(HONOURABLE MR.JUSTICE RAJESH H.SHUKLA)

The present confirmation case is filed by the State for confirmation of the capital punishment awarded by the impugned judgment and order dated 18.10.2007 passed by the learned Jt. District & Addl. Sessions Judge, Bhavnagar, in Sessions Case No. 127/2005 convicting the original accused (appellant in Criminal Appeal No. 44 of 2008) for the alleged offence under Sections 363, 376, 392, 302 and 201 of the Indian Penal Code and awarding death sentence to the accused for the offence under sec. 302 of IPC subject to confirmation by the High Court of Gujarat. The appellant-original accused has also preferred an appeal, being Criminal Appeal No. 44/08, against the impugned judgment and order under section 374 of Criminal Procedure Code challenging the conviction recorded by the learned Addl. Sessions Judge, Bhavnagar, in Sessions Case No. 127/2007 for the alleged offence on the grounds set out in detail in the Memo of Appeal, inter alia, that the learned Judge has failed to appreciate the material and evidence on record and has also failed to appreciate the deposition of the witnesses. It is also contended that the learned Judge has failed to consider that the identification parade of the accused has been done by minor Nutan after 2 years of the incident and even otherwise the judgment and order is bad in law and contrary to the facts and circumstances. It is also contended that the learned Judge has failed to consider the medical evidence including postmortem report that there are external injuries found on the body of the deceased and though no other evidence pointing out the guilt of the accused has been brought on record by the prosecution, the learned Judge has recorded the conviction finding the accused guilty. Therefore, the impugned judgment is contrary to the material on record and also contrary to the principles of criminal jurisprudence.

2. The facts of the prosecution case, briefly summarized, are as follows:

2.1 It is alleged that the minor daughter of the complainant - Rani - aged about 7 years, was studying in Municipal School No. 6/7, 7/7 in Std. I at Bhavnagar. In the year 2002, after vacation, the deceased victim daughter of the complainant was attending the school. The timing of the school was from 12.00 noon to 5.00 p.m. and she used to come to the house during recess around 2.30-2.45 p.m.

2.2 It is alleged that on 6.1.2003 the deceased victim had gone to the school but did not return from the school in the evening. Therefore, the wife of the complainant (father of the deceased) informed that the deceased victim has not returned home and she had also not come in the recess. Therefore, on inquiry with the friend of the deceased victim, Nutan - residing in the neighourhood she stated that about 2.30 p.m. when they were going to the school, one person on the bicycle had come and allured the deceased victim to give sugarcane and on such allurement of giving sugarcane, had taken her on his bicycle carrier. Therefore, the friends of the deceased victim Nutan and Farida ran after her and the said person on the bicycle is said to have threatened the two young friends of the deceased victim that if they followed he would get them caught by police and therefore they stopped running behind them. Thereupon, the complainant is said to have given a 'Janvajog' entry, about the victim having not been found, in D-Division Police Station, Bhavnagar. Thereafter, on 11.1.2003, when the complainant visited the D-Division Police Station, Bhavnagar, he is reported to have been informed that dead body of a young girl has been recovered from 'Junabandar Tamriya Khadi' and it has been taken for postmortem to Sir T. Hospital. Therefore, the complainant accompanied by the police had visited Sir T. Hospital where looking at the dead body covered with white shirt he recognized that it was the dead body of his deceased daughter and he disclosed to the police. On the basis thereof, an entry f