- (1.) THE alleged rape and murder of a five years old girl, the conviction for offences under sections 366, 376 and 302 of Indian Penal Code ('ipc', for short) has brought the appellant before this Court.
(2.) ACCORDING to the prosecution, on 23-2-2001, one Gopal (P. W. 1) lodged a written report (Ex. P. 1) before the Police Station, ramganj Mandi, Kota wherein he claimed that "he is a resident of village Kudayala, police Station, Ramganj Mandi. His neighbour is Ramesh (the appellant before us ). On that day his son Birdhi Lal had gone out to his work. At his house his wife, his daughter-in-law and he himself were left. Subsequently, both his wife and he left the house. Around 6-7 o' clock in the evening his granddaughter Jiya, aged five years, was playing near the house. His daughter-in-law suddenly notice that the child was missing. She was informed by the daughter of Manak meghwal that Ramesh was standing with her daughter Jiya behind the wall of the house of Chhiter Meghwal. But, she could not tell them where he has taken the small child. Upon this information, the family members searched for the child. Eventually, they found her body floating in their own well. Other people had gathered at the well namely, Laxminarain, Gopalji etc. Ramesh always used to offer biscuits arid toffees to jiya, Ramesh has killed the small child. When they searched for Ramesh, he ran away. Even previously, he was involved in a criminal case at Ramganj Mandi. " On the basis of this written report a formal FIR, FIR no. 55/2001 (Ex. P3) was chalked out for offences under Section 302, IPC, read with section 3 of the SC and ST (Prevention of atrocities) Act and the investigation commenced. The appellant was subsequently charged for offences under Sections 364 and 302, IPC. However during the course of the trial Dr. K. K. Goswami (P. W. 11) testified in the Court that the deceased was subjected to rape prior to her death. After recording this evidence, charges for offences under sections 366 and 376, IPC were framed against the appellant. Therefore eventually, the appellant was tried for offences under sections 366, 376 and 302, IPC. In order to support its case the prosecution examined fourteen witnesses and submitted twenty-three documents. "although the accused did not examine any witness in his support, he did submit two documents in defence. After going through the oral and documentary evidence, vide judgment dated 5-12-2001, the trial Court convicted and sentenced the accused as under :- i) For offence under Section 366. the appellant was sentenced to ten years of rigorous imprisonment and was fined Rs. 500/-and to further undergo three months of simple imprisonment in default thereof; ii) for offence under Section 376 he was sentenced to 10 years of rigorous imprisonment and was fined Rs. 500/- and to further undergo three months of simple imprisonment in default thereof; iii) for offence under Section 302 he was sentenced to life imprisonment and was also fined Rs. 500/- and to further undergo three months of simple imprisonment in default thereof. All the sentences were ordered to run concurrently and the benefit of Section 428 of Cr. P. C. was also granted to the appellant. Hence, this appeal before this Court.
(3.) MR. S. P. Poshwal, the learned Amicus curiae, has vehemently argued that the case is based on circumstantial evidence. However, the chain of circumstances are incomplete. Therefore, the conviction is unsustainable. Secondly, that although the offence of rape has been alleged, but there is no evidence on record to prove the commission of the alleged crime. Despite the fact that the underwear of the deceased child was sent to FSL, despite the fact that three slides were also sent to the FSL, there is no FSL Report proving the existence of the sperms of the accused person. Therefore, the corroborative evidence is singularly missing. Moreover, the physical examination of the accused does not point to his having committed the alleged rape with the child. Thirdly, but for the evidence of the last scene evidence, which is weak in its very nature, there is no other evidence to prove the involvement of the appellant in the alleged crime.;