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2. A reference being reference No.2 of 2016 has also been made by the Additional Sessions Judge, Fastrack, Saharanpur under Section 366 (i) of the Code of Criminal Procedure for confirmation of death punishment awarded the appellant for the offences under Sections 376-A and 302 IPC.

3. Both the above mentioned criminal appeal and reference being connected with the same judgment are being decided together by a common judgment.

4. The prosecution case as set up in the FIR is that appellant Boby Singh son of Sushil, who is the resident of village Fatehpur Kalan, Police Station Nagal, District Saharanpur took deceased Km. Payal aged about two and half years of the same village to a sugarcane field on the pretext of providing toffee to her and killed her after committing rape upon her. Mahaveer of the same village had seen appellant taking deceased towards the sugarcane filed. Basant Kumar, father of the deceased alongwith Mahaveer went to the sugarcane filed in search of deceased and when they entered the field, they saw that appellant was strangulating deceased to death. They arrested appellant on the spot and thereafter father of the deceased went to Police Station Nagal alongwith appellant and written report of the incident and handed over the appellant and the written report to the police whereupon an First Information Report of the incident was registered against the appellant under Sections 376, 302 IPC and appellant was kept in the police lock-up. This incident took place in the evening of 7.2.2013 at 6 p.m. The written report and chick FIR are Exs. A1 and A9.

17. PW-2 Mahaveer has stated that appellant alongwith deceased Kumari Payal had come to his shop in the evening of 7.10.2013 at 6-6:15 p.m. and after purchasing toffee from his shop went towards Chandka. He has further stated that PW-1 had come to his shop same evening at about 6:30 p.m. and inquired about deceased and he had then told him that appellant had taken deceased towards Chandka, a place near the sugarfield of Manoj @ Bittu. He has further stated that he and PW-1 then went to the sugarcane field of Manoj @ Bittu and when after hearing the noise of Khar-khar coming from inside the field went towards the place from where the noise was coming they saw that appellant was pressing the neck of deceased with his one hand and her mouth with his other hand and deceased had died. He has further stated that he and PW-1 Basant Kumar apprehended appellant on the spot and on their raising alarm Meenu Kumar son of Chandrabhan and Roop Kumar son of Maangey Ram came there and they took appellant to the gher of PW-1 where people of the village had already gathered and gave beating to the appellant.

43. As regards improvement made in the prosecution case, learned AGA submitted that prosecution has not made any improvement in its case through statement of PW-2. He has submitted that it is incorrect to say that PW-2 has given false statement that in the evening of 8.2.2013 at about 6-6:15 p.m. appellant alongwith deceased came to his shop and after purchasing toffee from the shop went towards sugarcane field of Manoj @ Bittu. He has submitted that first information report of the incident has been lodged within 2 hours 15 minutes of the incident and it has been stated therein that appellant lured the deceased and took her to sugarcane field of Bittu on the pretext of providing toffee to her and while taking her inside the field, he killed her after committing rape upon her. He has further submitted that alleged improvement is nothing but a variation in statements given to Investigating Officer and in Court. However, the said variation is not such so that the same may be called improvement and prosecution story may be treated doubtful. He has further submitted that settled position of law is that in case of variation in statements of a witness given to Investigating Officer and in Court, latter will be believed.

50. When we look at the statement of PW-2 Mahaveer, we find that there is nothing his statement which could suggest that prosecution has improved its case. The case of prosecution from the very beginning is that appellant took deceased into sugarcane field on the pretext of providing toffee to her and after having committed rape upon her, he killed her. In the First Information Report which has been lodged within two hours and fifteen minutes of the incident, it has been specifically stated that appellant had lured deceased of providing toffee to her and he took her to the sugarcane field. PW-2 Mahaveer has also said the same things in his statement as he has said that appellant came to his shop in the evening of 7.2.2013 at 6-6:15 p.m. taking deceased with him and after purchasing toffee from his shop, he went towards the sugarcane field of Bittu. He has further stated that after sometime, PW-1 came to his shop and inquired from him about his daughter and then he informed him that appellant had taken his daughter towards the sugarcane field. Thereafter, they both went to the sugarcane field and when after hearing the noise of khar-khar coming from inside the field, they entered the field and went towards the place from where the sound was coming, they saw that appellant was pressing the neck of deceased with his one hand and her mouth with other hand. There is no discrepancy in the FIR and statements of PW-2 Mahaveer so that it could be said that prosecution has developed a new story in evidence by way of statements of PW-2. Though, there is some variation in the statements given to Investigating Officer and that given in Court, but the same is not such so that prosecution story may be disbelieved saying prosecution has improved its case. Thus, so far as the alleged improvement in the prosecution story is concerned, appellant cannot be given any benefit of this, nor on account of alleged improvement, prosecution story would be disbelieved.