JUDGMENT

Dr. B.S. Chauhan, J. —

1. These appeals have been preferred against the impugned judgment and order dated 11.1.2008 in Criminal Appeal Nos.1020/2001 and 401/2002 of the High Court of Bombay in which the High Court has confirmed the order of conviction dated 19.9.2001 passed by the Additional Sessions Judge, Pune in Sessions Case No.41 of 2000 for the offences of rape and murder, however, altered the sentence of life imprisonment awarded by the Trial Court to death sentence while allowing the criminal appeal of the State for enhancement of punishment.

2. FACTS:

A. On 24.10.1999, Pooja, deceased, aged 10 years was playing on the road between her house and the house of the appellant at about 4 p.m. along with her brother Nitesh (PW.3) and sister. She was found missing by Nitesh (PW.3) who searched for her but in vain. Smt. Tara (PW.1) mother of Pooja, deceased, who had been away for work, on being informed came back and looked around but Pooja could not be traced. Smt. Tara (PW.1) reached the police station at 9.30 p.m. to lodge the First Information Report (hereinafter called the “FIR”). While Smt. Tara (PW.1) was still in the police station, Khushal (PW.10) son of the appellant arrived at the police station and informed the police that the appellant, who was addicted to liquor, told him that he had killed Pooja, deceased and her dead body was lying under the cot in his house. The police acted on the information and reached the spot and found that a large number of persons had gathered there and the appellant was sitting outside his home.

B. The dead body of Pooja was recovered from the house of the appellant and panchnama was prepared. Appellant was arrested and after completing the investigation, the chargesheet was filed against him under Sections 302 and 376 of the India Penal Code, 1860 (hereinafter called “IPC”) . During the trial, the prosecution examined a large number of witnesses in support of its case and after conclusion of the trial, the Trial Court vide judgment and order dated 19.9.2001 convicted the appellant and sentenced him to undergo life imprisonment under Section 302 IPC and 10 years imprisonment under Section 376 IPC. However, both the sentences were directed to run concurrently.

C. Being aggrieved, the State of Maharashtra preferred the appeal for enhancement of sentence and the appellant also filed an appeal against his conviction. The High Court vide impugned judgment and order dated 11.1.2008 upheld the conviction and enhanced the sentence to death penalty, while disposing of both the appeals.

Hence, these appeals.

RIVAL SUBMISSIONS:

3. Shri D.N. Goburdhan, learned counsel appearing for the appellant, has submitted that there is no evidence on record to connect the appellant with the crime. Circumstantial evidence was not to the effect that it would indicate towards the guilt of the appellant in exclusion of any hypothesis of innocence. There are material inconsistencies in the statements of the witnesses which go to the root of the case. There is no sufficient evidence on record on the basis of which conviction of the appellant could be recorded. However, under no circumstance the High Court could be justified in enhancing the punishment from life imprisonment to death sentence. Thus, the appeals deserve to be allowed.

4. Per contra, Shri Arun R. Pednekar, learned counsel appearing for the State, has opposed the appeals contending that the courts below have taken into consideration a large number of circumstances which stood proved to establish the guilt of the appellant. The dead body of Pooja, deceased, was recovered from the house of the appellant. The medical report revealed that she had been killed by strangulation after being subjected to sexual assault. The inconsistencies in the statements of the witnesses, if any, are of trivial nature. The concurrent findings of facts recorded by the courts below on the basis of which the appellant has been convicted, do not require any interference. Th