Jai Prakash @ Prakash Vs. State of Rajasthan - Court Judgment

R.S. Chauhan, J.

1. The alleged sodomy and brutal murder of a eight year old boy forms the background of this criminal appeal. The appellant has challenged the judgment dated 31.7.2002 passed by the Addl. Sessions Judge (Fast Track), Jhunjhunu whereby the appellant has been convicted for offences under Section 377 and 302 IPC. For the former offence, the appellant has been sentenced to 10 years R.I. and fined Rs. 500/- and to further undergo a sentence to fifteen days of simple imprisonment in default thereof. For the latter offence, he has been sentenced to life imprisonment and fined Rs. 2,000/- and to further undergo two months simple imprisonment in default thereof.

2. The brief facts of the case are that on 7.9.2000 Chhala Ram (PW-1) lodged a report (Ex.P. 1) at Police Station, Chirawa wherein he claimed that 'his young son Mintu, aged eight years, was missing from the afternoon of 2.9.2000. The boy had left the house at 12'O clock in order to play. However, when the body did not return back home till 7'O clock in the evening, he started to search for him. He was told that the child was seen leaving the house of Jai Prakash and after that he was not seen. Therefore, on 3.9.2000 he had filed a report for the missing child. He further claimed that in the morning of the 7th, at 6'0 clock, some of the villagers gathered and they started searching near the river. Around 9'O clock Bakhtawar and Jainarain Sharma, who went on the east side of the river among the tall grasses, discovered the dead body of his son and his clothes. He suspected that someone has killed his son. On the basis of the said report the police chalked out a former FIR, FIR No. 226/2000, and commenced the investigation. On the same day, the appellant was arrested as some of the witnesses had stated that they had seen the deceased on the last occasion with the appellant. Eventually, the police filed a charge-sheet for the offences under Section 377 and 302 IPC against the appellant. In order to prove its case the prosecution examined 15 witnesses and submitted 29 documents. Although the defence did not examine any witness, but it did submit the statement of Bakhtawar recorded under Section 161 Cr.P.C. as a document. After considering the oral and documentary evidence, the learned trial court was pleased to convict and sentence the appellant as aforementioned. Hence this appeal before us.

3. Mr. S.P. Poshwal, the learned Amicus Curiae has argued that the case is based solely on circumstantial evidence. However, the circumstances do not form a complete chain which unerringly points towards the appellant's guilt. He has further claimed that there is a distance of almost one Km. from the place where the deceased and the appellant were seen together and the place from where the body of the deceased was eventually discovered. Therefore, the evidence of 'last seen' is a weak evidence. Moreover according to the prosecution story the child was not only so-domised but his head was decapitated from the body. However, the prosecution neither explained the manner of decapitation nor recovered any weapon by which the head was severed. Furthermore, there is no evidence to prove that the appellant had sodomized the child prior to his death. Hence, the prosecution has failed to prove the twin offences under Section 377 and 302 IPC beyond a reasonable doubt.

4. On the other hand Mr. R.P. Kuldeep, the learned P.P., has argued that the prosecution has completed the chain of circumstances by cogent and reliable evidence. The complete chain points unerringly towards the appellant's guilt. Therefore, the learned trial court was justified in convicting the appellant for the aforementioned offences. Hence, he has supported the impugned judgment.

5. We have heard the learned Counsels for both the parties, have examined the record before us and have perused the impugned judgment.

6. Convictions can be based (sic)n circumstantial evidence provided certain factors are fulfilled. In the case of State of U.P. v. Satish : 2005CriLJ1428 , the Hon'ble Supreme Court has summarized the factors, which must be satisfied before a conviction can be recorded on the basis of circumstantial evidence:

Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; secondly, those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; thirdly, 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; fourthly, the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the 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.

7. Therefore, while appreciating the evidence in the present case we need to consider whether the prosecution has established the individual links of the circumstances by cogent evidence and whether these circumstances unerringly point to the appellant's guilt.

8. PW-2, Ram Singh, who is an uncle of the deceased, testified that on 2.9.2000 when he and his nephew, Nand Lal, were going from their farm, they saw the deceased and the appellant going together towards the river. He further states that in the evening when Mintu did not come back home, his brother and he both went to the appellant's house. There, the appellant's mother informed them that Mintu was at their house till the afternoon and after that he went with the appellant. Similarly PW-7, Bakhtawar Singh states that when he went to the appellant's house around 11-11.30 A.M., he saw Mintu sitting with Omprakash and Jai Prakash at the appellant's house. Likewise, in the statement of PW-8, Nandlal, claims that as he was passing by the appellant's house he saw Jai Prakash leaving with the deceased and going towards the river. PW-12 Hiralal also states that on 2.9.2000 when he went to Jaiprakash's house he saw Jaiprakash and Mintu sleeping on the same cot. PW-8 Nandlal also tells that Mintu and the appellant are distantly related to each other as uncle and nephew. These witnesses clearly prove that the deceased was 'last seen' with the appellant.

9. Chhalaram, PW-1, further tells us that on 2.9.2000, in the evening he went to the appellant's house and met him. the appellant told him that Mintu had gone with him to answer the call of nature, had come back with him to the house and left later on. Accordingly to this witness, the appellant had also gone with him to search for the boy.

10. Again according to the PW-1, Chhalaram, the child had disappeared on 2.9.2000 and his body was not discovered till 7.9.2000 i.e. after a period of almost 5 days. According to the Post-Mortem Report(Ex.P. 14), death had occurred 4 or 5 days earlier. According to the said Report, the cause of death was asphyxia. Furthermore, on the place of buttocks there was a lacerated skin margin oval in shape 10cm x 10cm x 10cm around at the expected anal point. According to the Report, the head was decapitated and the head was brought separately with the body. PW-6 Dr. L.K. Sharma has proved the said Report. Thus, both according to the testimony of Medical Jurist as well as according to the Report, Minu's death was homicidal in nature.

11. Ex.P. 13 is the appellant's injury report. The said injury report is dated 8.9.2000. According to the said injury report, the appellant had a well developed penis and was capable of sexual intercourse. But, the penis had some marks of laceration and abrasion. There was little smegma which was present. According to the doctor's opinion it appeared that the appellant had sex about 4-5 days before the drawing up of the medical report. There is even a hand-written note at the bottom of the report wherein it is clearly stated that '1 had sexual intercourse with a boy on 2.9.2000'. The said statement has been signed by the appellant himself. This statement has been given by the appellant to the doctor when he was produced before the doctor for his medical examination. This statement may not qualify as an extra-judicial confession made by the appellant, but it does amount to an admission that the appellant had committed sodomy on 2.9.2000. It does form a cogent and reliable link in the chain of circumstances.

12. The prosecution has, thus proved that the deceased was last seen with the appellant. The appellant had not only offered a false explanation, but had also joined the search party so as to prove his innocence. The appellant's private parts had sustained injuries. The appellant also admitted that he had sodomy with a boy on 2.9.2000. Hence, the child was subjected to sodomy. The child had died due to asphyxia. Hence, his death was homicidal.

13. Section 106 of the Evidence Act imposes a burden on the accused to prove the fact which is especially within his knowledge. Section 106 of the Evidence Act reads as under:

Section 106. Burden of proving fact especially within knowledge--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

14. In the case of State of West Bengal v. Mir Mohammad Omar : 2000CriLJ4047 the Hon'ble Supreme Court while dealing with Section 106 of the Evidence Act has stated :

This section is not 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 where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which must drive the court to draw a different inference.

15. In the instant case it was within the especial knowledge of the appellant to tell the court as to what happened to the deceased after the deceased was last seen with him on 2.9.2000. Although the deceased has given intelligent answers to the questions put to him under Section 313 Cr.P.C., he has not given any explanation about what happened to the deceased after he was last seen with the appellant. He merely denies the fact and states that 'I did not take Mintu with me'. In the teeth of cogent and convincing evidence, he denies the factum of last seen. Hence, the appellant has failed to discharge the burden under Section 106 of the Evidence Act.

16. Presumption is not alien to Criminal Jurisprudence. Section 114 of the Evidence of any fact which it thinks likely to have happened, regard being had to the common course of natural events and human conduct In their relation to the facts of the particular case. The fact of last seen, the fact that the appellant's private parts were Injured, the fact that there is lacerated wounds around the anal part of the deceased child, the fact that the deceased was killed 4-5 days earlier, the fact that according to the doctor's opinion, the appellant had sexual intercourse 4-5 days earlier and the Fact of admission leads us to safely conclude that the appellant had committed sodomy with the deceased child. According to the Post-Mortem Report, the cause of death is asphyxia. Therefore, we are convinced that the appellant had committed the murder of the child. All the circumstantial evidence unerringly point towards the guilt of the accused and are inconsistent with his innocence.

17. Child abuse, specially sexual abuse, rattles a civilized society and shocks the judicial sensibilities. Innocent children, who instinctively trust their elders, are falling prey to the uncontrolled libido of the adult. The child's faith is betrayed; his life is shattered. The psychological scars of childhood haunt the person throughout his life. At times, the abused child becomes a mal adjusted citizen. He rebels against authority, against the States. It is the duty of the State, of the Society, of each of us to protect and promote the child in his formative years. Cases of child abuse require investigational creativity and judicial sensitivity. The traumatized child may be incoherent initially, may be too frightened to speak. The family should assure his physical safety and his emotional care. The police should thoroughly investigate the case using the latest forensic technologies to nab and nail the offender. The Courts atmosphere should not intimidate the victim, but should encourage the victim to speak the truth. In the case of Sakshi v. Union of India 2004 (2) WLC (SC) Cri. 395 : RLW 2004(3) SC 402, the Hon'ble Supreme Court has laid the guidelines for dealing with cases of sexual/child abuse as under:

The writ petition is accordingly disposed of with following directions:

(1) The provisions of Sub-section (2) of Section 3227 Cr.P.C. shall, in addition to the offences mentioned in the sub-section, would also apply in inquiry or trial of offences under sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body of face of the accused:

(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

Of course, the present case is an extreme case of child abuse where a body of eight has been sodomized and killed. But nevertheless, considering the menance of child abuse, deterrent punishment should be granted in cases of child abuse. In the case of State of Karantaka v. Krishnappa 2004 (4) SCC 75, the Apex Court held as under:

Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced, the courts are expected to properly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commission of like offences by others. Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.

The same philosophy would equally apply to the case of child abuse.

18. As a result of above discussion, we find no merit in the instant appeal and the same stands accordingly dismissed.