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'o 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. 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 sodomised 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. 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. We have heard the learned counsels for both the parties, have examined the record before us and have perused the impugned judgment. Convictions can be based n circumstantial evidence provided certain factors are fulfilled. In the case of State of U. P. vs. Satish (2005 (3) SCC 114), 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.
(3.) 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. 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. 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. ;