Judgment

CHANDRACHUD, CJI.:- The appellant Shankarlal Gyarasilal Dixit who is 30 years of age, was convicted by the learned Additional Sessions Judge, Akola, for offences under Sections 376 and 302 of the Indian Penal Code on the charge that on December 10, 1978 he raped a five-year old girl called Sunita and thereafter committed her murder. He was sentenced to rigorous imprisonment for 7 years for the offence of rape and to death for the offence of murder. The order of conviction and sentence having been confined by a Division Bench of the Bombay High Court by its judgment dated February 27-28, 1980, he has filed this appeal by special leave.

2. The appellant lives in a locality called Marwadipura. in the town of Karanja, District Akola. His house is situated near a temple called Gopal Mandir, and a little beyond the temple is a public well. Ramrao Wagh, the father of the deceased Sunita, use to, reside in a house near about the well.

3. On December 10, 1978 at about 10-30 a. m., Sunitas mother, Renukabai, went to the well for fetching water. Sunita accompanied her. Renukabai returned after a little while but Sunita, who was playing with some children, stayed back. She did not come home for quite some time and feeling concerned, Renukabai went in search of her. Unable to find the girl, she went back to her house and told her neighbours, Shilabai Deo and Shobhabai Waghode, that Sunita was missing. The three ladies thereafter went in search of Sunita. Believing that she might be in the appellants. house, they knocked at his door repeatedly. The door was bolted from inside but there was no response from within. As the ladies were running out of their guesses and patience, a teacher called Shrinarayan Sharma, who lived in a house next to the appellants, arrived on the scene- Sharma climbed over the roof of his house, entered the appellants house through an open court-yard and opened the front door. The three ladies thereafter entered the house when, it is alleged, they saw the appellant sleeping on a cot in the court-yard, with a cover pulled up to his face. Sunita was lying still and motionless in the bath-room, wrapped in a blanket. Renukabai lifted her dead child, threw the blanket and ran home. Sunitas underpants was missing.

4. Soon thereafter, Renukabais husband Ramrao Wagh returned from the bazar at about 12.45 p. m., and learned from her that Sunitas dead body was found in the appellants house. Sunita had injuries on her person and her private parts were swollen. Ramrao went to the police station and informed the police of the mysterious death of his daughter. He returned to his house with the police and after about half an hour, he went again to the police station and lodged the First Information Report (Exhibit 11), on the basis of which offences were registered against the appellant under Sections 376 and 302 of the Penal Code.

5. P. S. I. Ramdas Katke gave directions for the arrest of the appellant, held an inquest on the dead body of Sunita, sent the dead body for post-mortem examination and went to the appellants house. From there, he seized a bloodstained tile of the flooring of a room and a blood-stained blanket which was lying in the bath-room. There was a cot in the court-yard of the house and under a pillow, which was lying on that cot, was found a childs underpant. That too was seized.

6. The appellant was thereafter arrested and on being produced before the investigating officer, he was sent for medical examination.

7. Dr. S. J. Santani, Assistant Surgeon of the Karanja Municipal Hospital, who performed the post-mortem examination on the dead body of Sunita found six external injuries on her person. Her vagina was lacerated and her hymen was ruptured. From these symptoms Dr. Santani concluded that the girl was raped. From the other injuries, he concluded that she died of asphyxia, probably due to tracheal compression.

8. Dr. Santani examined the appellant on the same day at 9.00 m. The appellant had put on two full-p