- (1.) A large number of cases in recent times coming before this Court involving rape and/or murder of girls of tender age is a matter of concern. In the instant case the victim who had not seen even ten summers in her life is the victim of sexual assault and animal lust of the accused appellant. She was not only raped but was murdered by the accused appellant. The accused was found guilty for offences punishable under Sections 363, 366, 376, 397 and 302 of the Indian Penal Code, 1860 (in short the IPC ). He was sentenced to 7 years, 10 years, imprisonment for life, 7 years and death sentence for the aforesaid offences. Conviction was recorded and sentences were imposed by learned Additional Sessions Judge, Fast Track Court No. 9, Surat. In view of the award of the death sentence reference was made under Section 366 of the Code of Criminal Procedure, 1973 (in short the Code ). The accused appellant had also preferred an appeal which was dismissed by the impugned judgment. Both the confirmation case and the criminal appeal were disposed of. Death sentence was confirmed while the criminal appeal was dismissed.
(2.) Prosecution version as unfolded during trial is as follows: The complainant i.e. Nareshbhai Thakorebhai Patel is residing in flat No. A/2 of Sanudip Apartment, located on Rander Road of Surat City, with his family. On the Ground Floor of the apartment, he is running a grocery shop as well as a STD PCO Booth. The name of his wife is Ms. Kailashben. They were blessed with two children. The eldest is boy named Brijesh who was aged about 16 years at the time of incident. The deceased was student of IVth Standard, in Ankur School, situated near Sardar Circle, Surat, whereas son of the complainant was prosecuting studies in Swaminarayan Gurukul and was staying in hostel of Swaminarayan Temple. The appellant was employed as Watchman of Sanudip Apartment and was residing with his wife Savita and two children in a room of the apartment which is opposite Sanudip Apartment. The incident took place on December 17, 1999. The complainant with his wife, Ms. Kailashben, went to Udhana at about 8 PM to attend a religious ceremony. After return from Udhana, the complainant did not find the victim. Therefore, he made inquiries about the victim from his relatives. Those staying in the apartment informed the complainant that sometime before his return from Udhana, the deceased was playing badminton, but they were not knowing as to where she had gone. The complainant made extensive search about his daughter of tender age but in vain. At about 2.30 AM on December 18, 1999, he lodged complaint with Rander Police Station, stating that the victim was missing. The information given by the complainant was recorded by Head Constable Ramdas Barko Borde, who was PSO of the Police Station. Head Constable Borde handed over investigation of complaint lodged by the complainant to ASI Mr. Ashokbhai H. Patil. After lodging the complaint, the complainant continued search of the victim. On December 18, 1999, one Mr. Bipinbhai Bhandari, who is a friend of the complainant, came to the house of the complainant and informed the complainant that his old servant, Vishnubhai, had informed him that he had spotted the appellant taking the deceased with him on his cycle. Mr. Bipinbhai also informed the complainant that he was told by Vishnubhai that he had shouted at the appellant but the appellant had not stopped. On learning these facts, the complainant started search of the appellant, who was employed as Watchman of the apartment. The complainant also informed the police as to what was conveyed to him by his friend Mr. Bipinbhai Bhandari. Extensive search about the victim and the appellant did not yield any result on December 18, 1999. Mr. Chandravadan Naginbhai Patel, who is brother-in-law of the complainant, stayed at.the house of complainant in the night of December 18, 1999. In the morning of December 19, 1999, while going home to take a bath, Mr. Chandravadan Patel spotted the appellant sitting in an open space near vegetable market. Mr. Chandravadan asked the appellant as to where the victim was. Thereupon, the appellant informed M Chandravadan that he had raped the victim and killed her. Therefore, Mr. Chandravadan brought the appellant to the house of the complainant. On being asked, the appellant informed the complainant and others, who had collected near the house of the complainant, that he had taken the deceased on December 17, 1999 with him on his bicycle and raped her and as he had feared that she would disclose the incident to others, he had killed her. Thereupon, the complainant informed the police, who arrived at the house of the complainant within no time. The appellant took the complainant and police to the place of incident where dead body of the deceased was found lying. The complainant, thereupon, lodged First Information Report about rape of his daughter and her murder, against the appellant on December 19, 1999. On the basis of complaint of the complainant, offences were registered against the appellant. The complaint of the complainant was investigated by PI SA Desai, who held inquest on the dead body of the deceased and made arrangements for sending the same to hospital for postmortem examination. From the place of incident, a broken bottle containing Castor oil and a knife, were recovered. The appellant was arrested and pursuant to disclosure statement made by him, the cycle used by him, for carrying the deceased to the place of incident, and school-bag of the deceased, containing gold and silver ornaments, were recovered. Silver and gold ornaments recovered from the school-bag were identified by mother of the deceased as belonging to the deceased. PI Desai recorded statements of those persons who were supposed to be conversant with the facts of the case. Incriminating articles seized during the course of investigation were sent to Forensic Science Laboratory (in short the FSL ) for analysis. The post-mortem examination of the body of the deceased indicated that the deceased was subjected to rape and was, thereafter, murdered. The appellant, who was arrested, was forwarded to Dr. Meghrekhaben Mehta for Medical Examination. Before Dr. Megrekhaben Mehta, the appellant stated that he had sustained injuries while committing rape and murder. On completion of investigation, the appellant was charge-sheeted in the Court of learned Chief Judicial Magistrate, Surat, for commission of offences punishable under Sections 363, 366, 376, 302 and 397 IPC. As the offences punishable under Sections 366, 376, 397, 302 are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Surat for trial, where it was numbered as Sessions Case No. 79 of 2000. Since the accused persons pleaded innocence trial was held. Thirty four witnesses were examined. In addition, certain documents were placed on record. The case primarily was based on circumstantial evidence as there was no eye witness. The circumstances highlighted by the trial Court and the High Court are as follows: 1. The first circumstance is that the deceased was raped and she died a homicidal death. 2. The second circumstance is that the deceased victim who was aged about 10 years was residing with her parents in flat No. A/2 of Sanudip Apartment located on Rander Road of Surat City.
(3.) The third circumstance is that the appellant was serving as a Watchman since long and he was residing with his family in a room located on ground floor of Happy Home Apartments situated opposite Sanudip Apartment, Surat.;