Hasmuddin vs State of Delhi

G.S. Sistani, J.—The appellant has challenged the judgment of the Additional Sessions Judge dated 20.08.2004 and order of sentence dated 21.08.2004, by virtue of which the appellant has been convicted u/s 302 IPC for murder of a five year old girl and sentenced to undergo RI for life and fine of Rs. 10,000/- and in default of payment of fine Simple Imprisonment for one year. The case pertains to a gruesome murder of a five year old innocent girl in the most horrendous and monstrous manner.

The facts of the case in a nutshell are that Lagmani Devi, mother of the deceased was residing in the house of one Abdul Hamid for the past five years prior to the date of the incident as a tenant along with her husband and three children. On 22.11.2002 at about 6.00 pm she was working in her house and her children were playing outside. Suddenly the electricity supply was disrupted and she went outside to call her children and found her daughter Pooja missing. During search her brother-in-law (devar) Gopal came and informed her that he had seen Pooja along with Hasmuddin (appellant herein), son of the landlord Abdul Hamid. Lagmani Devi and her brothers-in-law Gopal and Kamal (devar) started searching for the girl in the nearby streets. After searching for about two and half hours or so, they came back to their house and met Hasmuddin who told them that he had left Pooja in the street itself. At this stage, the appellant Hasmuddin also joined them in the search for the girl and after sometime he suggested that the search of the girl be continued in the morning. On the next morning at 6 O'' clock, they started the search of the girl and at about 8 O'' clock, the complainant Lagmani Devi along with her brother-in-law Kamal reached the Police Station. The police had received an information that a dead body of a child was lying in the bushes near Nasirpur School. The complainant reached the spot and identified the dead body of her daughter.

DD No. 9A was received on 23.11.2002 by ASI Mange Ram whereby one Dharamdev Solanki resident of Village Nasirpur had telephonically informed that a dead body of a girl had been discovered near Brahmanand Mandir on the main road to Nasirpur Village. This information was received at 8.30 a.m. ASI Mange Ram reached the spot along with Ct. Shyam Lal where the dead body of the girl was found. She was wearing a black frock and a blue underwear. Her head on the left side was torn apart and blood had oozed. Close-by blood stained concrete slab was lying, blood had oozed on the earth as well. On the left side of the dead body, hawai chappal of blue colour was also lying.

The complainant stated that she had strong suspicion on Hasmuddin. son of the landlord, who had enticed the child away and then killed her, although they had no enmity with any person except Hasmuddin. Hasmuddin was unemployed and a drunkard who had fought with the complainant on the previous night under the influence of liquor and had threatened the complainant that in case she did not vacate the house she would face dire consequences.

On complaint and on the discovery of the dead body, a FIR under Sections 363/302 IPC was registered. PW-3 is the complainant and mother of the deceased. She has deposed that she was a tenant of one Abdul Hamid for the last five years and she along with her husband and three children was residing in the tenanted premises. Her deceased daughter Pooja was five years old. On 22.11.2002 at about 10.00 am her son Mukesh went to the toilet and had some altercation with the appellant, who had hit him and he fell down. On the complaint of her son Mukesh, she had questioned the appellant as to why he had hit her son and she was told that drop of urine of her son had fallen on his clothes. The appellant had also asked the complainant to vacate the house and also threatened her that, in case, they did not vacate the house, he would do something "Tera Intejam Karna Padega". On the same evening the complainant was present in the house and was cooking food while her daughter Pooja was playing outside the house. At that point of time the electricity got disconnected and Pooja went missing. PW-3 thereafter tried to look for her daughter in the locality and during her search she met her brother-in-law, Gopal, who asked her as to why she is weeping. She then told Gopal that Pooja is missing. Gopal informed her that he had seen Pooja with the son of the landlord Hasmuddin who was identified by her in the Court. After searching for about two and a half hours, and on return PW-3 found the appellant sitting on the door step of his house and on enquiry the appellant informed her that he had dropped Pooja on the way. PW-3 again went in search of her daughter accompanied by the appellant, however, Pooja could not be found and PW-3 had asked the appellant whether she should go to the police and lodge a report but she was assured that Pooja would be found on the next day. The next morning, PW-3 went to the police station along with her brother-in-law and lodged a report. The police had information about a dead body being found in Nasirpur and she along with the police went to the spot and identified the dead body of her daughter. She had suspected the appellant who was responsible for killing Pooja as well as threatening her.

PW-4, Gopal is the cousin brother of the father of the deceased and he stated that he resides at a distance of 25 minutes from the house of the deceased. PW-4 is a material witness. He has stated that on 22.11.2002, he had gone to see his brother in the evening and he had seen the son of the landlord of his brother, Hasmuddin with Pooja. The appellant was holding the hand of Pooja. As his sister-in-law was searching for Pooja, he informed her that he had seen Pooja going with the son of the landlord. When they returned home after the search, PW-4 had also enquired from the appellant about the whereabouts of Pooja and the accused had replied that he had left Pooja on the way. This witness has also stated that the appellant had also joined PWs-3 and 4 in the search for Pooja.

PW-6 is also the brother of the father of the deceased who has stated in his evidence that on 22.11.2002 as Pooja was missing, he along with the sister-in-law and Gopal went in search for Pooja. After searching for about two and a half hours when they returned home, they found appellant sitting on the doorstep of his house and on asking, the appellant informed that he had left Pooja in the gali. PW-6 had also accompanied his sister-in-law to the police on the next day. The dead body was also found in his presence and statement of this witness was also recorded by the police.

PW-8, Manoj Pandey is also a tenant in the same house, a portion of which was occupied by the family of the deceased. In his testimony, he has deposed that a quarrel had taken place between the mother of the deceased and the appellant and the appellant had threatened Lagmani Devi either to vacate the house or face dire consequences. He has also stated that he assisted the others in searching for Pooja till late at night. In his cross-examination, he has stated that Gopal, PW-4 had stated in his presence as well as in the presence of others that Pooja had gone with Hasmuddin.

PW-9, Dr. Manoj Nagpal has conducted the post-mortem on the body of the deceased.

PW-13, HC Rambir Singh in his evidence has stated that he along with the 10, during the investigation of the case, went in the search of the appellant and they found the appellant behind DDA Flats, Nasirpur, Durga Park, Delhi, and at the instance of the informer he was apprehended. On interrogation, the disclosure statement of the appellant was recorded as Exhibit PW-13/A and he had led them to the spot as well as got recovered from his house one black coloured pant and sky blue coloured shirt. Both the clothes were blood stained and were smeared with mud.

It is submitted by learned counsel for the appellant that the Judgment dated 20.08.2004 and order of sentence dated 21.08.2004 passed by the Additional Sessions Judge are contrary to law and the facts on record, and has also resulted in great miscarriage of justice. Counsel further submits that the judgment of the Trial Court is based on surmises and conjectures and there is no material on record which has been proved by the prosecution through the testimony of the witnesses that the offence of murder was actually committed. Counsel submits that the entire case of the prosecution rests on circumstantial evidence as there is no eye witness to the crime. The chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused.

Learned counsel for the appellant contends that the alleged clothes which were recovered from the possession of the appellant did not have blood stains according to CFSL report, which would in itself be a sufficient ground to show that the appellant is not guilty of the offence. It has also been submitted that the story of the prosecution is unbelievable as in DD No. 11B dated 23.11.2002 recorded at 8.30 a.m. the mother of the deceased had stated that her daughter was missing since 8.00 p.m. and she did not suspect anybody. Upon finding the dead body of her daughter she had stated that although she had no enmity against anyone yet she named the appellant who had a fight in the morning with her whereas no such thing was mentioned in the DD recorded at 8.30 a.m. Learned counsel for the appellant submits that assuming the deceased was last seen with the appellant, the same cannot be a ground in itself to hold the appellant guilty for the murder of Pooja.

Learned counsel further submits that there is contradiction in the statement of PW-3 with respect to the time of the incident and also there is contradiction as to when Gopal informed her that he had seen Pooja with the appellant. Thus, the version of PW-3 cannot be relied upon.

Per contra, learned counsel for the State submits that the prosecution has been able to prove their case beyond any shadow of doubt. The sequence of events are of such a nature that all circumstances lead to only one conclusion that the appellant has committed the crime.

Learned counsel for the State has placed strong reliance on the evidence of PW-4 Gopal, who had seen the deceased last with the appellant and also it was during this period that the deceased was found missing by her mother. While the search was being conducted the appellant was not found in his house and he only returned after a gap of about two and a half hours. He joined the family of the deceased in the search and even suggested that the matter should not be reported to the police till the next morning.

Learned counsel for the State further contends that the above mentioned circumstances along with the disclosure statement of the appellant and recovery of the clothes last worn by the appellant which were sent to the CFSL and based on the report of the CFSL that the soil on the trousers of the accused and on the frock of the deceased was similar to the soil collected from the spot of recovery of the dead body, conclusively establishes the presence of the accused with the deceased at the place of occurrence.

We have heard learned counsel for the parties and given our thoughtful consideration to the matter.

The submissions of the counsel for the appellant are to be tested in the light of the sequence of events and on the settled position of law with regard to (1) the importance of the deceased last seen with the appellant (2) conviction on the basis of circumstantial evidence, and (3) whether the prosecution has been able to establish any motive for this heinous crime.

The law with regard to conviction on the basis of circumstantial evidence has been discussed in detail in a recent decision of the Supreme Court of India in the case of Harishchandra Ladaku Thange Vs. State of Maharashtra, It would be useful to reproduce the relevant paras:-

It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, , Eradu and Others Vs. State of Hyderabad, ) Earabhadrappa Vs. State of Karnataka, State of U.P. Vs. Sukhbasi and Others, Balwinder Singh alias Dalbir Singh Vs. State of Punjab, and Ashok Kumar Chatterjee Vs. State of M.P., The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab, ) it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C. Chenga Reddy and Others Vs. State of Andhra Pradesh, wherein it has been observed thus:-

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.'' Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, ) it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In State of U.P. Vs. Ashok Kumar Srivastava, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

Sir Alfred Wills in his admirable book ''Wills'' Circumstantial Evidence'' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.

There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.

In Hanumant Vs. The State of Madhya Pradesh, it was observed thus:-

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the fact so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

A reference may be made to a later decision in Sharad Birdhichand Sarda Vs. State of Maharashtra, Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:-

the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty:

the circumstances should be of a conclusive nature and tendency;

they should exclude every possible hypothesis except the one to be proved; and

there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

As per settled law it is not as if the conviction can only be based on the sole ground of last seen as last seen together may not by itself necessarily lead to the inference that it was the accused who committed the crime. We consider it necessary at this stage to refer to a decision of the Supreme Court of India reported in State of Rajasthan Vs. Kashi Ram, where the law on this subject has been discussed in detail. Relevant portion of the same reads as under:

Learned counsel for the State strenuously urged before us that the High Court committed an apparent error in ignoring the evidence on record which disclosed that the respondent was last seen with deceased Kalawati in his house on February 3, 1998 late in the afternoon. Thereafter, he was not seen by anyone and his house was found locked in the morning. The evidence of PW-5, mother of the deceased Kalawati, and her brother Manraj, PW-2, clearly prove the fact that the house was found locked on February 4, 1998. The evidence also establishes beyond doubt that the doors were removed and dead bodies of the deceased Kalawati and her daughters were found inside the house on February 6, 1998. In these circumstances, the disappearance of the respondent was rather suspicious because if at all only he could explain what happened thereafter. He, therefore, submitted that in the facts of the case, in the absence of any explanation offered by the respondent, an inference must be drawn against the respondent which itself is a serious incriminating circumstance against him. He has supported his argument relying upon several decisions of this Court.

Before adverting to the decisions relied upon by the counsel for the State, we may observe that whether an inference ought to be drawn u/s 106 IPC is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts.

In Joseph Poulo Vs. State of Kerala, the facts were that the deceased was an employee of a school. The appellant representing himself to be the husband of one of the sisters of Gracy, the deceased, went to the St. Mary''s convent where she was employed and on a false pretext that her mother was ill and had been admitted to a hospital took her away with the permission of the Sister in charge of the Convent, PW-5. The case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. It was also found as a fact that the deceased was last seen alive only in his company, and that on information furnished by the appellant in the course of investigation, the jewels of the deceased, which were sold to PW-11 by the appellant, were seized. There was clear evidence to prove that those jewels were worn by the deceased at the time when she left the Convent with the appellant. When question u/s 313 Cr.P.C, the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In the background of such facts, the Court held:

Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra Vs. Suresh, That missing link to connect the accused-appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and cause for the death of Gracy.

In AIR 2001 2842 (SC) the facts proved at the trial were that the deceased boy was brutally assaulted by the appellants. When one of them declared that the boy was still alive and he should be killed, a chhura blow was inflicted on his chest. Thereafter, the appellants carried away the boy who was not seen alive thereafter. The appellants gave no explanation as to what they did after they took away the boy. The question arose whether in such facts Section 106 of the Evidence Act applied. This Court held: In the absence of an explanation, considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors with held that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference.

In Sahadevan @ Sagadevan Vs. State rep. by Inspector of Police, , the prosecution established the fact that the deceased was seen in the company of the appellants from the morning of March 5, 1985 till at least 5 p.m. on that day when he was brought to his house, and thereafter his dead body was found in the morning of March 6, 1985. In the background of such facts the Court observed:

Therefore, it has become obligatory on the appellants to satisfy the court as to how. where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement u/s 313 Cr.P.C. they have not taken any specific stand whatsoever.

It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras 218.

There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.

Applying the aforesaid principles of law, we have examined the evidence on record. PW-4. who is the cousin brother of the father of the deceased, in his statement recorded in court stated that he saw the son of the landlord of his brother coming with Pooja, the younger daughter of his brother. He was holding Pooja''s hand. This witness was cross-examined by the counsel for the appellant. We consider it appropriate to reproduce the entire cross-examination of this witness:-

I do not put over time. I have told to the police that I have seen the accused taking Pooja by hand. Distance between my house and the house of the accused is about 20 minutes walk. It is wrong to suggest that accused had not advised me to lodge the report. 10 recorded my statement in my presence. It is incorrect to suggest that I am deposing falsely.

The defence has failed to cross-examine this witness with respect to his having seen Pooja with the appellant nor any suggestion was put to him that the witness was deposing falsely as appellant and Pooja were not seen together. PW-6 Kamal Prasad, in his statement has stated that when he along with his sister-in-law went in search for Pooja and returned home after about 2 1/2 hours. On return they found Hasmuddin (appellant) was sitting on the door of his house. He had asked the appellant regarding Pooja and the appellant told him that he left Pooja in the Gali. This witness has been cross-examined by the appellant. However, there is nothing in the cross-examination with regard to this statement of PW-6. Taking into consideration the evidence of PW-4 and PW-6 it stands established that the deceased was last seen together with the appellant. Except for saying that the appellant left Pooja at the gate, we find no reasonable or plausible explanation on behalf of the appellant as to what happened to Pooja thereafter and inference must be drawn against the appellant. We are conscious of the fact that in the absence of other links of chain of circumstantial evidence, it would not be proper to convict the appellant on the basis of the last seen evidence. However, we find the evidence of last seen as one of the links in the entire chain of events. Firstly there is nothing to doubt the creditworthiness of the evidence of PW-4 to PW-6 and there is no explanation given by the appellant as the deceased was last seen with him, and it was only he who could explain what happened thereafter. From the evidence of PW-3, her 5 year old daughter was playing outside her house around 6 p.m. According to PW-3 she searched for her daughter for 1 1/2 hours and returned home and found the appellant sitting on the door steps of his house. On being asked, he informed PW-3 that he had dropped Pooja on the way. According to PW-4 after the search when he returned, the appellant who was earlier not available, was found at his house. When PW-4 asked him about the whereabouts of Pooja, he told him that he had left Pooja on the way. Similar statement has been made to PW-6 that he left Pooja in the Gali. The evidence of PW-3, 4 & 6 would show that immediately after Pooja went missing the appellant was not present at his house. As per the evidence of PW-4 Gopal he had seen Pooja with the appellant and it is during this period that Pooja was killed. It would thus clearly be established that since the appellant was last seen with the deceased he must offer an explanation as to in whose custody he had left the child after parting company. In this fact of the matter Section 106 of the Evidence Act would apply as a reasonable inference can be drawn against the appellant for causing death to Pooja. As he has failed to discharge the burden cast upon him by Section 106 of the Evidence Act, this itself provides a link in the chain of circumstance proved against him.

The motive stands established, in view of the evidence of PW-1, 2 & 8, wherein it comes to light that there was a dispute between the landlord and tenant and there was exchange of hot words together with another incident which would establish motive has been deposed by PW-2 and PW-5 when Mukesh, brother of the deceased was kicked and thrown to the ground as some drops of the urine had fallen on the clothes of the appellant.

Another factor which provides another link to the circumstantial evidence is the discovery of clothes last worn by the appellant which were got recovered by the appellant in the present of PW-1 and PW-13 and the CFSL report exhibit PW-22/G proved that the soil on the trouser of the accused and frock of the deceased was similar to the soil collected from the spot of recovery of the dead body.

The finger of guilt points towards the appellant on account of five factors:-

(a) Evidence of PW-4, Gopal, who had seen the deceased last with the appellant on the fateful day in the evening;

(b) At the relevant time when the child was missing, the appellant was not found in his house;

(c) The evidence of PW-3, the mother of the deceased to show that on 22.11.2002 itself her son had some altercations with the appellant and the appellant had hit her son with his legs and the child had fallen on the ground. The appellant had asked the mother of the deceased to vacate the house and also threatened her that, in case, she did not vacate the house, he would have to do something "Tera Intejam Kama Padega";

(d) Recovery of clothes based on the disclosure statement of the appellant; and

(e) report of CFSL which shows that the soil on the trousers of the accused recovered at his instance and on the frock of the deceased was similar to the soil collected from the spot of recovery of the dead body.

For the reasons stated above, in our view the circumstances establish an irresistible conclusion that the appellant has committed the heinous crime against the 5 year old daughter of the PW-3 and in view thereof we find no ground to interfere in the judgment of the Addl. Sessions Judge. Consequently, the appeal is dismissed.