The case involves the conviction of the accused for the rape and murder of a five-year-old girl. The court found that the prosecution's case relied solely on circumstantial evidence. The court critically analyzed each circumstance and found that the evidence was not conclusive enough to prove the guilt of the accused beyond a reasonable doubt. The court emphasized the need for complete and conclusive circumstances in cases based on circumstantial evidence. The court also highlighted the importance of a careful evaluation of the evidence to rule out any reasonable likelihood of the innocence of the accused. Ultimately, the court acquitted the accused of all charges and declined the reference for confirmation of the death sentence.
JUDGMENT
1. - Additional District and Sessions Judge, Kotputli has made reference to this Court under Section 366 Criminal Procedure Code for confirmation of death sentence awarded to the accused, while the accused has filed two appeals challenging his conviction. D. B. Criminal Appeal No. 455/93 has been filed through Jail, while Appeal No. 453/93 has been filed as a represented appeal.
2. The incident of the case is shocking one as a girl aged five years was made victim of rape and, thereafter, murdered. The sole accused-appellant before us was tried for the offence punishable under Sections 302 and 376 IPC in Sessions Case No. 52/92 (Old No. 109/91). The learned Additional Sessions Judge convicted him both under Sections 302 and 376 IPC. Under Section 302 IPC he was sentenced to death, while under Section 376 IPC he was awarded imprisonment for life and to pay a fine of Rs. 10,000. In default of payment of fine, he was awarded further rigorous imprisonment for three years vide impugned judgment dated 28th September, 1993.
3. At the very out-set, it may be stated that there is no direct evidence against the appellant and the case rests purely on circumstantial evidence. I am conscious of the gravity of the offences and am equally conscious that in a case of capital punishment which on the face of it, is cruel and revolting, it becomes all the more necessary for the Court to scrutinise the evidence with more than ordinary care. The gravity of the offence by itself cannot over-weigh so far as the legal proof in concerned.With above cautions in mind, I now proceed to examine the facts and circumstances as put forward and the various arguments advanced before us.
4. The deceased Kumari Sona, a girl aged five years, was the daughter of PW-2, Bishan Dayal. She was missing since 4 p.m. on March 18, 1991 and when she did not return home till the evening, a search was started by her father and other relatives. The search continued in the night and also the next morning. At about 8 AM on the next day i.e. March 19, 1991, PW-4 Kishori Lal came to the house of Bishan Dayal and informed that a girl was lying dead in Mohalla-Baseri. Thereupon, Bishan Dayal and Kishori Lal went there and found Kumari Sona lying dead. Blood was coming from her mouth and vagina and a rope was tied around her neck. Bishan Dayal, then, made a report at Police Station Kotwali-Kotputli and Crime No. 108/91 was registered under Sections 376 and 302 IPC. After registration of the case, investigation commenced. Site-plan Ex. P4 was prepared of the place where dead body of Kumari Sona was found lying. The autopsy of the dead body was conducted by a Medical-Board consisting of three Doctors vide post-mortem report Ex.R14. The doctors found eight external injuries on the dead body of the girl and they opined :
"In our opinion, the probable cause of death of deceased is shock (produced due to vaginal trauma and rupture of post fornix) along with asphyxia due to ligature around the neck, probably ligature has been applied during shock.-The injuries are ante-mortem in nature. Time since death 6 to 24 hrs., approximately. The vaginal injuries are clotted blood and injuries to post fornix are indicative of rape."
5. The appellant was also medically examined by the Medical-board on 4.4.91. In the opinion of the Board, there was nothing to suggest that he could not perform sexual inter-course. No opinion was given that he had performed sexual inter-course in near past or past twenty-four hours.
6. As per the prosecution, on 5.4.91-one 'Chaddi' and one 'Baniyan' of the appellant were recovered from a dried well on his information under Section 27 of the Evidence Act. The prosecution relied upon the human blood and semen found on 'Chaddhi'.
7. After completion of investigation, charge sheet came to be filed against the appellant. He was tried in the court of the learned Additional District & Sessions Judge, Kotputli for the offence punishable under Section 302 and 376 IPC. Prosecuti
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