N. K. BATABYAL, J.

( 1 ) THIS appeal is directed against the judgment and order of conviction and sentences passed by the learned Sessions Judge, A and N Islands, in Session case No. 22 of 1991 (Session Trial No. 1st of September, 1994 ).

( 2 ) THE ld. Session Judge has found the appellant guilty of the offence under S. 363/376 (2) (b) of the IPC and convicted him thereunder and sentenced him to suffer rigorous imprisonment for 10 years for the offence under S. 376 (2) (b), IPC and to pay a fine of Rs. 2000/- i. e. ; to R. I. for six months more. The learned Session Judge has also sentenced him to suffer 3 years rigorous imprisonment and pay a fine of Rs. 1000/- i. e. to R. I. for 3 months more for the offence under S. 363, IPC. The two sentences are to run concurrently. The learned Session Judge has found the appellant not guilty of the offence under S. 307, IPC and acquitted him thereunder.

( 3 ) BEING aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the ld. Session Judge, the appellant has preferred this appeal. His main contention is that he is innocent and he has been falsely implicated in this case and he has been illegally found guilty of the offences under S. 376 (2) (b) and S. 363 of the IPC. The appeal is hotly contested.

( 4 ) THE prosecution case in a short compass, is as follows :- Village Dairyfarm, Port Blair is a cluster of houses forming the backdrop of the scene of occurrence in this case. The unfortunate victim of this case is Jayanthi (P. W. 19) who at the material time was aged 3 1/2 years in 1989. She is a daughter of jayalakshmi (P. W. 3) and Kamraj (P. W. 9 ). On the fateful day on 22-1-1989, a sunday, Jayalakshmi at about 4-30 p. m. went to assist her husband with her minor son at her husband's pan shop leaving her two minor daughters, Chitra (P. W. 20) and Jayanthi (P. W. 19), to the care of Dhuran (P. W. 1), a neighbour. She locked her door keeping her two daughters to Dhuran and gave the key to Dhuran so that Dhuran could enjoy the cinema show in the TV kept in her room that evening. The house of Dhuran is at a distance of about 45 feet the room of Jayalakshmi. The small child Jayanthi fell asleep in the room of Dhuran and for this reason she was not disturbed when Dhuran went to the room of Jayalakshmi at the time of cinema show in the TV at about 5-25 p. m. Dhuran (P. W. 1), her two sisters, Chitra (than aged 6 years) and the minor son of Dhuran, Shyam (then aged 3 years) went to enjoy the cinema show in the TV at the room of Jayalakshmi. There were others in the room of Jayalakshmi at that time. The light was kept burning in the room of Dhuran and the door was shut but not locked from outside. Upto the time of interval of the cinema show there was no incident. Appellant Shyamraj was close neighbour of Dhuran. His house was about 30-40 feet away from the house of Augustin (P. W. 16) of the same village 1/2 minutes before the interval of the TV show accused Shyamraj came to the room of Kamraj and through the open door peeped into the room standing on the verandah. He asked Dhuran what was the name of film. She gave the name of the film. Then the accused went away. Shortly after the resumption of cinema show after interval, it is alleged, the little baby Jayanthi became missing from her bed. Savitri (P. W. 4), sister of Dhuran reported the matter to Dhuran but she did not take the matter seriously and asked Savitri to look for missing Jayanthi. Then both Savitri (P. W. 4) and Chitra (P. W. 20) went out in search of missing Jayanthi but within a short time she returned and reported that the search was in vain. As the cinema show was coming to its close, Dhuran did not immediately react to the second missing report but immediately after the show was over she went out of the room of Jayalakshmi and searched for the missing girl alone with Savitri and Chitra. She loudly called for the baby by her name but there was no response. After sometime she saw the

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