JUDGMENT
A.S. Godara, J.
1. This Jail Appeal is directed against the judgment and order dated 29-7-1995 passed by the learned Addl. Sessions Judge, Churu in Sessions Case No. 25/1994 whereby the convict-appellant, while being acquitted of offence under Section 364, I.P.C, has been convicted under Sections 302, 201 and 377, I.P.C. He has been awarded sentence of Life Imprisonment and a fine of Rs. 100/- and, in default of payment of fine, three months S.I. under Section 302, I.P.C, seven years R.I. and a fine of Rs. 1000/- and, in default of payment of fine, three months’ S.I. under Section 377, I.P.C. and three years’ R.I. and a fine of Rs. 500/- and, in default of payment of fine, two months’ S.I. under Section 201, I.P.C. respectively. All the substantive sentences so awarded to the appellant have also been ordered to run concurrently.
2. Briefly stated the facts giving rise to the prosecution, trial and consequently the impugned judgment and order of sentences are that the appellant Kishan Lal and P.W. 4 Kheta Ram belong to the Village, Kalaribadi in District Churu. P.W. 1 Smt. Vidhya is the wife of Mohar Singh who is son of Kheta Ram. The appellant is son of elder cousin brother of Mohar Singh.
3. P.W. 4 Kheta Ram lodged Ex. P. 1 verbal report at the Police Station, Hamirbas on 29-1 -94 at about 7 A.M. before P.W. 12 Om Prakash, Officer-in-charge, wherein it was alleged that he-had gone to the forest for grazing his sheep on the previous day and return in the evening at the time when the sun was about to set in, P W. 1 Smt. Vidhya immediately told him that it was between 1.30 P.M. to 2 P.M. in the day that the appellant took away her son Vikas (deceased) aged 4 years while holding a finger of his hand and Vikas had as yet not returned nor his whereabouts were known in spite of search carried out so far. Kheta Ram immediately rushed to Bharat Singh (P.W. 6) residing in his neighbourhood whereat Bajrang (P.W. 2), Satveer (P.W. 3) and Tara Chand (P.W. 5) were also present. He narrated this incident about missing/dis-appearance of Vikash. They all left in search of Vikas. They also went to the fields situated nearby the village but they could not find any trace of Vikas. They also went to the house of the appellant and enquired about him but he was not available there. They were all worried and it was in the night between 2 to 3 A.M. that all these persons again went to the house of the appellant whereat the appellant was found present. They, in the first instance, enquired about whereabouts of Vikas but he denied that he had at all taken away Vikas with him. On being repeatedly asked and consoled and assured about no harm to be caused, lastly, the appellant admitted that he had taken away Vikas to his field whereat he committed sodomy on him and, thereafter, fearing some action for his mis-conduct, apprehending that Vikas would expose his misdeed before the villagers, with an intent to cause did-appearance of his, he took Vikas to the water reservoir situate in the field of Sumer Singh and drowned him into the deep water reservoir and put the lid on the opening of the same. On the basis of this confessional and disclosure statement, they took Kishan Lal along with them to the Police Station and he was produced before Om Prakash (P.W. 12). P.W. 12 Om Prakash immediately registered a case under Sections 363, 377, 302, 367 and 201, I.P.C. vide Ex. P. 1 F.I.R. and started investigation.
4. The appellant was arrested vide Ex. P. 8 and it was on his information Ex. P. 16 that the Investigating Officer reached the aforesaid reservoir situate in the field of Sumer Singh and found that the dead body was not visible and hence services of one Mahaveer Singh were procured who went deep into the water and took out the dead body of Vikas. Thereafter, Ex. P. 3 Panchayatnama and Ex. P.5 Inquest Report of the dead body were prepared. Besides, Ex. P.4 Site Plan was also prepared. Ex. P.9 Recovery Memo of the dead body pursuant to aforesaid information Ex. P. 16, was also prepared.
5. The autopsy on the dead body of deceased Vikas was performed by P.W. 10 Dr. Megh Singh, Medical Officer, of the Government Referral Hospital, Rajgarh. He found, as evidenced from Ex. P. 17 Post-mortem Report, tear, marks on the anus of the deceased and so opined that some hard object was thrust into the anus of the deceased. Besides, it was confirmed that Vikas died due to asphyxia by drowning.
6. After completion of investigation, a charge-sheet under Sections 364, 377, 302 and 201, I.P.C. was filed against the appellant in the committal Court who, in turn, committed the case to the Court of Additional Sessions Judge, Churu (Camp Rajgarh) by which this trial was completed.
7. The appellant, on being charged with commission of the offences under Sections 364, 377,302 and 201, I.P.C, pleaded not guilty to the same and claimed to be tried and hence the trial was completed.
8. The prosecution examined as many as 12 witnesses and also adduced documentary evidence.
9. The appeliant was examined under Section 313, Cr.P.C. and he denied that either he had taken away Vikas as stated by the prosecution witnesses or that he had committed any sodomy on him and drowned him into the water reservoir. Besides, he stated that since all the prosecution witnesses appearing on behalf of the prosecution were inimically disposed against him and hence he was falsely implicated. He did not lead any evidence in defence.
10. The learned trial Judge after hearing both sides, vide his impugned judgement convicted and sentenced the appellant, as above and hence this jail appeal.
11. We have heard the learned Amicus Curiae for the appellant as well as the learned P.P. for the State and have also carefully gone through the record of the trial Court as also the legality and correctness of the impugned judgment.
12. The learned Amicus Curiae, while assailing the impugned judgment, has maintained that, admittedly, there being no eye-witness of the occurrence, this case merely hinges on circumstantial evidence and the circumstances that have been relied upon by the learned Sessions Judge to hold the appellant guilty of the commission of the aforesaid offences, are to be proved beyond reasonable manner of doubt. Each fact and circumstance is to be proved beyond doubt by the prosecution and the burden did not shift on the appellant to prove his innocence and, accordingly, the circumstances relied upon by the prosecution against the appellant when considered cumulatively are not sufficient to prove the offences with which the appellant has been charged and, lastly, convicted. The learned trial Judge has failed to appreciate the prosecution evidence in its right perspective to prove any fact or circumstance so relied upon.
13. However, the learned P.P. have vehemently supported the legality and correctness of the impugned order.
14. At the outset, it is to be noticed that the case rests on circumstantial evidence and there is no eye-witness for the occurrence of the offences and that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of event must be established beyond reasonable doubt and the circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In other words the only inference that could be drawn from the circumstances should be in support of the case of the prosecution and wholly incompatible with the innocence of the accused.
15. As regards unnatural and violent death of Vikas due to asphyxia by drowning, there is no challenge from the side of the appellant.
16. P.W. 12 Om Prakash is the Investigating Officer who also registered Ex. P. 1 F.I.R. on the verbal report of P.W. 4 Kheta Ram. Om Prakash, as supported by P.W. 4 Kheta Ram as well as P.W. 6 Bharat Singh and P.W. 5 Tara Chand, besides, the Recovery Memo Ex. P-9 as well as Ex. P. 3 Panchayatnama, Ex. P. 5 Inquest Report and, lastly, Post-mortem Report Ex. P. 13 which is proved by P.W. 10 Dr. Megh Singh, leave no doubt that Vikas had died due to asphyxia caused by drowning into the water. There is no challenge from the side of the appellant and the conclusion so arrived at by the learned trial Judge in this respect is fully supported by the aforesaid direct, circumstantial and medical evidence.
17. P.W. 10 Dr. Megh Singh has also stated that on external and internal examination of the dead body of Vikas, he found three tear marks as described in Ex. P. 13 Post-mortem Report on the anus and there were visible marks of violence to lead to the conclusion that some hard object was thrust into the anus (carnal) of Vikas leading to the further conclusion that he was subjected to a carnal intercourse (sodomy) before being drowned into the water reservoir.
18. Therefore, the most crucial controversy that we are faced with and required to adjudicate upon is whether the appellant is the perpetrator of the offences of sodomy, murder and consequently, causing disappearance of evidence of commission of offence of sodomy and murder.
19. As also based upon by the learned trial Judge, we are also left with no alternative but to consider and evaluate circumstantial evidence to connect the appellant with the commission of the alleged offences.
20. Accordingly, the following circumstances ate taken up for appreciation and evaluation adseriatim :
(a) Last Seen
P.W. 1 Smt. Vidhya is the unfortunate mother of the deceased child. She clearly stated that it was around 1.30 P.M. to 2 P.M. on 28-1-94 that Vikas started weeping demanding ‘gur’ but since she had no ‘gur’ and hence she asked him to eat sugar to which Vikas was not agreeable and, in the meantime, the appellant appeared on the scene and he represented that he would take Vikas along with him and would provide him with ‘gur’. Evidently, since the appellant was near relation of Vikas, there being nothing to suspect about the conduct of the appellant, she permitted Vikas to be taken along with him by the appellant. The appellant caught hold of a finger of Vikas and drove him towards his house. At about 3 P.M., she prepared tea. Other children of the family had returned to the house but, however, Vikas did not return. She left in search of Vikas and also visited house of appellant twice but Vikas could not be found there. At about 4 P.M. Mohar Singh also returned to the house. He was told about the incident and he also could not trace out Vikas. It was at about 6 P.M. that P.W. 4 Kheta Ram, father-in-law of Smt. Vidhya, returned home and she immediately narrated this incident. Her statement is supported by P.W. 4 Kheta Ram who immediately went to the house of P.W. 6 Bharat Singh, Subedar, whereat, as stated by these witnesses as well, P.W. 2 Bajrang, P.W. 3 Satveer and P.W. 5 Tara Chand were also present. Kheta Ram immediately narrated this incident. All these witnesses have stated that they left in search of Vikas but they could not trace out Vikas till they could apprehend Kishan Lal in the night at his house.
P.W. 7 Kum. Sunita and P.W. 8 Kum. Mukesh, who are aged about 13 to 14 years at the time of the incident, were working in their fields at about 2 to 2.30 P.M. They also stated that they saw the appellant taking Vikas along with him towards his field. P.W. 8 Kum. Mukesh also stated that after quite some time, the appellant alone was seen returning from his field. They are grown up girls and belong to a different caste and they had no axe to grind against the appellant. They have very innocently and in the most natural way stated that they learnt about the missing of Vikas in the late evening and they immediately, in the next morning, went to the house of P.W. 1 Smt. Vidhya and they informed her that they had seen the appellant while taking away Vikas on the fateful day as stated by them. They have withstood the cross-examination very successfully and there is nothing adverse to enable us to discard or disbelieve statements of both these witnesses. We have taken every precaution while appreciating their evidence and the same is found to be cogent, clear and reliable that they had seen the appellant taking away Vikas just after he was taken along with him from the house of P.W. 1 Smt. Vidhya, as is statement of the latter narrated above.
This chain of evidence of P.W. 1 Smt. Vidhya, P.W. 7 Kum. Sunita and P.W. 8 Kum. Mukesh, as also supported by P.W. 4 Kheta Ram, leaves no doubt that it was the appellant who, being a close relation of Vikas betraying his fiduciary relationship and confidence reposed on him by P.W. 1 Smt. Vidhya, fraudulently and deceitfully, took away Vikas along with him with an evil intention to commit sodomy on the innocent child aged only 4 years who was none but a younger brother of tender age, in relation.
P.W. 4 Kheta Ram also, as is the case with P.W. 2 Bajrang, P.W. 3 Satveer, P.W. 5 Tara Chand and P.W. 6 Bharat Singh, have no grudge or any evil motive to have falsely implicated the appellant leaving out the real culprit in case appellant was not the perpetrator of the offences of which he stands convicted. The bald plea of the appellant has been consistently brushed aside as a concoction and false suggestion on the part of the appellant that since all these witnesses belonged to different party than the one he belonged and so he was falsely implicated. There is not an iota of evidence to show that there was any bad-blood existing between families of the deceased as well as the appellant or that they belonged to a different party or he was falsely prosecuted for any ulterior motive. Accordingly, the bald plea of the appellant is without any support or ground therefor.
Admittedly, after Vikas (deceased) was taken away by the appellant and was also lastly seen while being taken towards his own field by the appellant by P.W. 7 Kum. Sunita and P.W. 8 Kum. Mukesh, none had seen Vikas alive thereafter. It further shows that none else could have possibly an opportunity to have committed sodomy on Vikas and to have, lastly, drowned him into the water reservoir wherefrom his dead body was recovered.
It further leads to the conclusion that it was the appellant alone who had an opportunity and motive for doing the deceased to death and none else do the same.
(b) Recovery of dead body from water reservoir
As stated by P. W. 12 Om Prakash, immediately on registration of Ex. P. 1 F.I.R., he apprehended the appellant vide Ex. P. 8. On his production by the aforesaid witnesses and on interrogation, the appellant immediately gave information Ex. P. 16 which led to the discovery of dead body of Vikas from water reservoir situated in the field of Sumer Singh, as is also borne out of Ex. P. 16 Recovery Memo as well as Ex. P. 3 Panchayatnama and Ex. P. 5 Inquest Report prepared by P.W. 12 Om Prakash. This is further supported by P.W. 4 Kheta Ram, P.W. 5 Tara Chand and P.W. 6 Bharat Singh.
There is nothing from the side of the defence against it except a bald denial.
The appellant could not explain the circumstances as to how did Vikas approach and drowned into the water reservoir of Sumer Singh and how he had disappeared from his company after he had taken him from the house of Smt; Vidhya on the false pretext of supplying him with ‘gur’. Besides, the conduct of the appellant shows that when he was approached by the witnesses while enquiring about whereabouts of Vikas, he did not admit that he had taken away Vikas and, instead, he denied that he had at all taken away Vikas whereas the prosecution evidence discussed above, leaves no doubt that it was he and he alone who had taken away Vikas before he was done to death and, lastly, recovered dead from the water reservoir of Sumer Singh. Mere non-examination of Sumer Singh and Mahaveer Singh is of no consequence on the face of overwhelming evidence otherwise.
(c) Motive
As discussed hereinbefore, it was the appellant who took away Vikas from his house on the pretext of supplying ‘gur’ to him taking undue advantage of his relationship and, instead, with an evil design, he took Vikas to his field as borne out from Ex. P.2 Site Plan prepared by P.W. 12 Om Prakash at his instance and, on commission of sodomy, as proved by the medical evidence discussed hereinbefore, he apprehended that in case his unholy criminal misadventure was revealed before the villagers, he would be in trouble and, as a result, with an intention to cause disappearance of evidence, took him to the water reservoir of Sumer Singh whereat he was found drowned and dead.
As regards commission of sodomy, P.W. 10 Dr. Megh Singh has clearly slated, as borne out of Ex.P. 13 Post-mortem Report, that there were at least three tear marks leading to the irresistible conclusion that some hard object (implicitly like a male organ) was thrust violently into the anus of the deceased and, as per Section 377, I.P.C., any carnal intercourse even with a boy amounts to commission of unnatural offence as defined thereunder. The explanation appended thereto further leaves no doubt that the slightest insertion of a male organ into the part of anus is enough to complete the offence described thereunder.
Therefore, having regard to the totality of aforesaid circumstances, besides, the conduct of the appellant and subsequent recovery of dead body of Vikas for which the appellant has no explanation, leaves no doubt that it was the appellant who subjected innocent Vikas to a carnal intercourse committing sodomy on him and since he was badly injured and there was every apprehension for revelation and disclosure of his misdeed and so he had thrown him into a water reservoir and drowned him, resulting in his intentional death.
(d) Medical Evidence
As already concluded here in before, the medical evidence fully corroborates the commission of offence of sodomy as well as murder as evidenced from the statement of P.W. 12 Om Prakash, P.W. 10 Dr. Megh Singh as well as P.W. 4 Kheta Ram, P.W. 5 Tara Chand and P.W. 6 Bharat Singh. This medical evidence does not run counter to the prosecution evidence at all and, instead, it runs parallel to and consistent with the prosecution story which leads to the only conclusion that the appellant is the perpetrator of the crime and none else.
(e) Extra Judicial Confession
P.W. 6 Bharat Singh as well as P.W. 4 Kheta Ram have also staled that Kheta Ram went to the house of Bharat Singh in the evening of the fateful day and narrated this incident whereat, as also corroborated by these witnesses, P.W. 2 Bajrang, P.W. 4 Satveer and P.W. 5 Tara Chand were also present. They have all stated that they left in search of the boy but they could not search him out. In the first instance, Kishan Lal could not be traced out at his residence but at about 2 to 2.30 A.M. Since, as a natural conduct on their part, they again went to the house of Kishan Lal and they found him present at the house. On being enquired, he did not admit, in the first instance, that he took away Vikas with him but when repeatedly assured and asked about whereabouts of Vikas he clearly confessed that it was he who took away Vikas to his field and then committed sodomy on him and since he apprehended the dire consequences on revelation, of his misadventure before the villagers by Vikas, as a design, he took Vikas to the water reservoir of Sumer Singh and drowed him into the water. There is nothing to disbelieve statements of all these witnesses. Barring P.W. 4 Kheta Ram, who is member of the Scheduled Caste, rest of the four witnesses are Jat by caste and they had no axe to grind against the appellant nor any of them had any motive to falsely implicate the appellant in this case. Their evidence is consistent, natural and so being cogent, clear and reliable, there is nothing in their cross-examination which casts even a ray of shadow in their evidence so as to create the slightest hesitation in accepting their natural and straight-forward evidence. They have all stated all those facts which amount to admission and consequently confession of the crime of commission of sodomy as well as murder by drowning, by the appellant and, consequently, their evidence found full acceptance with the learned trial Judge and we also do not find any ground whatsoever to disbelieve the statements of any of the aforesaid witnesses.
21. In these circumstances, this confessional statement made by the appellant, which was most natural, in presence of Kheta Ram besides the respectable persons of the village community present in the mid-nighl who had enquired from the appellant that since it was he alone who had taken Vikas alive with him before his disappearance and he should disclose the whereabouts of Vikas and as he failed to otherwise account for his presence, disappearance or otherwise and hence it was but natural for the appellant to have blurted out the confession as stated by these witnesses and, therefore, we, without any hesitation, hold that the confessional statement by the appellant made before these witnesses was voluntary and truthful.
22. Accordingly, as also held by the Apex Court in State of U.P. v. M. K. Anthony, AIR 1985 SC 48 : 1985 Cri LJ 493, in case of extra judicial confession being admissible under Section 24 of the Evidence Act, so made, if it is reliable and trustworthy, a conviction can be based on the same even without corroboration.
23. In Baldev Raj v. State of Haryana, AIR 1991 SC 37 : 1990 Cri LJ 2643, the Apex Court also held that in a case of circumstantial evidence, extra judicial confession of the accused when found reliable and trustworthy and so being truthful suffers from no stigma, as is the case in hand, the same can be made use of for conviction of the accused. Similar view has been taken by the Apex Court in Vinayak Shivajirao Pol v. State of Maharashtra, (1998) 2 SCC 233 : 1998 Cri LJ 1558 while relying on the decision rendered in the State of U.P. v. M. K. Anthony. 1985 Cri LJ 493 (SC) (supra) holding that since there were other clinching circumstances against the appellant providing a corroboration to the factum of extra judicial confessional statement made by the appellant and hence the same was relied upon and, presently, also, it was the appellant who had taken away Vikas from the house of Smt. Vidhya and, after commission of an offence of sodomy, drowned him into the reservoir water resulting in his death and, as a result, all these clinching circumstances make perfect justification for the Court in relying the statement of confession made by the appellant, already stated before that it was he alone who committed sodomy on the child and also drowned him. His act was imminently dangerous and it was also a clear case of intentional death.
24. Resultantly, since the burden of proof in criminal cases is always on the prosecution and the prosecution, as discussed hereinbefore, has discharged its burden by proving the aforesaid circumstances including the confessional statement of the appellant and, as a result, we are left with no alternative but to arrive at the conclusion that the circumstances which have been so borne out, proved beyond reasonable manner of doubt that it is the appellant alone who was the perpetrator of the crime punishable under Sections 377, 302 and 201, IPC and none else. All the links in the chain of event have been established beyond-reasonable manner of doubt and the circumstances are consistent only with the hypothesis of the guilt of the accused being totally inconsistent with his innocence, to arrive at this conclusion.
25. The only inference that could be drawn from these circumstances are in support of the case of the prosecution and wholly incompatible with the innocence of the accused-appellant.
26. Accordingly, we do not find any merit in this appeal and the same is laible to be dismissed.
27. In the result, this appeal is dismissed and the impugned judgment and order of sentences are hereby affirmed.