Judgment : Servesh Kumar Gupta, J. Heard learned counsel for the parties and perused the entire material available on record. 2. This appeal has been preferred against the judgment and order dated 20.01.2003 passed by learned Additional Sessions Judge, Roorkee in Sessions Trial No.164 of 2000, State Vs. Nittu, whereby the appellant/accused has been convicted u/s 302 IPC and sentenced to undergo rigorous imprisonment for life, along with fine of Rs.5,000/- and in default of payment of fine, he was directed to undergo additional one year’s simple imprisonment. The appellant/accused was further convicted u/s 376 IPC and sentenced to undergo seven years’ R.I. with fine of Rs.4,000/- and in default of payment of fine, to undergo further simple imprisonment for seven months. 3. In brief, the facts are that deceased Km. Punam, a girl of eight years, was with her grandfather Maalchand in order to take care of the agricultural field of cauliflower/cabbage in village Behbalpur, within the territorial jurisdiction of P.S. Bhagwanpur, District Haridwar. This agricultural field was outside the village at some distance. At about 2 PM, Sri Maalchand left for his home after leaving his granddaughter alone in the hut which was in an improvised arrangement of shade in the field. In the nearby field, the accused ‘Neetu’ was cutting grass to collect the fodder for animals. The appellant, when noticed the presence of Km. Punam, in solitude, got success to take her in the adjacent sugarcane field under some pretext. The girl was allegedly raped by the accused and then strangulated to death. The accused after that left the place and came out of the sugarcane field. At the same time, while coming out from the sugarcane field, he was seen by PW1 Harpal (father of girl), PW3 Birbal (uncle of girl) and one more witness PW2 Ishaq Lal, all resident of the same village. These persons, at about 3 PM, were going to their agricultural fields in order to collect fodder for animals. They all noticed the accused looked quite distraught as he went towards the village with fast paces. It is also pertinent to mention here that this accused also hails from the same village ‘Behbalpur’. When PW1 Harpal Singh did not see his daughter in the hut, he did not take it seriously and thought that she might have gone home to the village. It is also pertinent to mention here that this accused also hails from the same village ‘Behbalpur’. When PW1 Harpal Singh did not see his daughter in the hut, he did not take it seriously and thought that she might have gone home to the village. When he returned home in the evening, he did not find his daughter there as well. A massive hunt was made to know the whereabouts of his daughter Km. Punam. She was searched in the vicinity and also in the prospective places of the village itself, but all in vain. Then Harpal Singh, along with some persons of the village, went towards the hut which was located in the cabbage field but in vain. Then she was searched in the nearby sugarcane field and ultimately, her dead body could be recovered about after 26 feet inside the sugarcane field. The boundary of that field is at a distance of about 100 paces from the hut where the victim was taking care of the cauliflower field of her family. The FIR (Ex.Ka-1) was lodged in the intervening night of 8/9.1.2000 at 00:05 hours at P.S. Bhagwanpur, District Haridwar, whereof Chik Report was prepared which is Ex.Ka.12. The inquest report (Ex.Ka-4) was prepared in the morning of 9.1.2000. In the opinion of the all the members of inquest report, who are Pal Singh, Ashok Kumar, Bal Chand, Hari Chand and Vijay Pal, the death had occurred on account of commission of rape on her body and throttling nay gagging of the mouth. The autopsy was conducted on the dead body, the report whereof is Ex.Ka-10. The medical officer Dr. K.K. Karauli, who conducted the post-mortem, has been produced by prosecution in the court as P.W.9. He has proved that post-mortem was conducted by him at 2:30 PM on 9.1.2000 wherein he found as under: - “The vagina of deceased was soaked in blood with cut and lacerated wounds up to Uterus. Both lungs were swollen with contusions. The cause of death was suffocation and stop of breathing because of strangulation. The death could be assessed to have occurred one day before.” 4. The post-mortem was conducted at about 2:30 PM while the time when Km. Punam was left alone by her grandfather in the field was about 2:00 PM. Both lungs were swollen with contusions. The cause of death was suffocation and stop of breathing because of strangulation. The death could be assessed to have occurred one day before.” 4. The post-mortem was conducted at about 2:30 PM while the time when Km. Punam was left alone by her grandfather in the field was about 2:00 PM. So, the incident had occurred quite about 24 hours ago, i.e. between 2-3 PM on 8.1.2000 and this deposition of medical officer is perfectly in consonance with the occurrence of date and time of incident, as disclosed by the prosecution. 5. After completion of investigation, a chargesheet Ex.Ka-11 was submitted by the Police against the accused, who abjured his guilt and claimed trial. 6. PW1 Harpal is the father of victim, who has proved that his daughter Km. Punam accompanied Maalchand (this witness father) in the morning of 8.1.2000 for cauliflower field. She was eight years of age at that time. His father left the field at about 2 PM for his home situated in the village itself for taking the bath, so Km. Punam was left at the spot alone and at that time, accused Nittu was cutting grass in the nearby field. It is also pertinent to mention that the field, where the occurrence took place, is a sugarcane field and it is a matter of general observation that in such fields, the visibility remains only up to few paces. The boundary of sugarcane field, which is partly adjacent to the cauliflower field, is only 26 paces away from the spot where the incident had happened. So, it can well be considered that after 26 paces from the boundary, nobody could be able to see the spot from outside. The accused was cutting grass at the same boundary which is partly adjacent with the cauliflower field whereas, there is another field on the boundary wherein wheat crop was standing. Even in the north and south side of place of occurrence, other two fields surrounded the sugarcane field whereupon the wheat crop was standing. In the month of January, this wheat crop remains considerably grown up. So, it was not all the more possible to see or notice the actual happening of the incident, much less there was none to notice it outside. The above facts have well been proved by PW1 Harpal Singh in his deposition. 7. In the month of January, this wheat crop remains considerably grown up. So, it was not all the more possible to see or notice the actual happening of the incident, much less there was none to notice it outside. The above facts have well been proved by PW1 Harpal Singh in his deposition. 7. The Investigating Officer also prepared the site plan of the place of incident as well as of its surroundings which is Ex.Ka.3, wherein, the specific place showing cutting of grass by the accused is visible. 8. The circumstances for the accused, who was 20-22 years old at the time of incident, were enough to allure him to commit this crime on the body of victim who was all alone, just at a distance of hardly 100 paces from him. Thus, the sexually lust ridden accused Nittu could not resist with the favourable circumstances and he called Km. Punam near him under some pretext. He took her either on some pretext or forcibly in the sugarcane field up to 26 paces where the visibility from outside had been disappeared. She was only an eight years girl whereas the accused was 22 years of age. So, it was easily possible for him to overpower her and to commit this crime. At the place of occurrence, the crop of sugarcane was also found broken as well as moulded, which shows that Km. Punam might have resisted even a 22 years young accused when he was in the prime of his life, albeit she was constrained to succumb. So, happened this crime. 9. The prosecution has produced PW9 Dr. K.K. Karauli who has proved that post-mortem on the body of Km. Punam, brought by police, was conducted by him. In the external examination, he found that the vagina of deceased was soaked in blood along with cut and lacerated wounds up to ovary measuring 2 cm x 1.5 cm. In the internal examination, ‘Cornua of Hyoid Bone’ was found loose and fractured while the blood was found clotted. It was also found that both lungs were swollen with contusions. In his opinion, the cause of death was suffocation and stop of breathing because of strangulation. The vaginal smear was also sent for pathological test. The estimated time of death of Km. It was also found that both lungs were swollen with contusions. In his opinion, the cause of death was suffocation and stop of breathing because of strangulation. The vaginal smear was also sent for pathological test. The estimated time of death of Km. Punam was assessed to be one day before, and that was the exact time of occurrence in the instant case because the post-mortem was conducted on 9.1.2000 at 2:30 PM whereas, she was left in between 2 to 3 PM of 8.1.2000 in the company of accused, who was scraping grass in the close vicinity at about 80-100 paces on the boundary of two fields, being adjacent to each other. One agricultural field was of cauliflower being owned by father of deceased while, another was being owned by Kunwar Pal, resident of the same village. As such, the circumstances of the case indicate that in order to wipe out the offence, the accused took the life of victim Km. Punam. 10. After commission of the said crime, when the accused was coming out from the sugarcane field, he came out towards the boundary and proceeded towards the thoroughfare of village ‘Behbalpur’. It was natural on the part of accused to do this since it was quite difficult for him to move towards east from the sugarcane field, inasmuch as, by that way, he was bound to cross the standing sugarcane crop more longer than that of the easy way towards South. One of the crucial evidence against the accused is that while coming out from the sugarcane field, he looked as per PW1 Harpal, PW2 Ishak Lal and PW3 Beerbal “despair” and worried. That at that time, these witnesses, to wit, PW1 Harpal, PW2 Ishak Lal and Beerbal did not take it seriously and ignored it but later they could link it with the incident when the dead body of Km. Punam was recovered at about 10 PM on the same day. These all witnesses have categorically deposed before the court about noticing the presence of accused Nittu in a distressed state. The presence of PW2 Ishaq Lal is well acceptable because his wheat crop field is adjacent to the cauliflower and sugarcane fields situated towards east and north respectively. Punam was recovered at about 10 PM on the same day. These all witnesses have categorically deposed before the court about noticing the presence of accused Nittu in a distressed state. The presence of PW2 Ishaq Lal is well acceptable because his wheat crop field is adjacent to the cauliflower and sugarcane fields situated towards east and north respectively. He has deposed that he went at about 3 PM from his village to reach at his agricultural field in order to collect the fodder for his animals. The statement of these three witnesses, including that of PW5 Maal Chand, are quite corroborative and in consonance with each other and therefore, sound true. 11. It has also been argued by learned counsel that the accused was not last seen together with the victim. This argument is though unacceptable for the reasons that ‘last seen together’ does not mean the presence of two persons rubbing shoulders with each other. The circumstances of the day, time of the day, etc. all indicate to draw a conclusion that the victim and accused were all alone at that time. This fact has been proved even by PW5 Maalchand that he left his grand daughter Punam in the field and at a very close vicinity, the accused Nittu was cutting grass in the agricultural field of one Sri Kunwar Pal, resident of the same village. 12. It would be worthwhile to rely upon a judgment of Hon’ble Apex Court in the case of “Purna Chandra Kusal Vs. State of Orissa reported in 2012 CRI. L.J. 615”. In that case, a minor girl of five years of age was first raped and then murdered by the accused. There was no direct evidence available, and the only evidence against the accused therein was that he was last seen in the company of deceased. Although, at the time when the deceased girl was left in the company of accused, the brother of deceased was also there but it could not be detected as to when the brother of deceased parted their company and she was then raped and assassinated. Later, at the pointing out of accused, by way of additional evidence, the police recovered the undergarments of victim-girl as well as that of accused u/s 27 of the Indian Evidence Act and the same was taken into possession as a corroborative evidence. Later, at the pointing out of accused, by way of additional evidence, the police recovered the undergarments of victim-girl as well as that of accused u/s 27 of the Indian Evidence Act and the same was taken into possession as a corroborative evidence. In the instant case, there was noting for the police to take recovery of the undergarments of deceased Km. Punam because those were not taken away by the accused so as to hide them. However, the police took the underwear and bedsheet of accused in its possession on the next day for which the recovery memo Ex.Ka-2 was prepared. The underwear of accused bore a spot which all the same could not be sent for chemical examination by the police. In the case of Purna Chandra Kusal (Supra), the trial court convicted the accused by Death penalty but the Hon’ble Apex Court, finding it a case of circumstantial evidence, expressed its view that although there is no inflexible rule that a death sentence cannot be awarded in a case resting on circumstantial evidence but courts are as a matter of prudence, hesitant in awarding this sentence, in such a situation. It was also expressed that it is true that the crime was indeed a heinous one as the victim was only five years of age and all the more, she was a neighbour of accused. However, on a cumulative assessment of the facts, the Hon’ble Apex Court commuted the death sentence to life imprisonment. All that we mean to say that where a girl of five years of age was raped and murdered and no evidence was available, the Hon’ble Apex Court convicted the accused on the basis of circumstantial evidence which was mainly that the victim was last seen in the company of accused. So, by and large, there is similarity between the instant case and the above precedent of Hon’ble Apex Court. 13. It was next argued that ‘Kunwar Pal’ has not been produced by the prosecution. This argument is wholly untenable because to examine the said person is not an absolute necessity. 14. PW4 Ashok Kumar, who is simply a witness of inquest, has proved the fact about the preparation of the inquest report. 15. PW6 Suresh Chand is the scriber of FIR who wrote the same at the verbal dictation of Harpal Singh. He has proved that much part of the prosecution evidence. 14. PW4 Ashok Kumar, who is simply a witness of inquest, has proved the fact about the preparation of the inquest report. 15. PW6 Suresh Chand is the scriber of FIR who wrote the same at the verbal dictation of Harpal Singh. He has proved that much part of the prosecution evidence. 16. PW7 Balesh Kumar is a formal witness of the case who prepared the memo of underwear and bed sheet of accused Neetu taking into possession by the police. He has signed on that memo and has proved the same before the court. 17. PW8 S.I. Nanhe Ram Sagar is the investigating officer of the case, who submitted the chargesheet and also proved his part of evidence. 18. The accused, in his statement recorded u/s 313 Cr.P.C., stated that he has been falsely implicated because a sum of Rs.4,000/- was due upon Harpal Singh which was not being paid, and when the money was demanded, he was thus, falsely implicated. This version is quite unacceptable. 19. With a conspectus of the entire evidence, as discussed above, this Court fully agrees with the view taken by the learned trial court, convicting and sentencing the appellant/accused, as discussed above and we also feel that there is no merit in this appeal which is liable to be dismissed. 20. The appeal is, accordingly, dismissed. The judgment and order passed by the trial court is upheld. Accused is on bail, his bail bonds are cancelled and sureties are discharged. The records be remitted back to the trial court, along with a copy of this judgment, with the direction to ensure the custody of accused so that he serves the sentence awarded against him.