1. Kadarnath, the appellant accused, has filed this appeal challenging his conviction ordered by the learned Additional Sessions Judge, Ajmer, under Section 302 and Section 377, IPC. The appellant has been sentenced to life imprisonment with a fine of Rs.000/- and in default of payment of fine, to rigorous imprisonment for one year under Section 302 IPC, and under Section 377, IPC he has been sentenced to rigorous imprisonment for three years and a fine of Rs. 1,000/- and in case of default of payment of fine, to further rigorous imprisonment for six months.
2. One, Aryaneder alias Suman of Ajmer, young boy of 13 years of age, went out of his home along with the accused-Kedar in the evening of 24-6-75 at about 5.30 p.m. telling his mother that he would be returning after 10 minutes. However, he, as the ill-luck would have it, never returned back. Daramsingh, the father of the deceased, when returned from the dispensary, was asked by his wife to search about Suman. Dharamsing made a search but could not find his son Suman. Suspecting that the boy might have met with some accident and might be lying in the hospital, at about 2-00 a.m. in the night Dharamsingh went to the Jawahar Lal Nehru Hospital, Ajmer, but could not get any information. At about 5 a.m. he went to the house of Kedar who told him that Suman was not with him. Dharamsingh alleged to have come disappointed from all possible places where in the circumstances, the boy-Suman, could have been found or, the information could have been known. At about 6 a.m. Yogendra Singh the neigbour of Dharam Singh, came to him and asked him to come with him and, Yogendra Singh took him to Kaisar Ganj Crossing where there was a well and near that well the dead body of Suman was lying wrapped in a bed-sheet. Dharamsingh recognised him as his son and took him to the nearby private Pr. S.P. Sen, where the doctor made unfortunate pronouncement that he was no more alive and he was dead. Dharamsingh brought the dead body to his house first and then he went to the police station to lodge a report.
3. There were injuries on the body and the blood was coming out of mouth, the police registered a case under Section 302, IPC, and started investigation.
4. The post mortem conducted by the doctor revealed the following injuries on the person of Suman.
External appearance:
Tonga inside teeth, white froth was coming out of nostrils. Rigor-mortis not present. Cyanosis present on face. Post mortem staining on the back. Body well built, not decomposed,
Injuries:
(1) Abrasion on dorsum of all toes of right foot 1' x 4';
(2) Abrasion 3' x 1/8' in right wrist. Shoe-horn shaped;
(3) Abrasion 1' x 4' on posterior side of neck lower part;
(4) Abrasion 4' x 1' on back of left shoulder;
(5) Abrasion 1-1/4' x 1-4' on right and left shoulders;
(6) Abrasion 6' x 1' in upper half of neck irregular;
(7) Abrasion 5' x 1' irregular extending right angle of mouth to angle of right mandible and to right side of neck;
(8) Abrasion of right cheek 1' x 1-1/4';
(9) Abrasion 1/4' x 1/4' on tip of nose;
(10) Abrasion 1' x 1/8' each on right and left nostrils;
(11) Bruise of both lips on alveolar surface.
Internal Injuries:
Thorax: Larynx and sraches-healthy and congested. Slight froth present;
Right Lung: Codomatous, swollen and congested;
Left Lung: Oedematous swollen and congested;
Heart: Right and left vantricals found empty;
Rest all were found healthy and no abnormality was detected except mentioned above;
Abdomen--Stomach and its contents
Preserved for examination. Watery fluid about 2 ounces present
Lever, spleen and kidneys preserved. Bladder found empty.
Organs generation: external and internal healthy. Ano rectal swab and two somars preserved for detecting semen. Right and left pupils were found dilated.
5. According to the opinion of the doctor, Suman died of Asphyxia, but he stated in the report that the cause of asphyxia would be given after the report of the chemical examiner. The doctor had preserved the viscera of the boy and had also prepared anc-rectal swab and two smears for detection of semen and it was suspected that the boy had been subjected to carnal intercourse against the course of nature.
6. During the course of investigation, the police visited the spot and took photos of the dead body. The blood-stained Bushirt, pant vest and underwear of the deceased were seized. The bed-sheet in which the dead body was wrapped, was identified by one Sunil, who resided in the neighbourhood of the accused, as that of the accused Kedar.
7. Later, as the investigations proceeded, the police collected the evidence against the appellant and arrested him on 28-6-1975. While in police-custody, the appellant-Kedar on 5-7-1975 gave an information to the police that he had hidden the 'Chappals' of the deceased in the compound of his house in Ashaganj, Ajmer. In consequence of this information and at the instance of the accused, the police recovered a pair of 'chappals' from the Kitchen of that house, where they were buried under debris and were dug-out from there by the accused.
8. During the investigation, it came to light that after the death of the boy, his dead body has been removed from that house by accused Kedar and his father Bhagchand, and was placed near the well at Kaiser Ganj crossing. Consequently, Bhagchand was also arrested and he got recovered one cycle, on which the dead body is alleged to have been taken from the house to the places where it was found.
9. 'Chappals' were put for identification before Guman Singh, the then Additional Munsif and Judicial Magistrate, Ajmer (East), and they were correctly identified by Dharam Singh and his son Harsvardhan as those of the deceased. The blood stained clothes and the bed sheet were sent for chemical examination. The report of the chemical examiner shows that all these clothes were stained with blood. The serologist report shows that the blood on these articles was human blood. The rectal shears and anorectal swab were also forwarded to the chemical examiner, Jaipur, who in his report stated that the rectal smears were positive for spermatozoa, which resembled human spermatoza. The opinion on anorectal swab has not been given as it had decomposed.
10. The chemical-examination of the viscera showed that they were negative for arsenic, antimony, mercury opium, dhatura and barbiturates.
11. On a completion of the investigation both the accused, Kedar and his father, Bhagchand were challaned, and the accused were committed for trial by the Magistrate concerned. The accused-Kedar who was orginally charged for the offence under Section 302 and 201 IPC, was further charged for the offence under Section 377, IPC, on receipt of the report of the chemical examiner. Bhagchand was charged for the offence under Section 201, IPC. Both the accused pleaded not guilty. In the statement under Section 313, Cr.P.C. they denied the entire prosecution case.
12. In support of the prosecution case, the prosecution has examined the witnesses, viz., Dharamsingh (PW 1), Harshvardhan (PW 2), Madan Kumari Kothari (PW 3), Yogendra Singh (PW 4), Rajendra Singh (PW 5), Sunil (PW 6) s/o Suresh Sharma, Dinesh (PW 7), Dr. Subhash Sen (PW 8), Bhagchand Ranka (PW 9), Brahmanand Tripathi (PW 10), Satendra Kumar (PW 11), Surya Karan (PW 12), Dr. A.N. Mathur (PW 13), Smt. Shanti Devi (PW 14), Suresh Chand Sharma (PW 15), Sunil (PW 16), Ramsingh (PW 17), Mooldan (PW 18), Hemant Kumar (PW 19), Lalit Kumar (PW 20), Nathulal (PW 21), Guman Singh (PW 22), Bhurey Khan (PW 23), P.N. Rachhoiya (PW 24), and Shyam Singh, the Investigating Officer (PW 25). The accused have examined only one witness Prem Chand Mahaveer as DW 1 in defence.
13. The learned trial court, after consideration of the entire evidence and further the submissions of the learned Counsel for the parties, came to the conclusion that the prosecution has succeeded in proving the guilt of the accused beyond all manner of reasonable doubt so far as Kedar, the appellant, is concerned. However, for Bhagchand, the learned trial Court was not satisfied and, therefore, Bhagchand was acquitted of the offence charged.
14. The learned trial court, while acquitting Bhagchand observed that the evidence produced against Bhagchand shows that he along with Kedar left the house at about 10.30 p.m. on 24-6-1975 and was absent from the house for some hours, that, there was no evidence to show that Bhagchand was through out in the company of Kedar in taking the dead body. The recovery of the cycle (Ex. 7) according to the trial court, did not prove that Bhagchand had taken the dead body on this recovered cycle. The conclusion arrived at by the trial court in respect of Bhagchand is that the circumstances are such as do constitute a serious suspicion on this accused, but are not conclusive to prove the guilt of this accused. The trial court in this respect relied upon the decision reported in AIR 1957 Punjab 278 that removal of a corpse of a murdered man from the place of murder to another place, is not causing disappearance of some evidence of the comission of murder and the offence would not fall under Section 201, IPC. In view of these circumstances, the learned trial court held that the accused Bhagchand is not guilty of the offence under Section 201, IPC.
15. So far as the principal accused-Kedar is concerned, the trial court after deciding that Suman was subjected to carnal inter course against the course of nature and murdered in the unfortunate night intervening in between 24th and 25th June, 1975, and further that, it was Kedar who was accused and who committed the above two-fold crime of first, committing carnal inter course against the course of nature with the deceased Suman and then committing murder of him, held that the offences under Section 377 and Section 302, IPC were proved against the accused. So far as the offence under Section 201, IPC, against accused Kedar is concerned, the trial court did not hold the accused guilty on this score, on the ground that, once the accused-Kedar is held to be guilty of the main offences under Sections 377 and 302. IPC, he cannot be convicted under Section 201, IPC. Reliance wa placed on the decisions reported in 1965 RLW 418 and 1958 RLW 353. Since there is no appeal against acquittal under Section 201. IPC, and further because, the principal offences under Section 302, and 377, IPC, under which Kedar-accused has been punished, are of serious nature, we are not inclined to enter into the futile exercise considering whether the acquittal under Section 201, IPC, on the ground mentioned in the judgment can be sustained or not.
16. The first question which is not in serious dispute in this appeal is, whether Suman was murdered, and whether he was subjected to carnal inter course against the course of nature.
17. Shri O.S. Lakhawat, the learned Counsel, appearing on behalf of the accused-appellant, who, argued the case after serious preparation and with sufficient persistency, did not challenge the finding with regard to the murder, seriously. The post mortem shows that the boy had sustained a number of injuries, and the cause of death was Asphyxia. In Panchanama (Ex. P. 11), it has been proved that the blood was coming out from the mouth of the deceased, and all his clothes were blood stained. This all proved that the death was not natural but it was a case of murder.
18. So far as the carnal inter course against the course of nature is concerned, doctor in his conducted post mortem report could not give any definite opinion, as he had preserved the rectal smears and the anorectal swab, and had sealed the same. These were received by the chemical examiner in a sealed conditions as per report (Ex. P. 24) and the statement of Mooldan (PW 18).
19. The report (Ex. P. 24) shows that the rectal swear was positive for spermatozoa, which resembled with human-spermatozoa. The presence of the human-spermatozoa in the rectum of the deceased has been held to be a definite proof of fact that the boy has been subjected to the carnal intercourse against the course of nature. We are in agreement with the above conclusion arrived at by the learned trial Court as, in the facts and circumstances of the case, the presence of human spermatozoa in the rectum of the deceased who was a young boy, leads to only one conclusion that he was subjected to the carnal inter course against the course of nature.
20. The evidence shows that the boy was alive till 7.00 p.m. on 24-6-1975 and was found dead at about 6.00 a.m. 25-6-1975. In view of the above, the evidence conclusively proves that Suman has been subjected to the carnal intercourse against the course of nature and, later, murdered in the unfortunate night of 24th and 25th June, 1975. We are in agreement with the above conclusion arrived at and deduction drawn by the learned trial court, which are based on just and proper appreciation of the entire evidence, and suffers from no infirmity, either on factual or legal grounds.
21. This leads us to the more and most important question, whether the finding of the trial court that Kedar committed murder and had also carnal inter course against the course of nature with the boy Suman, before murder, is correct and deserves to be confirmed or, it suffers from the infirmities pointed out by the learned Counsel, Shri O.S. Lakhawat; and those infirmities are of such a nature that the conviction cannot be sustained and the accused deserves to be acquitted.
22. We must, at the very out set, state that Shri Lakhawat has attacked the finding arrived at by the trial court on various grounds and tried to substantiate and support them both by reading relevant portions of the evidence and the findings in the judgment of the trial court, and the decisions of the various High Courts and Supreme Court, which support him according to his version.
23. The learned Public Prosecutor has vehemently opposed the appeal and tried to rebut and reply the submissions of Shri Lakhawat in seriatim.
24. We have given a very thoughtful and serious consideration to the rival contentions of the learned Counsel for the parties, and gone through the relevant record of the case either referred to by the learned Counsel for the parties and/or which was thought to be relevant for deciding the controversy between the parties; and the relevant evidence road over before us by the parties; and we have noticed material portions of it which were put in focus either by the learned Counsel for the accused or the Public Prosecutor.
25. The first and foremost point argued by Shri Lakhawat is that the evidence of 'last seen together' is concoction and should not be believed. It was pointed out that in the first information report (Ex. P. 1) (for short, 'FIR') written by Dharam Singh, the father of the boy deceased Suman, there is no reference that the deceased went out of the house along with Kedar. According to the learned Counsel, if the story of 'Last seen together' as per the evidence which has been later developed was correct then the boy definitely left with Kedar; and such a version should have been found place in the FIR.
26. It was then argued that in view of this, the evidence of the father and mother of the boy (PW 1) and (PW 3), is of no value so far as the point of 'last seen' is concerned. It was then argued that the story of 'Chappal' has also been introduced as concoction because, it has not been mentioned in the FIR that the boy was wearing the 'Chappals' nor it has been mentioned later on, where the dead body was found, the 'Chappals' were missing. According to the learned Counsel, it rules out the possibility of the genuineness, correctnes, and truthfulness of both these circumstances, viz., of the deceased having left with the accused Kedar, of the chappals having found subsequently at the instance of the accused. It was argued that so far as other evidence is concerned, that consist of the relatives and friends of the family of the deceased and there is no independent evidence of 'last seen'. According to the learned Counsel, the evidence with regard to the recovery of Chappals is also not believable and reliable because, neither it consists of two independent motbirs witnesses nor the identification of the Chappals is according to law.
27. The learned Counsel for the appellant read the entire relevant documentary and oral evidence to bring home the points argued by him.
28. The deceased Suman, was a school boy reading in Regional College, of about 13-14 years of age. Accused Kedar was of about 22-23 years of age. They were well acquainted with each other as Kedar, the accused, as per the statement of Madan Kumari, the mother of Suman, deceased used to come to their house and some times, the accused Kedar used to teach the deceased. According to the mother (PW 3) of the deceased, this use to happen particularly in the examinations days, and the deceased boy used to go to the house of the accused also for giving and taking books.
29. Now we have to keep the above in view because, as per the evidence on record and, the circumstances which appear that, primarily the motive of murder was to conceal the fact of unnatural inter course with the deceased boy by the accused and that the accused was keen to remove the possibility of any complaint against him for this.
30. We would now deal with the question, whether the allegation of unnatural inter course which the boy amounting to offence under Section 307 IPC is proved or not.
31. We have got the evidence of reliable witnesses believed by the trial court in respect of the accused Kedar and Suman, the deceased having seen them together in the night of the occurrence, which is evidence of 'last seen'.
32. The trial court has rightly believed the statement of Madan Kumari (PW 3), the mother of the deceased Suman. According to her, the deceased while leaving the house told her that he was going to Kedar and that earlier, Kedar had also come to her home and asked for the deceased, who was, at that time, away to the flour-mill.
33. Much capital was sought to be made by Shri Lakhawat of the non-mention of this fact in the FIR and non-mention of it to her husband. Her explanation for non-mention of it in the police version and to her husband is that so far as the husband is concerned, she did not mention because she could never suspect Kedar for such a heinous offence. We find that the accused was in friendly relations with the family of the deceased and used to coach the youngsters in the family in addition to the deceased-Suman. She, therefore, could not suspect Kedar as person who could have been responsible for the disappearance of the boy. In fact, at that time, she was not sure, whether the boy has disappeared, and all that was causing anxiety was that he has not returned back in time. It was in this context that this fact was not mentioned and could not find place in the FIR (Ex.P. 2). It has not to be forgotten that even the statement of Madan Kumari (PW 3) was recorded soon after the dead body of the deceased was found, and even at that time, she has no reason to suspect that Kedar accused must have committed such a heinous crime because Kedar was in friendly relations with her family. Unless it became known, a poor lady could riot suspect that a family friend would betray the confidence to this extent that he would committ the murder of his young student cum boy friend. It is in this context that her explanation is to be accepted. We are of the opinion that the learned trial court was justified in accepting the explanation of Madan Kumari (PW 3).
34. The submission of Shri Lakhawat that this story was improved later on against the FIR, fails to carry any conviction with us. Dharam Singh and Madan Kumari, the mother and father of Suman deceased, could not initially suspect on Kedar and, therefore, it was natural that the fact the boy went to the house of Kedar, was not material fact in their eyes at that time and the mother did not disclose it to the father in this way.
35. Dharamsingh (PW 1) when he failed to find the boy at the cinema house and in the hospital, he went to the house of the accused, when at first Bhagchand, the father of the accused, came down and told him that Suman was not there. Kedar was than called and he came down and accompanied him to another friend Lalit Kumar and thereafter both the boys went to the Regional College. The non-mention of these facts in the FIR, in our opinion, is of no consequences because, the FIR is not an encyclopaedia ; and all steps taken and the events which have happend, need not be mentioned. The FIR normally is a short precise and concise narration of the material facts of the offence to set police in motion. It has been mentioned that he had searched the boy and about his w lereabouts; and it was not necessary or even natural for him to give details of the search & as to with whom he had talk about it. More over, Kedar was not suspected to be criminal because of friendly relations with the family.
36. In our opinion, the statements of Madankumari (PW 3) and Dharamsingh (PW 1) inspire confidence, and despite lengthy cross-examination they have been consistent in their testimony, and the circumstances, which they have proved, are further corroborated by other independent evidence, also.
37. We cannot permit much capital to be made on the non-mention of Kedar's name in the FIR or by not disclosing it to the father by the mother of the deceased, for the reason given above, and for the details of reasons given by the trial court which we have accepted.
38. Sunil (PW 6), an important witness of the incident, who is staying in the flat just below that of the accused, in his statement, has deposed that in the. evening of 24-6-75, while he was standing in the balcony of his house, he saw the deceased returning from the flour-mill and going to his house when the accused called at him and asked him whether he would come with him and Suman refused. Thereafter the witness was talking with the accused, when after 10 minutes, Suman came out of his house and Kedar immediately went up to him and talked to him and thereafter Kedar and Suman went away together in alone. The trial court has rightly held that he is an impartial witness who has got nothing against the accused and similarly no interest in the family of the deceased. This witness has stood the cross-examination very well inspite of the fact that he is young boy of 13 years of age. His statement was found to be natural by the trial court on a detailed scrutiny, and our scrutiny has confirmed the correctness of the finding of the trial court, in this respect.
39. This witness, Sunil (PW 6), was examined at 9.30 a.m. on 25-6-75 itself, and he has given the above version immediately to the police.
40. We do not think that the present one is a case of immature child witness. Sunil (PW 6) is quite mature for his age and intelligent enough to know the sanctity of the oath and the requirement of speaking the truth. There is no improbability, inconsistency or contradictions in his statement in court as his police statement given immediately after the recovery of the dead body of Suman, is consistent with the statement given in the Court.
41. This witness corroborated the statement of Madankumari (PW 3) that the boy Suman left the house for going to Kedar. According to this witness (PW 6), before the deceased went to his house from the flour-mill, the accused Kedar had asked him to come with him, and was not inclined to come and talk with Kedar, but later on, he came. It may be that Suman wanted to put first the tin of flour in his house and then, come back or he might have changed the mind after going home and decided to accompany Kedar.
42. Apart from this evidence, the evidence of two other witnesses, Suresh and Sunil II (PW 16) further corroborated the evidence with regard to the 'last seen'. Both are nighbours of the accused. They have stated that Kedar accused and Suman came to the house at about 7 p.m. on that day and went inside the house, Suresh is a young boy of about 13 years of age, and Sunil (PW 16) is aged 16 years. These witnesses have got nothing against the accused. Their statements prove the evidence of 'last seen'. These witnesses were also examined soon after the occurrence, They came to know of murder on 25-6-75 and were examined on 27-6-75. These witnesses have stated that as soon as they came to know about the murder of Suman, they told their father that they have seen Kedar and Suman together in the night of 25-6-75. Shri Lakhawat submitted that these witnesses should not be believed because they did not go to the police immediately to inform that they have seen the accused and the deceased in the house of the accused on the unfortunate day of the occurrence. We feel that it would be uncharitable, if we expect the young boys of tender age of 13 and 16 years to go to the police because it is common knowledge that there i a tendency here, in, our country to avoid becoming the witness, for various reasons. We would, therefore, not be able to reject their testimony on this count which is not a good ground, at all. In the circumstances which the citizens feel unsecured of their own safety after becoming witness in serious cases, is well known and therefore, it would be too much to expect from young boys that they would rush to the police.
43. We, therefore, feel that the evidence of 'last seen' in the present case is trust-worthy, credible and clinching. The finding arrived at by the trial court that Suman was last seen alive in the company of the accused-Kedar and was seen by entering into the house of the accused along with him, is well established in the present case. While in the evening and the night, they were last seen and that too, while entering the house of the accused but early in the morning, all that which came to be revealed is that there was a dead body of Suman, the deceased, lying near a well.
44. The trial Court has correctly relied upon another circumstantial link of the bed sheet (Ex. 5) having blood stains belonging to the accused, found wrapped on the dead body of Suman deceased early in the morning. Sunil (PW 6) identified it to be of Kedar accused. This statement was recorded at about 9.30 a.m. soon after the dead body was found when the witness went to the house of Dharamsingh (PW 1) while the police was there. On seeing the bed sheet the witness told the police that it belonged to Kedar and this fact is not an after-thought or improvement. It is important to notice that when this statement was given to the police under Section 161, Cr.P.C. which, we are not relying upon as substantial evidence but, which we are mentioning as a fact, there was no earlier evidence of involvement of Kedar-accused, and, therefore, this witness was the first witness to break the ice and reveal that the bed sheet is of Kedar accused, and this provided the clue to the police. Our finding is that the evidence in this respect is most important circumstance against the accused.
45. Shri Lakhawat argued that a bed sheet is an article of common use and, therefore, no evidentiary value should be attached to the identification by the witness, Sunil (PW 6), as that of the accused. We are unable to accept the preposition that in articles of daily use, no importance, at all, should be given to the identification though we do agree that such evidence is to be scrutinised minutely to rule out the possibility of false implication. It was for the accused to enquire from the witnesses how he could identify it when such bed sheet can be found in the market. We are of the opinion that the evidence of bed-sheet being of the accused is great importance in this case and the identification by this witness, Sunil (PW 6) cannot be undermined.
46. The important aspect, already mentioned above, and rightly emphasised by the trial court is that this clue was provided by this witness, Suman (PW 9) by identification of the bed-sheet as that of the accused-Kedar at a time when Kedar's name as an accused has not figured. Thus, it is not a case of creating false evidence after knowing the accused to be a criminal who has committed the offence.
47. The trial court has rightly rejected the objection of the counsel for the accused that in the absence of the identification parade, the identification in the court is of no use. In the instant case, the bed-sheet was not identified in the court duly. For the first time immediately seeing the bed sheet, Sunil (PW 6) informed the police as the police was there, that this bed-sheet belonged to Kedar-accused. The witness has seen this bed-sheet at the house of the deceased where the dead body was taken by the father of the deceased immediately when the dead body was found near the well; and once, the bed sheet was identified by the witness as that of the accused-Kedar before the police immediately after the occurrence, there was no point in holding any identification prade. The identification could have of some value in the identification proceedings if the witness has not seen the bed sheet at the time the dead body was taken to the house.
48. The trial court has also rejected and rightly so, the objection of the defence that the witness could not notice the bed sheet to be of Kedar-accused at the time, he saw the dead body lying at Kesarganj crossing. The reason given by the witness that at that time, when he saw first the dead body wrapped in the bed sheet on the spot where the dead body was lying before it was removed to the house, his attention was naturally attracted and' concentrated on the dead body, and the focus was the dead body of the boy and not the bed sheet. We have got no reason to disbelieve this explanation because, when the dead body of a boy was lying at a public place, any body would naturally fix his attention on the dead-body itself, which was having serious injuries, and, not on the clothes or bed-sheet wrapped.
49. We, are, therefore, convinced that the evidence of 'last seen', as discussed above, and the bed sheet wrapped on the dead body being of the accused clearly connects the accused with the crime.
50. We have got further evidence of circumstantial nature showing the conduct of the accused during that fatal night after the crime had been committed. Shantidevi (PW 14) has deposed that in the evening and night of the crucial day of occurrence, the accused was in his house in Ashaganj, Ajmer, where Bhagchand has also come and handed over a 'lota of water to the accused-Kedar. While the witness was sleeping on the roof that night, the accused Kedar called out to her and asked for time, and at that time, Kedar was walking up and down on the roof. Shantidevi (PW 14) also stated that there were two rooms in the house of the accused one of which was locked; while in the other, this light was on; and that, it was about 8 p.m. that time. This circumstance is certainly adverse circumstance against the accused-Kedar that there was no reason for asking time though it is of very minor nature but, is sufficient to provide another link to connect the accused-Kedar with the crime.
51. Another independent witness is Nathulal who is also the neighbour of the accused-Kedar staying in the same building in Kaisarganj, Ajmer, & who has also stated that he had returned to his house at about 9 p.m. & after taking dinner, he went to bed and accused Kedar came from outside at about 10.00 p.m., and soon there after, Kedar and his father left their other house. Nathulal (PW 21), further deposed that in the morning, his wife found the main gate of the building open at about 3.30 a.m., and that Kedar and Bhagchand had returned home at about 4.00 a.m. This evidence is also important in as much as it shows that Kedar-accused had returned from outside at about 10 00 p.m. and thereafter remained absent from the house till 4 a.m. in the night. The dead body was found at 6 a.m. This is another chain of circumstances. There is no hint in evidence nor the accused stated in the statement under Section 313, Cr.P.C. that Kedar was not away from home from 5.30 p.m. to 10.00 p.m. on 24-6-1975. He was seen entering together with the deceased in the room of his other house in Ashaganj at about 7.00 p.m. that evening, and at about 8 p.m. Shanti Devi found him walking on the roof alone, and there was no trace of the deceased with him at that time. No body had seen the deceased leaving the room alive, nor was he seen alive at anytime thereafter during the night.
52. Nathulal is an independent witness and there is nothing to disbelieve him, nor is there anything in the evidence to discredit him. There is no explanation of the accused, and the bare denial can hardly be the explanation.
53. Thus, the deceased had left with the accused at about 5.30 p.m. and, thereafter from 8 p.m. onwards, the accused became uneasy and restless on the roof and then went to the other house from 10.00 p.m.
54. To strengthen the links in the chain of circumstantial evidence, the prosecution has further proved the recovery of the Chappals of the deceased from the possession of the accused. Kedar-accused was arrested on 28-6-75 and the recovery was made on 5-7-75. Shyamsingh, the Investigating Officer, (PW 25), has stated that the accused gave information while in police custody that he had hidden the 'chappals' in the kitchen of his house in Ashaganj, vide Ex. P.23, which has been proved by Shyamsingh. The accused took the Investigating Officer to his house in Ashaganj, where the house was locked and the accused asked some boy to go to his house and bring the keys and thereafter he took the police to the kitchen. There was only a wall surrounding a space which was being used as a kitchen. In that, the accused dug into the debris and removed the bricks and other dirt lying there and brought out a pair of 'chappals' (Ex.6).This has been identified to be that of the deceased by Dharamsingh father and Harshvardhan brother of the deceased. The molbirs, Surya Karan and Hemant kumar have proved the recovery at the instance of Kedar vide Ex. P. 6.
55. The emphasis laid by Shri Lakhawat that the provisions of Section 103, Cr.P.C. have contravened as the witnesses-motbirs were not of that locality. We feel that there cannot be any such rule of thumb, as the requirement of Section 103 Cr.P.C. is directory. Surya Karan was going to Ashaganj to purchase 'chappals' and vegetables when on the way, the police asked him to accompany them. Hemant Kumar is an Assistant Engineer posted at Udaipur and was on leave and had come to Ajmer. He stated that he was going to market and 'Goushala', when on the way, the police asked him to accompany as a 'motbir'. These two witnesses are independent witnesses. More over, it should not be forgotten that in the present case, the 'Chappals' were not recovered in pursuance of search per se but it was a case of information given by the accused, under Section 27 of the Indian Evidence Act, and then accused led the police party and dug out the chappals himself which is duly proved by these witnesses Surya Karan and Hemant Kumar who corroborated the version of Investigating Officer, Shyamsingh (PW 25).
56. Shri Lakhawat could not show any interest of these motbirs in the deceased or any grudge against the accused. More over, as stated above, Hemant Kumar is a responsible Government Officer and we are unable to appreciate, why he would give false evidence. More over, there is nothing in the cross-examination of either of the three witnesses, mentioned above, to have any doubt about the information given by the accused and Kedar-accused himself, taking out the chappals from the debris and giving it to the police after leading the police to that point and at the accuseds instance. The chappals have been identified to be of the deceased-Suman and its possession with the accused is a serious incriminating circumstance, in the facts and circumstances, mentioned above. The fact that the chappals were hidden by the accused, speaks the volumes about the abnormality. The identification of the chappals by the father and brother is also important and it is to be believed. Ex. P.23 has been proved and this information memo only suppports the oral evidence of the Investigating Officer. We are of the opinion that the above recovery of the chappals convinces us about the truthfulness of the prosecution case and this circumstance clinches the proof of guilty against the accused, Kedar in respect of the murder of Suman.
57. There are certain other minor circumstances relied upon by the trial court but, we do not give much importance to them and, therefore, we would like to avoid exercise of futility regarding the statement of Lalitkumar showing the mental state of Kedar-accused during the search.
58. We are conscious of the legal position that the circumstantial evidence should be such that all the circumstances which form the link of the chain should be very reliable and proved by the credible, trustworthy evidence and all of them taken together, should not leave any possibility of the circumstances being explained on any other hypothesis except the guilt of the accused. We feel that in the present case, the above circumstances, which have been held to be proved by the learned trial court and which on our scrutiny, are confirmed as having been proved beyond all manner of doubts, certainly clinches the issue, and they are so strong and well connected that they cannot be explained on any other hypothesis except the guilt of the accused Kedar.
59. We may now come to the question of offence under Section 377, IPC. Section 377, IPC, reads as under:
377. Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine,
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section.
60. We have held, after an elaborate discussion of the various facts of this case in the matter of appreciation of the evidence and for the various reasons given above, we have shown our agreement with the findings arrived at by the learned trial court on the important point that the various circumstances proved in the case rules out all other possibilities and provides the clinching evidence of the crime of the murder having been committed by the accused, so far as the murder of the deceased, Suman, is concerned.
61. While discussing that, we have held that there is clinching evidence of credible nature which is extremely trustworthy of the deceased having been seen last alive together with the accused in the evening of this unfortunate tragedy. We have also held that the evidence of neighbours, Sunil (PW 6) and Suresh, shows that the deceased went inside the house of the accused.
62. This evidence provides important circumstances against the accused in the matter of the offence under Section 377, IPC, also, in as much as after this, all that is known is that early in the morning, the dead body was found wrapped in a bed sheet of the accused having various serious injuries on the face and the neck and there was some liquid substance in the rectum of the deceased for which the post mortem had the following observation:
11. Organs generation, external and internal, Healthy.
Ano rectal swab and two smears preserved for detecting semen.
63. The specimen was sent to the Chemical Examiner, Rajasthan, Jaipur duly sealed as Ex. P. 18 proved by Mooldan (PW 18) and the Chemical Examiner's report (Ex. P. 24) shows that rectal smears of the deceased which has been marked as 'C' and was tested on two glass slides, was positive for spermatozoa, morphologically resembling human spermatozoa. The cutting from underwear and pant further according to the serologist report were stained with human blood. Since the return smears have been found positive of human spermatozoa, the charge of Section 377, IPC which was, later on, added on receipt of the Chemical examiner's report is fully proved. The medical evidence consists of Ex. P. 21 shows that Kedar-accused was developed adult and there was nothing to suggest that he was not potent. Kedar-accused was arrested on 28-6-1975 whereas this offence was committed in the evening-cum-night of intervening between 24th June, and 25th June, 1985. That being so, no further corroboration could have been found from the medical evidence of the accused so far as the offence under Section 377, IPC, is concerned.
64. Dr. A.N. Mathur (PW 13) who was posted in JLN hospital, Ajmer, conducted post mortem examination on the person of Aryandra alias Suman, the deceased. According to him, as mentioned above, the cause of death was asphyxia.
65. Dharamsingh (PW 1) has proved photos (Ex. P. 5 to Ex. P. 10) to be of the deceased which were taken at his house immediately after the dead body was found out. These photos show the various injuries on the face and neck of the deceased. Photo (Ex. P. 6) also shows some abnormality.
66. From the above, it is obvious that young boy of 13-14 years was trapped by the accused-Kedar for satisfaction of his sexual lust by committing unnatural offence, and the accused Kedar had carnal inter course against the course of nature with Aryandra alias Suman and thus he committed the offence under Section 377, IPC.
67. We are further conviced that the facts and circumstances proved above further show that it was after committing the offence of Section 377, IPC, that the accused committed the murder of the deceased because, the boy, if kept alive, would have disclosed it to his parents. Since the accused-Kedar was on visiting terms of the family of the deceased and used to give tution and coaching to this boy-deceased and also some members of the family during the examination days or otherwise, the accused betrayed that relationship for satisfying his sexual lust in an unnatural manner with the boy-deceased, misusing and abusing the confidence which a student has got in his teacher and which had respect and piousness, therefore, the accused-Kedar felt that he would be exposed socially and morally, and may also be punished for it. It was to conceal this nefarious inhuman, barbarious crime of unnatural intercourse with the boy betraying relationship between the teacher and the taught that the accused committed another serious, much more heinous and barbaric act of causing death of boy for removing all possible evidence against him.
68. It is true that the above are our conclusions which are not designed by any oral evidence because only evidence of the crime of Section 377 IPC, so far as the direct evidence is concerned, was made to disappear by committing another crime of murder by the accused. We have come to the above concision on the basis of the human possibilities which is only saner test in criminal jurisprudence where the evidence is of circumstantial nature.
69. Shri Lakhawat argued that the accused father was living in the same house, the possibility of his father committing murder even if they are held to be committed, cannot be ruled out. We are unable to accept this contention; firstly, it was Kedar accused who was trying to get the deceased during that night and who was seen last together with the deceased. It was Kedar, with whom the deceased had relationship of teacher and taught or elderly friend of the family. It was Kedar who used to visit the house of the deceased and, coach him. The deceased also used to come to his house to give or take books from Kedar, only. Kedar happens to be young lad of about 21 years of age and it is impossible to conceive that when the boy has been taken by Kedar's father viz., Bhagchand who was certainly aged 41 years, would commit the offence of Section 377 IPC with the boy deceased and that too, in the presence of his son Kedar. Similarly, such an unnatural sex offence having been committed by Kedar, it was Kedar and Kedar, alone, who committed the offence of murder and we do not find any possibility of his father committing murder.
70. We may now also discuss the decisions referred to by Shri Lakhawat.
71. Shri Lakhawat relied upon the decision of Manipur High Court in Ibochouba Singh v. Government of Manipur 1966 Cr.L.J. 776 to substantiate his argument that the mere fact that the deceased was seen in the company of the accused before the occurrence, cannot be sufficient to prove that the accused committed the offence. We would have got no reason to accept the above principle, if there would have been slight similar circumstances to the present case. If there is salutory circumstances then the court would certainly be reluctant to fix the responsibility to the accused for the murder but, in the present case, we have held that apart from the evidence of the 'last seen' alive there is evidence of the bed-sheet of the accused wrapped on the dead body of the deceased Suman and, thereafter, the recovery of the 'Chappals' of the deceased at the instance and having been taken out by the accused from a hidden place, in addittion to the other circumstances also, which we have mentioned above.
72. Our attention was also invited to the decision in Adinath Chakraborty v. The State 1967 Cri.L.J 125, wherein Tripura Judicial Commissioner observed that in cases of circumstantial circumstances should be fully established and the facts established should be consistent with the only hypothesis of guilt and these circumstances should be of conclusive nature.
73. We are not appreciative of the practice of taking us to the decision of Judicial Commissioner's court when on the same point the latest decisions of the Apex Court of this country are available though in a few cases they may also be useful if no other judgment is available. Be that as it may, these principles are well known about the circumstantial evidence and we are fully conscious of them while appreciating the evidence.
74. Shri Lakhawat also referred to the procedure of search under Section 103 Cr.P.C. and pointed out that in A.P. Kuttan Panicker v. State of Kerala 1963 (1) Cri.LJ 669 it has been held that the persons as motbirs should be from the neighbourhood as per the requirement of Section 103, Cr.P.C. We are unable to appreciate the relevancy in the present case because, firstly the present case is of recovery after information was given under Section 27 of the Indian Evidence Act and after the accused, himself, led the police party and unearthed the chappals from the hidden place. Secondly, we are convicted that the witnesses produced for proving the recovery are not interested and there cannot be any rule of thumb that if the witnesses of that locality are not produced, the recovery made in pursuance of the information under Section 27 of the Indian Evidence Act should be disbelieved in the above judgment itself. In para 23, their Lordships of Kerala High Court held that unless the investigation is unfair, the testimony of the police officer making search can be acted upon.
75. Shri Lakhawat also invited our attention to the principles laid down in Gangaram v. State of Rajasthan 1964 RLW 279, the offence in the peculiar circumstances was held to be culpable homicide not amounting to murder, on the basis of the circumstantial evidence. We do not find similarity in the circumstances of the present case and, therefore, that decision cannot provide proper guidance.
76. Shri Lakhawat also referred to the decision of Nowshirwan Irani v. Emperor AIR 1934 Sind 206 wherein it was held that in an offence under Section 377, there must be penetration, however, little it may be. It was held that some activities on the part of the accused in that particular direction for thrusting male organ into the anus of the passive agent, should be proved.
77. We are not in a position to appreciate, as to how this decision has got relevancy in the present set of circumstances. In that case, the accused wanted to satisfy his lust by a carnal inter course against the order of nature; and made every preparation to satisfy that lust; but before he could thrust his organ in, he spent himself.
78. In these circumstances, it was held that the offence of sodomy was not committed. In the instant case, as the circumstances proved, mentioned above, the main object of the accused in taking the boy deceased Suman with him at his house, was to satisfy his sexual lust. The Chemical report reveals that there was dischare in the anus of the deceased as the rectum was found smeared with semen in which there was human spermatozoa. The later conduct of the accused only confirms this offence. We, therefore, feel that the principles laid down in the above judgment cannot guide us and they cannot be of any assistance to the accused.
79. The learned Counsel further submitted that in Baghel Singh v. State of Rajasthan 1976 Raj. Cr. Cases 100, a Division Bench of this Court has taken a serious notice of omission of discovery of the empty cartridges from the spot in FIR. We do not find, how the above decision can help the accused. As we have already discussed, the mother of the deceased Suman could not suspect that Kedar would be taking the boy for unnatural offence and murder as it was a case of serious betrayal of pious relationship of a teacher and taught as the accused Kedar used to give coaching to the deceased boy. In such circumstances, as there was no suspicion about Kedar and it was natural for the mother not to mention anything about Kedar, and consequently the father did not mention of it in the FIR.
80. Reference was also made to the decision in Mirror v. Emperor AIR 1947 Allahabad 97 wherein mere existence of semen marks on accused's dhoti was not held to be decisive factor for the offence under Section 377, IPC.
81. In Allahabad's case (supra), it was held that the accused caught hold of the boy in a shop centrally surrounded by several other shops, and committed sodomy in a day light at about 4.30 p.m., and when the people go out to market. It was also stated that the boy was dragged even though people continued to ask the accused to leave the boy, for about 15-20 minutes but accused remained adamant. It was held that the accused was an undesirable element and he had many enemies and, therefore, that case was concocted.
82. We find the position reverse, here in the present case. Here, the accused was a family friend and working as teacher or coach to the boy and he misused and abused this fiduciary relationship. The place of occurrence was the room in the house of the accused and that too, after the boy was called and taken away some times in the evening at the sunset or night. More over, as mentioned above the human spermatazoa was found in smear from the rectum of the boy. All the circumstances of the case, make the proof certain beyond all manner of reasonable doubt for this unnatural offence.
83. Shri Lakhawat, in the end, also pointed out that the medical evidence regarding the cause of death was not certain. We failed to appreciate this submission also, because the Dr. A.N. Mathur (PW 13) has clearly stated that the cause of death of the boy was Asphyxia. The boy has disappeared and then his dead body was found near Kesarganj crossing. The post mortem report shows that the boy had sustained a number of serious injuries and the cause of the death was asphyxia. The death was not natural but as a result of violence. When the police prepared Panchnama (Ex.P. 11) in the morning, it was found that the blood was coming out from the mouth and nose of the deceased, and his clothes were blood stained.
84. According to the post mortem report the death occurred during 24 hours. It is thus clear that the boy was murdered some time between 7 p m. on 24-6-75 after he was last seen alive with the accused, and before early in the morning when the dead body was found. The murder was committed in the night.
85. We are, therefore, satisfied that the conviction of the accused-Kedar on both the counts, for the offence under Section 302, and Section 377, IPC, is well sustained from the evidence produced on record. The mere fact that there was no eye witness, which normally cannot be available in cases where the trust is betrayed by the accused misusing the relationship of a teacher and taught, and when such an unnatural offence is committed and the murder follows it in the closed door of the room of the house of the accused, cannot result in acquittal.
86. We are conscious that the principle regarding circumstantial evidence, as laid down by their Lordships of the Supreme Court in the well known classical cases, always requires that we must ensure that the very chain of circumstantial evidence is strong enough and no link is missing and the chain, as a whole, cannot be explained on any hypothesis except the guilt of the accused. We have got the above principle in view while assessing the evidence for ourselves and further while accepting and adjudicating the various contentions of Shri Lakhawat.
87. There is no doubt that Shri Lakhawat has pointed out the alleged infirmities according to him after having full marshalling of the facts and preparation of the case but, in our opinion, none of them carry any conviction with us for the purpose of acquitting the accused-Kedar, or accepting them as of any serious value against the prosecution. We have not mentioned, in details the evidence about the identification of the chappals and the recovery and so also other evidence because since we are in agreement with the finding of the trial court, it would had been repetition only and futile exercise.
88. As a result of the above discussion in details, we hold that the offence under Section 377 and 302, IPC are fully proved beyond all manner of doubt against the appellant-accused-Kedar Nath, who has been rightly convicted for the same and sentenced by the trial court.
89. Before parting with the case, we must observe that the present one is a case, where the buding youth in his teenage was allured by his coach-cum-family friend and after abusing and misusing the fiduciary relationship, the accused-Kedar did not stop at satisfication of his sexual lust, in an unnatural manner against the course of the human conduct, but took away the precious life, solely for removal of apprehension of the disclosure of his heinous conduct in the society where he would have been exposed and punished. Such a scant regard for human life is reprehensible. We are constrained to observe that the accused committed this heinous crime behaving worst than beast, as even the animals have got some norms and observe seasons, but the accused degrading human values in agency of unnatural sex lust makes himself worst than animals and chattels; and the present one is a case of that nature which amply proves it.
90. Consequently, the appeal fails and is hereby dismissed. The appellant-accused-Kedar Nath is on bail. He is not present today. The learned Counsel should make arrangements for his surrender within one month from today failing which the trial court would issue warrant of arrest after forfeiture of the bail bonds. Accordingly the trial court is directed to take steps for the arrest of the accused-appellant-Kedar.
91. A. certified copy of this judgment should only be given to the accused-appellant or his counsel or his representative after it is assured by production of certificate of the concerned authority that he had surrendered and is in jail.