IMPORTANT POINTS
When ocular, forensic and medical reports establish guilt of the accused, he has to be convicted.
When medical report indicates commission of rape, conviction for attempted rape (relying upon statement of doctor that attempt was made to rape) will be a legal error.
Accused found guilty of rape and murder of seven year old child committing a brutal and heinous crime. But in absence of broken bones or brutal tearing etc. a case of extreme brutality is not made out. Accused killed the victim in a state of panic due to loud cries by the victim. Murder not premeditated. Case not rarest of rare to warrant death sentence.

JUDGMENT :

Shiva Kirti Singh, J.

1. The appellant, charge-sheeted for offences under Section 366(A), 363, 364, 376(2)(f)/511 and 201 of the Indian Penal Code (for brevity ‘IPC’) was tried by the Twelfth Additional Sessions Judge, Jabalpur in Sessions Trial No. 324 of 2011. He was found guilty of committing the murder of a minor girl, aged about seven years and also of kidnapping and attempt to commit rape on her and for destruction of evidence relating to the crime. The trial court awarded punishment of death under Section 302 IPC, RI for life and a fine of Rs.1,000/- with default stipulation for offence under Section 364 IPC, RI for seven years with similar fine for offence under Section 363 IPC, RI for seven years with similar fine for offence under Section 376(2)(f)/511 IPC and RI for seven years with similar fine for offence under Section 201 IPC. All the punishments of imprisonment were directed to run concurrently. By the impugned judgment the High Court of Madhya Pradesh agreed with the findings of the trial court and answered the criminal reference in affirmative, confirming the death sentence and dismissed the criminal appeal preferred by the appellant.

2. Learned senior advocate for the appellant, Ms. Meenakshi Arora initially made an attempt to challenge the conviction of the appellant itself by pointing out absence of any eye-witness of the incident and dependence of the entire prosecution case on circumstantial evidence alone. Learned counsel for the State countered the challenge to conviction by submitting that in law there is no hurdle in securing conviction purely on circumstantial evidence. On facts, he highlighted that the trial court considered the entire evidence on record fairly and in detail and found the following five circumstances proved against the accused:

(i) The accused asked the victim soon before the incident to purchase and bring “Gutka” for him and after sometime she became untraceable.

(ii) Victim was last seen alive with the accused.

(iii) The accused avoided to hand over the keys of his house for the search of victim.

(iv) Recovery and seizure of victim’s dead body in a gunny bag from the house of the accused.

(v) Seizure of blood-stained clothes including bed sheet from the house of accused pursuant to his memorandum statement.

3. In view of submission advanced on behalf of the appellant that the chain of evidence to prove his guilt beyond reasonable doubt was not complete, we have examined the relevant evidence and also the discussion thereof made by the trial court in detail from paragraphs 15 to 32 of its judgment and similar exercise by the High Court. On a careful consideration of the evidence of shopkeeker Anil Kumar Jain (PW-7) from where the victim bought “Gutka” for the accused and the evidence of complainant Gappu @ Kshirsagar, Hemraj, Ram Kumar, Sitaram, Maharaj Singh along with medical evidence, seizure report and report from the forensic science laboratory confirming the presence of human blood on the gunny bag, bed-sheet and bed-cover which were seized from the house of accused, we find no good reason to interfere with the findings of the trial court duly confirmed by the High Court that the appellant-accused kidnapped the victim and after subjecting her to sexual abuse, throttled her to death. The first submission on behalf of the appellant that the chain of circumstantial evidence is not complete and does not prove the guilt of accused is found to be without any substance. We have no hesitation in confirming the conviction.

4. Since there was no appeal before the High Court from the side of the State or the complainant nor there is any such appeal in this Court, We have confirmed the conviction as made by the trial court but we have no hesitation in indicating our disapproval of the error committed by the trial court in convicting the accused only for the attempted rape. The post-mortem report, besides showing injuries on the neck and face showed several bruise marks on the left and r