot having injuries on her head. Sd/- Manbir Singh, SI SHO PS Barwala. 13.7.2004". 25. After easing myself when I came to my house, I saw Rajesh son of Dashmi, caste Harijan Chamar, resident of the village going out. When 1 came in the house, I saw my sister Monika lying on a cot having injuries on her head. Sd/- Manbir Singh, SI SHO PS Barwala. 13.7.2004". 25. It is the submission of the learned counsel for the accused /appellant Rajesh that if SI Manbir Singh had been informed by Gobind PW3 of the involvement of Rajesh on 13.7.2004, as is apparent from the extract reproduced hereinabove, he could not have stated that he did not know about Rajesh till he was informed about him by Miya Singh PW6. 26. We shall collectively dispose of the second and the third submissions advanced by the learned counsel for the appellant. We are of the view that as and when a serious injury occurs, the first question to be posed by everyone is: how did it happen? Accordingly every individual who came to know about the occurrence including those who had seen Monika, and the extensive nature of the head injury suffered by her, would have posed the said question. The answer to the aforesaid question apparently seems to have been with Gobind PW3, who had allegedly seen the accused/appellant Rajesh leaving the place of occurrence with a kulhar in his hand. It cannot be believed that Gobind PW3, was not questioned about how the occurrence took place, as he was the only person present with Monika at their residence. The fact that Gobind PW3 was mature enough to make a statement on oath was confirmed by the trial Court, and only thereupon, the statement of Gobind PW3 was recorded. Gobind PW3 having visualized the gravity of the situation after seeing his sister Monika badly injured allegedly went to inform his grandmother about the occurrence immediately after the occurrence. It is wholly uncomprehencible why a child considered to be responsible, did not respond to the most vital question which is likely to have been posed to him by everyone after the occurrence. Why did he not tell anyone, immediately after the occurrence that he had seen the accused/appellant Rajesh coming out of their house? The answer is simple. Because he had actually not seen the accused/appellant Rajesh coming out of their house, there was nothing for him to say. Why did he not tell anyone, immediately after the occurrence that he had seen the accused/appellant Rajesh coming out of their house? The answer is simple. Because he had actually not seen the accused/appellant Rajesh coming out of their house, there was nothing for him to say. There is no doubt in our mind that the young and innocent mind of Gobind PW3 was used to falsely implicate the accused/appellant Rajesh. In our view the deposition of Gobind PW3 was not recorded on the basis of the facts actually witnessed by him. We also find merit in the second contention of the learned counsel for the accused/appellant Rajesh to the effect that the statement of Gobind PW3 recorded under Section 161 of the Code of Criminal Procedure on 13.7.2004, is liable to be considered as being manufactured by the prosecution by ante dating the same. As noticed hereinabove, the investigating officer had expressed total ignorance about the involvement of the accused/ appellant Rajesh till he was informed about his involvement by Miya Singh PW6 on 14.7.2004. We are accordingly of the view that Gobind PW3 did not record any statement Ex. D1 on 13.7.2004 as alleged. Collectively on the basis of the conclusions drawn by us in respect of the aforesaid submissions advanced, we are of the view that even the statement of Gobind PW3 cannot be taken into consideration so as to record a concrete finding against the accused/appellant Rajesh as we are satisfied that Gobind PW3 had been tutored to make his statement and that his deposition was not made on the basis of the facts which he had actually witnessed. 27. The fourth contention of the learned counsel for the accused/appellant Rajesh is that the entire prosecution case is a fabricated story. In this behalf it is pointed out that the alleged occurrence is stated to have taken place at 9.00 a.m. on 13.7.2004 whereas no unilateral complaint was made by the father of deceased Udheyvir to the police. 27. The fourth contention of the learned counsel for the accused/appellant Rajesh is that the entire prosecution case is a fabricated story. In this behalf it is pointed out that the alleged occurrence is stated to have taken place at 9.00 a.m. on 13.7.2004 whereas no unilateral complaint was made by the father of deceased Udheyvir to the police. It is only when the police party had gone to the Janta Hospital, Barwala on receipt of information that Udheyvir (father of the deceased Monika) who was present at the hospital made a statement to the police at 8.30 a.m. It would be pertinent to mention that even if it assumed as correct (although it is extremely doubtful) that the said complaint was recorded by the police at 8.30 p.m. almost 12 hours had passed from the time of the occurrence till the aforesaid statement was made to the police. It is the submission of the learned counsel for the appellant that the time of recording of the FIR is clearly doubtful as the special report in the instant case was delivered to the Judicial Magistrate, 1st Class, Hisar, on the following day and that too at 12.10 in the afternoon by which time, more than one day i.e. approximately 27 hours had elapsed since the occurrence. It is, therefore, the contention of the learned counsel for the accused/appellant that Rajesh has been implicated on account of suspicion and for no other reason whatsoever. 28. Having recorded our findings on the second and third contentions of the learned counsel for the appellant Rajesh, we are inclined to accept the contention of the learned counsel for the appellant even so far as the delayed registration of the FIR is concerned. One cannot lost sight of the fact that the special report in connection with the FIR reached the Judicial Magistrate 1st Class Hisar at 12.10 in the afternoon on 14.07.2004 by which time 27 hours had elapsed after the occurrence. It seems that even by this time there was no suspicion as against the accused/appellant Rajesh as the name of the accused did not figure in the statement made to the police by Udheyvir for some reason which does not emerge from the evidence produced in the case, it seems, that the needle of suspicion fell on the accused/appellant Rajesh after 14.1.2004. Even on 14.7.2004, the father of the deceased Udheyvir did not approach the police so as to make a complaint. The police on its own had reached the Janta Hospital, Barwala whereafter Udheyvir (father of he deceased Monika) had recorded his statement in the hospital. Unfortunately, the complainant Udheyvir died before his statement could be recorded as a prosecution witness in Court. The veracity of the complaint made by Udheyvir to ASI Ved Singh PW8 on 13.7.2004, therefore, could not be tested on the touchstone of cross-examination. On the cumulative analysis of the facts examined herein above, we are of the view that a suspicion is cast on the prosecution version of the occurrence on account of the delay in the communication of the special report to the concerned Ilaqa Magistrate. 29. The 5th contention of the learned counsel for the accused/appellant is that there is no evidence worth the name to implicate the accused/appellant Rajesh in the crime of rape. In this behalf, reference has been made by the learned counsel for the accused/appellant to the report of Forensic Science Laboratory, Madhuban Ex.P31, which clearly records that no semen was detected on the salwar of the deceased Monika as also from the vaginal swabs taken from her after the occurrence. It is the further contentions of the learned counsel for the accused/ appellant Rajesh that even the extra- judicial confession made by the accused/ appellant Rajesh to Miya Singh PW6 does not acknowledge the factum of penetration. Accordingly, it was submitted that there is no material whatsoever the accused/appellant had committed rape under Section 376 of the Indian Penal Code. 30. While dealing with the contention advanced by the learned counsel for the accused appellant in the foregoing paragraph we again minutely examined the statement of Miya Singh recorded as PW6. There is no doubt whatsoever in the submission advanced by the learned counsel for the appellant. Even if the statement of Miya Singh PW6 is taken on its face value, the same does not depict any acknowledgement at the hands of the accused/appellant Rajesh of sexual penetration at his hands. Insofar as scientific evidence produced on the record is concerned, no semen was detected either on the lsalwar of the deceased Monika, or from the vaginal swabs taken from her after the occurrence. Insofar as scientific evidence produced on the record is concerned, no semen was detected either on the lsalwar of the deceased Monika, or from the vaginal swabs taken from her after the occurrence. The presence of sperm on the clothing of the accused/appellant Rajesh could have been for a variety of reasons. In this behalf reference may be made to the decision of the Supreme Court rendered in Rahim Beg and another v. State of U.P., 1972 CAR 248 wherein the Court in paragraph 25 of its judgment inter alia observed as: "We may advert to the stains of human blood on the bush-shirt of Mahadeo and the stain of semen on the Langot of Rahim Beg. So far as the blood stains on the bush-shirt of Mahadeo are concerned, it may be stated that no question was put to Mahadeo during the course of his statement under Section 342 of the Code of Criminal Procedure that his bush-shirt was stained with blood. Mahadeo not having been asked to furnish an explanation regarding the stain of human-blood on his bush-shirt no inference can be drawn against Mahadeo on that account. As regards the stain of semen on the Langot of Rahim Beg, we find the Rahim Beg is a young man of 22. The Langot in question was dirty at the time it was taken into possession. It cannot be said as to how old was the semen stain on the Langot. The semen stain on the Langot of a young man can exist because of variety of reasons and would not necessarily connect him with the offence of rape." 31. We find merit in the instant contention advanced by the learned counsel for the accused/appellant Rajesh. Semen from the vaginal swabs taken from Monika or the semen from Monikas salwar would have gone a long way to establish the crime. However, semen was neither detected from the vaginal swabs taken from Monika after the occurrence as also from her salwar. The presence of semen in the clothes of accused/ appellant Rajesh does not in any way establish that he had committed rape on the deceased Monika. All that it is established is that he was sexually competent to commit intercourse. But that by itself in our view would be improper to hold that (since he was sexually competent) he must have committed rape of Monika. All that it is established is that he was sexually competent to commit intercourse. But that by itself in our view would be improper to hold that (since he was sexually competent) he must have committed rape of Monika. We are, therefore, left with no other alternative but to hold that the prosecution has failed to establish its case for the commission of offence under Section 376 of the Indian Penal Code against the accused/appellant Rajesh. 32. It is also the contention of the learned counsel for the accused/appellant Rajesh that the entire prosecution story falls on its face in the absence of the establishment of the commission of rape of the hands of the accused/appellant Rajesh on Monika. In this behalf, it is the submission of the learned counsel for the accused/appellant that the only justification depicted in the statements of the prosecution witnesses for committing the murder of Monika was the threat yielded out by Monika that she would disclose the incident to her parents. If no such incident had taken place, it is the submission of the learned counsel for the appellant, that there would be no question of hiding the same and, therefore, no question of killing Monika. Although the contention of the learned counsel for the appellant is attractive on first blush but no final conclusion can be recorded in favour of the accused/appellant Rajesh on the basis of the instant submission made by the learned counsel for the accused appellant. Medical evidence clearly establishes the rupture of the hymen and the presence of blood in the vagina of Monika. It may well have been that the accused/appellant Rajesh may have abused that private parts of the deceased Monika with his fingers, and had thereafter, on being threatened by Monika, that she would disclose the incident to her parents, may have committed her murder. In sum and substance, therefore, no finding in favour of the accused/appellant can be recorded on the basis of the instant submission advanced by the learned counsel for the accused/appellant. 33. In sum and substance, therefore, no finding in favour of the accused/appellant can be recorded on the basis of the instant submission advanced by the learned counsel for the accused/appellant. 33. Having examined the totality of the facts and circumstances of the case, we are also of the view that the statement made by Miya Singh PW6 the real brother of the father of deceased Udheyvir cannot be relied upon inasmuch as the author of such a heinous crime would not go to the real uncle of the victim of the crime so as to disclose the same to him soon after the occurrence when there can be no likelihood of forgiveness. All that could have been expected from the close relations of Monika at that juncture was retaliation of a magnitude matching the crime committed. Since the crime committed in the instant case was grossly heinous in nature, wherein a minor girl of nine years was subjected to sexual abuse, and thereafter, murdered with an axe, it is wholly unlikely that an extra-judicial confession of the nature had been made by the accused/appellant Rajesh to Miya Singh PW6. We are also of the view that the statement of Gobind PW3 is reliable in the facts and circumstances of the present case inasmuch as he did not disclose the fact that he had seen Rajesh leaving the house when he had returned to his own house after having eased himself. We are inclined to accept that when an injury of the nature suffered by Monika, is discovered, the first question to be posed by everyone would be as to how it had happened. Gobind PW3 was the only person who could have responded to the aforesaid question. In fact, as per the prosecution version of the incident, he had gone to fetch his grandmother immediately after the occurrence. For some reason the grandmother of Monika was not produced as a witness. In the aforesaid view of the matter since Gobind PW3 did not disclose the factual of occurrence to anyone, even to his father despite the fact that his real sister Monika was seriously injured and was struggling for her life, we are of the view that the statement of Gobind PW3, in the manner it was expressed before the trial Court, is extremely doubtful. We are also persuaded to entertain the impression that the investigating agencies had maneuvered the evidence in this case (as we have found substance in the contention of the learned counsel for the accused/ appellant Rajesh) that it is unlikely for Gobind PW3 to have recorded his statement under Section 161 of the Code of Criminal Procedure before the investigating officer SI Manbir Singh PW9 on 13.7.2004. The absence of the name of the accused/appellant Rajesh in the complaint recorded by Udheyvir to the police on 13.7.2004 also established that the accused appellant Rajesh was not even a suspect (let alone being identified as the person responsible for the crime in question) for more than 27 hours after the occurrence. Even the report from the Forensic Science Laboratory does not reveal anything so as to connect the accused/appellant Rajesh with the commission of the crime under reference. The allegation of rape having been committed by the accused appellant Rajesh on the deceased Monika is not supported by any evidence whatsoever. Even the report from the Forensic Science Laboratory reveals that no semen was detected in the vaginal swabs taken from Monika after the occurrence and that no semen was present on her salwar. On the basis of the conclusions noticed hereinabove, we are of the view that the prosecution has miserably failed to establish its case against the accused/appellant Rajesh. 34. For the reasons recorded hereinabove, the instant appeal is allowed and the impugned judgment of conviction dated 26.11.2007, and the order of sentence dated 29.11.2007, passed by the Additional Sessions Judge (Fast Track Court) Hisar, are set aside, and the accused/appellant Rajesh is acquitted of the charges framed against him. Resultantly, Murder Reference No.1 of 2008 also stands rejected. 35. Before parting with the instant judgment, we are compelled to record that the investigating agency has miserably failed to investigate the case effectively, and that, the offender of a heinous crime has been allowed to escape, merely on account of utter negligence at the hands of the investigating agency. It pains us to record that a crime as heinous as the one in hand, wherein the trial Court had recommended the death sentence against the real culprit has gone scot free, on account of lack of evidence. It pains us to record that a crime as heinous as the one in hand, wherein the trial Court had recommended the death sentence against the real culprit has gone scot free, on account of lack of evidence. We are of the view, that the prosecuting agency, as well as, the investigating agency should put their heads together to devise ways and means whereby effective evidence is collected and projected so that persons committing heinous crimes cannot go scot free.