State of Gujarat Vs. Surendrapal Shivabalakpal - Court Judgment

B.J. Shethna, J.

1. Appellant - accused Surendrapal Shivbalakpal, Aged : 36, is found guilty for the offences of kidnapping, rape and murder, punishable u/ss. 363, 376 and 302 I.P.Code by the learned Sessions Judge, Ahmedabad (Rural), Navrangpura, Ahmedabad, in Sessions Case No.212 of 2002 and sentenced to suffer 7 years R.I. and to pay fine of Rs.1000/- and i/d. to further under-go 3 months' S.I. for the offence u/s. 363 I.P.Code, life imprisonment and to pay a fine of Rs.2000/- i/d. to further under-go 5 months R.I. for the offence u/s. 376 I.P.Code and Death sentence for the offence u/s. 302 I.P.Code and ordered to hang him till he dies.

After passing this order of conviction and sentence on 20.6.2003 against the appellant - accused, the learned Sessions Judge has made reference to this Court u/s. 366 of the Code of Criminal Procedure for confirming the death sentence awarded by him to the accused for the offence u/s. 302 I.P.Code which is registered as Criminal Confirmation Case No.1 of 2003. The Appellant - accused has also challenged his order of conviction and sentence through Jail by way of Criminal Appeal No.770 of 2003. Therefore, both these matters were heard together and disposed of by this Judgment.

2. The prosecution case, in brief, is as under :-

Complainant Kevalpati was staying on the ground floor, whereas accused Surendrapal was staying in one room as her tenant on the first floor and pay rent of Rs.350/- per month since two months of the incident.

On 11.9.2002 complainant Kevalpati was sleeping on the cot along with her two minor daughters Gayatri Manju and Savitri @ Sanju, aged 8 & 7 years respectively on the Otla of her house. At about 10.00 p.m. accused came in drunken condition and asked the complainant to allow him to have sexual intercourse with her and offered Rs.150/- for the same. She refused it and asked the accused to go away, but he did not leave the place and sat on the cot. Therefore, she went in the rear portion of her house where her brother Rajaram was sleeping with her son Manoj and told them that accused was harassing her. They came and scolded the accused and driven him out from that place. Rajaram asked him to go to his room on the first floor, but the accused did not go to his room and left the place by saying that he is going to his brother's house at HUDCO. Thereafter, Rajaram and Manoj had gone back to their respective place to sleep. Kevalpati slept on the cot with her daughters. However, after some time she went inside the house, as she was feeling cold, leaving her both the minor daughters sleeping on the cot all alone. At about 1.00 O'clock in the mid-night she came out from the house to see her minor daughters sleeping alone on the cot on the Otla of her house. Gayatri @ Manju was sleeping on the cot, but Savitri @ Sanju was not there. Thereupon, she called her brother Rajaram and her son Manoj, who were sleeping on the rear portion of her house and also called her brother-in-law Ramvaran from his house, which was nearby to her house. They searched 'Sanju' in the nearby places as well as in the room of the accused Surendrapal. Accused Surendrapal was also not there in his room. Thereupon, Ramvaran told them that when he woke up at about 1.00 O'clock in the mid-night and came out from his house to answer the call of nature, while coming out from the bath-room he had seen accused Surendrapal near the cot and taking away one girl on his shoulder, but he thought that she must be the daughter of Fulchand, son-in-law of the brother of the accused, therefore, he did not ask him anything or stop him. While leaving the place the accused said to the complainant Rajaram and Manoj that he is going to his brother's house at HUDCO and, therefore, all of them had gone there in search of accused Surendrapal at his brother's house. However, he was not found at his brother's house. Then they went to the house of Shital where the accused was earlier staying as tenant. He told that when the accused was staying there he was making similar demand of sexual intercourse and, therefore, he was driven out from that place and thereafter he had not come again. They returned to the house and told complainant that 'Sanju' could not be traced out. Thereupon Kevalpati started crying and running from here to there. She was followed by her son Manoj. At about 4.00 O'clock in the early morning when they were on the road they found accused coming from G.I.D.C road. People, gathered there, caught him and asked about 'Sanju'. He did not disclose anything to anyone. Thereupon, Rajaram called Police on Phone. Police came there at about 4.30 a.m., but he did not disclose anything to police also. Thereupon, he was taken to the Police station in the Van along with complainant Kevalpati, Rajaram and others. During interrogation by P.S.I. Chudasma the accused stated that he first kidnapped the girl in the night from the house of the complainant and then took her behind G.I.D.C. at barren place and committed rape on her and thereafter throttle her and threw her in the 'Puddle' full of water. Thereafter, he took the police to the place where he committed rape on Sanju and threw her in the water. Thereafter, at about 6.00 a.m. the complaint of complainant Kevalpati was recorded by the police. Arrest Panchnama of the accused was made and the clothes, put on by him having blood stains and semen and spots of cow dung were also seized under the Panchnama. The Panchnama of scene of offence was also prepared. Dead Body of 'Sanju' floating in the water was taken out by her maternal uncle Rambaran. Then, Post Mortem Note was prepared.

After completing the investigation the Police submitted the charge-sheet against the accused for the offences u/ss. 363, 376 and 302 I.P.Code before the Court of 2nd Joint Civil Judge (JD) & JMFC, Ahmedabad (Rural), who committed the case to the Court of Sessions u/s. 209 Cr.P.C. On committal the case was initially placed before the Court of learned Addl. Sessions Judge, Ahmedabad (Rural), Ahmedabad, who framed the charge at Ex.3 against the accused for the offences u/ss. 363, 376 and 302 I.P.Code. It was read over and explained to the accused, but he did not plead guilty to the charge and claimed to be tried. He was given Legal Aid as he was not able to engage any Advocate and, therefore, Advocate Shri V.T. Acharya was appointed to defend his case as an amicus curiae. After framing the charge learned Addl. Sessions Judge was transferred, therefore, the Sessions Case was tried by the learned Sessions Judge, Ahmedabad (Rural), Ahmedabad himself.

The prosecution has examined the following witnesses to prove its case

(i) Panch witness Vasantlal Vipati Exh. 7.

(ii) Complainant Kevalpati Ramsharan Pahelvan Exh.9

(iii) Witness Ghanshyam Rambaran Pal, Exh. 11

(iv) Witness Shivalliben Rambaran Pal, Exh. 12.

(v) Witness Shyambahadur Rampal Jadav, Exh. 13

(vi) Witness Rajaram Mohanlal Pal, Exh. 14.

(vii) Witness Rambaran Pahelvan Pal, Exh. 15

(viii) Panch witness Kishorbhai Narsinhbhai Kapadia Exh.

(ix) Panch witness Mohanji Munnaji Vanzara, Exh. 22

(x) Panch witness Rajubhai Basantsinh Urmi, Exh. 29

(xi) Witness Manojkumar Ramsharan Pal, Exh. 32

(xii) Witness Arjunprasad Jagruprasad Varma, Exh.33

(xiii) Witness Magrubhai Sampatbhai Koli, Exh. 34

(xiv) Witness Radheshyam Gulamsinh Bhaderiya, Exh.35

(xv) Witness Sagarbhai Khumabhai, Exh. 38

(xvi) Police Inspector Shri Chandrakant Hirjibhai Gajjar, Exh. 39.

(xvii) Witness Smt. Minaben Rajnikant Dave, Exh. 44

(xviii) Dr. Krunal Dasharathbhai Patel, Exh. 46.

(xiv) P.S.I. Shri Dasharathsinh Karansinh Chudasama, Exh. 48

The prosecution has also relied upon the following documentary evidence:

(i) Complaint of complainant Kevalpati, Exh. 10

(ii) Report of Offence, Exh. 40

(iii) Inquest Panchnama, Exh. 8

(iv) Panchnama of Place of Offence shown by the Accused, Exh. 28

(v) Panchnama of body of Accused, Exh. 17

(vi) Panchanam of clothes of dead body, Exh.30

(vii) Copy of telephone message, Exh. 36

(viii) Report of FSL Officer of Local Inspection, Exh.41

(ix) P.M. Note, Exh. 47

(x) Receipt of FSL, Exh. 42

(xi) Report of FSL, Exh. 43

After recording of the evidence, the statement of accused under sec. 313 of the Code of Criminal Procedure was recorded by the learned Judge. All throughout, the accused maintained that he was not knowing anything in the matter and he denied the incident in question. He had refused to examine any defence witnesses and also refused to examine himself on oath before the Court. Thereupon, the Public Prosecutor submitted an application ex. 49 to close the prosecution evidence.

3. The entire prosecution case rest on the circumstantial evidence. It was submitted by the learned Public Prosecutor before the learned Sessions Judge that in the instant case, the prosecution has proved its case beyond the reasonable doubt against accused by completing chain of circumstances, that the accused has committed the offences under sec. 363, 376 and 302 IPC by kidnapping minor girl Savitri @ 'Sanju' from lawful custody of her mother and after committing rape on her, committed her murder.

4. On behalf of the accused, Shri VT Acharya had submitted that in the instant case, the prosecution has examined all the interested witnesses who are related to the deceased and though independent witnesses were available, they were not examined. One of the independent witness Magru Sampat Koli, PW-13 Exh. 34, has not supported the prosecution case, therefore he is declared hostile. Evidence of Rambaran Pahelvan Pal, PW-7 Exh. 15 is not at all reliable. Once his evidence is discarded then the chain of circumstantial evidence was not complete, because only Rambaran claimed to have seen the accused taking away 'Sanju' with him in the night at 1.00 O'clock. He, therefore, submitted before the learned Judge that the accused be acquitted by giving benefits of doubt.

5. Learned Judge raised two issues for his determination:

(i). Whether, the prosecution has proved beyond reasonable doubt that the age of the deceased Savitri @ Sanju was seven years?

(ii). Whether, the prosecution has proved beyond reasonable doubt that the accused kidnapped the minor girl Savitri @ 'Sanju', aged 7 years from the lawful custody of her mother and committed rape on her and then throttled her and threw her in puddle full of water and committed offences under Section 363, 376 and 302 of the Indian Penal Code?

After appreciating oral as well as documentary evidence led by the prosecution and considering the defence of the accused, the learned Judge came to the conclusion that the prosecution has proved beyond reasonable doubt that at the time of death, deceased Savitri @ 'Sanju' was only 7 years old and the accused kidnapped her from the lawful custody of her mother on the fateful night committed her murder after committing rape on her. Having held the accused guilty for the aforesaid offences, the learned judge adjourned the case on the next date for hearing the accused on the point of sentence and on 20.6.2003 after hearing the advocate of the accused and the learned Public Prosecutor, he awarded sentence to the accused, as stated earlier. The impugned order of conviction and sentence passed by the trial court is challenged by the appellant-accused, through jail by way of Criminal Appeal No. 770 of 2003. He has prayed for legal aid. Therefore, learned advocate Shri N.K. Majmudar, having 13 years of practice, is appointed by the office of this Court to defend the appellant-accused in his appeal as well as confirmation case.

6. We have heard both, learned advocate Shri NK Majmudar for the appellant-accused as well as learned APP Shri PR Abichandani for the State in both, Confirmation Case as well as Appeal for a considerable time in detail. At the out set, we must state that both the learned advocates Shri NK Majmudar for the appellant-accused and Shri PR Abichandani learned APP for the State have taken us through the entire oral as well as documentary evidence on the record and the reasoning assigned by the learned Judge for convicting the accused for the aforesaid offences in his Judgment. This was a case of hanging and that the accused was defended by an appointed Advocate, therefore, we had kept the accused personally present during the entire hearing of this case. After hearing was concluded he was also personally heard on the point of sentence.

7. Learned advocate Shri NK Majmudar for the appellant-accused vehemently submitted that entire prosecution case rest on the interested testimony of the witnesses who were closely related to the deceased. He submitted that though the independent witnesses were available they were deliberately not examined by the prosecution and one independent witness Magru Sampat Koli PW-13 examined by the prosecution has turned hostile, therefore, it would not be safe to rely on the interested testimony of the relatives of the deceased for convicting the accused. He further submitted that Rambaran PW-7 is the chance witness who claimed to have seen accused taking away 'Sanju' in the night at 1.00 O'clock from the cot. He submitted that evidence of Rambaran is not at all reliable. He submitted that if Rambaran had seen the accused then he could have easily seen his niece 'Sanju', who was carried by the accused on his shoulder, in the night time. The natural conduct of the uncle would be to immediately raise shouts or stop the accused from taking away the girl, but he did not do anything at that time and quietly gone to sleep. It is only when complainant Kevalpati and others raised shouts and informed him that 'Sanju' was missing from the cot then only he said that he had seen the accused taking taking away girl but due to night time, he could not see the face of the girl and he was under the impression that the accused was taking daughter of son-in-law of his brother, therefore, he did not raise any shout or stop the accused from taking away the girl. He submitted that once his evidence is discarded then the most important circumstance namely the accused seen last together with the deceased is not proved. Therefore, benefit of doubt must go to the accused. Shri Majmudar further submitted that first part of incident narrated by the complainant Kevalpati taking place at about 10.00PM in the night at her house is completely got up and concocted one. He submitted that presence of the accused at the house of Kevalpati at 10.00PM was highly doubtful because it was raining and her brother Rajaram, PW-6 was sleeping in the rear portion of her house. He further submitted that almost all prosecution witnesses narrated parrot like story which creates strong suspicion in the mind of the court and the benefit of it must go to the accused. Shri Majmudar also submitted that there was no water in the 'puddle' from where the dead body of 'Sanju' was found. He submitted that in the evidence of panch witness Mohanji Munnaji Vanzara, he has clearly admitted that there was no water at the place where the dead body of the deceased was found. He submitted that in this type of case of circumstantial evidence even slightest contradiction is there, then the benefit must go to the accused. He also submitted that as per the FSL report, blood with semen was found but the blood group could not be opined. He also submitted that as per the inquest panchanama, no external mark of injury was found on the dead body of the victim. Under the circumstances, the court should give benefit of doubt to the accused and acquit him for the offences for which he was charged. Alternatively, he submitted that at the most the prosecution can said to have proved its case against the accused for the offence under sec. 302 of IPC and not under sec. 376 of IPC because there was no medical examination of the accused and the doctor is not examined on this point. He submitted that no sperm of the accused was collected to establish that first the accused committed rape on 'Sanju' and then killed her. He, therefore, submitted that at the most the accused can be convicted for the offence under sec. 302 of IPC for which maximum punishment of death sentence cannot be awarded because this cannot be said to be a 'rarest of the rare cases'. He submitted that the trial court has not considered the mitigating circumstances in favour of the accused for not awarding death sentence, namely; (1) That the accused was aged 36 years. (2) He has not married because except him there is no one in his family to look after his old parents and (3) From the evidence of prosecution witness Rajaram, it is clear that on the fateful night at about 10.00PM, the accused consumed liquor, therefore, he must be completely under the influence of alcohol and may not be knowing what he was doing, (4) He has no past criminal record, (5) He came to Gujarat from U.P. just two months before the incident and in the weak moment, if he had committed any offence, then he may not be hanged for the same. He submitted that life imprisonment would be the proper imprisonment in this case. He also submitted that in utter disregard to sec. 235(2) of the Code of Criminal Procedure, the learned judge has awarded death sentence to the accused without hearing him personally. He submitted that he should have heard the accused personally and not his advocate on the point of sentence. He further submitted that if the accused was asked personally then he would have narrated the aforesaid mitigating circumstances in his favour for imposing lesser punishment. Thus, the learned judge has failed to discharge his duties, therefore, death sentence be commuted to life imprisonment. Lastly, he submitted that the learned Judge should not have been blood thirsty. He, therefore, submitted that the death sentence be commuted to life imprisonment for the offence under Sec. 302 IPC. In support of his submissions, Shri Majmudar has relied upon the following judgments of the Hon'ble Supreme Court:

1) AIR 2002 SC p. 70 Bantu alia Naresh Giri vs. State of M.P.

2) AIR 2001 SC 2043 Raju vs. State of Haryana

3) (2001)2 SCC 28 Mohd. Chaman vs. State (NCT of Delhi)

4) AIR 1980 SC 898 Bachan Singh vs. State of Punjab

5) AIR 1979 SC 916 Rajendra Prasad vs. The State of Uttar Pradesh

6) AIR 1999 SC 1699 Kundal Lal vs. State of U.P.

7) AIR 1989 SC 1456 Allauddin Mian and others vs. State of Bihar

8) 1987 Cri.L.J. 180 Dasan and others vs. State of Kerala

9) AIR 2003 SC 3131 Amit alia Ammu vs. State of Maharashtra

10) AIR 1983 SC 957 Machhi Singh and others vs. State of Punjab

8. Learned APP Shri Abichandani, for the State, however, submitted that this is a full proof case where the prosecution has fully established the chain of circumstantial evidence against the accused. He submitted that the witnesses may tell lie but not the circumstances. When the prosecution has proved its case against the accused beyond reasonable doubt then there is no question of interfering with the judgment and order of conviction and sentence passed by the learned Judge. He submitted that in the instant case, mostly interested witnesses would be there, therefore, the court is required to examine their evidence closely. But merely because they were related to the deceased is no ground to discard their evidence. He further submitted that all the prosecution witnesses have been fully cross-examined by the advocate of the accused but nothing has come out in their cross-examination. Some minor contradictions here or there should not make any difference because such type of minor contradictions are bound to be there in almost all cases. He submitted that no undue importance should be attached to such minor contradictions. He further submitted that the incident in question must have occurred between 1.00 AM. to 4.00 AM and immediately at about 4.00AM the accused was apprehended by the people and when he was asked about 'Sanju', he refused to disclose the truth, therefore, police was called and, thereafter, he was taken to the police station and during interrogation at police station he confessed everything. Thereafter, he took the police to the place where he committed the rape and then at the place where he threw the dead body of the deceased. The panchanama of scene of offence, arrest panchanama of the accused, inquest panchanama and other oral evidence of the prosecution witnesses clearly go to show that it is the accused and accused alone who committed cold blooded murder of minor girl 'Sanju' after committing rape on her. He submitted that there was no question of his sperm being sent to the doctor for his report because the accused never discharged it though he was sent to doctor thrice or four time. Therefore, merely because the doctor has not deposed about the examination of the accused on this point, it would not be proper for this Court to discard the entire prosecution case. He submitted that no undue importance should be attached to the evidence of panch witness Mohanji Munnaji Vanzara, who seems to have inadvertently stated in his cross-examination that there was no water in the 'puddle'. Except him, all other witnesses have stated that the dead body of 'Sanju' was found floating in the 'puddle' which was full of water. P.M. Note and the evidence of Doctor also shows that 'Sanju' died because of drowning and that was possible only if she was thrown in the water. He also submitted that evidence of Rambaran is natural and reliable. He submitted that except accused, no one else could have committed this offence because immediately at 4.00 AM with blood stain clothes having semen on it and few spots of cow dung he was caught by the people. He further submitted that at 4.00 AM when the accused was taken to the police station, he had shown his willingness to show the place of offence where he committed rape and the place where he threw 'Sanju'. Both the places were isolated. It was at a distance of about 1.00 k.m. from the house of Kevalpati. This was not possible if any other person had committed this offence and except the accused, nobody had any grievance with the complainant. He submitted that the accused had consumed liquor and at 10.00 PM in the night in a drunken condition he had gone to the complainant, when she was sleeping with her two minor daughters, and demanded to have sexual intercourse with her by offering Rs. 150/-. When she refused it, he did not leave the place till she called her brother Rajaram, who was sleeping in the rear portion of the house. He came and scolded him and driven him out. The accused was the tenant of complainant Kevalpati and staying on her first floor. Instead of going to his room, he left the house by saying that he was going to his brother's house at HUDCO. But, he did not go to his brother's house and hide himself and waited for an opportunity. He came back at 1.00 AM in the night when every one was sleeping. He saw two minor girls of Kevalpati were sleeping alone on the cot. He quietly lifted 'Sanju' on his shoulder and took her away, but he was seen by the witness Rambaran as he had come out from his house to answer nature's call. He submitted that the complaint was lodged by the complainant Kevalpati at the earliest point of time i.e. at 6.00 AM without any exaggeration about the incident and the name of the accused was clearly mentioned in it. He also submitted that P.M. Notes and the Doctor's evidence clearly show that there were several external marks of injury on the dead body of 'Sanju' and merely because the blood group could not be determined that fact itself is of no help to the accused. Because, admittedly blood with semen was found on the muddamal articles, like nicker put on by the deceased and the accused. He, therefore, submitted that when the prosecution has established its case beyond reasonable doubt against the accused for the offence of kidnapping, rape and murder then this Court should not interfere with such order of conviction. He also submitted that this is a 'rarest of rare cases' where no other punishment except punishment of death sentence is called for and the learned judge has rightly awarded the death sentence to the accused which should not be interfered with by this court. He submitted that the circumstances narrated by Shri NK Majmudar learned advocate for the appellant-accused cannot be said to be mitigating circumstances for imposing lesser sentence of life imprisonment. He submitted that the manner in which the accused committed well planned, organized offence shows that he had peevish plan in his mind. Accordingly, to his plan he first kidnapped 'Sanju' and then committed rape on her and thereafter killed her. This was done by him only because her mother refused his lust of sex at 10.00 PM on that fateful night and thereafter her brother scolded and driven him out from the house. Thus, he was insulted, therefore, he wanted to take revenge. Relying on the Panchnama of scene of offence, inquest panchanama and the P.M. Notes, he submitted that in a most jungly manner the accused notched poor innocent minor girl 'Sanju' aged 7 and committed rape on her and, after throttling her, threw her in the water. Thus, because of drowning she died. He further submitted that the accused claimed that he has not married because his two elder brothers are separated, and except him, there is no one to look after his old parents. However, the reality is totally different. He was staying all alone in Ahmedabad leaving his old parents in U.P. He came from U.P. just two months of the incident. He was sex hungry. He expressed desire of sex to a lady where he was first staying as a tenant in Ahmedabad, because of that he was driven out from there. Thereafter, he was staying in the house of Kevalpati as her tenant. Kevalpati was not knowing the past record of the accused. He submitted that old parents must be very well looked after by his other two married brothers and one unmarried brother, who are staying separately from them. He submitted that if he is kept at large in the society, then he will be danger to the society and no innocent girl would be safe. He submitted that in this type of cases, deterrent punishment is very much necessary. He submitted that if any undue mercy is shown to the appellant-accused then it will have adverse effect on the society as well because such type of cases are increasing in our society. For confirmation of death sentence awarded by the learned trial judge, Shri Abichandani has relied on the following judgments of the Hon'ble Supreme Court.

1) AIR 1996 SC 2800 Kamta Tiwari v. State of M.P.

2) AIR 1995 SC 1387 Laxman Naik vs. State of Orissa

3) AIR 2000 SC 177 Molai and another vs. State of Madhya Pradesh

4) AIR 1983 SC 594 Javed Ahmed Abdulhamid Pawala vs. State of Maharashtra

5) AIR 1998 SC 2889 Govindasami vs. State of Tamil Nadu

6) AIR 1992 SC 395 Smt. Shashi Nayar vs. Union of India and others

9. He also submitted that sometime back, because of this type of incidents it was suggested in the Parliament to provide death sentence even in rape cases so that it has deterrent effect on the accused. It is a different matter that so far no such amendment is brought, but this can also be certainly considered by the Court. Lastly, he submitted that the learned trial judge, who awarded death sentence cannot be said to be blood thirsty. Except discharging his duty he has not done anything more. He submitted that if he had not awarded death sentence then he would have failed to discharge his duty. He, therefore, submitted that the death sentence awarded by the learned trial judge to the accused be confirmed and the appeal filed by the accused be dismissed.

10. Before appreciating the rival submissions of the learned counsel for the parties, we would like to deal with the evidence of prosecution witnesses in nutshell as the same is extensively dealt with by the learned judge in his impugned judgment and order of conviction and sentence.

11. PW-1 Exh. 7 Vasantlal Vipati is the panch witness of inquest panchanama (Exh. 8). He has clearly stated in his evidence that on 12.9.2002 police called him at Kathavada GIDC, Behind Cellulose Company at the place where the dead body of daughter of Kevalpati aged 6-7 years was lying in a puddle which was full of water. Lot of blood was coming out from the mouth of dead body. Blood was also coming out from the private part of the girl. That time, he heard that tenant residing in the house of the girl committed her murder after raping her. He has signed the panchanama at exh. 8. The said panchanama was recorded between 7.00AM to 7.35AM on 12.9.2002. In his cross-examination, he stated that on the day of incident, he had night duty. House of Kevalpati was at a short distance of his house. He reached the place at about 7.00AM after he was coming from duty. Rambaran told him to become panch, therefore, he agreed. He clearly stated that he signed panchanama only after it was drawn. He categorically denied that he had never gone to the place of incident and that he had not seen anything and later on he signed the prepared panchanama.

12. Kevalpati, widow of Ramsharan PW-2 Exh. 9 is the mother of deceased Savitri @ 'Sanju'. She stated in her evidence that she is from U.P. Rajaram (PW-6) is her brother. She had two daughters, one Gayatri @ Manju aged 8 and another Savitri @ 'Sanju' aged 7 and son Manoj aged 16. She is running grocery shop in her house. Her husband died about 5 years back. Rambaran (PW-7) is the younger brother of her husband, whose house is third from her house. Her brother Rajaram, serving in the Medical Store at Kankaria stays with her. She has got two storeyed house. Three rooms on the ground floor and three rooms on the first floor. She stays on the ground floor. On the first floor, accused Surendrapal was staying as her tenant in one room and paying rent of Rs. 350/- p.m. He was staying since two months of the incident. His brother and brother's wife were staying at HUDCO. On the night of the incident i.e. on 11.9.2002, at 10.00 pm. she was sleeping with her two minor daughters in the front side of her house. At that time, her son had gone to see movie on VCR of her neighbour. Her brother had also gone along with him. After movie was over, her brother & son were sleeping on the rear otla of her house. She was sleeping in the front side of the house on the cot with her two minor daughters. Since last two days of the incident, she was not feeling well. When she was sleeping on the cot between 10.00 to 10.30PM accused Surendrapal came and sat on the cot and told her that he wants to sleep with her and offered Rs.150/- for having intercourse with her. She refused and asked him to get out from there, but he did not go. Therefore, she called her brother and son from rear side of her house. They scolded and driven out the accused. While going he said that he is going to his brother's house and did not go to sleep in his room on the first floor. Thereafter, for some time, she slept with her daughters. But she was feeling cold, therefore, she went inside the house. After an hour, when she came out, she found only one daughter Manju on the cot but 'Sanju' was not there. Thereupon, she called her son, brother and brother-in-law. Her brother-in-law Rambaran told them that when he had gone to answer call of nature, he had seen Surendrapal taking away one girl with him but he thought that she must be the daughter of son-in-law of his brother, therefore, he had not stopped him. Thereafter, they started searching Surendrapal. Her son had gone in search of Surendrapal at his brother's place at HUDCO but his brother and brother's wife told them that Surendrapal had not come to their house. Shyambahadur Rampal Jadav (PW-5), is her neighbour. He had seen Surendrapal at about 3.30AM to 4.00AM near Dwarkanath School on the main road and caught him. At that time 'Sanju' was not with Surendrapal. When accused did not tell anything about 'Sanju', then her brother Rajaram called police on phone, but he did not disclose anything to the police also. Therefore, police took him to the police station. During interrogation in the police station, he told PSI Chudasama that after kidnapping 'Sanju' he committed rape on her then throttled her and threw her in the 'puddle' full of water, near GIDC. Then, he took the police at the place where he had thrown deceased 'Sanju' after committing rape on her. She along with her brother and brother-in-law had also gone to the place of incident. Thereafter, she lodged the complaint Ex.10. She identified the accused in the court and stated that he was her tenant. She had also identified the articles put on by her daughter 'Sanju' at the time of incident when the dead body of 'Sanju' was found from the puddle. She had seen blood coming out from the mouth and private part of 'Sanju'.

In her cross-examination, she stated that after death of her husband, she had not remarried and she was staying with her brother, her son and two daughters. On her first floor, one Raju Bihari was staying in one room with his family since last 2 to 3 years and Accused Surendrapal was staying in another room since last two month of the incident. Two to four days prior to the incident, it was raining. Her son Manoj was sleeping with his maternal uncle on the rear side of her house. Up to 10.30 PM, she was sleeping out side. Accused Surendrapal is also from U.P. On that fateful day for the first time, Surendrapal sat on her cot. She stated that in her complaint, she had not stated that she asked accused to go away and allow her to sleep. She scolded the accused and driven him out. She admitted in her cross-examination that she has not stated in her complaint that the accused did not go and asked to sleep on the cot with her. She also stated that her brother came and driven out the accused. Thereafter, she slept with her daughters, till she was sleeping on the cot, the accused did not come again. Number of people were sleeping in Bhagawatinagar outside their houses. First she woke up her brother and then her neighbours, when she found that 'Sanju' was missing from the cot. Shivbahadur is her neighbour. Rambaran brother-in-law is also staying there. Mishra, Tiwari and Yadav were also staying in the vicinity with their families. On hearing her shouts, they came there. All of them searched Surendrapal but he was not found. When Surendrapal was apprehended on the road, she was there. The place was at a short distance from her house. It was about 3.00AM to 4.00AM. 40 to 50 persons gathered there. They asked Surendrapal about 'Sanju', but he did not tell anything to them. Odhav Police was called by her brother Rajaram. She has clearly denied that nearby people told that there was no evidence against Surendrapal, therefore, police should not be informed. She also stated that when police came there, accused stated that he was not knowing anything about 'Sanju'. Police took the accused on its own by saying that he will disclose the true facts only in the police station. Complaint was lodged by her at about 6.00 to 7.00AM on 12.9.2002. She has clearly denied that the dispute was going on between her and Surendrapal for getting vacant possession of the room from Surendrapal, therefore, she has filed false complaint against him. She has admitted that son-in-law of the accused was throwing water from the first floor, therefore, she told him not to throw water. The incident of throwing water took place just one day before the date of incident.

13. Thus, from the evidence of Kevalpati it is clear that FIR (Exh. 10) was lodged by her at the earliest point of time i.e. 6.00 AM, wherein she has clearly stated that accused came and sat on her cot and demanded sexual intercourse with her and offered Rs. 150/- for the same. She refused that offer and scolded him and driven him out after calling her brother Rajaram and her son Manoj. Thereupon, accused left the place by saying that he is going to his brother's place at HUDCO. She was feeling cold therefore she went inside the house leaving her both the daughters alone on the cot. After about one hour when she came out, she saw her daughter 'Sanju' missing. Her brother-in-law Rambaran told her that he had seen her tenant Surendrapal taking away one girl in the night but he thought that she was the daughter of son-in-law of his brother, therefore, he did not stop him. The accused was not found in his room or at his brother's house. They made search of the accused every where and caught him at 4.00AM on the main road near her house, but 'Sanju' was not with him. Thereupon, her brother informed the police on phone. The police came there and took the accused to the police station where accused said that he killed Savitri @ 'Sanju' after committing rape on her and thrown her body in the puddle near GIDC, and shown the place where he committed rape and the place where he threw 'Sanju' in the puddle.

14. Next witness PW-3 Exh.11 Ghanshyam is son of Rambaran is 16 years old boy. He is cousin of deceased 'Sanju'. He has stated in his evidence that Kevalpati was staying with her three children i.e. son 'Manoj' and two daughters 'Sanju' and 'Manju' on the ground floor in three rooms. Raju Bihari stays in one room and accused Surendrapal was staying in another room as tenant. 'Sanju' was aged 7 years. Surendrapal used to play with 'Sanju' and 'Manju' and taking them outside with him. The incident took place on 12.9.2002. At that time, he was sleeping at his house. His father was also sleeping. At about 1.00 O'clock in the night, 'Manoj' came to call his father and asked him about 'Sanju'. His father Rambaran told him that when he had gone to answer the call of nature in the night at about 1.00 p.m., he had seen Surendrapal taking one girl, and she must be 'Sanju'. Thereafter, along with his father and others they had gone in search of 'Sanju'. First they went to HUDCO where relatives of the accused were staying. They enquired from Jagmohan and others but they told them that Surendrapal had not come there. They came back and told it to Kevalpati. Thereupon, she ran towards the road crying. Manoj was following her. At that time, Surendrapal was coming from GIDC side. He was caught by 4 to 5 persons and brought at the house of Kevalpati. They asked about 'Sanju', but he did not say anything. Thereafter, Rajaram called the police on phone. Police came there, but he did not tell anything to police also. Thereafter, police took him to the police station and he came back to his house. Between 7.00 7.30 AM he came to know that 'Sanju' was raped, throttled and thrown in 'puddle'. He went there and found her dead body taken out from the puddle. He had seen the dead body of 'Sanju'. Blood was coming out from her mouth and her private part.

In his cross-examination, he stated that when Manoj came there to call him, he was sleeping. Manoj told him that 'Sanju' was missing. When he and his father had gone to Kevalpati's house, Rajaram had gone in search of the accused. When he reached the house of Kevalpati, many persons gathered there. He was not aware whether any quarrel took place between Surendrapal and Kevalpati on the previous night of the incident or not. For the first time, Rajaram, Arjun came back and told them that they made search but 'Sanju' was not found. He and his father had also gone in search of 'Sanju' but she was not found. The place where Surendrapal was caught, was just nearby his house. Surendrapal was coming back to his room in the morning from GIDC road. He had not gone along with the Rajaram when he had gone to call police on telephone. Police must have come between 4.00 to 5.00 AM. At 5.00 AM police took Surendrapal to the police station. Next day morning, he came to know that Surendrapal had kidnapped 'Sanju'. He denied that he was falsely deposing because Kevalpati was his grand-mother.

15. PW-4 Shivllaliben Rambaran Pal (Exh. 12) is wife of Rambaran. She has also stated almost same thing what has been stated by her son Ghanshyam and her husband Rambaran about Surendrapal taking away one girl in the night with him, but her husband thought that she must be daughter of son-in-law of brother of the accused, therefore, not stopped by him. We would like to reproduce material portion of her cross-examination, wherein she stated that that after answering the call of nature, her husband did not inform her that Surendrapal took one girl with him. She stated that they had gone to the house of brother of Surendrapal but Surendrapal was not there in his room. His Son-in-law came out on his own because of noise. When her husband told them that Surendrapal took one girl with him, then it created doubt in their mind. However, she did not go to the house of Raju Bihari nor she had seen her husband or anybody going to the house of Raju Bihari. She had also not seen anyone going to the room of son-in-law of Surendrapal. Several persons gathered there. She could not say who had seen first Surendrapal when he was coming back from the main road, as she had not gone on the road. Surendrapal was caught and brought home by her sister-in-law, Kevalpati, Arjun, Ghanshyam and others. She was not knowing who took out the dead body of Sanju from the 'puddle'. However, she has clearly denied that Kevalpati is her relative, therefore, she was falsely deposing against the accused.

Date: 20.11.2003

16. PW-5 Shyambahadur Rampal Jadav Exh. 13 is neighbour of complainant- Kevalpati. He stated in his evidence that early in the morning at 4.00Am, Manoj with one Gujaratibhai came to the place of his job and told him that Surendrapal is arrested for kidnapping his sister 'Sanju', therefore, he should come. After taking leave, he went to his house. When he reached his house, many persons were there. Surendrapal was also there. He asked Surendrapal about the girl, but he had not given any information, therefore, Rajaram called the police on phone. Police came and took Surendrapal to the police station. He along with the Rajaram and Kevalpati went to police station. In the police station, Surendrapal stated that he threw 'Sanju' in the 'puddle'. All of them had gone to the puddle near GIDC and took out the dead body of 'Sanju'.

In his cross-examination, he has stated that being neighbour Manoj (son of Kevalpati) came to call him. Manoj came at 4.00Am, within five minutes, he reached home. About 20 to 25 persons must have gathered there. Prior to that, he had not gone to the house of Kevalpati. He has denied that he is neighbour of Kevalpati, therefore, falsely deposed against the accused.

17. PW-6 Rajaram Mohanlal Pal Exh. 14 is the real brother of complainant Kevalpati and maternal uncle of deceased 'Sanju'. He stated the same thing what has been stated by Kevalpati about her family. He was paying Rs. 500/- P.M. to his sister for food. His service hours are from morning 11.00AM to 8.00PM. At times he has to do over time. He is married having one daughter and two sons. All of them are staying in his native place. His salary is Rs. 1800/-. Surendrapal came just two months before the incident. Surendrapal was serving in the factory of Ashutosh Engineering Company near Gujarati Vepari Mandal. On the day of incident, he came back from his job at 8.30PM. When he was resting on his cot, his sister called him for dinner. After having dinner, he had gone back. Magrubhai (PW-13) is his neighbour. At his house, one movie 'Sholay' was shown on CD Player. He had seen the movie for some time and, then he went to sleep. Manoj ( son of complainant Kevalpati ) was sleeping with him. His sister Kevalpati and two niece were sleeping on the front side otla of the house. At about 10.00PM, his sister came and told him that Surendrapal was harassing her. She also told him that Surendrapal was telling her to sleep with him and accept Rs. 150/- for the same. Thereupon, he and Manoj, went there and scolded him and driven out the accused Surendrapal from there. Thereupon, Surendrapal told them that he is going to his brother's house and went towards HUDCO side. After Surendrapal left, he and Manoj went to sleep. Thereafter, at 1.00 O'clock in the night, his sister came and told him that 'Sanju' was missing. Thereupon, he, Manoj and Arjun first searched Sanju on the ground floor, but she was not found. They also searched her up stairs on the first floor but she was not found. Thereafter, Manoj went to wake-up Rambaran, who told him that he had seen Surendrapal taking away one girl with him in the night. Therefore, they had gone to the house of brother of accused at HUDCO, but he was not there. They had also enquired at the place of Shyamlal neighbour of Jagmohan about Surendrapal but he was not there. Sanju was playing with daughter of Fulchand, son-in-law of brother of Surendrapal. She also use to play with Surendrapal. Surendrapal was giving her chocolates, etc. Several persons gathered there. Somebody suggested to make inquiry at Kathavada GIDC. They had gone there, but 'Sanju' was not found. He told his sister that 'Sanju' was not found. Thereupon, his sister started crying and shouting. Once again, they had gone in search of Sanju. It was almost 3.30 Am to 4.00 AM. At that time, Surendrapal was coming on the road from GIDC. Arjun and Magrubhai were also present. Arjun caught Surendrapal and, thereafter, he was brought to the house. They asked Surendrapal about 'Sanju', but he said that he was not knowing about Sanju. There were red spots on the Baniyan of Surendranath. He did not disclose anything, therefore, he called the police on telephone from STD near Dwarkanath School. Police came and enquired from Surendrapal but at that time also Surendrapal did not disclose anything. Therefore, police took him in Van to the Police Station along with him, his sister Kevalpati and Shyambahadur and interrogated Surendrapal. There he stated before the police that after committing rape on Sanju, he throttled her and threw her in a puddle near GIDC, Kathavada. The police asked the accused to show the dead body of 'Sanju.' He took them at the puddle near Cellulose Company, at GIDC Kathavada. Rambaran took out dead body of the Sanju from the water. He had seen dead body of Sanju. Blood was coming out from the right side of the mouth which had reached up to her ear and blood had also come out from her private part. Thereafter, her sister Kevalpati lodged the complaint. Police recorded his statement. When police interrogated Surendrapal, he was very much present. Surendrapal stated before the police that he lifted 'Sanju' from the cot and took him to GIDC on his shoulder and there he committed rape and after throttling her, he had thrown the 'Sanju' in the puddle. He had identified Surendrapal in the court.

In his cross-examination, he stated that Surendrapal was staying with his son-in-law Fulchand. He had seen movie up to 9.00 to 9.30PM in the night and then went to sleep. He denied that on that day he, Surendrapal and one driver had consumed liquor. However, he admitted that Surendrapal had taken liquor. He had driven out Surendrapal at 10.00 PM. He admitted that Surendrapal was drunk, therefore, he told him to go to his room and sleep. However, he denied the suggestion that Raju Bihari and Surendrapal were throwing water from the first floor, therefore, there was a dispute between them and Kevalpati. He was not knowing where Surendrapal had taken liquor. He has admitted that after he had driven out Surendrapal, he left the place and he was not knowing where he had gone. After his sister called him, first they searched nearby places and, then went went to HUDCO. He woke-up Raju Bihari and Magrubhai. Thrice he had gone in search of 'Sanju' but he had to come back with empty hands. Walkable distance from his house to the puddle was of few minutes. He had not gone right up to that place. Thrice he had gone in search of Sanju but when they did not find 'Sanju', then they thought that only Surendrapal must have kidnapped 'Sanju'. At about 4.00AM, he called police and within 10 to 15 minutes, police reached there. When police enquired from accused Surendrapal, he did not say anything to the police, thereupon, they told the police to take him to the police station. Complaint was reduced in writing in the morning. Police called several persons at different time on that day. He has admitted that when his sister was lodging complaint, Manoj and Shyambahadur were present with him. He has clearly denied that because he was brother of Kevalpati, he was falsely deposing against the accused.

18. PW-7 Rambaran Exh. 15, is brother-in-law of complainant Kevalpati. He is the witness who had seen the accused Surendrapal taking away girl 'Sanju' on his shoulder from the house of Kevalpati at about 1.00 O'clock in the night. He has stated in his evidence that he was serving in Deep Painter as 'watchman' since last 17 years. His service hours are 8.00AM to 8.00PM. Thursday is his weekly off. He has got two sons and one daughter. On 11.9.2002, he had gone to his job. He came back at about 8.30pm. House of Kevalpati is third to his house. Her house is two storeyed. Kevalpati is staying on ground floor. On her first floor, (1) Raju Bihari, and (2) Surendrapal were staying as tenants. On 11.9.2002 after coming from service he watched TV for some time and after taking dinner he went to sleep at 10.00PM in the night. His bathroom is out side his house, therefore, he came out from his house to answer the call of nature at 1.00 O'clock in the mid-night and when he came out from the bath-room, he saw accused Surendrapal nearby the cot on the otla of the house of Kevalpati in the light of one small lamp. He lifted one girl from the cot and quietly went away. At that time, he thought that she must be the daughter of Fulchand, son-in-law of the brother of the accused, therefore, he did not tell anything to any one about it and went inside his house. After 20 minutes, his nephew Manoj came and told him that 'Sanju' was missing. Thereupon, he told him that Surendrapal was moving around there and he must have kidnapped 'Sanju', at that time he thought that he was taking daughter of Fulchand, therefore, he had not tried to stop him. Thereafter, he along with Ghanshyam (PW-3) and his wife Shivallali (PW-4) came to the house of Kevalpati, and along with his son Ghanshyam and Manoj he had gone to the house of Brijmohan, brother of Accused Surendrapal towards HUDCO. They told them that Surendrapal had not been there. Thereafter, they had gone to the house of Shyamlal and then to the house of Shital. Wife of Shital told him that Surendrapal was staying there, at that time also, he made such indecent proposal, therefore, he was driven out from there. Then they came back to Bhagwatinagar. He saw his sister crying and running on the road. Manoj and Rajaram were following her. Arjun and Magru were also searching Surendrapal on the road. At that time, Surendrapal came from GIDC side. He was caught by the people gathered there and brought to the house and asked about 'Sanju', but he did not tell anything to any one. He also enquired from him and told him that he had seen him taking away 'Sanju', but he did not give any response to him. They had seen spots like blood stains on the Baniyan of Surendrapal. Muddamal Articles 6 and 7 i.e. Shirt and Baniyana and muddamal Article 8 Pent put on by the Surendrapal at the time when he was caught were identified by him. He told Rajaram to inform the police. Police came there at that time, they called brother and wife of brother of accused Surendrapal. They had also asked Surendrapal but he did not disclose anything to them. He did not disclose anything even to the police. Thereupon, he was taken to the police station. He, Kevalpati, Shyambahadur and Rajaram had also gone along with the accused to the police station. In the police station, on interrogation, Surendrapal stated that after committing rape on 'Sanju', he throttled her and threw her in the 'puddle'. Then he took the police to the place where the dead body was lying. Dead body of 'Sanju' was floating on the water. He took out her dead body. Blood was coming out from right side of her mouth and also from her private part. She had put on frock at that time. Accused Surendrapal had also shown the place to the police where he committed rape on 'Sanju'. After preparing inquest Panchanama, dead body of 'Sanju' was taken to the Civil Hospital. Police recorded his statement. Accused Surendrapal was identified by him in the court.

In his cross-examination, he has categorically stated that in the light of lamp on the otla of Kevalpati's house, he had seen accused Surendrapal taking away girl. He denied that he had not stated in his statement before the police that Surendrapal was moving around there and he had seen him taking away one girl. He also stated that it was true that at that time he was not knowing that he was taking 'Sanju' and that he had not identified the girl. He had not stopped Surendrapal because he was under the impression that he was taking daughter of Fulchand son-in-law of his brother. He has denied the suggestion that he had not stated in his statement before the police that after 20 minutes, his nephew Manoj came to wake him up. He stated that there is a distance of hardly 150 ft. from his house and the house of Kevalpati. He admitted that when every one asked the accused, he did not say anything to anyone, therefore, people gathered there said that he will not admit like this, and the police be called. He also admitted that when police came, he told the police that Surendrapal had taken away 'Sanju' with him, therefore, he may be taken to the police station. Kevalpati must have lodged the complaint at about 4.00AM to 4.30AM. Police recorded his statement on the same day. He has also admitted that complaint and statements were recorded almost simultaneously. He denied the suggestion that because Kevalpati is his sister-in-law, therefore, he is falsely deposing against the accused.

19. PW-8 Kishorbhai Narsinhbhai Kapadia Exh. 16 is a panch witness of Arrest panchanama (exh. 17) which was drawn on 12.9.2002 between 10.30AM to 11.00Am. He stated in his evidence before the court that initially he was not willing to become panch witness of the Arrest panchanama, but when police persuaded him by saying that if people like him will not become panch, then how police will discharge its duty. Thereupon, he shown his willingness to become panch witness. He had also identified the accused in the court. He also stated that some blood stains were found on the shirt put on by the accused near the chest. One of the buttons of his shirt was broken. Some cow dung spots were also found on the shirt of Surendrapal. Similar type of cow dung spots were found below the knee portion of his pant. Blood stains were also there near chain of his pant. Baniyan put on by him was slightly torn and there were few blood stains marks found on front side of his Baniyan. One cycle key and about Rs. 150/- were found from the pocket of his pant. Jangiya put on by him was also having blood stains. They were seized by the police. Panchanama Ex. 17 was prepared. He had identified the muddamal shirt, pant, baniayan and nicker (Jangiya) put on by the accused at the time of his arrest.

In his cross-examination, he stated that it took about 45 minutes for going to Odhav from Naroda. He was on duty, therefore, he took leave on that day. His usual time of service was between 8.00AM to 12.30 Noon and 2.00PM to 8.00PM. Another Panch Bharat is his friend and staying in his society. Bharat was also on leave on that day. Both of them were going to the relatives' place. At that time, police called them. He denied the suggestion that when he had gone to Odhav Police Station, panchanama was already prepared. He had also denied that he has signed the prepared panchanama.

20. PW-9 Mohanji Munnaji Vanzara Exh. 22 is the panch witness of panchanama of scene of offence Exh. 28, which was recorded on 12.9.2002 between 8.15Am to 10.15AM. He identified the accused in the court. He stated that accused Surendrapal took them behind Cellulose Factory behind HUDCO where he committed rape on 'Sanju'. There one 'Jangiya' was found. One 'petch' of earring was also found. One hair-band put on by the girl was also found. Dead body of the girl was found in the puddle. Muddamal articles no. 1 to 5 i.e. green grass, control grass, nicker, petch of earring and hair-band were identified by him which were seized by the police at the place of offence. Along with him, another panch Ranjit Budhaji Dabhi was present.

In his cross-examination, he stated that he was having Auto rickshaw which he has recently sold. He is maintaining himself by plying auto rickshaw during day time. He denied the suggestion that with the blessing of the police, he is plying rickshaw with kerosene. When he was at a distance of half a kilometer from the police station, he was called by the police. Ranjitsinh was with him. He denied the suggestion that police took his signature on the prepared panchanama in the police station. He has clearly stated that first they had gone to the place in the vehicle and, then his signature was obtained. Walking distance is half an hour between the police station and the place of incident. He stated that water was not in the puddle. He denied that the mother of the deceased had shown the place and not the accused. He stated that the accused shown the place of incident. He denied that because he was driving rickshaw with kerosene, therefore, he signed the prepared panchanama.

Much was said about the statement of this panch witness Mohanji PW-9 when he stated in his cross-examination that water was not there in the 'puddle' but the panchanama exh. 28 which was drawn almost immediately after the commission of an offence and FIR and evidence of the witnesses shows that water was there in the puddle which was was 248 feet 6 inches long and full of water. It seems that without properly understanding the question this witness stated that water was not there in the pit or puddle. Nothing much turns out of it. Because all witnesses said that dead body of 'Sanju' was floating in the water and Dr. has clearly stated that 'Sanju' died because of drowning.

21. PW-10 Rajubhai Basantsinh Urmi Exh. 29 is panch witness of clothes of the deceased which were recovered under the panchanama (Exh. 30) which was drawn between 5.00PM to 5.30PM on 12.9.2002. He completely supported the prosecution case in his chief examination. Nothing has come out in his cross-examination. He has denied the suggestion that the police had only seized frock put on by the deceased girl. He stated in his cross-examination that muddamal was put in the bag and then seized by the police. He denied the suggestion that he had signed prepared panchanama.

22. PW-11 Manoj Ramsharan Pal (Exh. 32) is the elder brother of deceased Sanju and son of complainant Kevalpati. He stated in his evidence that he is studying in 11th Std. Surendrapal was staying as tenant in one of the three rooms on the first floor of his house along with son-in-law of his brother. Raju Bihari was another tenant staying in another room with his family. His sisters used to go to the room of the accused Surendrapal for playing with him. On 12.9.2002, he was sleeping on the rear side of his house. Before going to sleep, he had seen movie on the video at Magru's house. At 10.00 PM his mother came and told him and his uncle Rajaram that accused Surendrapal was misbehaving with her. Thereupon, he and his maternal uncle Rajaram went there and scolded him and then driven out the accused. At that time, accused left the place by saying that he is going to his brother's place. Thereafter, he and his maternal uncle had gone to sleep in the rear portion of his house. Thereafter, at about 1.00 O'clock in the mid night, his mother told him and Rajaram that Savitri @ 'Sanju' was missing. First they made search in the vicinity and then on first floor, but Savitri was not found. At that time, accused Surendrapal was not in his room. He had gone to call his uncle Rambaran at about 1.30 O'clock in the night and asked him whether he had seen his sister? Rambaran told him that at 1.00 O'clock when he had gone for answering nature's call that time, he had seen Surendrapal taking away one girl on his shoulder but he thought that she was daughter of son-in-law of the brother of the accused, therefore, he had not stopped him. Then, he had gone in search of 'Sanju' towards HUDCO, GIDC, along with Magru, Rajaram and Arjun but 'Sanju' was not found. Therefore, he came back and told his mother Kevalpati that 'Sanju' was not found. Thereupon, she started crying and started running here and there. He and Arjun followed her. When they were on the road, they had seen Surendrapal coming from Kathavada GIDC side. They hide themselves behind Galla and as soon as accused came to Bhagawatinagar, Arjun caught him. He asked the accused about 'Sanju'. He said that he had not taken away 'Sanju'. Thereafter, Rajaram called police on telephone. Police came there. At that time also, accused did not disclose anything to the police. Therefore, he was taken in the Police Van to the Police Station. In the Van, he, his mother, and Rajaram had also gone to the police station. He was sitting outside the police station. During the interrogation, accused told the police that after committing rape on 'Sanju', he throttled her and threw her in the 'puddle' near GIDC. Thereafter, at about 5.00 AM his uncle Rambaran, accused and others had gone towards GIDC, but he does not exactly remember the names of other persons. Then his mother lodged FIR against the accused. Police recorded his statement. He had seen the place where the dead body of 'Sanju' was thrown. It was behind Cellulose Company. Dead body of 'Sanju' was taken out from the 'puddle' by his uncle Rambaran. After reaching home, he came to know that his sister had died, therefore, he ran towards GIDC and saw the dead body of 'Sanju'. He identified the accused in the court.

In his cross-examination, he has frankly stated that prior to coming to the court, he has read his statement made before the police. He also stated that in other room, three persons Fulchand, his brother and accused Surendrapal were staying. He was aware about rent paid by Surendrapal. Along with him Magru had also seen the movie but he did not remember the names of other persons who were also there. At 10.00PM when his mother came, at that time, he and his maternal uncle Rambaran were sleeping in the rear portion of the house. When they went there accused Surendrapal was sitting on the cot. Rajaram scolded the accused Surendrapal for his misbehaviour. The accused left the place by saying that he is going to his brother's house. After the accused left, he and his maternal uncle had again gone to the rear portion of the house and slept. However, again his mother came at 1.00 O'clock mid night. Before that, she had gone to Arjun uncle. Till then, they were not knowing that who kidnapped 'Sanju'. He also searched the room of Surendrapal. They had suspicion that accused Surendrapal must have kidnapped 'Sanju'. He had not searched the room of Raju Bihari. Arjun uncle had searched the room of Raju Bihari. They had also gone to the house of the brother of accused Surendrapal and also to the house of Shyamlal, but he was not found there. Rambaran had gone with his son Ghanshyam towards HUDCO, but he did not accompany them. It was night time when the accused was caught. In the night Rajaram had gone to call the police on phone, he did not go.

23. PW-12 Arjunprasad Jagruprasad Varma, exh. 33, has stated in his evidence that Kevalpati is his sister in the sense that she is from his village. He has narrated the same story which was narrated by the prosecution witnesses in their evidence before the court. In his cross-examination, he has stated that he is neighbour of Kevalpati. He could not say that when accused Surendrapal was caught, he was drunk or not. He admitted that on the suspicion they caught the accused because accused Surendrapal was not there in his room.

24. PW-13 Magru Sampat Koli (Ex. 34) is declared hostile by the prosecution. He stated that Rambaran did not disclose anything to him. After he was declared hostile, he was cross-examined by the learned Public Prosecutor. He has denied that he had stated before the police that 'at that time Rambaran uncle of girl came there and told that he had seen Surendrapal taking away 'Sanju' with him towards HUDCO at 1.00 O'clock in the night.' He has also denied that he stated before the police that 'at that time mother of 'Sanju', Guddu and Arjun had gone on the road and brought Surendrapal to the house and asked him about 'Sanju', but he did not say anything'. He also denied that accused Surendrapal was his friend, therefore, he was giving false evidence before the court.

25. PW-14 Radheshyam Gulabsinh Bhaderiya, Exh. 35 was in charge of Mobile Van on 12.9.2002 between 00.00 hours to 8.00 0'clock. He stated that at 4.20AM he received message from the control that one girl Gayatri was kidnapped by Surendrapal. Surendrapal was arrested but girl was not found. They reached the place at 4.35 AM. Rajaram, who called the police on phone, was present there with Kevalpati and others. Accused Surendrapal was also there. They were saying that the accused had kidnapped the girl. He enquired from the Surendrapal but he did not disclose anything. Thereafter, they took all of them to the Odhav Police Station in the Police Van. He identified the accused Surendrapal in the court. In the Police Station he was interrogated by P.S.I. Chudasama (PW-19) and during his interrogation, accused admitted that after committing rape on the girl, he throttled and threw the girl in the puddle behind Cellulose Factory near Kathavada, GIDC which was full of water. Thereafter, the accused first took them to the 'puddle' where the dead body of girl was floating in the water, which was taken out by her uncle Rambaran. Thereafter, accused took them to the place where he committed rape on 'Sanju'. Message received at 4.20AM was registered in the register. (Exh. 36). Message received at 5.50AM was registered in register (ex. 37). In his cross-examination, he has stated that written message was recorded at 5.50AM on the suspicion that the accused had kidnapped the girl.

26. Sagarbhai Khumabhai, Police Constable, who was Mobile Van Operator, examined as PW-15, Exh. 38. He has said almost same thing what has been stated by Radheshyam PW-14. Nothing has come out in his cross-examination.

27. Chandrakant Hirji Gajjar, PW-16 - Exh. 39, Senior PI, who investigated the case, has produced the report (Ex. 40). He identified signatures on the report (Ex. 40) and FSL report at (Ex. 41). He has stated in his evidence before the court that arrest panchanama of the accused was drawn at Ex. 17. Thereafter, accused was sent to the hospital for medical examination, but the accused did not discharge his semen, therefore, doctor asked him to send the accused again. Again on 3 to 4 occasions, the accused was taken to the Doctor but they could not take his sperm sample as he did not discharge. He has stated that Magru Sampat Koli PW-13 (Exh. 34) who is declared hostile by the prosecution, has stated in his statement that 'at that time Rambaran uncle of the girl came and told them that he had seen Surendrapal going with Sanju at 1.00 O'clock in the mid night towards HUDCO.' Magru has also stated in his statement before the police that 'at that time mother of Sanju, Guddu and Arjun had gone towards road side and brought Surendrapal to the house and asked him about 'Sanju,' but he did not say anything.'

In cross-examination, he stated that he came to know about the incident at 6.00AM in the morning. Within 10 to 12 minutes he reached the place of incident from his house where the dead body was lying in the 'puddle.' Before he reached the place of incident, FIR was already reduced in writing which he read after reaching the police station. He has clearly denied the suggestion that relatives of the complainant Kevalpati raised doubt against the accused and that on his own he had recorded the statements of the witnesses in support of the complaint. He has also denied the suggestion that he had prepared the panchanama of scene of offence and other panchanama at the police station and obtained the signatures of the panchas on the prepared panchnama. He has clearly denied that accused had not shown the place of incident in presence of the panchas and that false panchanama was prepared afterwards. He has clearly denied the suggestion that witness Magru had not stated in his statement that 'Rambaran uncle of the girl came there and told them that he had seen Surendrapal taking the girl 'Sanju' towards HUDCO at 1.00 O'clock in the mid night.

28. FSL report Exh. 41 proved by the Investigating Officer Shri Gajjar was prepared almost immediately after the occurrence by the FSL Authorities of Ahmedabad on 12.9.2002 between 11.30AM to 1.00PM. It shows that the rape was committed in the open place behind Cellulose company and, thereafter, the dead body was dragged and thrown in the 'puddle' which was full of water. Blood was also found on the grass at the place of incident. Control grass, baby nicker of the victim girl and the sample of semen of the accused were collected and sent to the FSL.

29. FSL report Exh. 43 clearly proves that human blood was found on the grass which was collected from the place of incident. Shirt, baniyan, nicker put on by the accused, frock, baby nicker were also having human blood. Except from the nicker having blood and sperm, B-blood group was found on the rest of the muddamal articles. Blood group on the said nicker Article-I remained undecided. Similarly, there was no report about blood group found on Articles L-1, L-2, L-3 and L-4 i.e. Vaginal Swab, though they were having human blood group. But, it will not help the accused in any manner in view of other voluminous evidence against him.

30. Smt. Minaben Dave, PW-17, Exh. 44, FSL Officer is examined to prove letter at exh. 45.

31. Dr. Krunal Patel, PW-18 Exh. 46, Medical Officer, who has performed the Post Mortem, has proved PM Notes (Ex. 47). He has narrated the injuries on the dead body of Sanju in his chief-examination and opined that because of drowning, she has died. In his cross-examination, he stated that the injuries mentioned in column No. 15 and 17 of the Post Mortem may not be directly connected with the cause of death, but due to the injuries shown in column no. 15 and 17 of the Post Mortem notes, the resistance powers of the deceased must have been reduced to such an extent that she must have drowned immediately after she was thrown in the water.

32. P.S.I. Shri Dasharathsinh Chudasama, PW-19 Ex. 48, stated in his evidence that on 12.9.2002 at 4.00AM, the complainant Kevalpati, accused Surendrapal and other witnesses came to Odhav Police Station in Mobile Van. Accused Surendrapal had shown the place where he threw 'Sanju' after throttling her. After recording the complaint of complainant-Kevalpati, he handed over further investigation to Sr. P.I. Shri Gajjar. He also stated that accused did offer Rs. 150/ to Kevalpati for having intercourse, but the complainant refused it, therefore, accused had gone away. The complaint at Exh. 10. The accused had shown the place of offence who was identified in the court by him. Dead body of the girl was taken out by her uncle Ramsharan from the 'puddle'. Only two questions put to him in his cross-examination by the accused namely that (1) he had not recorded the complaint as dictated by the complainant and that he had written the complaint in his own way, and; (2) he has falsely involved the accused in collusion with the complainant. Both were denied.

33. First part of the prosecution story is that in the night of 11.9.2002 at 10.00PM, the accused came to the complainant, who was sleeping on the cot on the front side of her house, when she was sleeping along with her two minor daughters Gayatri @ Manju aged 8 years and Savitri @ 'Sanju' aged 7 years and demanded sexual intercourse with her and offered Rs. 150/-. She refused and asked him to go away, but he did not leave the place. Thereupon, she went to the rear portion of the house where her brother-Rajaram and her son Manoj were sleeping and informed them about the misbehaviour of the accused. They came there and scolded the accused and driven him out from that place. The accused left the place by saying that he is going to his brother's place at HUDCO and did not go to his own room which was on the first floor. This is clearly proved in the evidence of complainant Kevalpati, her brother Rajaram PW-6, Exh. 14 and her son Manoj PW-11, Exh. 32. Nothing has come out in their cross-examination on this point. It is true that on this point there is an interested testimony of all the witnesses, who are closely related to each other, but in such type of cases there may not be any independent witnesses available. When all the witnesses are closely related with each other and highly interested in the matter then with extra care and caution their evidence is required to be closely scrutinised. But, on close scrutiny of the evidence of prosecution witnesses we are of the considered opinion that their evidence is trustworthy and reliable.

34. Complainant Kevalpati stated before the court that after the accused left at 10.00PM in the night, she was feeling cold as she was not well since last two days, therefore, she slept in side the house. After an hour or so, she came out at about 1.00 O'clock in the night to see her daughters sleeping on cot, but one of them i.e. 'Sanju' was not there on the cot. Thereupon, she went to the rear side of her house where her brother was sleeping with her son and informed them about it. They made search in the nearby places and also on first floor where her tenants Raju Bihari and accused Surendrapal were staying, but 'Sanju' was not found. Accused Surendrapal was not there in his room. Thereupon, her son Manoj went to the house of his uncle Rambaran PW-7 Exh. 15 and informed him that 'Sanju' was missing. Thereupon, Rambaran told them that at about 1.00 O'clock in the mid night, he had seen accused Surendrapal near the cot in the light of the lamp taking away one girl on his shoulder, but at that time he thought that the accused was taking daughter of Fulchand, son-in-law of his brother, therefore, he did not tell anything to him or stopped him. However, he could not see the face of the girl in the night because she was on the shoulder of the accused. They made search of the accused at the place of his brother at HUDCO, as while going away at 10.00 PM in the night, accused told the complainant, her brother Rajaram and son Manoj that he was going to his brother's place, but the accused was not found there. Thereafter, they went to the place of neighbour of the brother of the accused where initially accused used to stay but he was not found there also. They came back and told the same to the complainant Kevalpati. She started crying and started shouting and running from here to there. At that time, at about 4.00Am accused came from GIDC road. He was caught and asked about 'Sanju' but he did not disclose anything to them. Thereupon, Rajaram PW-6 Ex. 14 called the police on telephone from STD booth. Police came there. Before police also, he did not disclose anything. Therefore, he was taken to the police station. Complainant and others accompanied him. At the police station, he was interrogated by PSI Shri Chudasama. He confessed everything and stated that he kidnapped girl 'Sanju' from the otla when she was sleeping on the cot and then took her behind Cellulose Company at a open place and committed rape on her and, thereafter, throttled her and threw her in the puddle. Police went there and verified the same. Thereafter, FIR of the complainant recorded at 6.00AM. The arrest panchnama of the accused as well as panchnama of scene of offence were also recorded on that very day.

35. From the evidence of almost all the prosecution witnesses, it is clear that at 1.00 O'clock in the mid night accused was not there in his room when Sanju was missing. They caught the accused coming on the road from GIDC side at about 3.30AM to 4.00AM. Accused did not disclose the truth to them, therefore, police was called. Even before the police, he did not disclose anything. It is only after he was taken to the police station, he confessed his guilt during the interrogation and then took the police to the place where he first committed rape on 'Sanju' and then at the nearby place where he threw her in puddle. All the witnesses were fully cross-examined on this point, but nothing has come out in it. Thus, second part of the prosecution case that accused was caught at about 4.00AM early in the morning on the road coming from GIDC while returning his home, is also proved.

36. It is also proved from the evidence of the witnesses as well as panchas and the documentary evidence like arrest panchnama, etc., that when the accused was arrested blood stains were found on his clothes. His Shirt as well as Baniyan and pant were having blood stains. Below the knee side of the pant there were spots of cow dung. FSL report also shows that the clothes put on by the accused were having B-blood group of the accused. Nicker put on by the accused was having blood with semen, but the blood group could not be determined. Frock and nicker put on by the victim girl 'Sanju' was having human blood group 'B'.

37. Learned counsel Shri Majmudar for the appellant-accused, however, vehemently submitted that the evidence of Rambaran Pal PW-7 Exh. 15 is not at all reliable, therefore, it should be discarded. According to his submission, only one witness Rambaran had seen the accused Surendrapal taking away the girl at 1.00 O'clock in the mid night and if his evidence is discarded then most important link of circumstantial evidence namely accused being seen with the deceased last seen together is missing in this case and, in that case, the benefit of doubt must go to the accused. He submitted that Rambaran is a got up witness, who claimed to have seen the accused from a distance of 150'at 1.00 O'clock in the mid night in the light of small lamp fixed on the otla of the house of the complainant Kevalpati. Mr. Majmudar submitted that it would not be possible for Rambaran to identify the accused from such a long distance of 150', in the dark night, in the light of small lamp. He submitted that he was unable to see 'Sanju' who was carried by the accused. Therefore, he gave an excuse that she was on his shoulder, therefore, could not see her face and that he remained under the impression that the accused was taking away daughter of Fulchand, son-in-law of his brother. He submitted that in such situation he should have stopped the accused or at least enquired from him where he was taking away the girl. But he did not do anything and quietly went inside the house and without informing any one including his wife or his son at home, he had gone to sleep. Such conduct of sole witness Rambaran is absolutely unnatural. He claimed to have seen the accused taking away girl 'Sanju' at 1.00 O'clock in the mid night, by giving an excuse that he came out from his house at 1.00 O'clock in the mid night to make water. In support of his submission, Mr. Majmudar has drawn our attention to the cross-examination of this witness Rambaran. In para-5 of his cross-examination, Rambaran stated that 'it is not true that I had seen Surendrapal moving there and taking away girl.' Rambaran further stated in his cross examination that 'it is not true that I have not stated in my police statement that after 20 minutes my nephew Manoj came to awake me.'

It is true that the advocate of the accused did put the aforesaid suggestion to this witness Rambaran, but it remained suggestion only, as it was not proved in the evidence of the Investigating Officer Sr. P.I. Shri Gajjar.

Mr. Majmudar submitted that independent witness Magru Sampat Koli PW 13 Exh.- 34 has not supported the prosecution case that Rambaran told them that he had seen accused Surendrapal taking away Sanju at 1.00 O'clock in the mid night towards HUDCO. He, therefore, submitted that no reliance can be placed on the sole interested testimony of Rambaran, who is uncle of the deceased 'Sanju'. He submitted that the learned judge committed grave error in partly relying on the evidence of Magru, who was declared hostile. It is true that Magru was declared hostile by the prosecution when he refused to state that it was Rambaran who told them that he has seen accused taking away 'Sanju' at 1.00 O'clock in the mid night towards HUDCO. But in his chief examination, he has clearly stated that on that day, i.e. 11.9.2002, they had gone to sleep at about 10.00PM to 10.30PM after seeing movie with Guddu, Rajaram and Arjun. At about 1.30 O'clock in the mid night Arjun came and awaked him and told him that 'Sanju' daughter of Kevalpati was missing. Thereafter, they made a search of 'Sanju' in the nearby and then Arjun, Guddu and Rajaram and himself went towards the house of the brother of accused Surendrapal, but they did not find any one there. Therefore, they came back and went to the Kathavada GIDC. There also they did not find 'Sanju', therefore, they came back. At least, this part of the evidence of Magru in his chief examination remained unchallenged. Therefore, the fact that at 1.30 O'clock in the mid night they were making search of both 'Sanju' and accused Surendrapal, is fully established. Merely because this witness Magru turned hostile on the point that Rambaran informed him that he had seen the accused taking 'Sanju' with him at 1.00 O'clock in the mid night towards HUDCO side, may not help the accused. In our considered opinion though 'Magru' was declared hostile, ld. Judge rightly relied on his unchallenged evidence on other points.

38. We are conscious that entire prosecution case rest on the sole interested testimony of Rambaran, who is closely related to the complainant. Therefore, with extra care and caution, we have examined his evidence in chief as well as cross. After careful examination of his evidence, we found his evidence trustworthy and reliable. The distance between his house and the house of the complainant Kevalpati was hardly 150 ft. He was knowing the accused very well because he was staying as tenant in the house of his sister in law since last two months of the incident and he had developed intimacy with the daughters of the complainant. Therefore, he could have easily identified the accused in the light of a small lamp fixed on the otla of the house of the complainant. It is also not in dispute that Fulchand son-in-law of his brother was staying in his room along with him having small girl of same age of 'Manju' and 'Sanju' with whom both the daughters of the complainant used to play. Under the circumstances, Rambaran must have remained under that wrong impression that the accused was taking away daughter of Fulchand, son-in-law of his brother and, therefore, obviously he had not stopped the accused because he was carrying the girl on his shoulder. Therefore, obviously he must not be in a position to see the face of the girl. It may be stated that as soon as he was informed by Manoj and others that 'Sanju' was missing, immediately, he narrated the above version to all the witnesses. Therefore, they went to the room of the accused Surendrapal but he was not there. Therefore, first they went to the house of his brother because while going away from the house at 10.00 PM the accused said that he was going to his brother's house. But, he was not found at his brother's place, therefore, they came back. It may be stated that at about 3.30 AM or 4.00 AM early in the morning the accused was caught by the people while coming back from GIDC side. Thus, therefore, there was no question of this witness Rambaran being falsely got up by the prosecution as a witness to the accused taking away girl with him at 1.00 O'clock in the night. Once we accept the evidence of Rambaran PW-7 Ex. 15 on the point of the accused and the deceased being last seen together, then in our considered opinion, the prosecution has proved its case against the accused beyond reasonable doubt by establishing the chain of circumstances that after kidnapping 'Sanju', the accused committing rape on her and then throttled her and then threw her in the 'puddle' which was full of water and committing her murder. 39. Following circumstances proved by the prosecution beyond doubt to show that it is the accused alone who has committed this heinous offences and none-else. They are as under:-

(i) The accused was seen last together with deceased minor girl Savitri @ 'Sanju' aged 7 years at 1.00 O'clock in the mid night by Rambaran and dead body of 'Sanju' was taken out from water at about 5.00Am i.e. within 4 hours at the instance of the accused.

(ii) Accused had left the house of the complainant at 10.00PM by saying that he was going to his brother's house, but he had never gone there. He was not traceable anywhere in spite of the discreet inquiry made by the people nearby places between 1.00 AM to 4.00 AM.

(iii) At about 4.00AM, he was coming to his room from GIDC side where 'Sanju' was raped and murdered by him and at nearby place dead body was found.

(iv) When the accused was caught by the people, his clothes i.e. his shirt, baniyan and pant were having blood stains. Few spots of cowdungs were also found on his shirt and below the knee side of pant, which could not be explained by the accused.

(v) Though the accused was repeatedly asked by the people about 'Sanju', he did not disclose anything to them. Thereupon, police was called at the house. There also he did not tell anything to police. It is only when he was taken to the Odhav Police Station, then only during interrogation he narrated every thing and shown the place were he committed rape on deceased 'Sanju' and the place where 'Sanju' was thrown by him. Dead body was found from that place floating in 'puddle' full of water.

(vi) FIR was registered at the earliest point of time i.e. at about 6.00AM by the complainant Kevalpati wherein she narrated the entire incident.

(vii) Arrest panchnama of the accused clearly proves that when the accused was arrested his clothes were having blood stains and few spots of cowdungs were also found on his shirt and pant.

(viii) FSL report at Exh. 41 also proved the fact that the rape was committed at the place shown by the accused. All the panch witnesses of arrest panchnama, scene of offence panchanama, have fully supported the prosecution case. Nothing has come out in their cross-examination.

(ix) P.M. Notes and evidence of Dr. Krunal Patel have clearly proved the case of the prosecution that 'Sanju' died due to drowning.

(x) Accused coming in drunken condition and demanding sexual inter-course with Kevalpati by offering Rs.150/- at 10.00 pm and Kevalpati refused him and Rajaram and Manoj driving him out after scolding him.

40. We must state that an attempt was made by the learned counsel Mr. Majmudar for the appellant-accused by submitting that the cause of death was not due to drowning, because the panch witness Mohanji Munnaji Vanzara PW-9 Exh. 22, panch witness of scene of offence, has admitted in his cross-examination that water was not there in the 'pit' or 'puddle'. It is true that Mohanji has stated so in his cross-examination that water was not there in the pit or puddle. However, this would not help the accused in view of the fact that there is a specific reference in the panchanama (Exh. 28) that pit or puddle was full of water. It may be stated that after stating before the court in his cross that there was no water in the pit (may be inadvertently) he has further stated in his cross that he has not signed the prepared panchanama under the influence of the police because he was driving auto rickshaw with kerosene and proved the panchanama exh. 28 by stating that the contents of panchanama are true. The Panchnama shows that the 'puddle' was full of water. Therefore, this part of his admission would not help the accused when there is voluminous evidence of all other witnesses including Investigating Officer, who was present at the place of incident, and the documentary evidence i.e. panchanama of scene of offence that the pit or puddle was full of water. Dr. Patel has also clearly stated that the deceased 'Sanju' died due to drowning. Therefore, this submission of Mr. Majmudar is rejected.

41. In view of the above discussion, we are of the considered opinion that the prosecution has fully proved its case against the accused of kidnapping, rape and murder under sec. 363, 376 and 302 of IPC, respectively, that the accused Surendrapal Shivbalakpal kidnapped the minor girl Savitri @ Sanju aged 7 years, daughter of Kevalpati from the lawful custody of her mother on 12.9.2002 at 1.00 O'clock in the night and after committing rape, throttled her and threw her in the 'puddle' which was full of water. In our considered opinion, learned Sessions Judge has rightly held the accused Surendrapal Shivbalakpal guilty for the aforesaid offences.

42. This brings us to the point of sentence. Mr. Majmudar submitted that the learned judge has passed the order of death sentence after hearing the advocate of the accused which was highly improper. On the point of sentence, learned counsel Mr. Majmudar vehemently submitted that while awarding the death sentence for the offence under sec. 302 of IPC, the learned Sessions Judge should have heard the accused and not his advocate as provided under sec. 235(2) of the Code of Criminal Procedure, therefore, death sentence is vitiated. It is true that before passing order of death sentence, the learned Sessions Judge was required to hear the accused on the point of sentence and not his advocate. However, this is a case of awarding maximum punishment of death sentence under sec. 302 of IPC, therefore, after awarding death sentence, the learned judge was required to refer the matter to this court for confirmation which he has done under sec. 366 of Code of Criminal Procedure. As stated earlier, throughout the hearing of this confirmation case and the appeal the accused was personally kept present before the court during the entire hearing. After hearing the learned counsel for the parties at great length, we had asked the appellant-accused why the death sentence awarded to him by the learned Sessions Judge should not be confirmed He was asked to point out the circumstances for not confirming the death sentence awarded by the learned Sessions Judge in view of the judgment of the Supreme Court in case of Dagdu and others etc. vs. State of Maharashtra, reported in AIR 1977 SC p. 1579. Thereupon, the accused stated that:

(i) He is totally innocent and falsely involved in the case;

(ii) In all, he has three brothers staying separately with their families, therefore, he has not married for maintaining his old parents. His mother is suffering from eye problems and his father is not doing anything. Both of them are old and sick and except him, there is no one to look after them.

(iii) That on the day of incident, in the company of Rajaram-brother of complainant, he had consumed three pouches of country liquor. Thereafter, he was not knowing what was done by him under the influence of alcohol. He has come to Ahmedabad from U.P. only two months before the incident and this is a first offence. He is bachelor, aged 36 years. Therefore, extreme penalty of death sentence awarded by the learned Sessions Judge, may not be confirmed and the same may be commuted to life imprisonment.

43. Learned counsel Mr. Majmudar for the appellant-accused relying on the Supreme Court judgments, submitted that this is not the 'rarest of the rare cases,' therefore, the learned Sessions Judge ought not to have awarded death sentence to the accused. He submitted that the aforesaid circumstances narrated by the accused before this court are mitigating circumstances for reducing the death sentence, therefore, the death sentence may be commuted into life imprisonment for the offence under sec. 302 of IPC.

44. Lastly, Mr. Majmudar submitted that the judges should not be blood thirsty. He has placed reliance on the observation made by the Hon'ble Supreme Court on this point in para-207 of case of Bachan Singh vs. State of Punjab reported in AIR 1980 SC 898.

45. Mr. Majmudar at this stage also submitted that he is innocent and falsely involved in the case by submitting that the complainant wanted vacant possession from the accused who was her tenant. Therefore, she formed a conspiracy with her brother Rajaram and with the help of her brother-in-law Rambaran she has falsely involved the accused in this case. This submission of Mr. Majmudar has no substance.

46. It is true that complainant has stated in her cross-examination that she told son-in-law of the accused not to throw the water just on the previous night of the incident, but she has specifically denied the suggestion that she had a quarrel with the accused Surendrapal and that she wanted to get vacant possession of the room from Surendrapal, therefore, she filed false complaint against the accused. This shows that the complainant was deposing before the court in a most natural manner. She admitted about the incident which took place on the previous night of the incident, but clearly denied the fact that false complaint was filed against the accused as she wanted vacant possession of the room from the accused. It may be noted that the accused was not an old tenant. He occupied the room as tenant just two months of the incident and except the bare suggestion, which is denied by the complainant-Kevalpati in her cross-examination, there is nothing on record to show that she wanted vacant possession of the room from the accused Surendrapal, therefore, she had filed false complaint against him. We are not prepared to believe this submission of Mr. Majmudar because in our considered opinion for such a trivial thing, a mother who has lost her minor girl child would not go to such an extent of falsely involving innocent person allowing real culprit to let go-scot free.

47. It is no doubt true that Rajaram PW-6 Ex. 14, has stated in his evidence that the accused Surendrapal had consumed liquor. But, he has categorically denied that he himself had consumed liquor with the accused and one driver at the house of Kevalpati. He has candidly admitted in his cross-examination that the accused Surendrapal had consumed liquor, therefore, he told him to go to his room and sleep, but he was not knowing where Surendrapal had consumed liquor. This witness Rajaram has also denied the suggestion that because Raju Bihari and Surendrapal were throwing water from the first floor therefore, there was quarrel with Kevalpati and because of that false complaint was filed. If it was so then complainant could have falsely involved Raju Bihari also, but she has not.

48. On the point of sentence, learned APP Mr. Abichandani has relied upon the judgments of the Hon'ble Supreme Court; (1) AIR 1996 SC 2800, (2) AIR 1995 SC 1387, (3) AIR 200 SC 177, (4) AIR 1983 SC 594, (5) AIR 1998 SC 2889 and (6) AIR 1992 SC 395 for confirming death sentence awarded by the ld. Judge. He submitted that this is 'rarest of rare cases' in which the learned Sessions Judge has rightly awarded the death sentence to the accused. Therefore, this Court should accept the reference and confirm the death sentence awarded by the learned Sessions Judge.

49. In the matter of Kamta Tiwari vs. State of M.P., reportedin AIR 1996 SC 2800, the accused was charged for the offence under sec. 376 as well as 302 of IPC of committing rape on his niece aged 7 years and then committed her murder. The entire case was based on circumstantial evidence but the tell-tale circumstances firmly established were not compatible with any other reasonable hypothesis except that the accused after kidnapping 'Pinky' committed rape on her and then strangulated her and committed her murder. The Hon'ble Supreme Court held that :

'When an innocent helpless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a 'rarest of rare' cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society's abhorrence of such crimes'.

While confirming the death sentence in Kamta Tiwari's case (supra), the Hon'ble Supreme Court also considered its earlier land mark judgments (1) in the case of Bachan Singh vs. State of Punjab reported in AIR 1980 SC 898 and (2) in the case of Machhi Singh vs. State of Punjab reported in AIR 1983 SC 957.

Following propositions are required to be considered by the court while confirming the death sentence which are as under:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;

(ii) Before opting for the death penalty the circumstances of the 'offender' also required to be taken in to consideration along with the circumstances of the crime;

(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment or life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised.'

50. In case of Laxman Naik vs. State of Orissa, reported in AIR 1995 SC 1387, the Hon'ble Supreme court confirmed the death sentence of the accused, who, first committed rape on the minor daughter aged 7 of his brother. The case was based purely on circumstantial evidence and then killed her. After considering the the judgment of Bachan Singh's case (supra), the Apext Court observed in para-26 that :

'.......While discussing the sentencing policy, also laid down norms indicating the area of imposition of death penalty taking into consideration the aggravating and mitigating circumstances of the case and affirmed the view that the sentencing discretion is to be exercised judicially on well-recognised principles, after balancing all the aggravating and mitigating circumstances of the crime guided by the Legislative Policy incernible form the provisions contained in Sections 253(2) and 354(3) of the Code of Criminal Procedure. In other words, the extreme penalty can be inflicted only in gravest cases of the extreme culpability and in making choice of the sentence, in addition to the circumstances of the offender also. Having regard to these principles with regard to the imposition of the extreme penalty it may be noticed that there are absolutely no mitigating circumstances in the present case.........'

It has further observed in para 27 that:

'........the victim was totally a helpless child there being no none to protect her in the desert where she was taken by the appellant misusing his confidence to fulfil his lust. It appears that the appellant had pre-planned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.'

Ultimately, the Hon'ble Supreme court held that:

'The evidence on record is indicative of the fact as to how diabolically the appellant had conceived of his plan and brutally executed it and such a calculated cold blooded and brutal murder of a girl of a very tender age after committing rape on her would undoubtedly fall in the category of rarest of the rare case attracting no punishment other than the capital punishment and consequently, we confirm the sentence of death imposed upon the appellant for the offence under Section 302 of the Penal Code.'

51. In the case of Molai and another vs. State of Madhya Pradesh, reported in AIR 2000 SC 177, teenage girl aged 16 years was all alone in the house preparing for her exams. Both the accused took disadvantage of the said fact and committed rape on her and strangulated her by using her undergarments and caused injuries on her person with sharp edged weapon and after committing her murder threw her dead body into septic tank at the backside of the house. In absence of mitigating circumstances, the Hon'ble Supreme court held that in a case of this nature, capital punishment to both the accused was the only proper punishment and accordingly the death sentence was confirmed.

52. In the case of Javed Ahmed Abdulhamid Pawala vs. State of Maharashtra reported in AIR 1983 SC 594, the accused was convicted for the offence under sec. 302 of IPC. He was only 22 years old and case rested upon circumstantial evidence, however, murder was perpetrated in a cruel, callous and fiendish fashion. Therefore, Hon'ble Supreme Court confirmed the death sentence and held that it was a 'rarest of the rare cases'.

53. In the case of Govindasami vs. State of Tamil Nadu, reported in AIR 1998 SC 2889, the accused was convicted for the offence under sec. 302 for grabbing properties. No mitigating circumstance was pointed out. Considering the judgment of the Hon'ble Supreme Court in Bachan Singh's case (supra) held that:

'Nonetheless we looked into the record to find out whether there was (were) any extenuating or mitigating circumstances in favour of the appellant but found none. If, in spite thereof, we commute the death sentence to life imprisonment we will be yielding to spasmodic sentiment, unregulated benevolence and misplaced sympathy.'

53.A In the case of Smt. Shashi Nayar vs. Union of India and others, reported in AIR 1992 SC 395, the Hon'ble Supreme Court has already set at rest the challenge to the death sentence to be awarded for the offence under sec. 302 of IPC by holding that it does not violate mandate of Article 21, therefore, if it is a rarest of rare cases than the death sentence can always be awarded.

Date: 21.11.2003.

54. Learned counsel Mr. Majmudar for the accused-appellant, however, submitted that this cannot be said to be rarest of the rare cases for imposing death sentence, therefore, the reference made by the learned Sessions Judge to this court after awarding death sentence to the appellant-accused be not accepted and he may be awarded life imprisonment. In support of his submission, he has placed reliance on the following judgments of the Hon'ble Supreme Court:

1) AIR 2002 SC p. 70 Bantu alias Naresh Giri vs. State of M.P.

2) AIR 2001 SC 2043 Raju vs. State of Haryana

3) (2001)2 SCC 28 Mohd. Chaman vs. State (NCT of Delhi)

4) AIR 1980 SC 898 Bachan Singh vs. State of Punjab

5) AIR 1979 SC 916 Rajendra Prasad vs. The State of Uttar Pradesh

6) AIR 1999 SC 1699 Kundal Lal vs. State of U.P.

7) AIR 1989 1456 Allauddin Mian and others vs. State of Bihar

8) 1987 Cri.L.J. 180 Dasan and others vs. State of Kerala

9) AIR 2003 SC 3131 Amit alias Ammu vs. State of Maharashtra

10) AIR 1983 SC 957 Machhi Singh and others vs. State of Punjab

11) AIR 1974 SC 2214

55. Out of aforesaid 12 cases, first land mark judgment delivered by the Hon'ble Supreme Court was in Bachan Singh's case reported in AIR 1980 SC 898. The guidelines laid down by the Hon'ble Supreme Court in the case of Bachan Singh's case have already been reproduced by us in earlier part of this judgment, therefore, we would not like to reproduce it here. However, we may say that in Bachan Singh's case, offence was under sec. 302 of IPC and not under sec. 302 of IPC and u/s. 376 IPC.

The principle laid down by the Hon'ble Supreme Court in Bachan Singh's case were reiterated by the Hon'ble Supreme Court in the case of Machhi Singh and others v. State of Punjab reported in AIR 1983 SC p. 957. However, first three judgments quoted hereinabove which are relied upon by learned counsel Mr. Majmudar relates to the case of rape on minor girl and then committing murder.

56. In case of Bantu alias Naresh Giri vs. State of M.P. reported in AIR 2002 SC 70, on the facts of that case, the Hon'ble Supreme Court held that it was not the rarest of the rare cases where the accused was required to sentence to death. It was the case in which the accused first committed rape on the minor girl aged 6 years and then committed her murder. The only aspect of the case which seems to have weighed with the Hon'ble Supreme Court for not awarding the death sentence to the accused for such heinous offence was that he had no past criminal record.

57. In the case of Raju vs. State of Haryana reported in AIR 2001 SC 2043, the accused first committed rape on minor girl 11 years and then committed her murder. Accused had caused two injuries on head and mouth with bricks as she threatened the accused that she would report about the incident at home and the accused inflicted injuries on spur of moment. He had no criminal past record. Considering the facts of that case, the Hon'ble Supreme court held that it was not the rarest of the rare cases. Therefore, commuted the death sentence to life imprisonment.

58. In the case of Mohd. Chaman vs. State (NTC of Delhi) reported in (2001)2 SCC 28, the accused first committed rape on minor child 1 and 1/2 years and in that process of committing rape, inflicted injuries on her liver, apart from other injuries which resulted in death of the child. However, considering the guidelines laid down by the Apex Court in its earlier judgment reported in Bachan Singh's case (supra) and Machhi Singh's case (supra) and balancing the aggravating and mitigating circumstances emerging from the evidence on record, the Supreme Court held that it was not the case which can be said to be 'rarest of the rare cases'. Accordingly, the death sentence was commuted to life imprisonment.

59. In the case of Kumudi Lal vs. State of U.P. reported in AIR 1999 SC 1699, the girl aged 14 years was first raped by the accused and when she raised shouts, the accused tied Salwar around her neck and thereby caused her murder. On facts of that case, the Hon'ble Supreme Court commuted the death sentence in life imprisonment.

60. Last decision of the Hon'ble Supreme Court which is relied upon by Mr. Majmudar is reported in AIR 2003 SC 3131 in the case of Amit alias Ammu vs. State of Maharashtra, wherein also, the accused committed rape on school going girl aged 12 years and than committed her murder. On facts of that case, the Hon'ble Supreme Court held that it was not the rarest of the rare cases and accordingly the death sentence was commuted to life imprisonment.

Remaining judgments cited by Mr. Majmudar in which the accused were sentenced to death relating to the offence under sec. 302 of IPC. We have not thought it fit to deal with the same in detail because ultimately each case has to be decided on its own merits.

61. Having carefully gone through the judgments of the Hon'ble Supreme Court cited by learned APP Mr. Abichandani for the respondent-State and learned counsel Mr. Majmudar for the appellant-accused, we find that in the subsequent judgments, the Hon'ble Supreme Court has considered the guidelines laid down in its earlier decisions delivered in Bachan Singh's case and Machhi Singh's case (supra). The mitigating circumstances stated by the Hon'ble Supreme Court in Bachan Singh's case are as under:

1) That the offence was committed under the influence of extreme mental or emotional disturbance.

2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

5) That in the facts and circumstances of the case the accused believed that he has morally justified in committing the offence.

6) That the accused acted under the duress or domination of another person.

7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

62. Having carefully gone through the judgments cited by the learned Advocate Mr. NK Majmudar for the appellant-accused and learned APP Mr. PR Abichandani for the State, it boils down to this that while awarding or confirming death sentence, the court has to consider the facts and circumstances of each case and the mitigating circumstances, if there are any, while passing an order of death centence.

Following facts and circumstances will have to be considered by this Court, which are as under :

i) The accused Surendrapal and complainant Kevalpati are both from U.P. Complainant Kevalpati is middle aged widow aged 45 years. Her husband Ramsharan died 4 to 5 years prior to the incident. She was maintaining herself and her family consisting her minor son Manoj aged 16 years and two minor daughters Gayatri and Savitri aged 8 and 7 years respectively by running grocery shop in her two storeyed house. She had three rooms on the first floor. One was let out to Raju Bihari and another was let out just prior to two months of the incident to the accused Surendrapal at the monthly rent of Rs. 350/-.

ii) Along with the accused Surendrapal, Fulchand, son-in-law of his brother and minor daughter of Fulchand were also staying in the room. Because of the minor daughter of Fulchand, both the minor daughters Manju and Sanju of complainant Kevalpati used to go to the room of the accused to play with the girl and with the accused and treating him as their uncle.

iii) Evidence of Rambaran PW-7 in his chief examination before the court shows that when they had gone in search of accused Surendrapal, wife of Shital informed them that when the accused was staying there, that time also he was making such demand of sexual intercourse. The accused made similar demand on 11.9.2002 at 10.00 P.M., to Kevalpati which was refused by her.

iv) On 11.9.2002 at 10.00PM, the accused Surendrapal had consumed liquor. He was intoxicated. When complainant Kevalpati was sleeping on the otla of her house with two minor daughters on the cot, the accused Surendrapal demanded sexual intercourse with her and offered Rs. 150/- to Kevalpati. When she refused it, the accused did not leave the place and sat on the cot. Thereupon, Kevalpati went to her brother who was sleeping just on the rear portion of the house with her son. It is only after they scolded the accused, he left the place by saying that he is going to his brother's house at HUDCO. But, he did not go to his brother's house. This shows the malice idea in his mind.

v) The accused returned at 1.00O'clock in the mid night when every one was at sound sleep. Kevalpati was not with her minor daughters as she went inside the house because she was not feeling well and suffering from cold. Taking this opportunity the accused quietly lifted one of the daughter sleeping on the cot and took her towards barren place near GIDC. But, he was seen taking away the girl by Rambaran, maternal uncle of the deceased, when he come out from his house to answer nature's call, but he could not see the face of the girl, therefore, did not stop the accused.

vi) The accused is a robust man aged 36 years. He lifted minor girl 'Sanju' hardly 7 years old and carried her on his shoulder to a barren place where nobody would come to rescue her even if she shouts for help and in a most brutal and jungly manner committed rape on her. Because of that blood was coming out from her mouth and private parts even after few hours of the incident which is clear from the panchanama.

vii) P.M. Note Exh. 47 shows that clothes put on by deceased 'Sanju' were having blood stains as well as sand particles and the blood stains were markedly present on hip side of frock. Blackish colour mudstain was also present on Rt. ankle, Rt. dorsum of foot,lower part of left abdomen and both side of soles. Mud was also present in both palms and upper part of chest and neck. Face was congested. White colour blood stain frothy material was coming out from nose on applying pressure over chest. One contused lacerated wound of size 2 x 1.5 cm present at (Lt) lower and lateral part of vaginal wall. One contused lacerated wound of size 1.5 x 1 cm present on Rt. lateral and lower part of vaginal wall. One color of contusion and abrasion of size 0.5 to 0.7 cm present around external genital opening colour of colour is red. One stretched lacerated wound starting from vagina (External genital opening) to anterior part of anus, including perineal region. Size of this wound is 4x3x1 cm. Blood and blood clots are present at and over the above described injuries. One blood bleed mark was present on external genitalia which starts from vagina running towards anus region on both sides. Hymen was completely ruptured. Blood & clots were present on the tear.

Multiple red coloured contusions was present on back side of the body. Size of these contusions are varying from 3 x 1.5 cm to 2 x 1 cm.

One red colur contusion of size 3 x 2 cm. present on left frontoparietal region under the scalp.

Rib marks were present. On cutting the lungs white coloured blood stained froth was also found. Hearts and blood vessels were congested. Blood was fluid and dark in colour. All organs were congested and oedematous.

(viii) Doctor opined that death was dues to Asphyxia as a result of drowning because after committing rape on minor girl 'Sanju', the accused saw to it that she does not depose against him, therefore, first he throttled her and threw her in the puddle or pit which was full of water and due to the injuries shown in column no. 15 and 17 of the P.M. Note, there was hardly any resistance from the deceased, therefore, she drowned and died.

(ix) After committing such a heinous act in a most brutal and cruel manner, the accused was coming back to his room at about 4.00AM. When he was caught by the people on the road and enquired about Sanju, he was absolutely quite and did not tell anything to them and maintained that he was not knowing anything. Therefore, police was to be called at the house of the complainant. He did not disclose anything to the police. Thereupon, he was taken to the police station where during interrogation, he disclosed before P.S.I. Shri Chudasama that first he kidnapped the girl 'Sanju' when she was sleeping on the coat and then committed rape on her at a place behind GIDC where no one was coming and, thereafter, throttled her and threw her in the puddle. He had taken the police first to the place where he committed rape and than to the place where the dead body was thrown.

63. From the aforesaid circumstances, it clearly appears to us that with a malice intention, the accused thought of a plan in his mind when he was refused sexual intercourse by Kevalpati and when he was scolded and driven out by Rajaram and Manoj, he wanted to take revenge of his insult, therefore, he waited till 1.00 O'clock in the night and when every body had gone to sleep he came back and found Kevalpati not sleeping on the cot with her two minor daughters, therefore, quietly lifted minor girl 'Sanju', who was in sound sleep, and took her away to a distant place and committed rape on her in a most diabolical manner. Injuries received by the deceased during rape shown in the P.M.-Notes suggest that in a most barbaric manner the rape was committed by the accused on an innocent child of 7 years and murdered by the accused by throttling her and throwing her in the puddle full of water. Mr. Majmudar learned counsel for the appellant-accused appealed to the Court that mercy be shown to the accused, who is bachelor and has responsibility to maintain his old and sick parents. This submission of Mr. Majmudar can not be accepted for the simple reason that the accused had not shown any mercy to an innocent girl aged 7 years, who was as good as his daughter, while committing rape and committing her murder in a most brutal manner. Therefore, it is not possible for us to show any mercy to the accused. Almost in similar circumstances, where the accused was young man of 33 years having three unmarried sisters and aged parents were pointed out to the Hon'ble Supreme Court by the learned counsel for the accused in the case of Mahendra Nath Das alias Gobinda Das vs. State of Assam reported in AIR 1999 SC 1926, but weighing this circumstance against the aggravating circumstances, the Hon'ble Supreme Court held that the case falls within the category of rarest of rare cases.

In this case, the way in which the accused first committed rape on minor girl Sanju aged 7 years and then brutally throttled and threw her in the puddle full of water shows that it was a cold blooded murder committed by the accused for which only death sentence should be awarded.

64. The last submission of Mr. Majmudar that the judges should not be blood thirsty is required to be dealt with. Mr. Majmudar has placed reliance on the judgment of the Hon'ble Supreme Court in case of Bachan Singh vs. State of Punjab reported in AIR 1980 SC 898 at page 945. Having carefully gone through the entire prosecution evidence as well as the defence of the accused and after hearing the accused personally on the point of sentence, we are of the considered opinion that while awarding death sentence to the accused, the learned Sessions Judge except discharging his duty not done anything more in the matter. Merely because he has awarded death sentence, it cannot be said that the learned Sessions Judge was blood thirsty. It is no doubt true that the court has to do justice to the person who is before it, but at the same time, the court has also to see that justice is also done to the victim and her relatives. If such person is allowed to move free in the society then surely he will be danger to the society at large. We are quite conscious about values of human life but what about the person who is human monster ! Before confirming the death sentence awarded by the learned Sessions Judge, we have examined the matter from all the angles but there is nothing on record for us to commute death sentence awarded by the learned Sessions Judge and convert into life imprisonment. When we are fully convinced that this is a 'rarest of the rare cases' in which learned Sessions Judge has rightly awarded death sentence then without any hesitation, we must confirm the death sentence.

65. The present Code of 'hand unto death' which may be awarded in the rarest of rare case, enlisted in seven specific sections of the Indian Penal Code, is not unconstitutional as per Article 21 of the Constitution and definitely is a decent form of capital punishment.

Reformative theory talks about re-educating and re-moulding a criminal. But according to Salmond, there are in the world men who are incurably bad and have an ineradicable instinct. For them, only the principle of deterrence will work. Salmond further says that ideal justice would be a compromise between the principles of reformation and deterrence and in it's compromise it is the principle of deterrence which will hold a predominant influence.

The object of capital punishment is two fold. Firstly to make a lesson out of it to others. Secondly, to prevent the repetition of the crime. Capital punishment by the State is a substitute for private vengeance. Suppose a hard-core criminal, inspite of falling in the category of rarest of rare case, due to reformative theory, is not sentenced to death. This leniency could lead to private vengeance, and this could further lead to a chain of offences. Thus, the reformative theory instead of preventing crime could unintentionally lead to the reverse.

Take the example of the case of 'Kuljeet Singh v/s. Union of India, where the death sentence was awarded. In Kuljeet Sing's case (supra), two criminals had pre-planned to kidnap and murder children in order to extract money. Two innocent children were ruthlessly kidnapped, tortured continuously, and finally murdered in the most gruesome manner. In such a case one can think of nothing but capital punishment. And if we think otherwise then it would become a mockery of justice. One may be inclined to pity a criminal, but there lies a much purposeful and a much greater pity towards those who have been wronged by the criminal.

A question arises, if not capital punishment then what Solitary confinement That would be a living death | The other alternative is life-imprisonment. Could a life termer on one hand and a cold-blooded sadistic criminal on the other hand be meted out with the same term of punishment Could that be a balanced justice

There have been cases where capital punishment is converted to life imprisonment, and on finishing the term, the released convict commits a grave offence of murder of the like. So who is to assure to cure such a criminal

Considering the conditions in India, the vastness of it's area, the variety of social upbringing, disparity in the level of education, diversity in it's population, and the need for maintaining law and order at the present juncture, India cannot risk the experiment of abolishment of capital punishment.

Capital punishment may not assure to stop grievous offences but it can surely refrain one from contemplating them and more so make it tough for the offenders to get away with his crime.

It is said that just as one cannot permit that which is prohibited, similarly, one cannot prohibit that which should be permitted and capital punishment cannot be prohibited as it is rightly permitted

Coming to the facts of this case, which is narrated hereinabove in extensio, it is clear that the accused by his pervert, ghoulish and depraved act has brought an abrupt and early end of an innocent child who had hardly seen seven summers of her life, in the most ghastly and dastardly manner and left behind grisly sovereign of his crime. The victim was an innocent child whereas the accused was the human monster and this heinous and odious crime committed by him is an unpardonable pillage of human virtues, values and tenets of humanity. Such gruesome plundering of an innocent human life not only warrants the highest punishment provided under the law, but it also prompts repugnance from our sense of humanity and surety. We must have heard and decided hundreds of horrendous cases of aggravated assault in life, but this one has sent a chilling shock through our spine. It is no doubt true that the human life must be valued, but not of a human monster, who has got an end of human life of an innocent girl child hardly aged 7 years in a most barbaric manner after committing rape on her in the most brutal manner. Therefore, on facts of this case, if learned Judge has awarded death sentence to the accused then it cannot be said even by stretch of imagination that the learned Judge was blood thirsty.

66. Accordingly, we accept reference made by the learned Sessions Judge and confirm the death sentence awarded by him to the accused for the offence under sec. 302 IPC and, dismiss the appeal filed by the appellant-accused against the judgment and order of conviction and sentence passed by the learned Sessions Judge.

67. We also place our appreciation on record for the valuable assistance provided by learned APP Mr. PR Abichandani for the State of Gujarat and Mr. NK Majmudar learned advocate for the appellant-accused.

68. Accordingly, we hereby confirm the death sentence awarded by the learned Sessions Judge to the Accused Surendrapal Shivbalakpal in Sessions Case No. 212/2002 for committing murder of minor girl Savitri @ Sanju. As we have confirmed the judgment and order of conviction of death sentence awarded by the learned Sessions Judge, obviously the appeal filed by the Appellant-Accused against the said order of conviction and sentence has to be dismissed and accordingly, it is dismissed. The appellant- accused is present before the Court. He, now, be taken to the jail.