BHAGWATI, J. - (1.) THE condemned prisoner Shiv Shanker for having committed the hideous crime of murder and rape upon an innocent girl of 10 years has been found guilty in the offences under Sections 302, 376 and 450 of IPC and thus convicted vide judgment dated July 27th 2002 by Additional Sessions Judge No. 2 (Fast Track), Kota and sentenced as under: u/s. 302 IPC: To suffer life imprisonment and a fine of Rs. 200/- in default of payment of fine to undergo further two months rigorous imprisonment. u/s. 376 (2) (f) To suffer rigorous imprisonment for ten years with a fine of Rs. 200/- and in default of payment of fine to suffer further rigorous imprisonment of two months. u/s. 450 IPc To suffer rigorous imprisonment for five years and a fine of Rs. 200/-; in default of payment of fine to further suffer rigorous imprisonment of two months. All the sentences have been ordered to run concurrently. Aggrieved with this judgment and order of sentence the accused- appellant has filed this criminal appeal.
(2.) THE prosecution story succinctly runs as under:- That the complainant PW-5 Devi Shanker is handicapped and the deceased girl (named withheld by us) aged 10 years was his niece. PW-19 Ram Chandra Bai is the mother of the complainant Devi Shanker. Deceased had come to her maternal grand mother's house to ask about the well being of her handicapped maternal uncle Devi Shanker who usually lived at his field. On 19th November, 2001 both PW. 19 Ram Chandra Bai and the deceased took the meals to the field for Devi Shanker. THE complainant Devi Shanker after having taken the meals went to attend `haat' along with PW-20 Ram Lal at Sangod. It is stated that at about 4 pm in the evening one PW-14 Brij Lal S/o. Badri Lal came to Sangod and informed him that his niece had been strangulated to death on the field and her dead body was lying on the spot whereupon, the complainant PW. 5 Devi Shanker along with Brij Lal immediately went to police station and lodged the report Ex. P. 7. THE police registered the FIR Ex. P/11 and commenced investigation. During the course of investigation, the Investigating Officer prepared site plan Ex. P/1, seized one pant and one shirt from the site vide memo Ex. P/2 and memo Ex. P/3 respectively, caused to take photographs of the dead body of deceased and recorded the statements of the witnesses acquainted with the facts and circumstances of the case under Section 161 of Cr. P. C. The autopsy on the dead body was performed by doctor PW. 3 Dr. Kedar Lal. Necessary memos were drawn. The Investigation Officer also recovered one rope from the place of occurrence vide Ex. P/9, prepared Panchayatnama of the deceased Ex. P/10, arrested the accused vide memo Ex. P/20, seized one underwear pm~mh and one pant from the accused Shiv Shanker which he was wearing at the time of commission of offence vide memo Ex. P/15, sent the seized articles to FSL for chemical analysis and after usual investigation submitted the charge-sheet against the accused Shiv Shanker in the Court. The court framed the charge in the offences under Sections 302, 376 and 450 of IPC. The accused pleaded not guilty to the charge and claimed trial. The prosecution has examined as many as 26 witnesses to prove its case. The accused in his explanation under Section 313 of Cr. P. C. has claimed himself to be innocent and has put in defence that on account of engine on his well having run out of order on his tube-well, he had unbolted the same and efforted to start but it did not and thereafter, he went to Sangod to take one mechanic. When he returned to his village in the evening, he came to know that somebody had killed the girl. The accused has put no witness in defence. We have heard learned counsel for the appellant, learned Public Prosecutor appearing for the State and perused the impugned order of lower Court along with the relevant material available on record. The learned counsel for the accused appellant has assailed the impugned judgment on the following grounds: (i) That the accused Shiv Shanker was below the age of 16 years but the trial Court lost sight of this fact and did not send him for trial to juvenile Court. Trial conducted by the lower Court is wholly illegal and unconstitutional. (ii) That the accused Shiv Shanker was present on his field on the date of occurrence in routine or in its natural course as his field was juxtaposed to the field of complainant Devi Shanker. (iii) The said `tapri', where the girl is alleged to have been ravished and murdered, is open from all sides and it is not possible to commit such an offence on open `tapri'. (iv) There is no ocular evidence available in this case and the whole prosecution case rests on circumstantial evidence, but the prosecution has failed to prove the complete chain of circumstances which may be said to have proved to be compatible with the guilt of the accused. (v) The prosecution case is filled with contradictions and inconsistencies on material particulars which have not been appreciated by the learned trial Court. (vi) There being not even a shred of evidence against the accused-appellant on record, he deserves to be acquitted and the impugned judgment is liable to be set aside.
(3.) PER contra, the learned Public Prosecutor appearing for the State has submitted that the trial Court has critically analyzed the statements of all the prosecution witnesses in detail and explained all the material points tangibly. There does not seem to be any factual or legal infirmity in the judgment and the finding of acquittal arrived at by the learned trial Court is just and proper which calls for no intervention. So far as, the age of the accused Shiv Shanker is concerned, the Additional Sessions Judge No. 2 (Fast Track), Kota, held an inquiry with regard to the age of the appellant with reference to the date of incident in compliance of the order dated 10th April, 2003, rendered by this Court. After a detailed inquiry the learned Additional Sessions Judge determined the age of the accused-appellant to be above 18 years on the date of occurrence i. e. 19th November, 2001. In view of the order dated 6th September, 2003 of the learned Additional Sessions Judge with regard to the age of appellant on the date of occurrence this Court is not required to opine further as the issue of age, has already stood clinched. Thus, the first argument of the learned counsel for the appellant with regard to his age is found to be devoid of force. From the perusal of the statements of the prosecution witnesses and the relevant material, it is found that there is no ocular version of the hapless incident and the prosecution case wholly rests on circumstantial evidence. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidences. The Court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. ;