Case: Prahlad Vs. State of Rajasthan

that the genital organs of the deceased were healthy and no marks of any injury were present on the private parts of the deceased. Signs of sperm ejaculation were also not found on the external skin near the genital organs of the deceased. No injury was present on the head of the deceased. The doctor further deposed that when forcible sexual intercourse is committed upon a tender girl, there is a possibility of her vagina getting ruptured and bleeding from her genitals. There is no such mention in the postmortem report. The FSL report regarding vaginal swab which was sent for examination is not helpful for the prosecution to prove the offence under Sections 3 and 4 of the POCSO Act. Prosecution, practically relies upon the doctor?s evidence only for proving the offence under Section 4 of the POCSO Act. No other material is placed on record by the prosecution to prove the offence under Section 4 of the POCSO Act. However, the evidence relating to penetration into the vagina, mouth, urethra or anus of a child etc. or any part of the body is not found. The Trial Court as well as the High Court have not gone into the depth of the evidence relating to offence of penetrative sexual assault, in detail. Certain casual observations are made which are not supported by the evidence led by the prosecution. In light of the aforementioned evidence of PW10 doctor, and in view of the fact that no other reliable evidence exists to prove the charge of penetrative sexual assault, i.e. any of the acts as detailed in Section 3 of the POCSO Act, it is our considered opinion that the Trial Court and the High Court are not justified in convicting the accused for the offence under Section 4 of the POCSO Act. We find from the judgment of the High Court that absolutely no reason, much less any valid reasons were assigned for convicting the accused for the offence punishable under the POCSO Act. Since no reliable material is available against the accused for the aforementioned offence of the POCSO Act, the benefit of doubt would go in the favour of the accused. After scanning through the entire materials on record in order to satisfy the conscience, and having regard to the seriousness of the charge, we conclude that the accused needs to be given the benefit of doubt in so far as the offence punishable under Section 4 of the POCSO Act is concerned. 12. Since the accused is to be acquitted for offence under Section 4 of the POCSO Act, in our considered opinion, this is not a fit case to impose the death penalty on him, inasmuch as the appellant does not have any criminal background, nor is he a habitual offender. Motive for the offence of murder is not clear and of course it is generally hidden, known to the accused only. Under such circumstances, the court will have to see as to whether the case at hand falls under the ‘rarest of the rare? case category. The accused was also young during the relevant point of time. The duty is on the State to show that there is no possibility of reform or rehabilitation of the accused. When the offence is not gruesome, not cold-blooded murder, nor is committed in a diabolical manner, the court will impose life imprisonment. In the case at hand, the mitigating factors outweigh the aggravating factors. The only aggravating factor in the matter is that the accused took advantage of his position in the victim?s family for committing the murder of the minor girl inasmuch as the minor girl was treating the accused as her Mama (uncle). 13. We do not find that the murder has been committed with extreme brutality or that the same involves exceptional depravity. On the other hand, as mentioned supra, the accused was young and the probability that he would commit criminal acts of violence in the future is not available on record. There is every probability that the accused can be reformed and rehabilitated. In this context, the observations made by this Court in the case of Bachan Singh v. State of Punjab (1980) 2 SCC 684. , is reproduced as follows: ?209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. ?We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society.? Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of the human life postulates resistance to taking a life through law?s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.? 14. Be that as it may, since the offence of rape is not proved and as the offence of murder is proved beyond reasonable doubt, the accused is liable to be convicted for the offence under Section 302 IPC.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]4. The present case rests on circumstantial evidence. The evidence of PWs 1, 2, 3 and 4 clearly prove that the mother of the deceased was treating the accused as her own brother, and on the eve of Rakhi festival, she even used to tie Rakhi on the hand of the accused. Hence, the child of the informant was treating the accused as a maternal uncle and this fact was also known to all the villagers because the accused used to visit the residence of the informant as one of their relatives. All the family members of the informant trusted the accused. Since the deceased was treating the accused as her uncle, she did not have any reason to disbelieve or doubt the offer made to go with him for getting the chocolates6. From the evidence of PWs 2 and 4 as well as the evidence of the informant PW1, it is clear that the accused was treated as a family member of the informant and that the minor victim believed that the accused is her Mama (uncle) due to the trust her family had upon the accused, because of which, the victim went along with the accused when she was offered the chocolates and toffee. The evidence also supports the case of the prosecution fully in respect of the last seen circumstance7. PW5, Sattu is a shopkeeper from whom the accused purchased the chocolates, biscuit and miraz. The evidence of PW7, Shyam Lal also supports the evidence of PW5 relating to the purchase of chocolates and miraz from the shop. PW9, Dashrath also supports the evidence of the prosecution, more particularly the evidence of PW19. No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused10. We find that there is ample material against the accused to convict him for the offence under Section 302 IPC. All the circumstances relied upon by the prosecution stand proved so as to complete the chain of circumstances in respect of the offence under Section 302 of the IPC. The Trial Court and the High Court are, on facts, justified in convicting the accused for the offence under Section 302 of the IPC. However, we are unable to find reliable material against the accused for the offences under Section 3 and 4 of the POCSO ActThere is no such mention in the postmortem report. The FSL report regarding vaginal swab which was sent for examination is not helpful for the prosecution to prove the offence under Sections 3 and 4 of the POCSO Act. Prosecution, practically relies upon the doctor?s evidence only for proving the offence under Section 4 of the POCSO Act. No other material is placed on record by the prosecution to prove the offence under Section 4 of the POCSO Act. However, the evidence relating to penetration into the vagina, mouth, urethra or anus of a child etc. or any part of the body is not found. The Trial Court as well as the High Court have not gone into the depth of the evidence relating to offence of penetrative sexual assault, in detail. Certain casual observations are made which are not supported by the evidence led by the prosecution. In light of the aforementioned evidence of PW10 doctor, and in view of the fact that no other reliable evidence exists to prove the charge of penetrative sexual assault, i.e. any of the acts as detailed in Section 3 of the POCSO Act, it is our considered opinion that the Trial Court and the High Court are not justified in convicting the accused for the offence under Section 4 of the POCSO Act. We find from the judgment of the High Court that absolutely no reason, much less any valid reasons were assigned for convicting the accused for the offence punishable under the POCSO Act. Since no reliable material is available against the accused for the aforementioned offence of the POCSO Act, the benefit of doubt would go in the favour of the accused. After scanning through the entire materials on record in order to satisfy the conscience, and having regard to the seriousness of the charge, we conclude that the accused needs to be given the benefit of doubt in so far as the offence punishable under Section 4 of the POCSO Act is concerned12. Since the accused is to be acquitted for offence under Section 4 of the POCSO Act, in our considered opinion, this is not a fit case to impose the death penalty on him, inasmuch as the appellant does not have any criminal background, nor is he a habitual offender. Motive for the offence of murder is not clear and of course it is generally hidden, known to the accused only. Under such circumstances, the court will have to see as to whether the case at hand falls under the ‘rarest of the rare? case category. The accused was also young during the relevant point of time. The duty is on the State to show that there is no possibility of reform or rehabilitation of the accused. When the offence is not gruesome, not cold-blooded murder, nor is committed in a diabolical manner, the court will impose life imprisonment. In the case at hand, the mitigating factors outweigh the aggravating factors. The only aggravating factor in the matter is that the accused took advantage of his position in the victim?s family for committing the murder of the minor girl inasmuch as the minor girl was treating the accused as her Mama (uncle)13. We do not find that the murder has been committed with extreme brutality or that the same involves exceptional depravity. On the other hand, as mentioned supra, the accused was young and the probability that he would commit criminal acts of violence in the future is not available on record14. Be that as it may, since the offence of rape is not proved and as the offence of murder is proved beyond reasonable doubt, the accused is liable to be convicted for the offence under Section 302 IPC.