JUDGMENT :

A.S. SUPEHIA, J.

1. The present appeal filed by the appellant – original accused under Section 374(2) of the Code of CRIMINAL PROCEDURE CODE , 1973 (for short, “the Cr.P.C.”) is directed against the judgment and order dated 20.09.2014 passed by Additional Sessions Judge, Vadodara in Sessions Case No.237 of 2012 (below Exh.63), wherein and whereby, the appellant has been convicted and sentenced for the offence punishable under Sections 302 , 364, and 201 of the INDIAN PENAL CODE , 1860 (for short, “the IPC”).

BRIEF FACTS:

2. The facts of the case of the prosecution in brief are that, the appellant - accused took Afreen Pathan (the younger sister of the complainant), who was seven years old, on 02.06.2012 at about 7 O'clock in Makarpura ST depot, while she went to fetch water at Indiranagar behind the depot and the accused Kapil Kumar Mandal lured her for having ice-cream by accompanying her to sit on his bicycle and took her away to a deserted place on the outskirts of Vadsar - Koteshwar village and brutally raped her, then strangled her to death, intending to destroy evidence. After leaving her dead body, he ran away and thereafter, called the deceased sister by threatening not inform anyone about the incident, for which, she gave a written complaint against the accused before the Makarpura Police Station for the offence punishable under Sections 364 , 365, 368, 376(f), 302, 201 and 507 of the IPC. The trial Court, after examining the oral as well as documentary evidences about 22 in number, has convicted and sentenced the accused.

3. The appellant did not plead guilty and claimed to be tried. The learned Additional Sessions Judge, has convicted the appellant by the judgment and order dated 20.09.2014 and the appellant has been convicted for the offences as follows:-

A. Under Section 364 of the IPC sentenced him to undergo rigorous imprisonment for the period of Ten (10) years and to pay a fine of Rs.1,000/- (Rupees One Thousand only) and in default of payment of fine to suffer simple imprisonment for a period of 2 (Two) month;

B. Under Section 302 of the IPC sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) and in default of payment of fine to suffer simple imprisonment for 4 (Four) month;

C. Under Section 201 of the IPC sentenced him to undergo rigorous imprisonment for a period of Two (2) years and to pay a fine of Rs.500/- (Rupees Five Hundred only) and in default of payment of fine to suffer simple imprisonment for (one) month.

The learned Additional Sessions Judge has also acquitted the present appellant from the charges for the offence under Sections 365 , 368, 376(f) and 507 of the IPC.

SUBMISSION ON BEHALF OF THE APPELLANT-CONVICT:

4. Learned advocate Mr.Ekant G. Ahuja, appearing for the appellant has submitted that the Trial Court has convicted the accused primarily on the statements of child-witnesses. He has referred to the evidence of Rubinabanu Kallankhan Pathan (PW-1) at Exh.9, who is the sister of the deceased (complainant) and two other child-witnesses i.e. PW-2, Jagrutiben Vikrambhai Machhi and PW-4, Sejal Vikrambhai Machhi, who are examined below Exh.12 and Exh.14 respectively. Learned advocate Mr.Ahuja, has further submitted that PW-1, who is the complainant and the sister of the deceased, has implicated the accused for a serious offence like a murder without any basis. He has submitted that PW-1, in her cross-examination has admitted that an application was given by her in relation to the deceased, however after two days an FIR was registered by the police, however no such application has been brought on record by the prosecution.

5. Learned advocate Mr.Ahuja, has further submitted that in fact, the complainant (PW-1) has not witnessed the accused taking away her sister on the cycle. It is