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Penal Code, 1860: ss. 376, 302, 201 – Protection of Children From Sexual Offences Act 2012 – ss. 5, 6 – Circumstantial Evidence – Prosecution case was that appellant enticed a seven year old girl to accompany him on the pretext of picking lychee fruits – Thereafter he committed rape on her and killed her and dumped the dead body in bushes near the riverbank –Trial court and High Court concurrently recorded the findings that the prosecution was able to successfully establish the chain of circumstances leading to unmistakable conclusion that the appellant was guilty of the offences of rape and murder of the victim child as also of concealing her dead body – The fundamental fact, as held proved against the appellant was that the deceased was lastly seen in the company of the appellant when he took the deceased along with himself while shooing away other children– Burden was on the accused to explain his whereabouts after he was last seen with the deceased and to show if, and when, the deceased parted with his company as also the reason for his knowledge about the location of the dead body– Appellant undoubtedly failed to discharge the burden cast upon him by s.106 of the Evidence Act – This circumstance is a strong link in the chain of circumstances against him – In the given set of circumstances, it could safely be said that the presumption contemplated by s.29 POCSO came into operation – The other significant fact, as held proved, was that the dead body of the victim child was recovered at a faraway place near the riverbank at the instance of the appellant – Appellant failed to satisfactorily explain his whereabouts since he was last seen in the company of the deceased as also his knowledge of the location of the dead body – These facts and factors, taken together with the medical and other scientific evidence formed complete chain of circumstances, leading to the conclusion on the guilt of the appellant – Conviction of the appellant of offences under ss.376, 302, 201 IPC and ss.5/6 POCSO is upheld. Sentence/Sentencing: Rape and murder of seven year old girl child – The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience – But, at the same time, considering that appellant had no criminal antecedents, came from a very poor socio-economic background, having a family comprising of wife, children and aged father, and unblemished jail conduct, probability of reformation and rehabilitation of the appellant is not ruled out – Therefore, case is treated to not fall in ‘rarest of rare’ category – Yet, the impact of the offences in question on the conscience of the society as a whole cannot be ignored – Appellant was about 33-34 years of age at the time of commission of crime in the year 2015 – Looking to the overall facts and circumstances, it is held just and proper to award the punishment of imprisonment for life to the appellant for the offence under s.302 IPC while providing for actual imprisonment for a minimum period of 30 years – Penal Code, 1860 – ss. 376, 302, 201 – Protection of Children From Sexual Offences Act 2012 – ss. 5, 6. Evidence: Child witness – Rural background of witness – Discrepancies in evidence – In the process of appreciation of evidence, trial court and High Court looked at the crux of the matter emerging from her testimony that she was indeed a witness to the fact that the deceased child was last seen in the company of the appellant when he took her along towards lychee farm – The testimony of child witness is categorical in regard to the facts and there appears no reason to disbelieve her testimony, even if her comprehension of time and hours appears to be wanting in maturity – It would be rather unrealistic to expect such maturity from a tenyear-old child coming from a rustic background. Constitution of India: Art.134 and Art.136 – Concurrent Finding – Interference – Scope – As against any judgment/final order or sentence in a criminal proceeding of the High Court, regular appeals to Supreme Court are envisaged in relation to the eventualities specified in Art.134 of the Constitution of India and s.2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 – The present matter is not covered thereunder – Present appeals are by special leave in terms of Art.136 of the Constitution of India – In an appeal by special leave, where the trial court and the High Court concurrently returns findings of fact after appreciation of evidence, each and every finding of fact cannot be contested nor such an appeal could be dealt with as if another forum for reappreciation of evidence – Of course, if the assessment by trial court and the High Court could be said to be vitiated by any error of law or procedure or misreading of evidence or in disregard to the norms of judicial process leading to serious prejudice or injustice, Supreme Court may, and in appropriate cases would, interfere in order to prevent grave or serious miscarriage of justice but, such a course is adopted only in rare and exceptional cases of manifest illegality |
