A. K. SIKRI, J. - (1.)The present appeal is directed against the final judgment and order dated 14th September 2006 passed by the Hon'ble High Court of Gujarat in Criminal Confirmation Case No.9 of 2004 with Criminal Appeal No.1915/2004, setting aside the judgment and order passed by the Ld. Additional Sessions Judge and second Fast Track Court in Sessions Case No.4/2004 convicting the respondent under Section 376,302 and 201 IPC for the offence of rape and murder of a seven year old girl and punishing him with sentence of death. The High Court found severe loopholes and shortcomings in the prosecution story, rendering it unbelievable and thereby acquitted the respondent in the aforesaid case.
(2.)The prosecution case, in nutshell, was that the respondent/accused was the neighbour of the deceased girl Komal aged 7 years r/o village Bhammiya. On the day of incident i.e. 16.8.2003 the victim was playing with her two friends viz. Parul and Saroj in the Courtyard of the respondent. The respondent/accused came to his house between 15.00 to 15.30 hrs. and scolded the girls for playing there. Parul and Saroj ran away whereas, however, the deceased girl was forcibly caught by the respondent and pushed her into his house and he shut the door. Shakriben Chandrasinh, a neighbour who was washing clothes, heard the cries of victim which got silent after sometimes. Thereafter Savitaben mother of the deceased girl, who returned from work at about 16.00 hrs. and not finding her daughter started searching for the victim along with Shakriben. A day after the incident, dead body of the victim was recovered from a nearby field wearing white frock with undergarment missing, which was later found from the hedge falling between the house of the respondent and Shakriben Chandrasinh. A complaint was lodged and FIR registered by Arvindbhai Khatubhai, the father of the victim. The police started investigation and recorded the statements of witnesses. Necessary samples were also collected during the investigation and sent to FSL. The dead body of the deceased was sent for the post mortem which was conducted by Dr. Shashikant Nagori between 16.45 hrs. and 17.45 hrs. on 17.8.2003. The post mortem report mentioned following injuries : -
* Abrasion on both thighs, both knees and bruises over the legs. * The injuries found on labia majora had a swelling of 3 x 2 cms. On right majora and abrasion on left majora, such injuries were possible in an attempted rape. There was penetration on the private parts of the victim girl. * The presence of injuries on left mastoid region, which was bone deep and brain matter had come out of the wound. * There was haematoma over whole skull on both parietal and frontal region and blood was oozing out of the left ear. * There was a depressed fracture of skull on frontal and left parietal region. The doctor opined that the injuries were sufficient in ordinary course of nature to cause death and it was homicidal death.

(3.)The respondent was arrested after two days i.e. on 19.8.2003 from a nearby village, who had allegedly fled after committing the offence. On search, a suicide note purportedly written by the respondent was recovered from his pocket. Besides, blood stained clothes and blood group of the deceased was noticed on other articles. He was found to have sustained injuries on his person, which was recorded in the arrest panchnama. Upon disclosure of the accused, the grinding stone used in inflicting injuries on head of the deceased was recovered from his house. After the recovery of the stone, a panchnama of recovery of the stone was drawn in the presence of panch witnesses on 20.8.2003. Thereafter discovery panchnama of the articles was drawn which were concealed beneath the steel cupboard. After the completion of investigation, the charge sheet was filed before the Ld. Chief Judicial Magistrate, Godhra on 22.8.2003. After committal, the case was registered as Sessions Case No.4 of 2004 and charge against the respondent accused was framed under Sections 376,302 and 201 of the IPC. The respondent denied the charge and claimed to be tried. The prosecution examined 23 witnesses in support of its case. None was examined by the accused in his defence. The statement of the respondent was recorded under Section 313 of the Cr.P.C. On 7.10.2004 the learned Sessions Judge after examining the oral and documentary evidence, returned the finding of guilt and convicted the respondent for the offence of rape and murder. The learned Sessions Judge awarded capital punishment for the offence of murder u/S 302 and imprisonment for life and fine of Rs.1000/ - for the offence of rape u/S 376 and in default to undergo SI for 3 months. The record of the case was forwarded to the High Court u/S 366 of the Cr.P.C. for approval of the death sentence awarded by the Sessions Court. The accused also preferred Criminal Appeal No.1915/2004 before the High Court of Gujarat against the judgment and order dated 7.10.2004. The Impugned Judgment : -