2008 Supreme(Guj) 281

2009(1) GCD 700(Guj)(DB)
Hon’ble Mr. Justice A.M. Kapadia &
Hon’ble Mr. Justice Z.K. Saiyed
Rambahadur Rikhiram Kshatriya
Versus
State of Gujarat
Criminal Appeal No. 538 of 2001—Decided on 26/08/2008

Whether prosecution has been able to prove offences against accused appellant beyond all reasonable doubts?

Headnote:Head Note :

       [Indian] Penal Code, 1860(Central Act 45 of 1860) — Sections 302, 377 and 201 — Carnal intercourse and murder — Conviction — Circumstantial evidence — Appreciation of — Finding as to — Sustainability — Prosecution case is that the deceased child aged about 5 years while he was playing outside he was taken away by accused appellant with an intention and motive to have carnal intercourse against the order of nature with him and after the completion of said carnal intercourse due to the fear of arrest just to protect himself he strangulated him and killed him — In order to prove its’ case prosecution has examined nine witnesses and produced 13 documents — It is not in dispute that deceased child died homicidal death due to strangulation — In this connection the prosecution has produced the evidence of medical experts and experts of Forensic Science Laboratory and has relied upon the oral evidence of Medical Officer who performed the post-mortem of the deceased and produced the P.M. Note Exhibit 32 — This witness has also examined injuries on the body of deceased — He has fully proved the carnal intercourse against the order of nature with the deceased — Panch witnesses, have proved the recovery of dead body of the child and his injuries — According to serological report blood of accused and semen were found from the muddamal articles seized at the scene of offence — Chain of circumstances in the case are complete to prove that accused appellant committed the alleged offence — In the facts and circumstances the impugned judgment and order convicting and sentencing the appellant accused for the offence with which he was charged Court opened that same deserves to be confirmed consequently Court upheld the judgment and sentence passed by trial Court.

       Held :

       It is not in dispute and doubtful issue to the effect that deceased Jabirkhan died homicidal death due to strangulation. In this connection, the prosecution has produced the evidence of medical experts and experts of Forensic Science Laboratory and relied upon the oral evidence of P.W. 8 Dr. Ajitbhai Pravinbhai Surati Exhibit 30 who has performed the post mortem of the deceased and produced the PM Note at Exhibit 32. This witness has examined the injury which was found on the neck of the deceased and he has also examined the other injuries found on the dead-body of the deceased. [Para 15]

       Court found that scene of offence is proved by independent panch witness and during the consideration of the evidence of doctor ligature marks were found which can be caused by bush-shirt and blood stains & semen were found on bush-shirt and on clothes of the accused. We have perused the medical certificate regarding examination of accused - appellant, and it is found from Exhibit 34 the injuries, viz.(1) tear wound on the tip of crlaus penis verticle on the(lt) side. Size : 2mm x 1/2mm, and(2) Abrasion, Horizeantal, reddish coloured around the junction of glans penis and inner side of the fort skin except the posterior phrehulumb size: 6cms x 1/2cm. We have also perused serological report at Exhibit 41 and Exhibit 42 and from the serological report blood of the accused and semen were found from the muddamal articles seized at the scene of offence. From the above circumstantial evidence, Court has found that prosecution has established its case beyond any reasonable doubt. [Para 17]

       Applying the principle as laid down by the Apex Court in various judgments to the facts of the instant case, the chain of circumstances is required to be completed. In the above context, from the oral evidence and documentary evidence and circumstances, it is established that deceased male child Jabirkhan, when he was playing, he was taken away by the appellant with an intention and motive to have carnal intercourse against the order of nature and after the completion of said carnal intercourse due to the fear of arrest created in the mind of appellant, just to protect himself from the penalty of said offence, child was strangulated and killed by him. [Para 18]

       If the evidence shows that the accused was having a strong enough motive and had the opportunity to committing the crime and therein when the established circumstances on the record considered along with explanation of the doctor and scientific expert witnesses it is established that the chain of the evidence is considered to be completed so as to show that within all human probabilities, the crime has been committed by accused, then he shall safely be held guilty on the basis of such circumstantial evidence. [Para 20]

       In the present case, from the evidence it is established that the appellant had committed carnal intercourse against the order of nature on deceased who was five years old boy. Court has found from the medical certificate of doctor that on the private part of the body of the accused-appellant injuries were found and for said injuries of accused-appellant, he has made false explanation with regard to those injuries, is also considered as his conduct and it can be proved from the injuries of accused with a corroboration of presence of semen and blood found from the scene of offence as well as from the clothes of deceased and appellant, is sufficient evidence to say that the appellant has committed the said heinous crime. [Para 22]

       Law Laid Down :

       In the matter of circumstantial evidence, the chain of circumstances is required to be complete to prove offence against accused.