- (1.)The appellant was tried for an convicted of offences punishable under Section 363, 376, 302, and 201, I. P. C. by the Additional Sessions Judge, Shahdol. For his conviction under Section 302, I.P. C. He was sentenced to death and for the other convictions to different terms of rigorous imprisonment. As the appeal preferred by him in the High Court was dismissed, he has filed the instant appeal after obtaining special leave.
(2.)Briefly stated the case of the prosecution is as follows :
(a) Parmeshwar Lal Sharma (P.W.1) along with his wife and three children used to reside at Bhutari Tolla in the township of Budhar. Of the three children, Pinky (the deceased) was the youngest and her age at the time of her death was about seven years. The appellant who was also a resident of the same locality used to occasionally visit the family of Parmeshwar and his children used to address him as 'Tiwari Uncle."

(b) On April 30, 1995, at or about 6 p.m. Parmeshwar had gone to hair cutting saloon in the local market along with his son Santosh (P.W. 4) and daughter Pinky. After Santosh and Pinky had their hair cut they went out of the saloon to play outside while Parmeshwar stayed back for his turn. After sometime Pinky went to the television repairing shop of the appellant which was by the side of the saloon. The appellant was then playing ludo with Suresh Gupta (P.W. 8) in his shop. Pinky requested the appellant to giver her some toffees and biscuits whereupon he took her to the nearby grocery shop of Budhsen Gupta (P.W. 3), purchased a packet of biscuit and gave it to her. Thereafter both of them left the shop of Budhsen.

(c) After his hair-cut when Parmeshwar came out of the saloon and enquired of his daughter, Santosh told him that Pinky had gone to the shop of the appellant and that he had given biscuits to her. On getting that information Parmeshwar along with Santosh went to the shop of the appellant but found it closed. They then went back to their house only to find that Pinky had not returned. Parmeshwar then went to the house of the appellant but he was not available there. Accompanied by his wife and other two children Parmeshwar then went in search of Pinky and in course of the search they met Hari Krishna Soni (P.W. 10), and Subhash Chander Soni (P.W. 2) at or about 10.30 p.m. on a cross road near the shop of the appellant. As advised by them he sent back his wife and children home and again went to the house of the appellant accompanied by them. While they were waiting there they saw the appellant coming towards his house completely drenched. He was then wearing only an underwear with some clothes pressed under his armpit. When they enquired about Pinky he told them that after he had given the packet of biscuits to her she left. All three of them then went to Budhar Police Station at or about 1 a.m. and reported that Pinky was missing.

(d) After recording the report in the Station diary book (Ext. P. 15/C) H. C. Munna Prasad went in search of Pinky but could not trace here out. However, on the basis of the enquiry conducted by him Station House Officer Shri V. D. Tripathi (P.W. 11) registered a case under Sections 363, 364 and 366 I. P. C. (Ex. P. 16) and took up investigation. On the following day, i.e., May 2, 1995, in the afternoon the appellant was arrested by Shri Tripathi and then interrogated in presence of Hari Krishna and Din Dayal. On such interrogation the appellant disclosed that he had thrown the dead body of Pinky in a well and concealed her frock near a mahua tree. Shri Tripathi recorded the disclosure statement of the appellant (Ex. P. 8.) and then, led by the appellant and accompanied by the above two witnesses went to the well of one Ramjiyawan Lodhi and found the dead body of Pinky floating in the water. After Shri Tripathi took photograph of the floating dead body (Ex. P. 3) it was brought out of the well. He then prepared a recovery memo of the dead body (Ex. P. 9) which was signed by the appellant as also the witnesses present there. Shri Tripathi held in quest thereupon, prepared a report in respect thereof (Ex. P. 14), and then sent if for post-mortem examination. Pursuant to the statement made by the appellant, Shri Tripathi recovered a blood stained frock (Article A) and seized under a seizure memo (Ex. P. 10).

(e) On the same day Dr. K. K. Gautam (P.W. 13) held autopsy on the dead body of Pinky and found a lacerated would on the right side of the mouth, abrasions on both arms, contusion on the left knee, laceration on the labia majora with clotted blood, laceration on the posterior vaginal wall, hymen ruptured, labia majora and labia majora swollen and blood around the orifice of the vagina. Dr. Gautam also found three contusions on the left side of the neck below the level of the thyroid with abrasions all around, brain and its membrane congested, hyoid bone and thyroid cartilage fractured with haemorrhage on the tissues around the fractures, the fourth rib on both the side fractured and uterus deeply congested and swollen. He opined that the deceased was raped and that the cause of her death was asphyxia owing to throttling. According to him all the injuries were ante mortem in nature. Dr. Gautam prepared a slide from the vaginal discharge of the deceased and arranged to send it for chemical analysis by the Forensic Science laboratory (F. S.L.) through the Investigating Officer.

(f) On the following day (May 3, 1995), the appellant was sent to the Primary Health Centre for his medical examination. Dr. B. N. Sharma (P. W. 7), who examined him found one abrasion on his right knee and another on the glans penis but there was no smegma. In his opinion the appellant was competent to commit sexual intercourse and that the injury found on the glans penis could have been caused while committing rape on the girl of tender age. According to him the injury found on the knee of the appellant could have been caused while committing sexual intercourse with the victim lying on the bare floor of a room. Dr. Sharma prepared a slide of semen of the appellant and along with his underwear sent the same for chemical analysis through Const. Kamla Prasad. The frock which was recovered in pursuance of the statement of the appellant and was identified by Parmeshwar as that of Pinky was also sent for such examination. On receipt of the reports of the F.S.L. and completion of investigation Shri Tripathi submitted a charge-sheet against the appellant.

(3.)The appellant pleaded not guilty to the charges levelled against him and his defence was that he had been falsely implicated.