STATE OF GUJARAT Vs. SURENDRAPAL SHIVABALAKPAL

JUDGEMENT

(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 & 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. 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 brother's 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 O'clock 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 O'clock 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 brother's house at HUDCO and, therefore, all of them had gone there in search of accused Surendrapal at his brother's house. However, he was not found at his brother's 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 O'clock 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. 363, 376 and 302 I.P.Code before the Court of 2nd Joint Civil Judge (JD) & 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

(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.