JUDGMENT : Bhaskar Bhattacharya, J. This appeal is at the instance of a convicted person and is directed against the order of conviction dated October 20, 2007 passed by the leaned Additional Sessions Judge & Presiding Officer, 5th Fast Track Court, Junagadh, in Sessions Case No. 8 of 2007, by which the learned Sessions Judge passed the order impugned, the relevant portion of which is quoted below: "As per Section 235[2] of Cr.P.C. accused Devji Alias Munna Jika Solanki Devipujak, residing at: Majevadi, Taluka: Junagadh is sentenced for simple imprisonment of 3 years for the offence of section 363 of I.P.C. And is ordered to pay fine of Rs.2000/-. In default of payment of fine further simple imprisonment of 3 months is ordered. For the offence of Section 376 of I.P.C., accused is sentenced for simple imprisonment of 7 years and is ordered to pay fine of Rs.5000/-. In default of payment of fine further simple imprisonment of 6 months is ordered. For the offence of section of Section 302 of I.P.C. accused is sentenced for lifelong imprisonment and is ordered to pay fine of Rs.5,000/-. In default of payment of fine further simple imprisonment of 6 months is ordered." 2. The Charges framed by the learned Sessions Judge against the appellant are quoted below: "1. At about 14.3.2006 complainant Rekhaben W/o. Devjibhai Bhupatbhai Solanki with her two daughters and a son, total three children had come to her father's home at village Katakpara of Manavadar Taluka to celebrate the festival of Holi, and at around 6.00 O'clock in the evening, you, the accused, had taken away the complainant Rekhaben's daughter Kunjal, aged two and half year’s under the pretext of giving biscuit and thereafter, on making search, you, the accused and the minor Kunjal, were not found. 2. ... and thereafter, you, the accused, had taken away the minor Kunjal from the guardianship without the consent or permission of the complainant. 2. ... and thereafter, you, the accused, had taken away the minor Kunjal from the guardianship without the consent or permission of the complainant. Thereafter, you, the accused committed sexual intercourse with minor Kunjal or attempted to commit sexual intercourse and committed rape and thereafter, strangulated the minor Kunjal and caused her death and thereafter, had thrown the dead-body of the minor Kunjal below a lemon tree in Vadi of Jasmatbhai Patel of village Katakpara and you, the accused, had thrown your bloodstained clothes and destroyed the evidences and absconded from the place of the incident; you, the accused, have thereby committed the offence under sections 364, 376, 302 and 301 of IPC within the jurisdiction of this Court. 3. As you, the accused, have committed the aforesaid offences within the jurisdiction of this Court and as this Court has jurisdiction to conduct the trial against you, the accused, for the aforesaid offences, I hereby pass the order to conduct the trial for the aforesaid offences." 3. The case made out by the prosecution may be summed up thus: 3.1 On March 14, 2006, one Rekhaben, the wife of Devabhai Bhupatbhai Solanki, the complainant, along with her three children, i.e. two daughters and one son, had gone to her father's house at village Katakpara to celebrate the festival of Holi and stayed there. 3.2 During such stay, at about 6.00 O'clock in the evening, the accused came to the house of the father of the complainant and thereafter, took away Kunjal, the daughter of the complainant, aged two and half years, by lifting her without informing or taking the permission of the complainant, under the pretext of giving a biscuit. 3.3 Thereafter, on inquiry, the accused and Kunjal were not found. On the next morning, the dead-body of Kunjal was found under a lemon tree near the farm of Jasmatbhai Patel of village Katakpara. 3.4 Therefore, a complaint under Sections 364, 376 and 302 of the IPC was lodged against the accused person and at the end of the investigation, Section 201 of the IPC was also added. Charge-sheet was submitted before the court of Judicial Magistrate First class, Manavadar against the accused person and as the case was sessions triable, the learned JMFC committed the case to the Court of Session under Section 209 of the Code. 3.5 The accused person pleaded innocence and claimed to be tried. Charge-sheet was submitted before the court of Judicial Magistrate First class, Manavadar against the accused person and as the case was sessions triable, the learned JMFC committed the case to the Court of Session under Section 209 of the Code. 3.5 The accused person pleaded innocence and claimed to be tried. 3.6 The prosecution produced oral evidence of the following persons in support of its case. PW No. Name of witness Exh. No. 1 Rekhaben Devabhai Solanki Complainant 14 2 Dr. Navalkumar Maheshwar Mishra Medical Officer who performed post-mortem 16 3 Gordhanbhai Ambavibhai Hingrajiya Panch witness of panchnama of scene of offence 29 4 Manjibhai Kadvabhai Garmal Devipujak Father of the complainant 32 5 Jikabhai Lakhmanbhai Makwana, the person with whom the accused stayed in the night of the incident. 33 6 Bhupatbhai Vashrambhai Dabhai, A.S.I. who registered the complaint 34 7 Hansrajbhai Bijalbhai Jamod, Investigating Officer who carried out part investigation 40 8 Mulubhai Rajshibhai Godhaniya, Investigating Officer who carried out the remaining investigation. 47 3.7 The prosecution has also produced the following pieces of documentary evidence: Sr No. Description of document Exh. 1. Original yadi dated 15.3.2006 to register the offence panchnama 35 2. Sp. Report of grievous offence 39 3. Inquest panchnama 26 4. Post-mortem form 46 5. Panchnama of place of incident 30 6. Panchnama of seizure of muddamal during the post mortem of dead-body 27 7. Yadi sent to perform post mortem 8. Post-mortem note 20 9. Yadi sent to Police Station of having forwarded the muddamal seized by the Medical Officer during the post-mortem 48 10. Arrest panchnama 28 11. Report for adding section 48 12. Yadi sent for doing medical examination of the accused 22 13. Yadi of forwarding the samples taken by the doctor from the body of the accused 14. Letter written for analysis of muddamal 41 15. Outward Note 42 16. Receipt received from FSL 43 17. Letter written to FSL for analysis of muddamal 44 18. Receipt received from FSL 45 19. Forwarding letter of FSL 49 20. Analysis report 50 21. Forwarding letter of FSL 51 22. Syrological Analysis Report 52 23. Forwarding letter of FSL 53 24. Analysis Report 54 25. Letter sent for Syrological Report 55 26. Serological Report 56 27. Receipt received from the FSL 58 28. Outward Note 57 29. CR. Receipt received from FSL 45 19. Forwarding letter of FSL 49 20. Analysis report 50 21. Forwarding letter of FSL 51 22. Syrological Analysis Report 52 23. Forwarding letter of FSL 53 24. Analysis Report 54 25. Letter sent for Syrological Report 55 26. Serological Report 56 27. Receipt received from the FSL 58 28. Outward Note 57 29. CR. R.No. I 12/06 36 3.8 The accused, however, denied the allegations in the statements recorded under Section 313 of the Code of Criminal Procedure, but did not adduce any evidence of his own. 3.9 As indicated earlier, the learned Sessions Judge by the order impugned herein, found the appellant guilty and convicted him as mentioned above. 3.10 Being aggrieved, the appellant has come up with the present appeal. 3.11 After the hearing of this appeal was concluded, at the time of preparing the judgment, it came to our notice that the learned trial Court has imposed the sentence of seven years' simple imprisonment on the charge of rape upon an infant aged about two and a half years whereas the minimum punishment prescribed under law in such circumstances is ten years' rigorous imprisonment. 3.12 We, accordingly, on November 7, 2012 issued a notice for enhancement upon the appellant to show cause why the sentence imposed under section 376 of the Indian Penal Code passed by the learned Additional Sessions Judge should not be enhanced. 3.13 Pursuant to such notice, Mr. Qureshi, the learned advocate for the appellant made further submissions on the question of enhancement of sentence on the charge of rape, if we intended to affirm the findings of the learned Additional Sessions Judge. 4. Mr. Ejaz Qureshi, the learned advocate appearing on behalf of the appellant, has strenuously attacked the findings recorded by the learned Sessions Judge by contending that the learned Sessions Judge committed substantial error in convicting the appellant notwithstanding the fact that nobody had seen the appellant taking away the victim. According to Mr. Qureshi, the complainant stated that she was told by her elder daughter that it was the appellant who had taken away the victim on the plea of giving biscuits, but the prosecution did not examine the said elder daughter of the complainant. Mr. According to Mr. Qureshi, the complainant stated that she was told by her elder daughter that it was the appellant who had taken away the victim on the plea of giving biscuits, but the prosecution did not examine the said elder daughter of the complainant. Mr. Qureshi further contended that although the complainant stated that several persons had seen the appellant taking away the victim with him, none of those persons were examined by the prosecution. According to Mr. Qureshi, as his client used to visit the complainant in her matrimonial home, there was some altercation with the husband of the complainant, as a result, his client has been falsely implicated in the offence. Mr. Qureshi further contended that there was no justification of believing the evidence given by P.W. 5, namely, Jikabhai as in the FIR lodged by the complainant, the fact that she met Jikabhai who allegedly told her about the presence of the appellant in his house on the night of the incident, has not been mentioned. On consideration of the aforesaid materials on record, according to Mr. Qureshi, it is apparent that the prosecution has failed to produce any cogent evidence showing the involvement of his client. 5. Mrs. Krina Calla, the learned Additional Public Prosecutor appearing on behalf of the prosecution, has, on the other hand, opposed the aforesaid contentions of Mr. Qureshi and has contended that from the fact that the appellant was hiding for nine months after the incident itself indicates the guilt of the appellant. According to Mrs. Calla, there is no valid reason for disbelieving P.W. 5 who specifically stated that on the night of the incident, the accused came in his house with bloodstains on his shirt and told him that the same was the blood of a rabbit which was killed by the dogs. Mrs. Calla, therefore, prays for dismissal of the appeal. 6. Therefore, the only question that arises for determination in this appeal is whether from the materials on record, the learned Sessions Judge was justified in finding the appellant guilty and convicting him accordingly. 7. After hearing the learned counsel for the parties and after going through the materials on record, we find that the father of the complainant is a maternal uncle of the accused. 7. After hearing the learned counsel for the parties and after going through the materials on record, we find that the father of the complainant is a maternal uncle of the accused. The P.W. 1, in her evidence has stated that at 6.00 P.M. in the evening on the day of the incident, she had gone to the hut of her father where there is an ota outside the hut. At that time, she entered the hut to change the clothes of her son, namely, Vishnu and her two daughters, Kajal and Kunjal were playing on the ota and the accused was waiting on the ota outside the hut. As that was the first Holi of her son, he was to be taken for bow-down [religious rituals] and for that reason, she was preparing him for the same. Her mother had, according to the PW-1, at that time, told her to prepare the two daughters as they were also to be taken for Holi Darshan. Therefore, she went outside on the ota taking with her the clothes of both the daughters. Her elder daughter Kajal was sitting there and Kunjal, the victim was not found there. When she asked Kajal about Kunjal, she informed her that the accused had taken her away to give biscuits. She waited for Kunjal and the accused for about five to ten minutes. As they did not come back, her mother told her that as it was getting late, she should bring Kunjal and get her ready by changing her clothes. So, the complainant searched at a shop which is situated near her residence, but neither Kunjal nor the accused were present there. She, therefore, came back to home as it was dark outside and another shop was far from that place. She came across her brother Raju when she went to the shop to search for Kunjal. Her brother told her that she should go back to home and that he would come home after searching both of them. After some time, her brother came back to home and informed that he had searched at the other shop, but there also, neither Kunjal nor the accused was found. Immediately thereafter, the complainant, her mother and her brother went to the place where the Holi was to be performed in Vadivas, but there also, neither Kunjal nor the accused was found. Immediately thereafter, the complainant, her mother and her brother went to the place where the Holi was to be performed in Vadivas, but there also, neither Kunjal nor the accused was found. Thereafter, they went to the places where the Holi is celebrated at Gomti and Harijanvas respectively, but there also they could not find out those two persons. When they had gone to different places where Holi was celebrated to search those two persons, the complainant came to know that the accused and Kunjal were present at the relevant Holi before some time and had gone away from there, but nobody could say in which direction they had gone. Thereafter, she talked about the incident to the elders of the village and as such, many persons of the locality had started searching them. Up to 10.00 O'clock in the night, they went on searching for those two persons but did not find either of them. At that time, the complainant told her mother that her mother-in-law should also be informed about the missing of Kunjal, and therefore, she and her mother went to Manavadar at her mother-in-law's house and asked her mother-in-law whether the accused and Kunjal had arrived there. Subsequently, she, her mother and her mother-in-law started searching at different places till 1.00 O'clock at night, but the victim or the accused were not found. She returned to her father's home at Katakpara and after departing, her mother-in-law had gone to the police station, but the P.W. 1 did not go with her. The next day in the morning at about 10.00 or 11.00 O'clock, she and her mother had gone from Katakpara to Manavadar police station and her mother-in-law had come directly to the police station from her home. All the three, thereafter, intimated the police about the incident and in the meanwhile, a call from Jasmatbhai of Katakpara village was received at Manavadar police station and the said Jasmatbhai informed the police that dead-body of a girl was lying under a lemon tree behind his farm. P.W. 1 immediately went to that place along with her mother and mother-in-law and when they reached the place of incident, they saw the dead-body of Kunjal lying under the lemon tree. P.W. 1 immediately went to that place along with her mother and mother-in-law and when they reached the place of incident, they saw the dead-body of Kunjal lying under the lemon tree. It was found that she had worn t-shirt on the upper part and worn a short on the below part and the short which was worn by Kunjal was smeared with blood and was lying beside the dead-body and the private part between the two legs of Kunjal was bloodstained and blood was clotted therein. Thereafter, she dictated the complaint at the police station. 8. In her cross-examination, she reiterated that the accused is her father's sister's son and is also brother-in-law of her brother. She stated that she knew him from her childhood and they were brought up together since then. She further stated that the accused used to go to her paternal house frequently. She, however, denied the suggestion that the accused used to frequently come to her father-in-laws house in absence of her husband or that her husband scolded her as the accused used to go to her father-in-law's house frequently. It appears that her statement in the deposition is in conformity with the case made out in the FIR. 9. P.W.2 is Dr. Navalkumar Maheshwar Mishra, who performed the post-mortem of the dead-body. He also examined the accused person when he was arrested after nine months from the date of the incident. In his examination-in-chief, he has given in detail the injuries caused to the deceased and had opined that it was a case of rape and murder by strangulation. In his cross-examination, although a suggestion was given that the injuries on the private part of the deceased may be caused for various other reasons, he has denied such suggestion. He has further confirmed that the accused person was capable of committing rape and that as he was brought for examination nine months after the incident, no mark of injury was found on his body. We do not find any reason to discard the medical report that it was a case of murder by strangulation preceded by rape. 10. P.W. 3, Gordhanbhai Ambavibhai Hingarajia is the Panch witness of the panchnama of the place of incident and nothing has come out of his cross-examination from which his version can be doubted. 11. We do not find any reason to discard the medical report that it was a case of murder by strangulation preceded by rape. 10. P.W. 3, Gordhanbhai Ambavibhai Hingarajia is the Panch witness of the panchnama of the place of incident and nothing has come out of his cross-examination from which his version can be doubted. 11. P.W. 4, Manjibhai Kadvabhai Garmal Devipoojak is the father of the complainant and maternal uncle of the victim who described the incident and those corroborate the case of P.W.1, the complainant. 12. P.W. 5, Jikabhai Lakhmanbhai Makwana is a person of Katakpara village of Manavadar Taluka. According to him, he had gone to Katakpara village to ignite the Holi fire at around 9.00 to 9.30 hrs. at night on the date of the incident and had stayed there for about an hour. Subsequently, he had come back to his house for dinner and after finishing the dinner had gone back to Holi fire. Thereafter, he returned home at about 11.00 to 11.30 P.M. in the night and thereafter, the accused had come to his house. At that time, he had asked the accused why he had come so late; thereupon, the accused had told him that he had come from Katakpara and that he had kept wheat at a place in the farm between Manavadar and Khambhala village and therefore, he had gone to call Raju, the son of the sister of his father. According to this witness, at that time, the accused had worn a white shirt with checks and that shirt had bloodstains at the lower portion below the last button. When he asked the accused why his shirt had such bloodstains, the accused stated that the dogs of the Vadi had hunted the rabbit and that prey was fresh and therefore, he immediately caught the rabbit and therefore, his shirt was stained with blood of the rabbit. At that stage, the said witness asked the accused to wash out those bloodstains and the accused had washed out the bloodstains and then, the accused had gone at the terrace with him. When he awakened him at 7.00 O'clock, the accused stated that he had to go to Khambhala village where he had kept the wheat. At that stage, the said witness asked the accused to wash out those bloodstains and the accused had washed out the bloodstains and then, the accused had gone at the terrace with him. When he awakened him at 7.00 O'clock, the accused stated that he had to go to Khambhala village where he had kept the wheat. In the morning, he had gone to Manavadar to take the vegetables and on the way he met Manjuben, the mother-in-law of the complainant and another woman in the rickshaw and at that time, he came to know that the accused had taken away daughter of Rekhaben, the complainant, and they were not found. 13. Although in the cross-examination, a suggestion was given to this witness that the accused did not go to the residence of the said witness, he denied the said suggestion. 14. P.W. 6, Bhupatbhai Vashrambhai Dabhi was in charge of Manavadar police station, who recorded the information that deadbody of a small girl was lying under a lemon tree. 15. P.W. 7, Hansrajbhai Bijalbhai Jamod, is the Investigating Officer who narrated the details of the investigation conducted by him including the arrest of the accused. As the accused was arrested long after nine months from the incident, no injuries were found on his person at that point of time. 16. P.W. 8 is Mulubhai Rajsibhai Godhaniya is another Investigating Officer who concluded the investigation and proved the arrest of the accused. 17. After going through the entire evidence on record, we find that although we find substance in the contention of Mr. Qureshi, the learned advocate for the appellant, that the fact that the accused person had taken away Kunjal, the victim, has not been witnessed by any of the prosecution witnesses and when Kajal, the elder daughter of the complainant who was aged about five years, has not been examined by the prosecution, such fact cannot be a ground to disbelieve the evidence of P.W. 5 who is totally an impartial witness. In his evidence, he has specifically stated that on the night of the occurrence at about 11.30 P.M., the accused came with bloodstained shirt and gave a plea that the said blood was that of a rabbit. It appears that in his cross-examination, no suggestion was even put that he had any enmity with the accused so as to falsely implicate him in the incident. 18. It appears that in his cross-examination, no suggestion was even put that he had any enmity with the accused so as to falsely implicate him in the incident. 18. We further find substance in the contention of Mrs. Calla, the learned APP, that there was no justification of absconding of the accused for nine months after the incident when he was very close to the family of the father of the complainant. In his statement under Section 313 of the Code of Criminal Procedure, he simply denied all the allegations against him and further stated that he did not commit any offence and was innocent and due to the reason of discord in his family, the offence committed by someone else was thrust upon him though the nature of discord in his family was not disclosed. 19. From the above evidence, we find that the learned Sessions Judge was quite justified in holding that it was the appellant who had taken away the victim and that he had committed rape upon the victim which has been corroborated by the fact that blood was found on his shirt which he tried to explain to the P.W.5 as that of a rabbit killed by the dogs. Although no trace of semen was found from the private part of the victim, that fact cannot falsify the case of rape. In the facts of the present case, we are convinced that it was the accused who committed rape upon the deceased infant, but before ejaculation, after seeing the condition of the victim, he killed her. We also do not find any reason to disbelieve the version of P.W. 5 who is known to the accused person being the person of the same community and no suggestion was even put to P.W. 5 that he had any inimical relations with the appellant or he had other motive for which he unnecessarily implicated the appellant. 20. We also do not find any reason to disbelieve the version of P.W. 5 who is known to the accused person being the person of the same community and no suggestion was even put to P.W. 5 that he had any inimical relations with the appellant or he had other motive for which he unnecessarily implicated the appellant. 20. On consideration of the entire materials on record, we find no reason to interfere with the detailed reasons given by the learned Additional Sessions Judge on the question of guilt of the appellant and affirm the sentence passed by the learned trial Judge on the charges under section 363 and 302 of the Indian Penal Code but enhance the sentence for offence punishable under section 376 on the charge of rape to 10 years rigorous imprisonment as the victim was a child aged two and a half years. 21. The appeal is, thus, dismissed and the sentence imposed on the charge for offence punishable under section 376 of rape is enhanced to 10 years' rigorous imprisonment. Appeal dismissed.