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Jai Prakash vs State Of Uttarakhand on 7 January, 2020

Judgment Reserved on 20.11.2019
Delivered on 07.01.2020

IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

Criminal Jail Appeal No. 64 of 2019

Jai Prakash …………Appellant.

Versus.
State of Uttarakhand. …….Respondent.

And
Criminal Reference No. 02 of 2019

State of Uttarakhand. …………Appellant.

Versus.
Jai Prakash. …….Respondent.

Present:
Ms. Manisha Bhandari and Mr. Siddharath Sah, Amici Curiae in the matter.
Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand / respondent.

Coram:
Hon’ble Alok Singh, J.

Hon’ble Ravindra Maithani, J.

Per: Hon’ble Alok Singh, J.

1. Present appeal is filed against the judgment and order
dated 26/28.08.2019 passed by Special Judge, (POCSO) in Special
Sessions Trial No. 119 of 2018 whereby learned Trial Court was
pleased to convict the accused / appellant under section 5/6 of
POCSO Act and under section 376 (AB), 377, 302, 201 of IPC and
sentenced to undergo imprisonment for whole life and to pay a
fine of Rs. 20,000/- and in default to undergo additional rigorous
imprisonment of 2 years under section 6 of the POCSO Act;
sentenced to undergo 5 years of imprisonment and to pay fine of
Rs. 5,000/- and in default, to undergo additional rigorous
imprisonment of 6 months under section 201 of IPC; and
sentenced capital punishment and to pay a fine of Rs. 30,000/-

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and in default, to undergo additional rigorous imprisonment of 2
years of rigorous imprisonment under section 302 of IPC.

2. Brief facts of the case are that the informant is from
Madhya Pradesh and belongs to lower strata of the society. The
accused/appellant as well as informant both are labourers and
were residing on separate temporary huts at ongoing construction
site. An F.I.R. was lodged by PW1 father of the victim on
28.07.2018 with Police Station – Sahaspur, Vikas Nagar, District –
Dehradun stating therein that he is a labour and is residing in a
hut in the premises of under construction building of Shivalik
Engineering College. It was further alleged that he is an
employee/labour of contractor Kulbhushan and is residing with
his wife and younger daughter (deceased victim) in the aforesaid
hut. His brother (Shivcharan) along with his wife (Somwati) and
their two children are also residing in the aforesaid huts. He used
to go for labour work along with his wife but for the last two days
he could not go for work/duty on account of heavy rain. It was
also contended that his daughter (deceased victim) was playing
with children of his brother. At about 12.30 p.m., his daughter
went missing and was not seen with the children of his brother.
When he enquired about his daughter from the children of his
brother, they informed him that Jai Prakash Tiwari took them to
his hut and gave them Rs. 10/- each and sent both of them to
purchase things but detained the deceased victim. Somwati
(PW13) also informed him that she had also seen Jai Prakash
Tiwari along with the children going towards his hut. Jai Prakash
was holding hand of deceased victim. After some time children of
his brother came back and informed their mother that Jai Prakash
had given them Rs. 10/- each. When he (PW1) went to Jai
Prakash, enquiring whereabouts of his daughter, he was informed
by the accused Jai Prakash that deceased victim left his place after
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taking Rs. 10/-. Thereafter, he along with others started searching
for deceased victim. And during the search Mohd. Alam Nair
informed that deceased victim was found beneath the empty
cement bags (katta) inside the hut of Jai Prakash. It was further
alleged in the F.I.R. that Yogesh and Suresh sons of contractor
Lallan were also residing with Jai Prakash Tiwari in his hut.
Yogesh and Suresh had gone for work on the fateful day.
However, Jai Prakash remained alone in his hut. It was further
contended that Jai Prakash committed murder of his daughter
after committing rape. After committing the crime, Jai Prakash
ran away. On the basis of aforesaid information, FIR was
registered against accused Jai Prakash.

3. After lodging the FIR, the Investigating Officer started
investigation and prepared the inquest report on 28.07.2018; sent
the body of deceased/victim for postmortem. PW4 Dr. Chirag
Bahuguna conducted the postmortem examination on 29.07.2018.
In the post mortem report cause of death is shown as “manual
throttling by hand causes asphyxia”. The Investigating Officer
also prepared a site plan and recorded the statement of witness
under section 161 of Cr.P.C. Statements of PW1 father of the
deceased victim, PW2 Kulbhushan, PW6 Yogesh Kumar and PW3
Nayar Azam were also recorded under Section 164 Cr.P.C by the
Magistrate. The Investigating Officer arrested the accused Jai
Prakash Tiwari and prepared memo of arrest and memo of
information of arrest. After completion of investigation, the
Investigating Officer submitted the charge-sheet against the
accused.

4. On 22.11.2018, the Trial Court framed charges under
Sections 302, 201, 376, 377 IPC and under Section 6 of the POCSO
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Act against the accused appellant. Charges were explained to the
accused appellant. He denied the charges and claimed trial.

5. The prosecution in order to prove its case produced as
many as 17 witnesses namely PW1 father of the victim/deceased,
PW2 Kulbhushan, PW3 Mohd. Nair Alam, PW4 Dr. Chirag
Bahuguna, PW5 Sub Inspector Laxmi Joshi, PW6 Yogesh, PW7
Constable Hari Shankar Kaniyal, PW8 mother of the victim/
deceased, PW9 Prasoon Shukla, PW10 Sub Inspector Raj Vikram
Singh Panwar, PW11 Master. Rakesh, PW12 Rani @ Chahna,
PW13 Somwati, PW14 Constable Rajeev Kumar, PW15 Dr. R.C.
Arya, PW16 Sub Inspector N. S. Rathor and PW17 Dr. Manoj
Kumar Agarwal.

6. The appellant was also examined under Section 313
Cr.P.C. He claimed himself innocent and denied the prosecution
case. He has further stated that he is innocent and he has been
falsely implicated in the case. He further contended that neither
the dead body of deceased was recovered nor any other
incriminating article has been recovered from his room/hut.

7. Having heard learned counsel for the parties and
perusing the material available on record, the appellant was
convicted and sentenced by the trial court, as noticed herein
above. It is in these circumstances, the reference has been made
for confirmation of death sentence bearing Reference No. 02 of
2019. Appellant has filed criminal jail appeal bearing CRJA No. 64
of 2019 seeking his acquittal.

8. I have heard learned counsel for the parties, at length
and gone through the impugned judgment and entire record of
the case carefully.

5

9. Learned counsel for the appellant has argued that the
prosecution has totally failed to prove its case beyond all
reasonable doubt. It was further submitted that most of the
witnesses are interested witnesses either they are relatives or are
closely associated with the victim/deceased, however, the trial
court illegally convicted the appellant relying upon the testimony
of the aforesaid interested witnesses only. The learned counsel for
the appellant has further argued that there are material
contradictions in the statements of witnesses but the trial court
without appreciating the same convicted the appellant by the
impugned judgment.

10. It has also been argued on behalf of the appellant that
as per the prosecution case itself, the accused was residing in the
room along with two more persons namely Yogesh and Suresh,
however, they have not been made accused. It was also argued
that the deposition of witnesses with regard to the recovery of the
dead body are contradictory and do not inspire confidence. In the
inquest report (Panchnama), the body was not shown as hidden
beneath the empty cement bags; further PW2 Kulbhushan in his
examination has mentioned different name, however, the parents
of deceased/victim have shown different name of the deceased. It
was also urged on behalf of the appellant that the prosecution has
utterly failed to prove that the deceased at the time of the incident
was below 12 years of age, therefore, the trial under the
provisions of POCSO Act was illegal.

11. So far the recovery of the dead body from the room of
accused is concerned PW1 father of victim/deceased (informant),
PW2 Kulbhushan, PW3 Mohd. Nair Alam by their oral evidence
proved factum of recovery of dead body from the room of Jai
Prakash. In their deposition they have categorically stated that
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they have seen the body of deceased/victim, which was hidden
beneath the empty cement bags (Katta) in the room of Jai Prakash.
PW6 Yogesh also supported the version of the PW1 father of the
deceased victim, PW 2 Kulbhushan and PW 3 Mohd. Nair Alam.
In his examination PW6 Yogesh has stated that on 28.07.2018
accused Jai Prakash had not gone to his duty; he remained in his
room and was consuming liquor. At about 12.30 p.m., when he
came to his hut to take the machine, he saw the accused with
victim/ deceased and two children. The defence has cross
examined PW6 Yogesh at length but nothing contradictory
version has come from the cross examination as such the
prosecution has succeeded to prove the recovery of the body of
deceased from the room of Jai Prakash. Apart from the aforesaid
witnesses PW11 Master Rakesh, PW12 Rani @ Chahna and PW13
Somwati, who are also witnesses of fact and in their evidence,
they have supported the prosecution version. In their evidence,
they have categorically stated that they have seen the victim/
deceased, who was being brought by Jai Prakash towards his
room.

12. Apart from aforesaid statements, the statement
recorded under Section 164 Cr.P.C of PW1 father of victim/
deceased, PW2 Kulbhushan, PW3 Mohd. Naiyyar Alam, PW6
Yogesh Kumar, are similar to the depositions of the aforesaid
witnesses.

13. The body of the deceased, as indicated above
recovered from the room of Jai Prakash, which was duly
identified by the PW 1 and PW 8, who are parents of the
deceased/victim. PW2 Kulbhushan is merely employer of PW1.
He might not be aware about the actual name of the deceased,
therefore, mentioning the different name by PW2 Kulbhushan
7

doesn’t give any benefit to the accused. Therefore, the contention
raised by the counsel for the accused with regard to the
identification of the deceased is not acceptable.

14. PW1 father of the deceased in his examination has
clearly stated that his daughter is aged about 10 and a half year.
PW4 Dr. Chirag Bahuguna, who has conducted the postmortem,
has also in his report mentioned the age of deceased as 11 years.
PW8 mother of deceased, also stated in her examination that age
of her daughter was 10 year and 6 months. It is noted in this
regard that the defence has not cross examined PW1 and PW8
father and mother of the deceased respectively. Other important
witness who is PW9 Prasoon Shukla, Principal of the school
where deceased studied, has also stated that the date of birth of
deceased is 20.10.2008 as mentioned in the school record. From
the aforesaid evidence, it is clear that at the time of incident the
deceased was below the age of 12 years, therefore, there is no
illegality in committing the trial under the provisions of the
Protection of Children from Sexual Offences Act (POCSO).

15. It was further argued that medical report does not
support the prosecution version and it does not indicate that any
sexual assault or rape was committed on the victim/deceased.
PW4 Dr. Chirag Bahuguna, who has conducted the postmortem
and also prepared the medical report, has proved the postmortem
examination report, relevant portion of the report reads as under:

“In vagina 2 to 3 fingers can be passed easily inside
the vagina without resistance. Hymen torned with reddish
margin suggestive of recent trauma. Post wall of vagina
tear present 0.5 cm in length. This is suggestive of forceful
penetration. Anal mucosa show reddish inflamed surface,
suggestive of penetration trauma. These injuries are
suggestive of sexual assault.”

8

16. PW5 Sub Inspector Laxmi Joshi, who has conducted
the inquest (Panchnama) also noted the injuries on the private
part of the body of deceased as well as other injuries found on the
body of the deceased. PW4 Dr. Chirag Bahuguna, in his
examination has categorically stated that the injuries found on the
private part of the body were result of the forceful penetration.
He further deposed that the other injuries, found on the body of
the deceased indicated that the victim was subjected to sexual
assault. From perusal of the aforesaid evidence, it is clear that the
medical evidence fully corroborate the prosecution story, as such
the contention raised by the learned counsel of the appellant in
this regard has no force.

17. During the course of investigation, the Investigating
Officer has recovered certain articles and clothes of deceased
including hair recovered from the hands (fist) of deceased and
currency of Rs. 10. The said articles were sent for FSL which was
scientifically examined and thereafter, a report was prepared by
PW17 Dr. Manoj Agarwal. The aforesaid report is Exhibit 43 and
the same was proved by PW17 Dr. Manoj Agarwal. The
conclusion of the report is as under:-

“The DNA test performed on the exhibits provided is
sufficient to conclude that,

The DNA obtained from the Exhibits – 4 and 5 (hair
recovered from deceased and underwear of accused) are
from single male human source and matching with DNA
obtained the Exhibit – 24 (blood sample of accused).

The DNA obtained from Exhibit – 9 (underwear of
deceased) is matching with the DNA obtained from the
Exhibit – 23 and 24 (blood sample of deceased and blood
sample of accused)

The DNA obtained from Exhibits – 13, 14, 15, 16,
17, 18, 19, 20 and 22 (throat swab, throat side, internal
vaginal swab, internal vaginal side, internal vaginal swab,
internal vaginal slide, internal anal swab, internal anal
9

slide and nails clipping of victim) are from single female
human source and matching with DNA obtained from the
Exhibit – 23 (blood sample of deceased).”

18. From perusal of the aforesaid report, it is clear that the
DNA obtained from the hair recovered from the hand of deceased
and the underwear of accused are from single male human source
and further DNA obtained from underwear of the accused and
blood sample of accused are matching. Defence has cross
examined PW17 Dr. Manoj Agarwal, at length, but no
contradictory material came out which creates dent on the
prosecution story. As such, the prosecution has succeeded to
prove that the accused/appellant had murdered victim after
committing rape by penetration in vaginal part as well as anal
part.

19. The FSL report is the scientific and extremely
important piece of evidence. It is also pointed out that it is not the
case of appellant that the said FSL report was tempered or
manipulated one, as such the aforesaid FSL report stands proved
and can easily be relied upon.

20. The deceased was lastly seen with the accused, as
indicated above and thereafter, the body of the deceased was
recovered from the room of accused. As per the postmortem
report, there was injury on vaginal part and anal part of the body
of the deceased/victim, which indicates that the deceased was
subjected to rape by forceful penetration by the accused.

21. Section 29 of Protection of Children from Sexual
Offences Act (POCSO) provides that where a person is prosecuted
for violating any of the provisions under Section 3, 5, 7 and 9 of
the Act, the Special Court shall presume that such person has
committed the offence unless contrary is proved. The above
presumption is an exception to the ordinary rule of presumption
10

of innocence available to an accused in a criminal trial. In view of
the above provision, there is a presumption against the accused
that he has committed the offence for which he is tried.

22. The accused himself appeared as defence witness. In
his defence, he has stated that on the fateful day i.e. on 28.07.2018
he was on leave; he consumed liquor with Yogesh and Suresh and
after that he slept in his room. Later on, he along with Yogesh and
Suresh were brought to the police station Sahaspur by the
contractor where the police personnel got his signature on plain
paper. Subsequently, Suresh and Yogesh got released by the
contractor from the custody of the police, however, he was
detained in the police station and when he was in the custody of
police in the police station he came to know that a dead body of a
girl was found in his room. From perusal of the aforesaid
deposition of accused in his defence it is clear that the accused
himself has admitted that on the fateful day he was in his room,
the dead body of the deceased was found in his room which he
came to know when he was in police custody, further the DNA of
the accused, which was found on the undergarment of the
deceased was matched in FSL report which is a scientific and
substantive piece of evidence. In view of the aforesaid
involvement of the appellant in the crime is fully proved. Further,
the accused has utterly failed to explain as to why PW2
Kulbhushan, PW6 Yogesh have given evidence against him. The
accused has further failed to explain as to why PW 11 Master
Rakesh and PW 12 Rani, who are the witnesses of tender age,
have given evidence against him.

23. From perusal of the aforesaid fact and circumstances,
it is clear that the prosecution has proved its case beyond all
reasonable doubt as such there is no illegality in the impugned
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judgment passed by Fast Track Court/ Special Judge, Protection
of Children from Sexual Offences (POCSO)/ Addl. District Judge
Dehradun in a Special Session Trial No. 119 of 2018 convicting the
appellant under Section 376(AB), 377, 302, 201 IPC and 5/6
Protection of Children from Sexual Offences Act (POCSO) and
sentenced accordingly.

CRIMINAL REFERENCE No 2 OF 2019

24. Jai Prakash has been rightly convicted under Section
376 (AB), 377, 302, 201 IPC and 5/6 Protection of Children from
Sexual Offences Act (POCSO). He has been sentenced to extreme
penalty of death. It is argued by the counsel for the appellant that
it is not the case, which may warrant capital punishment, as the
case in hand, does not fall in the category of “rarest of the rare
cases”.

25. Learned State Counsel has opposed the said
contention and would argue that a helpless girl of tender age was
sexually assaulted and brutally murdered by Jai Prakash. This
warrants extreme penalty of death. In support of his contention
learned counsel placed reliance the judgment passed by this
Court in Criminal Reference No. 1 of 2016 State of Uttarakhand
Versus Akhtar Ali decided on 18.10.2019.

26. Appellant Jai Prakash has brutally murdered a girl of
merely 11 years old after committing rape by penetration in
vaginal and anal part. Not even this, he has also tried to destroy
the evidence of offence by hiding the dead body of the prosecutrix
/ deceased. The charges have been proved beyond all the
reasonable doubt. It defies any interference of innocence of Jai
Prakash. This Court does not entertain any “lingering doubt in
12

the case”. The charges are proved beyond all reasonable doubt,
with utmost certainty.

27. In case of Akhtar Ali (Supra) the accused has brutally
murdered a young girl of 7 years old, after committing rape and
this Court was of the opinion that the said incident falls in the
category of “rarest of the rare cases” and confirmed the death
sentence awarded by the trial court.

28. Instant case is also case of rape and murder of a
young, helpless and defenceless girl. The present case also falls in
the category of “rarest of the rare cases” which calls no
punishment other than death penalty. As such the principal laid
down in the judgment of Akhtar Ali (Supra) is fully applicable in
case in hand.

29. The act committed by appellant is so brutal that it
pricks or shocks not only the judicial conscious but even the
conscious of the society and this case certainly falls in the category
of “rarest of the rare cases” which calls for no punishment other
than capital punishment. Therefore, this Court is of the view that
judgment passed by Special Judge (POCSO), Dehradun warrants
no interference. Jail appeal is hereby dismissed. Conviction and
sentences awarded by the trial court including the death penalty
are hereby confirmed.

30. Criminal Reference No. 02 of 2019 is answered
accordingly.

31. Let a copy of this judgment along with lower court
record be sent back forthwith.

(Alok Singh, J.)
07.01.2020
SKS

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