IMPORTANT POINT
Offence of kidnapping, rape and murder of minor girl, where accused had no previous involvement in any criminal case and nothing to suggest that he would be a menace to society, would not warrant death sentence.

ORDER

The appellant was found guilty by the Sessions Court for the offences punishable under Sections 363, 376 and 302 IPC. For the offence of murder he was sentenced to death. The appellant preferred an appeal before the High Court and there was also the reference case regarding confirmation of death sentence. The appeal and reference were heard together and the division bench of the High Court of Gujarat confirmed the conviction of the appellant on all the counts and the death penalty imposed on the appellant for the offence under Section 302 IPC was confirmed. Aggrieved by the conviction and sentence this appeal was preferred.

2. The appellant Surendra Pal Shivbalakpal was staying in one of the rooms of a building owned by complainant Kavalpati, a widow having three children. On 11.9.2002 at about 10 p.m., the appellant came to PW-2 Kevalpati and offered Rs. 150/- and sought for sexual favours. PW-2 got angry and she asked him to go away, but the appellant declined to leave the place. PW-2 told her brother Rajaram and her son Manoj that the appellant had been harassing. They came and scolded the appellant and he left the place. During the night, PW-2 along with her two minor daughters were sleeping on a cot lying outside the room. At about midnight she felt cold and went inside and at 1.00 O clock she came back and then she saw that one of her daughters namely Savitri @ Sanju was missing. She immediately called her brother Rajaram and her son Manoj who were sleeping in another portion of the same house. They searched Sanju at nearby places and as they had suspicion on the appellant Surendrapal, they went in search of him in his house but the appellant was not found in his room. They made enquiry with PW-7 Ramvaran. He stated that he had seen appellant Surendrapal going away with a girl on his shoulder but he thought that the girl must be the daughter of Fulchand, a relative of the appellant. The people in the locality collected and at about 4 O clock in the morning they saw the appellant coming from nearby road. PW-2 and other took him to the police station. It seems that he made certain revelations and PW-2 gave FI statement and on the basis of the FI statement a case was registered and investigation was started.

3. The dead body of Savitri @ Sanju was recovered from a pond near the G.I.D.C. building. The body was found floating on the water and it was identified by relatives. An inquest was held on the dead body and on post mortem examination it was found that there were series of injuries on the body of deceased Sanju. The clothes were stained with blood and some mud particles. There was lacerated wound on the private parts of the deceased, Hymen was completely ruptured. Dr. opined that the victim must have died due to Asphyxia.

4. On the side of the prosecution PW-1 to PW-19 were examined. The prosecution relied on Section 27 recovery of the dead body pursuant to the confession made by the appellant and also the evidence of PW-7 who had seen the appellant on the previous night moving with a child. The conduct of the appellant, on the previous night, immediately prior to the occurrence was also taken note of by the Sessions Court in finding him guilty. The Sessions Court as well as the High Court placed reliance on the evidence regarding blood stains found on the clothes worn by the appellant.

5. We heard learned counsel for the appellant and counsel for the respondent.

6. The counsel for the appellant seriously urged before us that there is no evidence to show that the appellant had committed this offence. The counsel seriously contended that the evidence regarding recovery of the dead body of deceased Sanju was inadmissible as the place where the dead body was lying was known to the police as well as others present there at that time. It was also pointed out that even in the FI statement reference has been made regarding the place where the dead body was found. There is some force in the contention urged by the appellant s