B. J. SHETHNA, J. ( 1 ) APPELLANT - accused Surendrapal Shivbalakpal, Aged : 36, is found guilty for the offences of kidnapping, rape and murder, punishable u/ss. 363, 376 and 302 I. P. Code by the learned Sessions Judge, Ahmedabad (Rural), Navrangpura, Ahmedabad, in Sessions Case No. 212 of 2002 and sentenced to suffer 7 years R. I. and to pay fine of Rs. 1000/- and i/d. to further under-go 3 months S. I. for the offence u/s. 363 I. P. Code, life imprisonment and to pay a fine of Rs. 2000/- i/d. to further under-go 5 months R. I. for the offence u/s. 376 I. P. Code and Death sentence for the offence u/s. 302 I. P. Code and ordered to hang him till he dies. After passing this order of conviction and sentence on 20. 6. 2003 against the appellant - accused, the learned Sessions Judge has made reference to this Court u/s. 366 of the Code of Criminal Procedure for confirming the death sentence awarded by him to the accused for the offence u/s. 302 I. P. Code which is registered as Criminal Confirmation Case No. 1 of 2003. The Appellant - accused has also challenged his order of conviction and sentence through Jail by way of Criminal Appeal No. 770 of 2003. Therefore, both these matters were heard together and disposed of by this Judgment. ( 2 ) THE prosecution case, in brief, is as under :- complainant Kevalpati was staying on the ground floor, whereas accused Surendrapal was staying in one room as her tenant on the first floor and pay rent of Rs. 350/- per month since two months of the incident. On 11. 9. 2002 complainant Kevalpati was sleeping on the cot along with her two minor daughters Gayatri Manju and Savitri @ Sanju, aged 8 and 7 years respectively on the Otla of her house. At about 10. 00 p. m. accused came in drunken condition and asked the complainant to allow him to have sexual intercourse with her and offered Rs. 150/- for the same. She refused it and asked the accused to go away, but he did not leave the place and sat on the cot. Therefore, she went in the rear portion of her house where her brother Rajaram was sleeping with her son Manoj and told them that accused was harassing her. 150/- for the same. She refused it and asked the accused to go away, but he did not leave the place and sat on the cot. Therefore, she went in the rear portion of her house where her brother Rajaram was sleeping with her son Manoj and told them that accused was harassing her. They came and scolded the accused and driven him out from that place. Rajaram asked him to go to his room on the first floor, but the accused did not go to his room and left the place by saying that he is going to his brothers house at HUDCO. Thereafter, Rajaram and Manoj had gone back to their respective place to sleep. Kevalpati slept on the cot with her daughters. However, after some time she went inside the house, as she was feeling cold, leaving her both the minor daughters sleeping on the cot all alone. At about 1. 00 Oclock in the mid-night she came out from the house to see her minor daughters sleeping alone on the cot on the Otla of her house. Gayatri @ Manju was sleeping on the cot, but Savitri @ Sanju was not there. Thereupon, she called her brother Rajaram and her son Manoj, who were sleeping on the rear portion of her house and also called her brother-in-law Ramvaran from his house, which was nearby to her house. They searched "sanju" in the nearby places as well as in the room of the accused Surendrapal. Accused Surendrapal was also not there in his room. Thereupon, Ramvaran told them that when he woke up at about 1. 00 Oclock in the mid-night and came out from his house to answer the call of nature, while coming out from the bath-room he had seen accused Surendrapal near the cot and taking away one girl on his shoulder, but he thought that she must be the daughter of Fulchand, son-in-law of the brother of the accused, therefore, he did not ask him anything or stop him. While leaving the place the accused said to the complainant Rajaram and Manoj that he is going to his brothers house at HUDCO and, therefore, all of them had gone there in search of accused Surendrapal at his brothers house. However, he was not found at his brothers house. While leaving the place the accused said to the complainant Rajaram and Manoj that he is going to his brothers house at HUDCO and, therefore, all of them had gone there in search of accused Surendrapal at his brothers house. However, he was not found at his brothers house. Then they went to the house of Shital where the accused was earlier staying as tenant. He told that when the accused was staying there he was making similar demand of sexual intercourse and, therefore, he was driven out from that place and thereafter he had not come again. They returned to the house and told complainant that "sanju" could not be traced out. Thereupon Kevalpati started crying and running from here to there. She was followed by her son Manoj. At about 4. 00 Oclock in the early morning when they were on the road they found accused coming from G. I. D. C road. People, gathered there, caught him and asked about "sanju". He did not disclose anything to anyone. Thereupon, Rajaram called Police on Phone. Police came there at about 4. 30 a. m. , but he did not disclose anything to police also. Thereupon, he was taken to the Police station in the Van along with complainant Kevalpati, Rajaram and others. During interrogation by P. S. I. Chudasma the accused stated that he first kidnapped the girl in the night from the house of the complainant and then took her behind G. I. D. C. at barren place and committed rape on her and thereafter throttle her and threw her in the "puddle" full of water. Thereafter, he took the police to the place where he committed rape on Sanju and threw her in the water. Thereafter, at about 6. 00 a. m. the complaint of complainant Kevalpati was recorded by the police. Arrest Panchnama of the accused was made and the clothes, put on by him having blood stains and semen and spots of cow dung were also seized under the Panchnama. The Panchnama of scene of offence was also prepared. Dead Body of "sanju" floating in the water was taken out by her maternal uncle Rambaran. Then, Post Mortem Note was prepared. After completing the investigation the Police submitted the charge-sheet against the accused for the offences u/ss. The Panchnama of scene of offence was also prepared. Dead Body of "sanju" floating in the water was taken out by her maternal uncle Rambaran. Then, Post Mortem Note was prepared. After completing the investigation the Police submitted the charge-sheet against the accused for the offences u/ss. 363, 376 and 302 I. P. Code before the Court of 2nd Joint Civil Judge (JD) and JMFC, Ahmedabad (Rural), who committed the case to the Court of Sessions u/s. 209 Cr. P. C. On committal the case was initially placed before the Court of learned Addl. Sessions Judge, Ahmedabad (Rural), Ahmedabad, who framed the charge at Ex. 3 against the accused for the offences u/ss. 363, 376 and 302 I. P. Code. It was read over and explained to the accused, but he did not plead guilty to the charge and claimed to be tried. He was given Legal Aid as he was not able to engage any Advocate and, therefore, Advocate Shri V. T. Acharya was appointed to defend his case as an amicus curiae. After framing the charge learned Addl. Sessions Judge was transferred, therefore, the Sessions Case was tried by the learned Sessions Judge, Ahmedabad (Rural), Ahmedabad himself. The prosecution has examined the following witnesses to prove its case (I) panch witness Vasantlal Vipati Exh. 7. (II) complainant Kevalpati Ramsharan Pahelvan Exh. 9 (III) witness Ghanshyam Rambaran Pal, Exh. 1 (IV) witness Shivalliben Rambaran Pal, Exh. 12. (V) witness Shyambahadur Rampal Jadav, Exh. 13 (VII) witness Rambaran Pahelvan Pal, Exh. 15 (VIII) panch witness Kishorbhai Narsinhbhai Kapadia Exh. (IX) panch witness Mohanji Munnaji Vanzara, Exh. 22 (X) panch witness Rajubhai Basantsinh Urmi, Exh. 29 (XI) witness Manojkumar Ramsharan Pal, Exh. 32 (XII) Witness Arjunprasad Jagruprasad Varma, Exh. 33 (XIII) Witness Magrubhai Sampatbhai Koli, Exh. 34 (XIV) Witness Radheshyam Gulamsinh Bhaderiya, Exh. 35 (XV) witness Sagarbhai Khumabhai, Exh. 38 (XVI) Police Inspector Shri Chandrakant Hirjibhai Gajjar, Exh. 39. (XVII) Witness Smt. Minaben Rajnikant Dave, Exh. 44 (XVIII) Dr. Krunal Dasharathbhai Patel, Exh. 46. (XIV) P. S. I. Shri Dasharathsinh Karansinh Chudasama, Exh. 48the prosecution has also relied upon the following documentary evidence: (I) complaint of complainant Kevalpati, Exh. 10 (II) report of Offence, Exh. 40 (III) Inquest Panchnama, Exh. 8 (IV) panchnama of Place of Offence shown by the accused, Exh. 28 (V) panchnama of body of Accused, Exh. 17 (VI) panchanam of clothes of dead body, Exh. 48the prosecution has also relied upon the following documentary evidence: (I) complaint of complainant Kevalpati, Exh. 10 (II) report of Offence, Exh. 40 (III) Inquest Panchnama, Exh. 8 (IV) panchnama of Place of Offence shown by the accused, Exh. 28 (V) panchnama of body of Accused, Exh. 17 (VI) panchanam of clothes of dead body, Exh. 30 (VII) Copy of telephone message, Exh. 36 (VIII) Report of FSL Officer of Local Inspection, Exh. 41 (IX) p. M. Note, Exh. 47 (X) Receipt of FSL, Exh. 42 (XI) report of FSL, Exh. 43after recording of the evidence, the statement of accused under sec. 313 of the Code of Criminal Procedure was recorded by the learned Judge. All throughout, the accused maintained that he was not knowing anything in the matter and he denied the incident in question. He had refused to examine any defence witnesses and also refused to examine himself on oath before the Court. Thereupon, the Public Prosecutor submitted an application ex. 49 to close the prosecution evidence. ( 3 ) THE entire prosecution case rest on the circumstantial evidence. It was submitted by the learned Public Prosecutor before the learned Sessions Judge that in the instant case, the prosecution has proved its case beyond the reasonable doubt against accused by completing chain of circumstances, that the accused has committed the offences under sec. 363, 376 and 302 IPC by kidnapping minor girl Savitri @ sanju from lawful custody of her mother and after committing rape on her, committed her murder. ( 4 ) ON behalf of the accused, Shri VT Acharya had submitted that in the instant case, the prosecution has examined all the interested witnesses who are related to the deceased and though independent witnesses were available, they were not examined. One of the independent witness Magru Sampat Koli, PW-13 Exh. 34, has not supported the prosecution case, therefore he is declared hostile. Evidence of Rambaran Pahelvan Pal, PW-7 Exh. 15 is not at all reliable. Once his evidence is discarded then the chain of circumstantial evidence was not complete, because only Rambaran claimed to have seen the accused taking away sanju with him in the night at 1. 00 Oclock. He, therefore, submitted before the learned Judge that the accused be acquitted by giving benefits of doubt. ( 5 ) LEARNED Judge raised two issues for his determination: (I ). 00 Oclock. He, therefore, submitted before the learned Judge that the accused be acquitted by giving benefits of doubt. ( 5 ) LEARNED Judge raised two issues for his determination: (I ). Whether, the prosecution has proved beyond reasonable doubt that the age of the deceased Savitri @ Sanju was seven years? (II ). Whether, the prosecution has proved beyond reasonable doubt that the accused kidnapped the minor girl Savitri @ sanju, aged 7 years from the lawful custody of her mother and committed rape on her and then throttled her and threw her in puddle full of water ? and committed offences under Section 363, 376 and 302 of the Indian Penal Code?after appreciating oral as well as documentary evidence led by the prosecution and considering the defence of the accused, the learned Judge came to the conclusion that the prosecution has proved beyond reasonable doubt that at the time of death, deceased Savitri @ sanju was only 7 years old and the accused kidnapped her from the lawful custody of her mother on the fateful night committed her murder after committing rape on her. Having held the accused guilty for the aforesaid offences, the learned judge adjourned the case on the next date for hearing the accused on the point of sentence and on 20. 6. 2003 after hearing the advocate of the accused and the learned Public Prosecutor, he awarded sentence to the accused, as stated earlier. The impugned order of conviction and sentence passed by the trial court is challenged by the appellant-accused, through jail by way of Criminal Appeal No. 770 of 2003. He has prayed for legal aid. Therefore, learned advocate Shri N. K. Majmudar, having 13 years of practice, is appointed by the office of this Court to defend the appellant-accused in his appeal as well as confirmation case. ( 6 ) WE have heard both, learned advocate Shri NK Majmudar for the appellant-accused as well as learned APP Shri PR Abichandani for the State in both, Confirmation Case as well as Appeal for a considerable time in detail. ( 6 ) WE have heard both, learned advocate Shri NK Majmudar for the appellant-accused as well as learned APP Shri PR Abichandani for the State in both, Confirmation Case as well as Appeal for a considerable time in detail. At the out set, we must state that both the learned advocates Shri NK Majmudar for the appellant-accused and Shri PR Abichandani learned APP for the State have taken us through the entire oral as well as documentary evidence on the record and the reasoning assigned by the learned Judge for convicting the accused for the aforesaid offences in his Judgment. This was a case of hanging and that the accused was defended by an appointed Advocate, therefore, we had kept the accused personally present during the entire hearing of this case. After hearing was concluded he was also personally heard on the point of sentence. ( 7 ) LEARNED advocate Shri NK Majmudar for the appellant-accused vehemently submitted that entire prosecution case rest on the interested testimony of the witnesses who were closely related to the deceased. He submitted that though the independent witnesses were available they were deliberately not examined by the prosecution and one independent witness Magru Sampat Koli PW-13 examined by the prosecution has turned hostile, therefore, it would not be safe to rely on the interested testimony of the relatives of the deceased for convicting the accused. He further submitted that Rambaran PW-7 is the chance witness who claimed to have seen accused taking away sanju in the night at 1. 00 Oclock from the cot. He submitted that evidence of Rambaran is not at all reliable. He submitted that if Rambaran had seen the accused then he could have easily seen his niece sanju, who was carried by the accused on his shoulder, in the night time. The natural conduct of the uncle would be to immediately raise shouts or stop the accused from taking away the girl, but he did not do anything at that time and quietly gone to sleep. The natural conduct of the uncle would be to immediately raise shouts or stop the accused from taking away the girl, but he did not do anything at that time and quietly gone to sleep. It is only when complainant Kevalpati and others raised shouts and informed him that sanju was missing from the cot then only he said that he had seen the accused taking taking away girl but due to night time, he could not see the face of the girl and he was under the impression that the accused was taking daughter of son-in-law of his brother, therefore, he did not raise any shout or stop the accused from taking away the girl. He submitted that once his evidence is discarded then the most important circumstance namely the accused seen last together with the deceased is not proved. Therefore, benefit of doubt must go to the accused. Shri Majmudar further submitted that first part of incident narrated by the complainant Kevalpati taking place at about 10. 00pm in the night at her house is completely got up and concocted one. He submitted that presence of the accused at the house of Kevalpati at 10. 00pm was highly doubtful because it was raining and her brother Rajaram, PW-6 was sleeping in the rear portion of her house. He further submitted that almost all prosecution witnesses narrated parrot like story which creates strong suspicion in the mind of the court and the benefit of it must go to the accused. Shri Majmudar also submitted that there was no water in the puddle from where the dead body of sanju was found. He submitted that in the evidence of panch witness Mohanji Munnaji Vanzara, he has clearly admitted that there was no water at the place where the dead body of the deceased was found. He submitted that in this type of case of circumstantial evidence even slightest contradiction is there, then the benefit must go to the accused. He also submitted that as per the FSL report, blood with semen was found but the blood group could not be opined. He also submitted that as per the inquest panchanama, no external mark of injury was found on the dead body of the victim. Under the circumstances, the court should give benefit of doubt to the accused and acquit him for the offences for which he was charged. He also submitted that as per the inquest panchanama, no external mark of injury was found on the dead body of the victim. Under the circumstances, the court should give benefit of doubt to the accused and acquit him for the offences for which he was charged. Alternatively, he submitted that at the most the prosecution can said to have proved its case against the accused for the offence under sec. 302 of IPC and not under sec. 376 of IPC because there was no medical examination of the accused and the doctor is not examined on this point. He submitted that no sperm of the accused was collected to establish that first the accused committed rape on sanju and then killed her. He, therefore, submitted that at the most the accused can be convicted for the offence under sec. 302 of IPC for which maximum punishment of death sentence cannot be awarded because this cannot be said to be a "rarest of the rare cases". He submitted that the trial court has not considered the mitigating circumstances in favour of the accused for not awarding death sentence, namely; (1) That the accused was aged 36 years. (2) He has not married because except him there is no one in his family to look after his old parents and (3) From the evidence of prosecution witness Rajaram, it is clear that on the fateful night at about 10. 00pm, the accused consumed liquor, therefore, he must be completely under the influence of alcohol and may not be knowing what he was doing, (4) He has no past criminal record, (5) He came to Gujarat from U. P. just two months before the incident and in the weak moment, if he had committed any offence, then he may not be hanged for the same. He submitted that life imprisonment would be the proper imprisonment in this case. He also submitted that in utter disregard to sec. 235 (2) of the Code of Criminal Procedure, the learned judge has awarded death sentence to the accused without hearing him personally. He submitted that he should have heard the accused personally and not his advocate on the point of sentence. He further submitted that if the accused was asked personally then he would have narrated the aforesaid mitigating circumstances in his favour for imposing lesser punishment. He submitted that he should have heard the accused personally and not his advocate on the point of sentence. He further submitted that if the accused was asked personally then he would have narrated the aforesaid mitigating circumstances in his favour for imposing lesser punishment. Thus, the learned judge has failed to discharge his duties, therefore, death sentence be commuted to life imprisonment. Lastly, he submitted that the learned Judge should not have been blood thirsty. He, therefore, submitted that the death sentence be commuted to life imprisonment for the offence under Sec. 302 IPC. In support of his submissions, Shri Majmudar has relied upon the following judgments of the Honble Supreme Court:1) air 2002 SC p. 70 bantu alia Naresh Giri vs. State of M. P. 2) AIR 2001 SC 2043 raju vs. State of Haryana3) (2001)2 SCC 28 mohd. Chaman vs. State (NCT of Delhi)4) AIR 1980 SC 898 bachan Singh vs. State of Punjab5) air 1979 SC 916 rajendra Prasad vs. The State of Uttar Pradesh6) air 1999 SC 1699 kundal Lal vs. State of U. P. 7) air 1989 SC 1456 allauddin Mian and others vs. State of Bihar8) 1987 Cri. L. J. 180 dasan and others vs. State of Kerala9) AIR 2003 SC 3131 amit alia Ammu vs. State of Maharashtra10) air 1983 SC 957 machhi Singh and others vs. State of Punjab ( 8 ) LEARNED APP Shri Abichandani, for the State, however, submitted that this is a full proof case where the prosecution has fully established the chain of circumstantial evidence against the accused. He submitted that the witnesses may tell lie but not the circumstances. When the prosecution has proved its case against the accused beyond reasonable doubt then there is no question of interfering with the judgment and order of conviction and sentence passed by the learned Judge. He submitted that in the instant case, mostly interested witnesses would be there, therefore, the court is required to examine their evidence closely. But merely because they were related to the deceased is no ground to discard their evidence. He further submitted that all the prosecution witnesses have been fully cross-examined by the advocate of the accused but nothing has come out in their cross-examination. Some minor contradictions here or there should not make any difference because such type of minor contradictions are bound to be there in almost all cases. He further submitted that all the prosecution witnesses have been fully cross-examined by the advocate of the accused but nothing has come out in their cross-examination. Some minor contradictions here or there should not make any difference because such type of minor contradictions are bound to be there in almost all cases. He submitted that no undue importance should be attached to such minor contradictions. He further submitted that the incident in question must have occurred between 1. 00 AM. to 4. 00 AM and immediately at about 4. 00am the accused was apprehended by the people and when he was asked about sanju, he refused to disclose the truth, therefore, police was called and, thereafter, he was taken to the police station and during interrogation at police station he confessed everything. Thereafter, he took the police to the place where he committed the rape and then at the place where he threw the dead body of the deceased. The panchanama of scene of offence, arrest panchanama of the accused, inquest panchanama and other oral evidence of the prosecution witnesses clearly go to show that it is the accused and accused alone who committed cold blooded murder of minor girl sanju after committing rape on her. He submitted that there was no question of his sperm being sent to the doctor for his report because the accused never discharged it though he was sent to doctor thrice or four time. Therefore, merely because the doctor has not deposed about the examination of the accused on this point, it would not be proper for this Court to discard the entire prosecution case. He submitted that no undue importance should be attached to the evidence of panch witness Mohanji Munnaji Vanzara, who seems to have inadvertently stated in his cross-examination that there was no water in the puddle. Except him, all other witnesses have stated that the dead body of sanju was found floating in the puddle which was full of water. P. M. Note and the evidence of Doctor also shows that sanju died because of drowning and that was possible only if she was thrown in the water. He also submitted that evidence of Rambaran is natural and reliable. He submitted that except accused, no one else could have committed this offence because immediately at 4. P. M. Note and the evidence of Doctor also shows that sanju died because of drowning and that was possible only if she was thrown in the water. He also submitted that evidence of Rambaran is natural and reliable. He submitted that except accused, no one else could have committed this offence because immediately at 4. 00 AM with blood stain clothes having semen on it and few spots of cow dung he was caught by the people. He further submitted that at 4. 00 AM when the accused was taken to the police station, he had shown his willingness to show the place of offence where he committed rape and the place where he threw sanju. Both the places were isolated. It was at a distance of about 1. 00 k. m. from the house of Kevalpati. This was not possible if any other person had committed this offence and except the accused, nobody had any grievance with the complainant. He submitted that the accused had consumed liquor and at 10. 00 PM in the night in a drunken condition he had gone to the complainant, when she was sleeping with her two minor daughters, and demanded to have sexual intercourse with her by offering Rs. 150/ -. When she refused it, he did not leave the place till she called her brother Rajaram, who was sleeping in the rear portion of the house. He came and scolded him and driven him out. The accused was the tenant of complainant Kevalpati and staying on her first floor. Instead of going to his room, he left the house by saying that he was going to his brothers house at HUDCO. But, he did not go to his brothers house and hide himself and waited for an opportunity. He came back at 1. 00 AM in the night when every one was sleeping. He saw two minor girls of Kevalpati were sleeping alone on the cot. He quietly lifted sanju on his shoulder and took her away, but he was seen by the witness Rambaran as he had come out from his house to answer natures call. He submitted that the complaint was lodged by the complainant Kevalpati at the earliest point of time i. e. at 6. 00 AM without any exaggeration about the incident and the name of the accused was clearly mentioned in it. He submitted that the complaint was lodged by the complainant Kevalpati at the earliest point of time i. e. at 6. 00 AM without any exaggeration about the incident and the name of the accused was clearly mentioned in it. He also submitted that P. M. Notes and the Doctors evidence clearly show that there were several external marks of injury on the dead body of sanju and merely because the blood group could not be determined that fact itself is of no help to the accused. Because, admittedly blood with semen was found on the muddamal articles, like nicker put on by the deceased and the accused. He, therefore, submitted that when the prosecution has established its case beyond reasonable doubt against the accused for the offence of kidnapping, rape and murder then this Court should not interfere with such order of conviction. He also submitted that this is a rarest of rare cases where no other punishment except punishment of death sentence is called for and the learned judge has rightly awarded the death sentence to the accused which should not be interfered with by this court. He submitted that the circumstances narrated by Shri NK Majmudar learned advocate for the appellant-accused cannot be said to be mitigating circumstances for imposing lesser sentence of life imprisonment. He submitted that the manner in which the accused committed well planned, organized offence shows that he had peevish plan in his mind. Accordingly, to his plan he first kidnapped sanju and then committed rape on her and thereafter killed her. This was done by him only because her mother refused his lust of sex at 10. 00 PM on that fateful night and thereafter her brother scolded and driven him out from the house. Thus, he was insulted, therefore, he wanted to take revenge. Relying on the Panchnama of scene of offence, inquest panchanama and the P. M. Notes, he submitted that in a most jungly manner the accused notched poor innocent minor girl sanju aged 7 and committed rape on her and, after throttling her, threw her in the water. Thus, because of drowning she died. He further submitted that the accused claimed that he has not married because his two elder brothers are separated, and except him, there is no one to look after his old parents. However, the reality is totally different. Thus, because of drowning she died. He further submitted that the accused claimed that he has not married because his two elder brothers are separated, and except him, there is no one to look after his old parents. However, the reality is totally different. He was staying all alone in Ahmedabad leaving his old parents in U. P. He came from U. P. just two months of the incident. He was sex hungry. He expressed desire of sex to a lady where he was first staying as a tenant in Ahmedabad, because of that he was driven out from there. Thereafter, he was staying in the house of Kevalpati as her tenant. Kevalpati was not knowing the past record of the accused. He submitted that old parents must be very well looked after by his other two married brothers and one unmarried brother, who are staying separately from them. He submitted that if he is kept at large in the society, then he will be danger to the society and no innocent girl would be safe. He submitted that in this type of cases, deterrent punishment is very much necessary. He submitted that if any undue mercy is shown to the appellant-accused then it will have adverse effect on the society as well because such type of cases are increasing in our society. For confirmation of death sentence awarded by the learned trial judge, Shri Abichandani has relied on the following judgments of the Honble Supreme Court. 1) air 1996 SC 2800 kamta Tiwari v. State of M. P. 2) air 1995 SC 1387 laxman Naik vs. State of Orissa3) air 2000 SC 177 molai and another vs. State of Madhya Pradesh4) air 1983 SC 594 javed Ahmed Abdulhamid Pawala vs. State of maharashtra5) air 1998 SC 2889 govindasami vs. State of Tamil Nadu6) air 1992 SC 395 smt. Shashi Nayar vs. Union of India and others ( 9 ) HE also submitted that sometime back, because of this type of incidents it was suggested in the Parliament to provide death sentence even in rape cases so that it has deterrent effect on the accused. It is a different matter that so far no such amendment is brought, but this can also be certainly considered by the Court. Lastly, he submitted that the learned trial judge, who awarded death sentence cannot be said to be blood thirsty. It is a different matter that so far no such amendment is brought, but this can also be certainly considered by the Court. Lastly, he submitted that the learned trial judge, who awarded death sentence cannot be said to be blood thirsty. Except discharging his duty he has not done anything more. He submitted that if he had not awarded death sentence then he would have failed to discharge his duty. He, therefore, submitted that the death sentence awarded by the learned trial judge to the accused be confirmed and the appeal filed by the accused be dismissed. ( 10 ) BEFORE appreciating the rival submissions of the learned counsel for the parties, we would like to deal with the evidence of prosecution witnesses in nutshell as the same is extensively dealt with by the learned judge in his impugned judgment and order of conviction and sentence. ( 11 ) PW-1 Exh. 7 Vasantlal Vipati is the panch witness of inquest panchanama (Exh. 8 ). He has clearly stated in his evidence that on 12. 9. 2002 police called him at Kathavada GIDC, Behind Cellulose Company at the place where the dead body of daughter of Kevalpati aged 6-7 years was lying in a puddle which was full of water. Lot of blood was coming out from the mouth of dead body. Blood was also coming out from the private part of the girl. That time, he heard that tenant residing in the house of the girl committed her murder after raping her. He has signed the panchanama at exh. 8. The said panchanama was recorded between 7. 00am to 7. 35am on 12. 9. 2002. In his cross-examination, he stated that on the day of incident, he had night duty. House of Kevalpati was at a short distance of his house. He reached the place at about 7. 00am after he was coming from duty. Rambaran told him to become panch, therefore, he agreed. He clearly stated that he signed panchanama only after it was drawn. He categorically denied that he had never gone to the place of incident and that he had not seen anything and later on he signed the prepared panchanama. ( 12 ) KEVALPATI, widow of Ramsharan PW-2 Exh. 9 is the mother of deceased Savitri @ sanju. She stated in her evidence that she is from U. P. Rajaram (PW-6) is her brother. ( 12 ) KEVALPATI, widow of Ramsharan PW-2 Exh. 9 is the mother of deceased Savitri @ sanju. She stated in her evidence that she is from U. P. Rajaram (PW-6) is her brother. She had two daughters, one Gayatri @ Manju aged 8 and another Savitri @ sanju aged 7 and son Manoj aged 16. She is running grocery shop in her house. Her husband died about 5 years back. Rambaran (PW-7) is the younger brother of her husband, whose house is third from her house. Her brother Rajaram, serving in the Medical Store at Kankaria stays with her. She has got two storeyed house. Three rooms on the ground floor and three rooms on the first floor. She stays on the ground floor. On the first floor, accused Surendrapal was staying as her tenant in one room and paying rent of Rs. 350/- p. m. He was staying since two months of the incident. His brother and brothers wife were staying at HUDCO. On the night of the incident i. e. on 11. 9. 2002, at 10. 00 pm. she was sleeping with her two minor daughters in the front side of her house. At that time, her son had gone to see movie on VCR of her neighbour. Her brother had also gone along with him. After movie was over, her brother and son were sleeping on the rear otla of her house. She was sleeping in the front side of the house on the cot with her two minor daughters. Since last two days of the incident, she was not feeling well. When she was sleeping on the cot between 10. 00 to 10. 30pm accused Surendrapal came and sat on the cot and told her that he wants to sleep with her and offered Rs. 150/- for having intercourse with her. She refused and asked him to get out from there, but he did not go. Therefore, she called her brother and son from rear side of her house. They scolded and driven out the accused. While going he said that he is going to his brothers house and did not go to sleep in his room on the first floor. Thereafter, for some time, she slept with her daughters. But she was feeling cold, therefore, she went inside the house. They scolded and driven out the accused. While going he said that he is going to his brothers house and did not go to sleep in his room on the first floor. Thereafter, for some time, she slept with her daughters. But she was feeling cold, therefore, she went inside the house. After an hour, when she came out, she found only one daughter Manju on the cot but sanju was not there. Thereupon, she called her son, brother and brother-in-law. Her brother-in-law Rambaran told them that when he had gone to answer call of nature, he had seen Surendrapal taking away one girl with him but he thought that she must be the daughter of son-in-law of his brother, therefore, he had not stopped him. Thereafter, they started searching Surendrapal. Her son had gone in search of Surendrapal at his brothers place at HUDCO but his brother and brothers wife told them that Surendrapal had not come to their house. Shyambahadur Rampal Jadav (PW-5), is her neighbour. He had seen Surendrapal at about 3. 30am to 4. 00am near Dwarkanath School on the main road and caught him. At that time sanju was not with Surendrapal. When accused did not tell anything about sanju, then her brother Rajaram called police on phone, but he did not disclose anything to the police also. Therefore, police took him to the police station. During interrogation in the police station, he told PSI Chudasama that after kidnapping sanju he committed rape on her then throttled her and threw her in the puddle full of water, near GIDC. Then, he took the police at the place where he had thrown deceased sanju after committing rape on her. She along with her brother and brother-in-law had also gone to the place of incident. Thereafter, she lodged the complaint Ex. 10. She identified the accused in the court and stated that he was her tenant. She had also identified the articles put on by her daughter sanju at the time of incident when the dead body of sanju was found from the puddle. She had seen blood coming out from the mouth and private part of sanju. In her cross-examination, she stated that after death of her husband, she had not remarried and she was staying with her brother, her son and two daughters. She had seen blood coming out from the mouth and private part of sanju. In her cross-examination, she stated that after death of her husband, she had not remarried and she was staying with her brother, her son and two daughters. On her first floor, one Raju Bihari was staying in one room with his family since last 2 to 3 years and Accused Surendrapal was staying in another room since last two month of the incident. Two to four days prior to the incident, it was raining. Her son Manoj was sleeping with his maternal uncle on the rear side of her house. Up to 10. 30 PM, she was sleeping out side. Accused Surendrapal is also from U. P. On that fateful day for the first time, Surendrapal sat on her cot. She stated that in her complaint, she had not stated that she asked accused to go away and allow her to sleep. She scolded the accused and driven him out. She admitted in her cross-examination that she has not stated in her complaint that the accused did not go and asked to sleep on the cot with her. She also stated that her brother came and driven out the accused. Thereafter, she slept with her daughters, till she was sleeping on the cot, the accused did not come again. Number of people were sleeping in Bhagawatinagar outside their houses. First she woke up her brother and then her neighbours, when she found that sanju was missing from the cot. Shivbahadur is her neighbour. Rambaran brother-in-law is also staying there. Mishra, Tiwari and Yadav were also staying in the vicinity with their families. On hearing her shouts, they came there. All of them searched Surendrapal but he was not found. When Surendrapal was apprehended on the road, she was there. The place was at a short distance from her house. It was about 3. 00am to 4. 00am. 40 to 50 persons gathered there. They asked Surendrapal about sanju, but he did not tell anything to them. Odhav Police was called by her brother Rajaram. She has clearly denied that nearby people told that there was no evidence against Surendrapal, therefore, police should not be informed. She also stated that when police came there, accused stated that he was not knowing anything about sanju. They asked Surendrapal about sanju, but he did not tell anything to them. Odhav Police was called by her brother Rajaram. She has clearly denied that nearby people told that there was no evidence against Surendrapal, therefore, police should not be informed. She also stated that when police came there, accused stated that he was not knowing anything about sanju. Police took the accused on its own by saying that he will disclose the true facts only in the police station. Complaint was lodged by her at about 6. 00 to 7. 00am on 12. 9. 2002. She has clearly denied that the dispute was going on between her and Surendrapal for getting vacant possession of the room from Surendrapal, therefore, she has filed false complaint against him. She has admitted that son-in-law of the accused was throwing water from the first floor, therefore, she told him not to throw water. The incident of throwing water took place just one day before the date of incident. ( 13 ) THUS, from the evidence of Kevalpati it is clear that FIR (Exh. 10) was lodged by her at the earliest point of time i. e. 6. 00 AM, wherein she has clearly stated that accused came and sat on her cot and demanded sexual intercourse with her and offered Rs. 150/- for the same. She refused that offer and scolded him and driven him out after calling her brother Rajaram and her son Manoj. Thereupon, accused left the place by saying that he is going to his brothers place at HUDCO. She was feeling cold therefore she went inside the house leaving her both the daughters alone on the cot. After about one hour when she came out, she saw her daughter sanju missing. Her brother-in-law Rambaran told her that he had seen her tenant Surendrapal taking away one girl in the night but he thought that she was the daughter of son-in-law of his brother, therefore, he did not stop him. The accused was not found in his room or at his brothers house. They made search of the accused every where and caught him at 4. 00am on the main road near her house, but sanju was not with him. Thereupon, her brother informed the police on phone. The accused was not found in his room or at his brothers house. They made search of the accused every where and caught him at 4. 00am on the main road near her house, but sanju was not with him. Thereupon, her brother informed the police on phone. The police came there and took the accused to the police station where accused said that he killed Savitri @ sanju after committing rape on her and thrown her body in the puddle near GIDC, and shown the place where he committed rape and the place where he threw sanju in the puddle. ( 14 ) NEXT witness PW-3 Exh. 11 Ghanshyam is son of Rambaran is 16 years old boy. He is cousin of deceased sanju. He has stated in his evidence that Kevalpati was staying with her three children i. e. son manoj and two daughters sanju and manju on the ground floor in three rooms. Raju Bihari stays in one room and accused Surendrapal was staying in another room as tenant. sanju was aged 7 years. Surendrapal used to play with sanju and manju and taking them outside with him. The incident took place on 12. 9. 2002. At that time, he was sleeping at his house. His father was also sleeping. At about 1. 00 Oclock in the night, manoj came to call his father and asked him about sanju. His father Rambaran told him that when he had gone to answer the call of nature in the night at about 1. 00 p. m. , he had seen Surendrapal taking one girl, and she must be sanju. Thereafter, along with his father and others they had gone in search of sanju. First they went to HUDCO where relatives of the accused were staying. They enquired from Jagmohan and others but they told them that Surendrapal had not come there. They came back and told it to Kevalpati. Thereupon, she ran towards the road crying. Manoj was following her. At that time, Surendrapal was coming from GIDC side. He was caught by 4 to 5 persons and brought at the house of Kevalpati. They asked about sanju, but he did not say anything. Thereafter, Rajaram called the police on phone. Police came there, but he did not tell anything to police also. Thereafter, police took him to the police station and he came back to his house. He was caught by 4 to 5 persons and brought at the house of Kevalpati. They asked about sanju, but he did not say anything. Thereafter, Rajaram called the police on phone. Police came there, but he did not tell anything to police also. Thereafter, police took him to the police station and he came back to his house. Between 7. 00 7. 30 AM he came to know that sanju was raped, throttled and thrown in puddle. He went there and found her dead body taken out from the puddle. He had seen the dead body of sanju. Blood was coming out from her mouth and her private part. In his cross-examination, he stated that when Manoj came there to call him, he was sleeping. Manoj told him that sanju was missing. When he and his father had gone to Kevalpatis house, Rajaram had gone in search of the accused. When he reached the house of Kevalpati, many persons gathered there. He was not aware whether any quarrel took place between Surendrapal and Kevalpati on the previous night of the incident or not. For the first time, Rajaram, Arjun came back and told them that they made search but sanju was not found. He and his father had also gone in search of sanju" but she was not found. The place where Surendrapal was caught, was just nearby his house. Surendrapal was coming back to his room in the morning from GIDC road. He had not gone along with the Rajaram when he had gone to call police on telephone. Police must have come between 4. 00 to 5. 00 AM. At 5. 00 AM police took Surendrapal to the police station. Next day morning, he came to know that Surendrapal had kidnapped sanju. He denied that he was falsely deposing because Kevalpati was his grand-mother. ( 15 ) PW-4 Shivllaliben Rambaran Pal (Exh. 12) is wife of Rambaran. She has also stated almost same thing what has been stated by her son Ghanshyam and her husband Rambaran about Surendrapal taking away one girl in the night with him, but her husband thought that she must be daughter of son-in-law of brother of the accused, therefore, not stopped by him. 12) is wife of Rambaran. She has also stated almost same thing what has been stated by her son Ghanshyam and her husband Rambaran about Surendrapal taking away one girl in the night with him, but her husband thought that she must be daughter of son-in-law of brother of the accused, therefore, not stopped by him. We would like to reproduce material portion of her cross-examination, wherein she stated that that after answering the call of nature, her husband did not inform her that Surendrapal took one girl with him. She stated that they had gone to the house of brother of Surendrapal but Surendrapal was not there in his room. His Son-in-law came out on his own because of noise. When her husband told them that Surendrapal took one girl with him, then it created doubt in their mind. However, she did not go to the house of Raju Bihari nor she had seen her husband or anybody going to the house of Raju Bihari. She had also not seen anyone going to the room of son-in-law of Surendrapal. Several persons gathered there. She could not say who had seen first Surendrapal when he was coming back from the main road, as she had not gone on the road. Surendrapal was caught and brought home by her sister-in-law, Kevalpati, Arjun, Ghanshyam and others. She was not knowing who took out the dead body of Sanju from the puddle. However, she has clearly denied that Kevalpati is her relative, therefore, she was falsely deposing against the accused. Date: 20. 11. 2003 ( 16 ) PW-5 Shyambahadur Rampal Jadav Exh. 13 is neighbour of complainant- Kevalpati. He stated in his evidence that early in the morning at 4. 00am, Manoj with one Gujaratibhai came to the place of his job and told him that Surendrapal is arrested for kidnapping his sister sanju, therefore, he should come. After taking leave, he went to his house. When he reached his house, many persons were there. Surendrapal was also there. He asked Surendrapal about the girl, but he had not given any information, therefore, Rajaram called the police on phone. Police came and took Surendrapal to the police station. He along with the Rajaram and Kevalpati went to police station. In the police station, Surendrapal stated that he threw sanju in the puddle. Surendrapal was also there. He asked Surendrapal about the girl, but he had not given any information, therefore, Rajaram called the police on phone. Police came and took Surendrapal to the police station. He along with the Rajaram and Kevalpati went to police station. In the police station, Surendrapal stated that he threw sanju in the puddle. All of them had gone to the puddle near GIDC and took out the dead body of sanju. In his cross-examination, he has stated that being neighbour Manoj (son of Kevalpati) came to call him. Manoj came at 4. 00am, within five minutes, he reached home. About 20 to 25 persons must have gathered there. Prior to that, he had not gone to the house of Kevalpati. He has denied that he is neighbour of Kevalpati, therefore, falsely deposed against the accused. ( 17 ) PW-6 Rajaram Mohanlal Pal Exh. 14 is the real brother of complainant Kevalpati and maternal uncle of deceased sanju. He stated the same thing what has been stated by Kevalpati about her family. He was paying Rs. 500/- P. M. to his sister for food. His service hours are from morning 11. 00am to 8. 00pm. At times he has to do over time. He is married having one daughter and two sons. All of them are staying in his native place. His salary is Rs. 1800/ -. Surendrapal came just two months before the incident. Surendrapal was serving in the factory of Ashutosh Engineering Company near Gujarati Vepari Mandal. On the day of incident, he came back from his job at 8. 30pm. When he was resting on his cot, his sister called him for dinner. After having dinner, he had gone back. Magrubhai (PW-13) is his neighbour. At his house, one movie "sholay" was shown on CD Player. He had seen the movie for some time and, then he went to sleep. Manoj ( son of complainant Kevalpati ) was sleeping with him. His sister Kevalpati and two niece were sleeping on the front side otla of the house. At about 10. 00pm, his sister came and told him that Surendrapal was harassing her. She also told him that Surendrapal was telling her to sleep with him and accept Rs. 150/- for the same. Thereupon, he and Manoj, went there and scolded him and driven out the accused Surendrapal from there. At about 10. 00pm, his sister came and told him that Surendrapal was harassing her. She also told him that Surendrapal was telling her to sleep with him and accept Rs. 150/- for the same. Thereupon, he and Manoj, went there and scolded him and driven out the accused Surendrapal from there. Thereupon, Surendrapal told them that he is going to his brothers house and went towards HUDCO side. After Surendrapal left, he and Manoj went to sleep. Thereafter, at 1. 00 Oclock in the night, his sister came and told him that sanju was missing. Thereupon, he, Manoj and Arjun first searched Sanju on the ground floor, but she was not found. They also searched her up stairs on the first floor but she was not found. Thereafter, Manoj went to wake-up Rambaran, who told him that he had seen Surendrapal taking away one girl with him in the night. Therefore, they had gone to the house of brother of accused at HUDCO, but he was not there. They had also enquired at the place of Shyamlal neighbour of Jagmohan about Surendrapal but he was not there. Sanju was playing with daughter of Fulchand, son-in-law of brother of Surendrapal. She also use to play with Surendrapal. Surendrapal was giving her chocolates, etc. Several persons gathered there. Somebody suggested to make inquiry at Kathavada GIDC. They had gone there, but sanju was not found. He told his sister that sanju was not found. Thereupon, his sister started crying and shouting. Once again, they had gone in search of Sanju. It was almost 3. 30 Am to 4. 00 AM. At that time, Surendrapal was coming on the road from GIDC. Arjun and Magrubhai were also present. Arjun caught Surendrapal and, thereafter, he was brought to the house. They asked Surendrapal about sanju, but he said that he was not knowing about Sanju. There were red spots on the Baniyan of Surendranath. He did not disclose anything, therefore, he called the police on telephone from STD near Dwarkanath School. Police came and enquired from Surendrapal but at that time also Surendrapal did not disclose anything. Therefore, police took him in Van to the Police Station along with him, his sister Kevalpati and Shyambahadur and interrogated Surendrapal. There he stated before the police that after committing rape on Sanju, he throttled her and threw her in a puddle near GIDC, Kathavada. Therefore, police took him in Van to the Police Station along with him, his sister Kevalpati and Shyambahadur and interrogated Surendrapal. There he stated before the police that after committing rape on Sanju, he throttled her and threw her in a puddle near GIDC, Kathavada. The police asked the accused to show the dead body of sanju. He took them at the puddle near Cellulose Company, at GIDC Kathavada. Rambaran took out dead body of the Sanju from the water. He had seen dead body of Sanju. Blood was coming out from the right side of the mouth which had reached up to her ear and blood had also come out from her private part. Thereafter, her sister Kevalpati lodged the complaint. Police recorded his statement. When police interrogated Surendrapal, he was very much present. Surendrapal stated before the police that he lifted sanju from the cot and took him to GIDC on his shoulder and there he committed rape and after throttling her, he had thrown the sanju in the puddle. He had identified Surendrapal in the court. In his cross-examination, he stated that Surendrapal was staying with his son-in-law Fulchand. He had seen movie up to 9. 00 to 9. 30pm in the night and then went to sleep. He denied that on that day he, Surendrapal and one driver had consumed liquor. However, he admitted that Surendrapal had taken liquor. He had driven out Surendrapal at 10. 00 PM. He admitted that Surendrapal was drunk, therefore, he told him to go to his room and sleep. However, he denied the suggestion that Raju Bihari and Surendrapal were throwing water from the first floor, therefore, there was a dispute between them and Kevalpati. He was not knowing where Surendrapal had taken liquor. He has admitted that after he had driven out Surendrapal, he left the place and he was not knowing where he had gone. After his sister called him, first they searched nearby places and, then went went to HUDCO. He woke-up Raju Bihari and Magrubhai. Thrice he had gone in search of sanju but he had to come back with empty hands. Walkable distance from his house to the puddle was of few minutes. He had not gone right up to that place. After his sister called him, first they searched nearby places and, then went went to HUDCO. He woke-up Raju Bihari and Magrubhai. Thrice he had gone in search of sanju but he had to come back with empty hands. Walkable distance from his house to the puddle was of few minutes. He had not gone right up to that place. Thrice he had gone in search of Sanju but when they did not find sanju, then they thought that only Surendrapal must have kidnapped sanju. At about 4. 00am, he called police and within 10 to 15 minutes, police reached there. When police enquired from accused Surendrapal, he did not say anything to the police, thereupon, they told the police to take him to the police station. Complaint was reduced in writing in the morning. Police called several persons at different time on that day. He has admitted that when his sister was lodging complaint, Manoj and Shyambahadur were present with him. He has clearly denied that because he was brother of Kevalpati, he was falsely deposing against the accused. ( 18 ) PW-7 Rambaran Exh. 15, is brother-in-law of complainant Kevalpati. He is the witness who had seen the accused Surendrapal taking away girl sanju on his shoulder from the house of Kevalpati at about 1. 00 Oclock in the night. He has stated in his evidence that he was serving in Deep Painter as "watchman" since last 17 years. His service hours are 8. 00am to 8. 00pm. Thursday is his weekly off. He has got two sons and one daughter. On 11. 9. 2002, he had gone to his job. He came back at about 8. 30pm. House of Kevalpati is third to his house. Her house is two storeyed. Kevalpati is staying on ground floor. On her first floor, (1) Raju Bihari, and (2) Surendrapal were staying as tenants. On 11. 9. 2002 after coming from service he watched TV for some time and after taking dinner he went to sleep at 10. 00pm in the night. His bathroom is out side his house, therefore, he came out from his house to answer the call of nature at 1. 00 Oclock in the mid-night and when he came out from the bath-room, he saw accused Surendrapal nearby the cot on the otla of the house of Kevalpati in the light of one small lamp. His bathroom is out side his house, therefore, he came out from his house to answer the call of nature at 1. 00 Oclock in the mid-night and when he came out from the bath-room, he saw accused Surendrapal nearby the cot on the otla of the house of Kevalpati in the light of one small lamp. He lifted one girl from the cot and quietly went away. At that time, he thought that she must be the daughter of Fulchand, son-in-law of the brother of the accused, therefore, he did not tell anything to any one about it and went inside his house. After 20 minutes, his nephew Manoj came and told him that sanju was missing. Thereupon, he told him that Surendrapal was moving around there and he must have kidnapped sanju, at that time he thought that he was taking daughter of Fulchand, therefore, he had not tried to stop him. Thereafter, he along with Ghanshyam (PW-3) and his wife Shivallali (PW-4) came to the house of Kevalpati, and along with his son Ghanshyam and Manoj he had gone to the house of Brijmohan, brother of Accused Surendrapal towards HUDCO. They told them that Surendrapal had not been there. Thereafter, they had gone to the house of Shyamlal and then to the house of Shital. Wife of Shital told him that Surendrapal was staying there, at that time also, he made such indecent proposal, therefore, he was driven out from there. Then they came back to Bhagwatinagar. He saw his sister crying and running on the road. Manoj and Rajaram were following her. Arjun and Magru were also searching Surendrapal on the road. At that time, Surendrapal came from GIDC side. He was caught by the people gathered there and brought to the house and asked about sanju, but he did not tell anything to any one. He also enquired from him and told him that he had seen him taking away sanju, but he did not give any response to him. They had seen spots like blood stains on the Baniyan of Surendrapal. Muddamal Articles 6 and 7 i. e. Shirt and Baniyana and muddamal Article 8 Pent put on by the Surendrapal at the time when he was caught were identified by him. He told Rajaram to inform the police. They had seen spots like blood stains on the Baniyan of Surendrapal. Muddamal Articles 6 and 7 i. e. Shirt and Baniyana and muddamal Article 8 Pent put on by the Surendrapal at the time when he was caught were identified by him. He told Rajaram to inform the police. Police came there at that time, they called brother and wife of brother of accused Surendrapal. They had also asked Surendrapal but he did not disclose anything to them. He did not disclose anything even to the police. Thereupon, he was taken to the police station. He, Kevalpati, Shyambahadur and Rajaram had also gone along with the accused to the police station. In the police station, on interrogation, Surendrapal stated that after committing rape on sanju, he throttled her and threw her in the puddle. Then he took the police to the place where the dead body was lying. Dead body of sanju was floating on the water. He took out her dead body. Blood was coming out from right side of her mouth and also from her private part. She had put on frock at that time. Accused Surendrapal had also shown the place to the police where he committed rape on sanju. After preparing inquest Panchanama, dead body of sanju was taken to the Civil Hospital. Police recorded his statement. Accused Surendrapal was identified by him in the court. In his cross-examination, he has categorically stated that in the light of lamp on the otla of Kevalpatis house, he had seen accused Surendrapal taking away girl. He denied that he had not stated in his statement before the police that Surendrapal was moving around there and he had seen him taking away one girl. He also stated that it was true that at that time he was not knowing that he was taking sanju and that he had not identified the girl. He had not stopped Surendrapal because he was under the impression that he was taking daughter of Fulchand son-in-law of his brother. He has denied the suggestion that he had not stated in his statement before the police that after 20 minutes, his nephew Manoj came to wake him up. He stated that there is a distance of hardly 150 ft. from his house and the house of Kevalpati. He has denied the suggestion that he had not stated in his statement before the police that after 20 minutes, his nephew Manoj came to wake him up. He stated that there is a distance of hardly 150 ft. from his house and the house of Kevalpati. He admitted that when every one asked the accused, he did not say anything to anyone, therefore, people gathered there said that he will not admit like this, and the police be called. He also admitted that when police came, he told the police that Surendrapal had taken away sanju with him, therefore, he may be taken to the police station. Kevalpati must have lodged the complaint at about 4. 00am to 4. 30am. Police recorded his statement on the same day. He has also admitted that complaint and statements were recorded almost simultaneously. He denied the suggestion that because Kevalpati is his sister-in-law, therefore, he is falsely deposing against the accused. ( 19 ) PW-8 Kishorbhai Narsinhbhai Kapadia Exh. 16 is a panch witness of Arrest panchanama (exh. 17) which was drawn on 12. 9. 2002 between 10. 30am to 11. 00am. He stated in his evidence before the court that initially he was not willing to become panch witness of the Arrest panchanama, but when police persuaded him by saying that if people like him will not become panch, then how police will discharge its duty. Thereupon, he shown his willingness to become panch witness. He had also identified the accused in the court. He also stated that some blood stains were found on the shirt put on by the accused near the chest. One of the buttons of his shirt was broken. Some cow dung spots were also found on the shirt of Surendrapal. Similar type of cow dung spots were found below the knee portion of his pant. Blood stains were also there near chain of his pant. Baniyan put on by him was slightly torn and there were few blood stains marks found on front side of his Baniyan. One cycle key and about Rs. 150/- were found from the pocket of his pant. Jangiya put on by him was also having blood stains. They were seized by the police. Panchanama Ex. 17 was prepared. He had identified the muddamal shirt, pant, baniayan and nicker (Jangiya) put on by the accused at the time of his arrest. One cycle key and about Rs. 150/- were found from the pocket of his pant. Jangiya put on by him was also having blood stains. They were seized by the police. Panchanama Ex. 17 was prepared. He had identified the muddamal shirt, pant, baniayan and nicker (Jangiya) put on by the accused at the time of his arrest. In his cross-examination, he stated that it took about 45 minutes for going to Odhav from Naroda. He was on duty, therefore, he took leave on that day. His usual time of service was between 8. 00am to 12. 30 Noon and 2. 00pm to 8. 00pm. Another Panch Bharat is his friend and staying in his society. Bharat was also on leave on that day. Both of them were going to the relatives place. At that time, police called them. He denied the suggestion that when he had gone to Odhav Police Station, panchanama was already prepared. He had also denied that he has signed the prepared panchanama. ( 20 ) PW-9 Mohanji Munnaji Vanzara Exh. 22 is the panch witness of panchanama of scene of offence Exh. 28, which was recorded on 12. 9. 2002 between 8. 15am to 10. 15am. He identified the accused in the court. He stated that accused Surendrapal took them behind Cellulose Factory behind HUDCO where he committed rape on sanju. There one "jangiya" was found. One petch of earring was also found. One hair-band put on by the girl was also found. Dead body of the girl was found in the puddle. Muddamal articles no. 1 to 5 i. e. green grass, control grass, nicker, petch of earring and hair-band were identified by him which were seized by the police at the place of offence. Along with him, another panch Ranjit Budhaji Dabhi was present. In his cross-examination, he stated that he was having Auto rickshaw which he has recently sold. He is maintaining himself by plying auto rickshaw during day time. He denied the suggestion that with the blessing of the police, he is plying rickshaw with kerosene. When he was at a distance of half a kilometer from the police station, he was called by the police. Ranjitsinh was with him. He denied the suggestion that police took his signature on the prepared panchanama in the police station. He denied the suggestion that with the blessing of the police, he is plying rickshaw with kerosene. When he was at a distance of half a kilometer from the police station, he was called by the police. Ranjitsinh was with him. He denied the suggestion that police took his signature on the prepared panchanama in the police station. He has clearly stated that first they had gone to the place in the vehicle and, then his signature was obtained. Walking distance is half an hour between the police station and the place of incident. He stated that water was not in the puddle. He denied that the mother of the deceased had shown the place and not the accused. He stated that the accused shown the place of incident. He denied that because he was driving rickshaw with kerosene, therefore, he signed the prepared panchanama. Much was said about the statement of this panch witness Mohanji PW-9 when he stated in his cross-examination that water was not there in the puddle but the panchanama exh. 28 which was drawn almost immediately after the commission of an offence and FIR and evidence of the witnesses shows that water was there in the puddle which was was 248 feet 6 inches long and full of water. It seems that without properly understanding the question this witness stated that water was not there in the pit or puddle. Nothing much turns out of it. Because all witnesses said that dead body of sanju was floating in the water and Dr. has clearly stated that sanju died because of drowning. .