JUDGMENT :

V.B. Mayani, J.

1. This appeal has been filed by the convict under Section 374 of the Code of Criminal Procedure, 1973 against the judgment of conviction and sentence dated 26.6.2014 passed by the learned Third Additional Sessions Judge, Surat in Sessions Case No. 41 of 2011 convicting the appellant-accused for the offence punishable under Sections 376 and 302 of the Indian Penal Code.

2. Heard Mrs. Rekha H. Kapadia, learned Advocate for the appellant and Mr. H.K. Patel, learned Additional Public Prosecutor for the respondent -State.

3. Mrs. Rekha H. Kapadia, learned Advocate for the appellant has mainly submitted that this is the case of circumstantial evidence. The charge has been framed for Sections 376 and 302 of the Indian Penal Code. The main circumstances shown by the prosecution during the trial while recording of the evidence are that wrapper of parle biscuit had been found by the investigating agency from the place of offence and the same had been purchased by the present appellant as per the case of the prosecution, the second circumstance shown by the prosecution regarding mother of the victim had seen the present appellant at the gallery where the mother of the victim was feeding food to the victim, another circumstance shown by the prosecution is regarding the blood stain on the clothes of the present appellant, and another circumstance is DNA test of the blood on the underwear of the appellant as well as deceased victim which matched with each other. In this regard, she has mainly submitted that purchase of biscuit by the appellant is not proved by the prosecution, as in the cross-examination it has been recorded that shop-keeper had given the xerox of the book in which the note regarding the purchase of parle biscuit has been mentioned, but it is not produced by the prosecution in the trial. Moreover, the shop-keeper cannot remember all the persons who had purchased which thing. Therefore, his testimony cannot be believed. The another circumstance is regarding presence of the accused at the time of feeding the food to the victim by her mother but they are neighbour and if the appellant was standing in the gallery then it will not be incriminating evidence. As per the serological report the blood stains found on the clothes of the appellant and the blood stains of the victim are of the same group but at the same time it is required to be noted that the blood group of the present appellant is of the same group which has been recorded, the blood group of the victim and, therefore, the blood group of present appellant as well as victim is one and the same. She has also mentioned that there are so many infirmities and shortfall in the DNA report. The DNA report apparently describe that DNA of the blood on the under-wear (chaddi) and the DNA and blood of the victim are same and, therefore; it connects with the crime. But the specimens which are sent to DNA Department were not sent by the Investigating Officer and there are so many infirmities in the evidence. At last, she has submitted that the prosecution has not proved its case beyond reasonable doubt. The whole case of the prosecution is doubtful and, therefore, benefit of doubt is to be given to the accused-appellant. Moreover, she has drawn attention of this Court towards the deposition of the different witnesses as well as documentary evidences.

4. Mr. H.K. Patel, learned Additional Public Prosecutor has mainly submitted that this is a case of rape upon a three year old girl and thereafter she was murdered. He has submitted that it is not in dispute that the victim and her family were residing in the same building where the accused was also residing. He has also submitted that the shop-keeper of the grocery has categorically deposed before the Court that the accused had purchased the parle biscuit from him and wrapper of the said parle biscuit had bee