Akhtar vs State Of U.P.
2014 Latest Caselaw 5180 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

1
 
Court No. - 46
 
Case :- CAPITAL CASES No. - 574 of 2013
 
Appellant :- Akhtar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ajatshatru Pandey,G.S. Chaturvedi
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Amar Saran, J
 
Hon'ble Mrs. Vijay Lakshmi, J
 
(Delivered by Hon'ble Amar Saran, J)
 
This capital appeal arises from a judgement of the
 
Additional Sessions Judge (Court no. 6), Budaun dated
 
31.1.2013 in S.T. No. 505 of 2012 whereby the appellant
 
Akhtar has been awarded a sentence of death under Section
 
302 I.P.C together with a fine of Rs. 25,000/. The appellant
 
Akhtar has also been sentenced to imprisonment for life
 
under section 376 I.P.C and a fine of Rs. 25,000/, and under
 
section 201 I.P.C, appellant Akhtar has been sentenced to 7
 
years RI and a fine of Rs. 7000/. A death reference has also
 
been forwarded to this Court by the Sessions Judge for
 
confirming the sentence of death awarded to the appellant
 
Akhtar.
 
We have heard Sri G.S. Chaturvedi, Senior Advocate,
 
assisted by Sri Ajatshatru Pandey for the appellant and Sri
 
Akhilesh Singh, learned Government Advocate assisted by Sri
 
R.K. Singh and Sri Anand Tiwari, learned A.G.As for the State.
 
Written arguments along with case law have also been filed by
 
the learned counsel for the parties.
 
2
 
Background

and evidence

The first information report of this case was lodged by

PW-1 Baise Ali, father of the deceased Noor-un Nisha on

4.4.2012 at 8.15 p.m at the police station Ujhani. This FIR

alleges that Noor-un Nisha aged about 12 years had gone to

graze her buffaloes in the afternoon in the direction of J.S.

Talkies. When she did not return till 5.00 p.m then a search

was made for her by the informant and other residents of the

Mohalla. At about 6.00 P.M, when the informant, his brother

Afzal and Mohalla neighbours Afzal and Islam were crossing

the lane in front of the house of the appellant near Sapra

Guest House, they saw the appellant throwing the body of

Noor-un Nisha out side his house. The informant and other

persons caught hold of the appellant Akhtar in Mohalla Gaddi

Tola. Noor-un Nisha had died and there was a round mark on

her neck and there were injuries on her body. With the help of

Baise and Afzal , the appellant was brought to the police

station where a report was lodged alleging that the appellant

Akhtar had raped and murdered Noor-un Nisha on 4.4.2012.

The case was registered at the police station at Crime No. 605

of 2012 under sections 375, 302, 201 I.P.C in the presence of

the investigating officer Ashok Kumar Singh.

Inspector Ashok Kumar Singh, P.S. Ujhani commenced

the investigation of the case. He arrived at the spot along with

SI Raj Bahadur and female constable Parul Yadav and others.

He directed SI Raj Bahadur to take steps for getting the

inquest done on the body of the deceased and he recorded

the statement of the informant. He prepared the recovery

memos (Ext. Ka 11) of some black and Henna coloured hair

which were found between the fingers of both the hands of

the deceased Noor-un Nisha. He placed the hair on a white

paper and then placed the same in a plastic box and sealed

them after wrapping the packet with a piece of cloth. He

inspected the spot and got photographs taken of the body and

the spot. Thereafter, he sent the dead body for post-mortem.

He also collected the tiffin box, steel plate, grass and grass

leaves tied with a string. The said items were wrapped in a

Dupatta which were lying near the body. He also took out the

appellant Akhtar from the police lockup, who is said to have

confessed to his crime. The appellant also agreed to take the

police to the place, where he had strangulated the deceased.

The I.O thereafter brought the appellant Akhtar to the spot

along with SI Raj Bahadur Rastogi and SI Nareshpal Singh. The

appellant took the keys of his house from his neighbour Dr.

Netrapal. He opened the lock of his shop and climbed up the

stairs and opened the lock of the room. He then pointed out

the bed in the room, where he admitted to have committed

the crime. Then the room and bedding were examined. On the

bedding, some broken pieces of red coloured bangles and

long hair were found. The recovery memos of the hair and

bangles were made.

The post-mortem on the dead body was conducted by Dr.

Amit Kumar on 4.5.2012 at 2.25 p.m along with Dr. Harpal

Singh. The age of the deceased was about 12 years. Time

since death was ¾ days. It was an average built body. Rigor

mortis was present on all the four limbs. Postmortem staining

was present on the dependent parts. The mouth and eyes

were half open. Eyes, face and neck were congested.

Ante-mortem injuries:

1. Multiple abrasions over front of neck in an area 9 cm x 4

cm. Varying from maximum 3 c x 2 cm to minimum 1 x 1

cm.

2. Multiple abrasions over back of neck maximum 1.5 x 1

cm, minimum 1 x 0.5 cm in an area of 7 x 3 cm. On

dissection of neck. Internal tissue were echymosed.

Trachea was found congested, hyoid bone found

fractured.

3. Lacerated wound on tip of lower finger of left hand 0.5 x

0.5 cm.

4. Multiple abrasions on back of abdomen maximum 3 cm x

2 cm to minimum 1 cm x 0.5 cm.

5. Contusion on left side of face 2 x 2 cm.

6. Abrasion just below right knee 2 x 1 cm.

7. On internal examination of genitalia, the hymen was

found lacerated, lacerated wound 2 x 0.5 cm on right

labia minora. Clotting of blood found in vaginal canal.

Note: Vaginal smear slide was prepared for pathological

examination (including D.N.A. Examination) and hair of scalp

was also preserved for forensic examination.

On internal examination, the brain was found congested.

Right and left lungs were congested. In the opinion of the

doctor, the cause of death was asphyxia as a result of antemortem

throttling. The death could have taken place on

4.4.2012 at about 6.00 p.m.

To the court question, whether there was any injury of

teeth bite on the cheek, the doctor replied that there was a

contused mark on the cheek which could be possible because

of a teeth bite. To another court question whether rape could

have possibly been committed on the deceased, he answered

in the affirmative.

The appellant Akhtar was also sent for medical

examination. The doctor examining the appellant prepared a

slide and took a blood sample and sample of hair of the head

and beard of the appellant and forwarded them to the police

station.

The hair of the appellant which was collected from

between the fingers of the deceased Noor-un Nisha and the

hair of the head and beard of the appellant which were cut by

the doctor and the hair which were found from the spot and

the hair of the deceased which were cut by Dr. Amit Kumar

PW-3 when he was conducting post-mortem for forensic and

possible DNA examination, the vaginal smear slide which was

prepared at the time of post-mortem, the sample of blood of

appellant Akhtar and the appellant's underwear (i.e. a total 8

items) were sent for analysis to the Forensic Laboratory, Agra.

PW-5 Ashok Kumar Singh, I.O also prepared the site plan

(Ex. Ka-16) of the place of incident i.e. the first floor of the

house of the appellant Akhtar, where the dead body was

found. After recording the statements of the witnesses and

collecting documents and other material i.e. recovery

memos , site plan of the place of incident, inquest, postmortem

report, the I.O submitted a charge sheet ( Ext. Ka-18)

under sections 376, 302 and 201 I.P.C on 2.5.2012.

The report of the Forensic Laboratory Agra dated

11.7.2012 disclosed that no blood was found on the hair

collected from between the fingers of the deceased (item 1),

the hair cut from the accused-appellant (item 2), the hair

collected from the room (item 4), from the cut hair of the

deceased (item 5), from the slide made at the time of post

mortem (item 6), and broken slide collected from the

appellant (item 7) and underwear of appellant (item 8) and

Kurta of the deceased ( item 10). The hair collected from

between the fingers of the deceased( item.1) and the hair cut

from the accused appellant (item 2) were found to be of

human origin but on their comparison, no affirmative opinion

could be given. However, the hair which were found in the

room (item 4) and the hair of the deceased which were cut by

the doctor at the time of autopsy (item 5) were also found to

be of human origin and on comparison and analysis, they

appeared to be similar. No semen was found on the slide

collected from the deceased (item 6) and the broken slide

collected from the appellant (item 7) and on the underwear of

the deceased (item 8), Salwar of the deceased (item 9) and

Kurta of the deceased (item 10).

Charges were framed against the appellant under

sections 302 , 376 I.P.C and 201 I.P.C on 29.20.2012 for

having committed rape and murder of the 12 year old

deceased Noorunnisha and for trying to conceal the evidence

regarding the murder by removing the dead body from the

room to save himself from punishment.

Apart from the three formal witnesses PW-3 Dr. Amit

Kumar, PW-4 Constable Parul Yadav and PW-5 Inspector Ashok

Kumar Singh, whose roles have been mentioned above, two

witnesses of fact PW-1 Baise Ali, father of deceased Noor-un

Nisha and informant of this case and PW-2 Afzal have been

examined in this case.

PW-1 Baise Ali has deposed that as usual on the date of

incident, the deceased Noor-un Nisha had gone for grazing

buffaloes at about 8.00 a.m. in the vacant plot near their

house. She would normally return by 4 or 5 P.M, but when she

did not return till 5.00 p.m on the date of incident, then PW-1

Baise Ali accompanied by PW-2 Afzal, Islam,Najruddin and

Baisan went in the direction of Sapra Guest House to search

for the deceased. When they reached near the house of

appellant Akhtar, they found him throwing the dead body out

side. They apprehended the appellant Akhtar and they took

him to the police station. The informant dictated the report to

Rashid out side the police station (ext. Ka 1) to which he

appended his thumb impression.

PW-2 Afzal deposed that the daughter of Baise Ali had

disappeared about 8-9 months prior to the deposition. In the

morning she had gone to graze her buffaloes but when she did

not return in the evening, even though the buffaloes had

returned then this witness along with four others went to

search for Noor-un Nisha. When they were returning after

searching near the Sapra Guest House, they saw the appellant

Akhtar catching hold of the deceased by her hair and pulling

her out from his house. Then an alarm was raised and the

appellant was apprehended. Noor-un Nisha was found dead.

The persons apprehending Akhtar took him to the police

station. At the police station, the appellant is said to have

admitted to his guilt for committing rape and murder of the

deceased in the presence of 4-5 persons, who were present at

the police station. He claims to have been overcome by a

spirit (jinn) which caused him to commit the crime.

Defence of the appellant

In his 313 Cr.P.C statement the appellant took the plea

that the witnesses had falsely deposed against him and that a

false document had been prepared and he had been falsely

implicated by the public. He further stated that the place of

incident was near his shop and house. He was sitting at his

shop as was his daily routine. His family members had gone

home. In the evening as per his usual practice, he had gone

for prayers at the nearby Barey Wali mosque and had

returned to his shop. In the mosque, an announcement was

also made on the loudspeaker that a girl had gone missing

and the people had collected and there was a jam on the

Budaun bye-pass. The dead body was found near the house of

this appellant. The police wrongly apprehended him because

of which the appellant was locked up and falsely implicated by

the informant in this case. The appellant has also examined

five witnesses in his defence.

DW-1 Mohammad Sharif, is a Junior Engineer of the

Power Division Buduan. He stated that there was no light on

the date of incident until 9.00 p.m.

DW-2 Hazi Rahmat Husain, has deposed that the

appellant had offered evening prayers at the Bare Wali Masjid,

where he kept a stall.

DW-3 Hafiz S. Ahmad, who had also given the same

evidence of the appellant offering evening prayers at the

mosque.

DW-4 is Netrpal who states that the appellant had a

shop, where auto mobile parts were sold. His house was

adjoining the shop. The appellant had a good character and

used to offer prayers. The deceased had left her house and

she was found at 9.00 p.m in the plot behind the house of the

appellant. The police had picked him up from his shop in the

presence of this witness.

DW-5 Mujahid Husain. has also deposed that the

appellant used to offer prayers in Barey Wali Masjid. On the

date of incident, he had returned after offering prayers at 6.30

p.m to his shop and parked his cycle at his shop, and after

evening prayers he left with this cycle.

Defence and steps taken by this Court for DNA

analysis of samples of hair collected from the

deceased, accused and spot

When the bench consisting of one of us (Amar Saran J)

and Mrs. Sunita Agarwal, J were hearing this appeal on

23.10.13 on a perusal of the forensic laboratory report and

post-mortem report, we found that even though the doctor

who conducted the post-mortem examination had collected

the sample of hair from the head of the deceased and some

hair were found in the room of incident which was said to

have been pointed out by the appellant, the two sets of hair

are said to have been shown to be similar as per physical and

microscopic examination. But no DNA test was conducted on

the two sets of hair. Also as no affirmative evidence of their

similarity could be given by the Forensic Laboratory report on

comparison of the hair found between the fingers of the

deceased, and the hair cut from the head of the appellant,

hence we decided to have a look at the condition of the

material and called for the said material which may have been

deposited in the Malkhana or elsewhere, through the CJM

Budaun on the next date of listing, i.e. 29.10.2013.

On 29.10.2013, Constable Santosh Kumar Singh

produced two bundles containing material exhibits which were

brought from the Malkhana. The said bundles were opened in

presence of learned counsel for the appellant and the learned

A.G.A and the seal was found intact. In one bundle, the

material exhibit was kept in a plastic box which contained hair

which was found between the fingers of the deceased Noor-un

Nisha (item 1 of the Forensic laboratory report), which was resealed

and marked HC 3. The second material exhibit was the

hair found at the spot pointed out by the appellant (item 4 of

the Forensic laboratory report), which was re-sealed and

marked HC 2. The third material exhibit kept in a brown

envelope wrapped in a white paper contained the hair of the

deceased taken by the doctor who conducted the post

mortem which was earlier described as item 5 in the Forensic

laboratory report which was re-sealed and marked as HC 1.

These three material exhibits were kept in separate bundles

which were assigned fresh HC numbers by us as mentioned

above. We also examined material exhibits (mentioned at

item nos. 2 and 3) in the Forensic Laboratory report which

were the hair and blood of accused Akhtar which were

collected by Dr. R.K. Singh. However, as the said samples

were not found in a good condition and further the said doctor

was also not examined to prove the said sample, we directed

that a fresh sample of the hair of the appellant be got cut by

the Jail Doctor in presence of the Jail Authorities and Judicial

Officers which were directed to be produced before this Court

on 14.11.2013. We also directed that the evidence of the Jail

Doctor and Jail authorities in whose presence the hair of the

appellant was cut as also the judicial Magistrate in whose

presence the samples were taken be recorded and their

affidavits under section 296 Cr.P.C be also taken and

forwarded to this court.

Pursuant to our order dated 29.10.2013, samples of hair

of the appellant were received from District Jail Budaun which

we directed to be kept in a separate envelop which was

marked as HC-4.

We then passed an order on 14.11.13 directing that the

cut hair of the appellant kept in a sealed bundle (HC 4), be

forwarded to the Director, Centre for DNA Fingerprinting and

Diagnostics (CDFD) Hyderabad along with the hair found

between the fingers of the deceased (HC-3) for DNA

comparison. We also directed that the hair of the deceased

which was collected by PW-3 Dr. Amit Kumar who conducted

the autopsy (HC 1) and the hair purportedly of the deceased

found at the place of incident, (HC-2) be also forwarded for

DNA comparison to CDFD, Hyderabad. The affidavit and

reports of Jagdish Prasad Deputy Jailer, Budaun, Umesh Singh,

Jail Superintendent and Dr. A.K. Gupta were filed and taken on

record to be treated as part of the evidence under section 296

Cr.P.C. We had sought a report from CDFD within three

weeks.

Pursuant to our order dated 14.11.2013, letter of CDFD

dated 21.11.2013 and report of CDFD Hyderabad dated

3.12.2013 were placed before us on 10.12.2013. On

12.12.2013, we directed that Expert Dr. Devinder Kumar, who

had prepared the DNA report be present in Court on

27.1.2014. We also directed the CJM Budaun to ensure the

presence of accused Akhtar who was detained in District Jail

Budaun on the said date so that the evidence of Expert Dr.

Devindra Kumar could be put to the accused and Dr. Devinder

Kumar could be examined in the presence of the accused.

As in his earlier examination under section 313 Cr.P.C

the entire evidence was compositely put to the accused, and

his attention was not specifically drawn to the circumstances

against him we also directed the learned Government

Advocate to prepare a draft of questions in Hindi for the

benefit of the Court which were to to be put to the accused

under section 313 Cr.P.C and which were also to be shared

with the counsel for the accused. We may point out here that

such a course has been permitted under the newly introduced

section 313 (5) Cr.P.C, which is in force from 31.1.2009 vide

Act No. 5 of 2009.

The case was thereafter, directed to be listed on

27.1.2014.

Evidence of Technical Examiner on DNA report

and re-examination of appellant in this case

On that date, the Technical Examiner Dr. Devinder

Kumar and the accused appellant Akhtar were present. The

material exhibits and documents relating to the case were put

to the Technical Examiner Dr. Devinder Kumar, who gave his

evidence in court in presence of the accused and his counsel

Sri G.S. Chaturvedi, who also cross-examined the expert.

We also examined Ashok Kumar, who carried the

material exhibit as C.W.1. We then examined the accused

under section 313 Cr.P.C on the additional evidence with

regard to the D.N.A test carried out by Dr. Devinder Kumar

and also put to him the detailed circumstances which

appeared in the evidence against him, for preparation of

which we had taken the assistance of the G.A., as mentioned

above, and which had also been furnished to the counsel for

the accused for seeking his objections or clarifications.

It may be noted that learned counsel for the appellant

has not objected to the putting of detailed questions to the

accused-appellant, under section 313 Cr.P.C on 27.1.2014

However learned counsel for the appellant has objected to

some questions in the cross-examination and under section

313 Cr.P.C which refer to admissions made by the appellant

before the police, such as the admission that he had

committed the rape because he had lost control of his senses

and was overcome by a "jinn" and we may clarify here that

we have eschewed consideration of those admissions for

reaching a decision on the merits of this case.

The report of the D.N.A expert and the evidence of Dr.

Devinder Kumar disclosed that the source of Exhibit E (hair

marked as HC-3 by the High Court labeled as HC X which was

taken from the palm of the deceased) yielded DNA profile of

male origin and was matching with the DNA profile of the

source of exhibit A (a bunch of cut hair from the scalp of

accused Akhtar) which was marked as HC-4 by the High Court.

The source of exhibit C (hair cut from the deceased labeled as

HC-1 by the High Court in the packet labeled as HC-X) and

exhibit D (hair said to be found on the crime scene) which was

marked as HC-2 in the packet labeled as HC X. The examiner

deposed that he had been allotted 60 D.N.A. cases, of which,

he had submitted reports in around 30 cases. The conclusion

in his report was also based on some additional data, which he

was carrying in CDFD file No. 2768, which contained

genotyping results in the form of Electropherogram. As

learned counsel for the appellant wanted the entire additional

data to be placed on the record, we directed accordingly, and

the expert Devinder Kumar produced the same, which were

taken on record. It may be noted that no criticism has been

raised by the learned Senior counsel regarding the quality of

the DNA examination by Dr. Devinder Kumar of the CDFD.

Arguments of counsel for defence

The contentions of Sri G.S. Chaturvedi as mentioned in

his arguments and in his written submissions were that the

basic evidence in this case was only that the accused had

been caught disposing of the body near his house at about

6.00 p.m. This evidence appeared to be false because PW-1

Baise Ali had given conflicting evidence at different points in

his examination and cross examination. He had further stated

that he searched for his daughter the whole night and even a

loudspeaker announcement was made regarding the

disappearance of the daughter which would render false the

evidence of the accused having been apprehended when he

was throwing the dead body at 6.00 p.m. It was suggested

that actually the body was recovered at about 9 or 9.30 p.m

near the house of the appellant and he was implicated by the

police, only to show the case as solved because of the outcry

raised by the general public and politicians. The alleged

recovery of hair from the fingers of the deceased was false

and baseless as it was a recovery from an open place in the

presence of 100-200 persons who may have touched the

body, so it was highly improbable that the scalp hair of the

appellant were recovered from the fingers of the deceased.

It was further argued that the investigation and recovery

was unreliable and doubtful as only two relation eye witnesses

PW-1 Baise Ali and PW-2 Afzal had been examined and no

other independent eye witness has supported the prosecution

version and only to complete the chain of evidence, the I.O

had taken the hair of the appellant at the police station and

the same was shown to have been recovered from the fingers

of the deceased Noor-un Nisha and from the bed of the

appellant. There were contradictions inasmuch as according to

the FIR, and the 161 Cr.P.C statements, it was mentioned that

the deceased had left her house with cattle in the afternoon,

but during the trial PW-1 and PW-2 stated that the deceased

had left her home in the morning. It was further argued that

the FIR was lodged at 8.15 p.m i.e. after a delay of 2 hours of

the recovery of the dead body and from the statement of PW-

1 and PW-2 it could be inferred that the FIR was lodged prior

to the recovery of the dead body which was impossible. A

doubt was raised regarding the reliability of the DNA report as

it was contended that recovery of the hair from the fingers

and palm of the deceased by the I.O was doubtful, hence their

correspondence with the hair taken from the appellant whilst

he was in jail after the order of this Court could not improve

the case of the prosecution. It was further submitted that the

FIR and statements of witnesses under section 161 Cr.P.C and

other documents including the D.N.A report reveal that after

sending the dead body for autopsy, all other formalities were

completed which shows the false implication of the appellant

in this offence.

Arguments for Prosecution

Learned Government Advocate on the other hand filed

written arguments and submitted that there were sufficient

circumstances for connecting the appellant with this incident

which conclusively established that the appellant and none

other had committed the crime. The deceased had left her

house in the noon of 4.4.2012 and when she did not return

back as per her daily routine, a search was made by PW-1 and

PW-2 and others and at about 6.00 p.m. they caught the

appellant red handed near his house whilst throwing out the

dead body of the deceased Noor-un Nisha. The FIR was

subsequently lodged by PW-1 Baise Ali. The appellant was

handed over to the police by the informant at the time of

lodging of the FIR. Even at the time of inquest, some hair were

found on the palm and between the fingers of the deceased

which were collected and duly sealed by the I.O. During the

course of investigation, pursuant to the disclosure statement

of the appellant, the I.O also recovered some hair from the

place of incident, i.e. the bed (Diwan) inside the room of

house of the appellant. PW-3 Dr. Amit Kumar, who conducted

the postmortem on the body of the deceased had also cut and

preserved the sample of hair of the deceased which tallied

with the hair found on the bed and in the room whose keys

were in the custody of the appellant and who had led the

police and witnesses to the room, which was the scene of the

crime. The prosecution case could be established by PW-1 and

PW-2 in Court, who had absolutely no motive for falsely

implicating the appellant. No suggestion was even given

regarding any enmity of these witnesses with the appellant.

The witnesses did not even know the parentage of this

accused prior to the incident. The contradictions pointed out

by learned counsel for the appellant were minor in nature on

the basis of which, the entire prosecution case could not be

discarded. So far as the contention regrading variation in the

time in the statement of PW-1 as pointed by learned counsel

for the appellant was concerned, it was stated that this whole

argument has been built on a sentence appearing in the

deposition of PW-1 that at about 8 or 9 p.m on the date of

incident the persons of the locality had blocked the road due

to non recovery of the victim. In the present case, the FIR was

lodged at 8.15 p.m and even the inquest started at 9.00 p.m.

The time of inquest as stated by PW-5 SI A.K. Singh I.O has not

been challenged by the appellant. The appellant was handed

over to the police at the time of lodging of the FIR. PW-4 Parul

Yadav who was a member of the police team at the time of

inquest proceedings has proved the inquest proceedings.

Since the time of inquest on the cadaver has not been

disputed by the appellant as such, it was apparent from the

evidence on record that the time given by the PW-1 was due

to an inadvertent mistake. PW-1 was an illiterate rustic, who

may have been confused about the time. The observations of

the trial judge in this connection that variations of time could

not be accepted at its face value because it was a result of a

slip of tongue, was in order. Even if there were any

deficiencies in the investigation, it was contended, that could

not be a ground for discarding the prosecution evidence which

was authentic, credible and cogent. So far as the argument of

learned counsel for the appellant regarding ante-timing of the

FIR was concerned, it is submitted that no suggestions

regarding it was given to the I.O that the FIR was ante-timed

as the I.O immediately proceeded to the spot and even

started the inquest proceedings at 9.00 p.m. The medical

evidence corroborates the allegation of throttling and rape of

the victim. The forensic report of the Agra Forensic Science

Laboratory indicated that the hair of deceased preserved by

the doctor at the time of postmortem were found similar in

length, thickness and on the basis of microscopic composition

to the hair collected from the scene of the crime. This fact has

been further confirmed by the DNA report of CDFD Hyderabad

which was proved by CW-1 Dr. Devinder Kumar before this

Court. The D.N.A report of CDFD, Hyderabad further indicated

that the hair found between the fingers of the deceased and

the sample of the head hair of the appellant, collected by the

jail authorities, on this Court's order were from the same

individual. The contents and conclusion of this report cannot

be doubted and have to be accepted as scientifically accurate

and based on an exact science.

Regarding the appellant having been caught red handed

while disposing of the dead body of the deceased near his

house it was argued by learned GA that it has not been

explained by the appellant as to how the dead body came in

his possession either by way of a suggestion in the cross

examination or in his statement recorded under section 313

Cr.P.C. Also pursuant to the disclosure statement of the

appellant, the hair of the deceased were found at the place of

incident i.e. the room with a bed (divan) on the upper floor of

the house of the appellant on his pointing out. No explanation

has been given by the appellant as to how the said hair were

lying in his house. This fact was only within his special

knowledge, and the onus under section 106 of the Evidence

Act fell on the appellant to explain how the hair of the

deceased were present on the divan and room of his house of

which he had custody. Regarding the fact that the hair found

at the place of incident and the sample of the hair of the

deceased having been found similar in the Agra forensic test

and also as per the D.N.A report by the CDFD, Hyderabad, the

hair found between the fingers of the deceased and the

sample of the hair taken from the appellant in jail pursuant to

our order being of the same individual, the appellant could

give no explanation except by making a suggestion in an

answer in his re-examination under section 313 Cr.P.C before

this Court, that the hair between the fingers of the deceased

had been planted by the police, but no suggestion in this

regard was even given to the I.O. Considering the gravity of

the crime of rape and murder of a minor child, learned

Government Advocate submits that there was no immediate

extreme mental or emotional disturbance or provocation to

the appellant for committing the crime and the case falls

within the purview of the rarest of rare cases calling for the

death penalty.

Both the counsel for the parties have cited case law

which would be considered at the appropriate stage.

Analysis of contentions of learned counsel for the

parties and evidence.

The basic contention of the learned counsel for the

appellant was that the claim of the witnesses that the

appellant had been caught hold of at about 6.00 p.m when he

was throwing the dead body of the deceased Noor-un Nisha

outside his house was unreliable. In fact the dead body had

been found lying on the spot and only to show the case as

solved because of public and political out cry, the police had

falsely implicated the appellant in this case. Learned counsel

for the appellant tried to support this argument by contending

that PW-1 Baise Ali in his cross examination has stated that

when the deceased Noor-un Nisha did not return till 5 or 6 pm

in the evening, a search was made for her, by which time it

became late and lights were lit in the houses. A rickshaw with

a loudspeaker made an announcement that Baise Ali's

daughter had not returned and that she be searched. It was

argued that in this background the apprehension of the

appellant when he was throwing the corpse outside his house

was unlikely.

Even if it is accepted for the sake of arguments that the

defence has succeeded in raising a small doubt, as to whether

the appellant could indeed have been arrested at the very

moment when he was throwing the dead body, and that the

appellant might have been linked with this crime after the

corpse was found lying outside his house. But there are other

significant features in this case, which dispel any suspicion in

our mind that anyone other than the appellant was

responsible for the crime.

There appears to be substance in the learned AGA's

submission that the description of time of apprehension of the

appellant as about 6 pm when he was throwing the cadaver

appears to be an error on part of the rustic witness, who may

not have had a clear idea about the time.

Furthermore If the appellant was not arrested when he

was throwing the cadaver, the police could not have

recovered the broken bangles and hair of the deceased from

the room in that house, (which showed the room to be the

place of incident), when the police were taken there by the

appellant after he was handed over at the police station by

PWs 1 and 2, Baise Ali and Afzal. The appellant's house could

not have been identified as the house where the crime had

taken place, as there were a large number of houses near

point 'A' on the site plan (Ext. Ka 16), where the cadaver was

found. Thus the plots of Shakil, the house of Ashok Pasi,

Sapera Guest house, and the houses of Negcha and Dhichu

and also the appellant Akhtar have been shown in the site

plan as being near the point 'A.' Furthermore in his crossexamination

PW 1 Baise Ali admits that there were 500 to 600

houses between his house and Sapera Guest house.

No doubt only PW 5, A.K. Singh, inspector, and PW 4,

female constable Parul Yadav have been produced in Court to

prove the discoveries of the broken bangle pieces and hair

from the Divan and "bistar" (bedding) and the floor to the

South of the "divan" where they were taken by the appellant,

which were collected and sealed and shown as Ext. Ka 14 in

the recovery memo. The prosecution has even failed to

examine the two witnesses of recovery, Nathu and Sayyar Ali,

(who signed the recovery memo along with the appellant). but

the I.O., PW 5 A.K. Singh has proved the discovery of the room

at the instance of the appellant where the broken bangles and

hair of the deceased were lying. The recovery memo also

bears the signatures of the I.O., PW 5 A.K. Singh and the

appellant (along with the two non-produced witnesses).

We also think that it would be wrong not to place reliance

on the testimony of the the Police witnesses PW 5 AK Singh, or

PW 4 Constable Parul Yadav, who have proved the inquest

report and the recoveries only because the independent

prosecution witnesses of recovery have not been examined.

Though no doubt it would have been better, if the trial Court

had made efforts for examining the independent recovery

witnesses, Nathu and Sayyar, but merely in view of their nonexamination,

the testimony of the police witnesses who have

proved the recovery ought not to be discarded. The Court may

presume that official and judicial acts have been regularly

performed in view of section 114 (e) of the Evidence Act,

although the requirement in law is only that statements of

police witnesses need to be scrutinized carefully before the

Court can act upon them and in appropriate cases

corroboration in material particulars may be sought. Certainly

there is no rule that police testimony must invariably be

discarded as they were interested in proving the prosecution

case.

The law on this point has thus been reiterated recently in

Gian Chand v. State of Haryana, (2013) 14 SCC 420, in

paragraph 32 at page 432 as follows :

"32. In Rohtash Kumar v. State of Haryana, (2013) 14 SCC

434 this Court considered the issue at length and after placing

reliance upon its earlier judgments came to the conclusion

that where all witnesses are from the Police Department, their

depositions must be subject to strict scrutiny. However, the

evidence of police officials cannot be discarded merely on the

ground that they belong to the police force, and are either

interested in the investigating or the prosecuting agency.

However, as far as possible the corroboration of their

evidence on material particulars should be sought. The Court

held as under:

"Thus, a witness is normally considered to be

independent, unless he springs from sources which are

likely to be tainted and this usually means that the said

witness has cause, to bear such enmity against the

accused, so as to implicate him falsely. In view of the

above, there can be no prohibition to the effect that a

policeman cannot be a witness, or that his deposition

cannot be relied upon."

(See also Paras Ram v. State of Haryana, (1992) 4 SCC 662,

Balbir Singh v. State, (1996) 11 SCC 139, Akmal Ahmad v.

State of Delhi, (1999) 3 SCC 1315, M. Prabhulal v. Directorate

of Revenue Intelligence, (2003) 8

SCC 449 and Ravindran v. Supt. of Customs, (2007) 6 SCC

410)

It is also noteworthy here that after Devinder Kumar, the

CDFD DNA expert was examined on 27.1.2014 and the fresh

313 Cr.P.C statement of the appellant was recorded, an

application was moved by the learned defence counsel on

28.1.14, purportedly under section 233 Cr.P.C, to summon

some witnesses of the recovery of the hair from between the

fingers of the deceased, or from the room in custody of the

appellant, who were signatories of the recovery memos. On

the said application an order was passed for summoning Ible

Hasan, Mukhtiyar, Natthu and Siffar as defence witnesses. On

10.2.14 one witness Ible Hasan appeared along with the I.O.

But learned defence counsel made an endorsement on the

application and order sheet on 10.2.14 that he did not want to

examine Ible Hasan. We also found that the defence counsel

had not taken steps for obtaining processes for production of

the defence witnesses. We were therefore of the view that the

disposal of the appeal would be unnecessarily held up, hence

we discharged the I.O. PW 5, Ashok Kumar Singh who was

present and issued no further production warrant for the other

witnesses. This order has not been challenged by the defence.

From the failure of the defence to examine Ible Hasan when

he appeared on 10.2.14 as a defence witness, this Court could

reasonably presume in view of section 114(g) of the Evidence

Act, that the evidence of Ible Hasan if examined, would have

been unfavourable to the defence, and that even though Ible

Hasan who was a signatory of the recovery memo (Ext. Ka 6)

of the hair found between the fingers of the deceased, had not

appeared as a witness, but it is apparent that Ible Hasan does

not appear to be prepared to give evidence favouring the

defence. In any case the defence can make no capital of the

fact that the prosecution has not examined the witnesses of

recovery, who may not have been interested in getting

embroiled in the matter, even though they had signed the

recovery memos, but who do not appear to be interested in

supporting the case of the defence either. Police witnesses as

mentioned (supra) have given evidence of the recoveries and

there is no good reason to discard their testimony.

The witness Baise Ali, PW-1 has specifically denied that

he was given information regarding the recovery of the corpse

of the deceased. He was also denied the suggestion that in

the late evening in order to get the public demonstration

ended, he was compelled to lodge the FIR as dictated by his

relation.

Likewise PW-2 Afzal has also denied the defence

suggestion that at 1.00 a.m in the night when the cadaver

was found in the jungle, then the Jaam (blockade) was ended

and after that the police got the report lodged. Also we are of

the view that if the cadaver had been found in the jungle as

was suggested by this question in cross-examination it was

not explained by the defence as to how the broken bangles

and the hair of the deceased etc. would have been recovered

from the appellant's room and how would the room, which

was the scene of the crime, been located, as the room in

question could only have been pointed out by the appellant.

Another circumstance which contradicts this suggestion

is the fact that inquest on the dead body itself commenced at

9.00 p.m and was concluded at 10.15 p.m. No suggestion was

given to the I.O PW-5 Ashok Kumar Singh or to PW-4

Constable Parul Yadav that the inquest had not been carried

out at the time alleged.

There was some cross examination of PW-2 Afzal on the

point that in the statement under section 161 Cr.P.C to the

police, he had stated that the appellant had carried the

deceased on both his hands but in his evidence in court, he

stated that the appellant had carried the deceased by her

neck and hair. Also we are not prepared to accept the

contention that the FIR was ante-timed, as even though the

accused having been apprehended by the witnesses and

public at 6.00 p.m, there was no good reason for the report

having been lodged after two hours 15 minutes at 8.15 p.m

and the said report was therefore written at the instance of

police

In Sandeep v. State of U.P., (2012) 6 SCC 107, in

paragraph 57 it has been held that minor variations in the

time of registration of the FIR cannot be considered a serious

infirmity because of some variations in the time mentioned`by

different witnesses, or even for some reasons suggesting

alteration of the time, if there was no reason to doubt the

registration of the FIR by the informant, or for holding that

there was any deliberate attempt to ante-date or ante-time

the FIR by the prosecution. In paragraph 61 it was rightly

observed in the aforesaid law report: "We have already held

that the accused miserably failed to substantiate the stand

that he was not present at the spot of occurrence whereas he

was really apprehended on the spot by the prosecution

witnesses and was brought to the police station from whom

other recoveries were made. The submission by referring to

certain insignificant facts relating to the delay in the alteration

of crime cannot be held to be so very fatal to the case of the

prosecution."

However, even if something may be said in favour of the

accused on the basis of these suggestions and arguments,

there are certain important and compelling facts in this case

which unerringly indicate the involvement of the appellant

alone in this offence and none else.

These irrefutable circumstances are as follows. If the

informant had only picked up the appellant on ground of

suspicion, there was no question of the appellant having taken

the informant and the police to the room, the keys of which

room were with his neighbour. After the room was got opened,

hair was found lying on the bed and on the floor of that room

which was collected by the I.O. This hair as per the Agra

forensic laboratory report and the D.N.A report by CDFD,

Hyderabad clearly demonstrated that the said hair was the

hair of the deceased, as it matched with the hair that PW 3 Dr.

Amit Kumar had collected at the time of autopsy. If the

appellant had not committed the crime in question, there was

no possibility of the hair of the deceased being present in the

room of his house, and to a specific question being put to the

accused in his detailed 313 Cr.P.C examination on 27.1.2014

before this Court as to how the long hair of the deceased and

pieces of her red bangles were found in the room and on the

bed therein, he simply denied that he was arrested by the

police. He maintained that the police and the photographer

had gone upstairs, but he has offered no explanation as to

how the hair, and broken pieces of bangles of the deceased

were found in the upstairs room of his house.

Most important the complicity of the appellant in this

offence is established from the DNA matching of the hair

which was collected from between the fingers of the deceased

Noor-un Nisha with the hair of the appellant which had been

cut and its sample taken on the basis of the earlier bench's

order dated 29.10.13. Notably the presence of hair in between

the fingers of the deceased was noticed even in the inquest

report, which establishes that it was taken in possession by

the police at that stage. The recovery memo of the said hair

was prepared which was marked as Exhibit Ka-11 and which

describes the said hair as black and henna coloured which

were collected in a white paper puriya. The said hair were

produced before us on 29.10.13 along with some other

samples which were collected. As the previous sample of the

hair and blood which were taken from the appellant by Dr.

R.K. Singh (who has not been examined), and the hair found

from the fingers of the deceased could not be determined to

be of the same person, and the High Court bench had also

found the bottle and seal on the sample of the hair and blood

collected from the appellant to be in a damaged condition, the

bench had directed that a fresh sample of the appellant's hair

be collected from him at the jail where he was lodged by the

order dated 29.10.13. This was done and the fresh sample of

the appellant's hair and sample of other materials earlier

collected were sent to the CDFD, for a DNA analysis by the

order dated 14.11.2013.

It may also be noted that initially the suggestion of the

defence to the I.O was that no hair were recovered from

between the fingers of the deceased. However there is a

somersault from this suggestion when the appellant in his 313

Cr.P.C statement before this Court on 27.1.2014, in answer to

question no.13, suggests that his hair were taken by the

police at the hospital and the police station, and at this stage

a contention has been raised by learned Counsel for the

appellant, that the hair was planted by the police between the

fingers of the deceased. This belated suggestion and

contention that the police after apprehending the appellant on

his being handed over by the informant and other witnesses,

would go to the length of getting his hair immediately cut, and

then put it between the fingers of the deceased before 9 p.m.

when the inquest started, is too far-fetched a suggestion,

which deserves to be summarily rejected.

Also again the appellant somersaults from his answer to

question no. 13, when in response to question no.33, he

states that the hair which were found between the fingers of

the deceased were not his hair. As per the D.N.A report given

by the CDFD Hyderabad laboratory however it was clear that

on DNA matching the hair found between the fingers of the

deceased and the hair taken from the head of the appellant

on the High Court's order were of the same person. As held in

Santosh Kumar Singh v. State, (2010) 9 SCC 474, that the

conclusions of the DNA report cannot be doubted and must be

accepted as scientifically accurate as DNA finger printing is an

exact science. In Santosh the trial Court had not relied on the

DNA report and held that the vaginal swabs and slides and the

blood sample of the accused had been tampered with, and

had relied on some text books for this purpose. The High

Court and the Supreme Court however held that there was no

reliable evidence for suggesting that the sample had been

tampered with, and even criticized the trial Court for relying

on text books which were not put to the expert.

Recently the same position regarding the value of the

DNA profiling has been reiterated in Dharam Deo Yadav v.

State of U.P.,(2014) 5 SCC 509, wherein, modern forensic

techniques for criminal investigations such as DNA profiling

have been lauded, because of reliable witnesses failing to give

testimony, or turning hostile due to intimidation, though it is

conceded that the DNA testing may in a particular case not be

cent percent accurate, as that would depend on the quality of

the analysis and whether the sample collected was kept free

from contamination. Thus the law report observes in

paragraph 30:

"30. The criminal justice system in this country is at

crossroads. Many a times, reliable, trustworthy, credible

witnesses to the crime seldom come forward to depose before

the court and even the hardened criminals get away from the

clutches of law. Even the reliable witnesses for the

prosecution turn hostile due to intimidation, fear and host of

other reasons. The investigating agency has, therefore, to

look for other ways and means to improve the quality of

investigation, which can only be through the collection of

scientific evidence. In this age of science, we have to build

legal foundations that are sound in science as well as in law.

Practices and principles that served in the past, now people

think, must give way to innovative and creative methods, if

we want to save our criminal justice system. Emerging new

types of crimes and their level of sophistication, the

traditional methods and tools have become outdated, hence

the necessity to strengthen the forensic science for crime

detection. Oral evidence depends on several facts, like power

of observation, humiliation, external influence, forgetfulness,

etc. whereas forensic evidence is free from those infirmities.

Judiciary should also be equipped to understand and deal with

such scientific materials. Constant interaction of Judges with

scientists, engineers would promote and widen their

knowledge to deal with such scientific evidence and to

effectively deal with criminal cases based on scientific

evidence. We are not advocating that, in all cases, the

scientific evidence is the sure test, but only emphasising the

necessity of promoting scientific evidence also to detect and

prove crimes over and above the other evidence."

In the aforesaid law report where the skeleton of the

deceased a female from New Zealand was exhumed from the

house of the appellant after a year of its burial there on the

pointing out of the appellant and all the skin had even

disappeared by then, it was observed that as the humerus and

femur bones corresponded biologically with the blood sample

of her father, it was held sufficient for establishing the identity

of the deceased, looking to the specialized skill of the DNA

analysts and the laboratory (CDFD, Hyderabad), which had

carried out the DNA analysis in that case. In the present case

also the DNA analysis was carried out by the same CDFD,

Hyderabad on our orders, and no reasons were suggested by

the learned counsel for the appellant for showing why the

report could not be relied upon.

With this DNA affirmation that the hair of the appellant

was the same as the hair found between the fingers of the

deceased, this identify cannot be explained on the

contradictory stances on this aspect in the defence

suggestions to witnesses and in his answers given to the

questions put under section 313 Cr.P.C. statements before the

lower Court and this Court.

The other factor which is also unexplained by the

defence is as to how the hair of the deceased would have

been present in the appellant's top floor room whose keys

were provided by the appellant to the police. It would again be

too far-fetched to suggest that the police might have cut the

hair of the deceased and placed it in the room and on the bed

(divan). Cumulatively these two circumstances, i.e. the

presence of the hair and the broken red bangles of the

deceased in the appellant's room and on the bed therein,

which was got opened by the appellant, and the presence of

the hair of the deceased between the fingers of the deceased,

which indicate a possible struggle by the deceased who may

have pulled his hair to save herself are overwhelming in

nature which establish the involvement of the appellant in this

offence in a clinching manner.

We should also keep in mind that when the incident took

place, the appellant was not even known to the informant PW29

1 and the other witness Afzal and the informant states that he

did not even know his name from before, nor even his father's

name. Hence clearly the appellant had not been picked up on

account of any enmity. In fact there was no reason for the

false implication of the appellant. These are all reasons for

concluding that the recovery of the hair of the deceased and

her broken bangles from the appellant's upstairs room, and

also the appellant's hair from between the fingers of the

deceased were genuine recoveries, and which in conjunction

with the CFL and DNA examinations, regarding which the

appellant could offer no satisfactory explanation, clearly

establish the complicity of the appellant in this crime, and are

sufficient for dispelling any iota of doubt, which have been

raised on the bases of the basis of some minor contradictions

and suggestions given by the deceased that the FIR was

lodged belatedly at 8.15 p.m., when the appellant after being

arrested was handed over to the police at about 6 p.m., and

thus was a product of police advice, or some suggestions

about a loudspeaker information having been circulated about

the deceased girl having gone missing in the evening or about

the road block by the agitating public, which continued till late

at night. It has been rightly observed in State of U.P. v.

Krishna Master and others, (2010) 12 SCC 324 and State of

U.P. v. Anil Singh, 1988 Supp SCC 686 that if the evidence

read as a whole has a ring of truth, then discrepancies,

inconsistencies, infirmities or deficiencies of a minor nature

not touching the core of the case cannot be a ground for

rejecting the evidence. The contentions of the defence can

therefore not displace the inferences that are to be drawn

from the strong material incriminating circumstances that

have been elicited in this case for connecting the appellant

with the crime.

We are therefore left without a scintilla of doubt

regarding the complicity of the appellant in this offence and

that the appellant and the appellant alone could have

committed this crime, on all the criteria for judging a case on

the basis of circumstantial evidence.

Question of Appropriate sentence and imposition

of life imprisonment to run for the appellant's

whole natural life in place of death sentence

The final question for consideration in this case is

whether it would be appropriate to confirm the sentence of

death awarded to the appellant or whether a sentence of life

imprisonment would be more appropriate in the

circumstances.

The Constitutional bench decision, Bachan Singh vs.

State of Punjab, (1980) 2 SCC 684 which was even cited by

the trial judge, the Apex Court has enjoined giving importance

to the antecedents of the prisoner, apart from the gravity of

the crime, for reaching the conclusion whether only a death

sentence was appropriate. One important mitigating

circumstance to be taken into account was whether the

accused had a previous criminal history, or whether there was

any material to suggest that his reform was wholly improbable

and that he was likely to commit such crimes in the future.

However except referring to the sensational and dastardly

nature of the crime, the trial judge does not appear to have

considered these factors.

In somewhat similar circumstances, in Amit v State of

U.P., (2012) 4 SCC 107, where a 3 year old girl had been

murdered by a 28 year old man, the Court converted a

sentence of death to a sentence of life imprisonment, to run

for the whole life of the prisoner, as he had no criminal

antecedents, and it was not likely that the accused would

repeat the offence. Thus it was mentioned in the decision in

para 22:

"In the present case also, we find that when the

appellant committed the offence he was a young person

aged about 28 years only. There is no evidence to show

that he had committed the offences of kidnapping, rape or

murder on any earlier occasion. There is nothing on

evidence to suggest that he is likely to repeat similar

crimes in future. On the other hand, given a chance he may

reform over a period of years. Hence, following the

judgment of the three-Judge Bench in Rameshbhai

Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC

764 we convert the death sentence awarded to the

appellant to imprisonment for life and direct that the life

sentence of the appellant will extend to his full life subject

to any remission or commutation at the instance of the

Government for good and sufficient reasons."

In Raju v State of Haryana, (2001) 9 SCC 50, the

appellant had committed the rape and murder of the 11 year

old deceased after enticing her with toffees. On his arrest, his

shirt and and pant had bloodstains and his underwear had

blood and seminal stains. The accused gave no explanation of

the blood stains. The Supreme Court held that the as the

appellant appeared to have acted without premeditation in

giving two brick blows to the deceased after she threatened to

expose him, and had no criminal antecedents, and it could not

be concluded that he would be a danger to society, the

sentence of death awarded by the Courts below be commuted

to a sentence of imprisonment for life.

In Amrit Singh v. State of Punjab, (2006) 12 SCC 79,

where a 6 or 7 year old child was raped and murdered by the

31 year old accused, the Apex Court had converted the

sentence of death to life imprisonment holding that this was

not the rarest of rare case and the crime may have been

committed because of a momentary lapse, on part of the the

accused on the seeing the girl at a secluded place, and the

deceased may have been gagged inadvertently, without any

intention to kill her. Paragraphs 21 and 22 of the law report

read:

"21. The opinion of the learned trial Judge as also the

High Court that the appellant being aged about 31 years

and not suffering from any disease, was in a dominating

position and might have got her mouth gagged cannot be

held to be irrelevant. Some marks of violence not only on

the neck but also on her mouth were found. Submission of

Mr. Agarwal, however, that the appellant might not have an

intention to kill the deceased, thus, may have some force.

The death occurred not as a result of strangulation but

because of excessive bleeding. The deceased had bleed

half a litre of blood. Dr Reshamchand Singh, PW 1 did not

state that injury on the neck could have contributed to her

death. The death occurred, therefore, as a consequence of

and not because of any specific overt act on the part of the

appellant.

22. Imposition of death penalty in a case of this nature, in

our opinion, was, thus, improper. Even otherwise, it cannot

be said to be a rarest of rare cases. The manner in which

the deceased was raped may be brutal but it could have

been a momentary lapse on the part of the appellant,

seeing a lonely girl at a secluded place. He had no

premeditation for commission of the offence. The offence

may look heinous, but under no circumstances, can it be

said to be a rarest of rare cases."

In Rameshbhai Chandubhai Rathod (2) v. State of Gujarat,

(2011) 2 SCC 764 there was a difference of opinion of the

two Judges who had heard the case on the sentence to be

awarded. Accordingly the matter was referred to a larger

Bench which observed that as the accused was about 27

years of age who had raped and killed a child studying in a

school in Class IV, but as there was no finding regarding the

possible reformation and rehabilitation of the appellant and

the possibility of his becoming a useful member of society

on being given the opportunity, hence the proper course in

the case would be to substitute the sentence of death with

a sentence of imprisonment for life subject to remissions

and commutation at the instance of the Government for

good and sufficient reasons. Paragraphs 9 and 10 of the law

report at SCC page 767, read as follows:

"9. Both the Hon'ble Judges have relied extensively on

Dhananjoy Chatterjee case,(1994) 2 SCC 220 . In this

case the death sentence had been awarded by the trial

court on similar facts and confirmed by the Calcutta High

Court and the appeal too dismissed by this Court leading

to the execution of the accused. Ganguly, J. has,

however, drawn a distinction on the facts of that case

and the present one and held that as the appellant was a

young man, only 27 years of age, it was obligatory on

the trial court to have given a finding as to a possible

rehabilitation and reformation and the possibility that he

could still become a useful member of society in case he

was given a chance to do so.

10. We are, therefore, of the opinion that in the light of

the findings recorded by Ganguly, J. it would not be

proper to maintain the death sentence on the appellant."

Both the Hon'ble Judges have relied extensively on

Dhananjoy Chatterjee case,(1994) 2 SCC 220 . In this

case the death sentence had been awarded by the trial

court on similar facts and confirmed by the Calcutta High

Court and the appeal too dismissed by this Court leading

to the execution of the accused. Ganguly, J. has,

however, drawn a distinction on the facts of that case

and the present one and held that as the appellant was a

young man, only 27 years of age, it was obligatory on

the trial court to have given a finding as to a possible

rehabilitation and reformation and the possibility that he

could still become a useful member of society in case he

was given a chance to do so."

In Akhtar v. State of U.P., (1999) 6 SCC 60, for the rape and

murder by gagging of a young girl, who the appellant came

across at a lonely place, the sentence of death awarded to the

accused was converted to one of life imprisonment and it was

observed in paragraph 3 at SCC pp. 62-63:

"3. ... But in the case in hand on examining the evidence

of the three witnesses it appears to us that the appellantaccused

has committed the murder of the deceased girl not

intentionally and with any premeditation. On the other

hand the appellant-accused found a young girl alone in a

lonely place, picked her up for committing rape; while

committing rape and in the process by way of gagging the

girl has died. The medical evidence also indicates that the

death is on account of asphyxia. In the circumstances we

are of the considered opinion that the case in hand cannot

be held to be one of the rarest of rare cases justifying the

punishment of death."

In Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC 28,

where the 30 year old accused had raped and killed a oneand-

a-half year old child, even after describing the crime as

heinous, and that the appellant had no control over his carnal

desires, the Apex Court had converted the death penalty to

one of imprisonment for life holding that a humanist approach

needed to be followed and it could not be held that the

appellant was such a dangerous person who would endanger

the community. It was held at page 40 of SCC para 25:

"25. Coming to the case in hand, the crime committed is

undoubtedly serious and heinous and the conduct of the

appellant is reprehensible. It reveals a dirty and perverted

mind of a human being who has no control over his carnal

desires. Then the question is: whether the case can be

classified as of a ''rarest of rare' category justifying the

severest punishment of death. Treating the case on the

touchstone of the guidelines laid down in Bachan Singh,

(1980) 2 SCC 684, Machhi Singh, (1983) 3 SCC 470 and

other decisions and balancing the aggravating and

mitigating circumstances emerging from the evidence on

record, we are not persuaded to accept that the case can

be appropriately called one of the ''rarest of rare cases'

deserving death penalty. We find it difficult to hold that the

appellant is such a dangerous person that to spare his life

will endanger the community. We are also not satisfied that

the circumstances of the crime are such that there is no

alternative but to impose death sentence even after

according maximum weightage to the mitigating

circumstances in favour of the offender. It is our considered

view that the case is one in which a humanist approach

should be taken in the matter of awarding punishment."

In Surendra Pal Shivbalakpal v. State of Gujarat, (2005) 3

SCC 127 which was a case where an impecunious 36 year old

U.P. migrant labourer had raped a young girl after being

rebuffed by her mother for demanding sexual favours, in

which the death penalty awarded to the accused was

converted to life imprisonment as there was no material for

showing that the appellant was involved in any other case or

that he would be a menace to society. In para 13 it was held

(SCC p. 131):

"13. The next question that arises for consideration is

whether this is a ''rarest of rare case'; we do not think that

this is a ''rarest of rare case' in which death penalty should

be imposed on the appellant. The appellant was aged 36

years at the time of the occurrence and there is no

evidence that the appellant had been involved in any other

criminal case previously and the appellant was a migrant

labourer from U.P. and was living in impecunious

circumstances and it cannot be said that he would be a

menace to society in future and no materials are placed

before us to draw such a conclusion. We do not think that

the death penalty was warranted in this case."

Learned G.A. on the other hand in his written arguments

placed reliance on Mohd. Mannan v State of Bihar, (2011) 5

SCC 317, Rajendra Prahladrao Vasnik v. State of Maharashtra,

(2012) 4 SCC 37, and Bantu v. State of U.P., (2008) 11 SCC

113, where the Apex Court has held that on balancing the

aggravating with the mitigating circumstances, the only

punishment that would suffice in those cases looking to the

brutality of the crimes, was a sentence of death.

In Mohd. Mannan, a 7 year old girl had been done to

death by a 43 year old mason who was working in the house.

He had sent the victim child to buy betel to a shop after

winning her trust. He thereafter followed her to the shop, and

took her away on a bicycle to a lonely spot, where he

murdered her after causing various injuries to her for

satisfying his lust. None suspected his evil designs, as the

victim was a thin unattractive girl barely four feet in height.

The Apex Court noticed the brutality of the crime and

considered the appellant a menace incapable of reform.

In Rajendra Prahladrao Vasnik a 3 year old girl had been

lured away on the pretext of buying her biscuits away by a 31

year old man with a false identity who had and won the trust

of a poor family. Thereafter the girl had been brutally raped,

and there were bleeding injures on her nose and mouth, and

on her private parts. There were even bite marks on her chest.

The deceased was then left in a naked condition in an open

field.

Bantu was a case where the appellant had taken away

the 5 year old deceased Vaishali with him on the pretext of

getting her a balloon. He had later been caught in a naked

condition inserting a stem/ stick 33 cms into the fragile vagina

of the dead body for masquerading the case as one of an

accident. Looking to the abominable nature of of the crime the

bench had confirmed the sentence of death awarded to Bantu.

It is apparent that the facts and circumstances of each of

these cases is quite different. In these cases evidence was led

that after winning the trust of the victim or her family a minor

girl had been lured, raped and then done to death by a wily

assailant after some cold blooded planning. In the present

case it it possible that the appellant came upon the victim girl

all of a sudden, and probably after losing control over his

senses, he may have committed the dastardly crime. After

which he tried to hurriedly conceal the offence by trying to get

rid of the body from his house, in which endeavour he was

unsuccessful.

In a recent decision of the Apex Court, Shankar Kisanrao

Khade v State of Maharashtra, (2013) 5 SCC 546, its earlier

decision in Sangeet v. State of Haryana, (2013) 2 SCC 452,

was reiterated and it was observed that the appropriateness

of the "balancing test" of balancing the aggravating and

mitigating circumstances, the aggravating circumstances

being the circumstances of the crime, and the mitigating

circumstances being the circumstances of the criminal needed

to be reconsidered, as these distinct and unrelated factors

could not be put on the same scale. Hon'ble K.S.P.

Radhakrishnan J in his opinion in Shankar Kisanrao Khade

noted that even where the aggravating circumstances were

extremely grave, only if the mitigating circumstances relating

to the accused were zero percent, i.e. there was complete

absence of any circumstance favourable to the accused

personally with regard to his antecedents, could the case be

considered one where the death penalty might be justified.

Even then it needed to be considered whether it was the

rarest of rare case where only a death penalty was

appropriate. In Shankar Kisanrao, the 52 year old appellant

had enticed a 12 year old moderately intellectually challenged

girl living with her grandmother, and then repeatedly

sodomized and raped her before strangulating her. However

as the appellant had only been earlier implicated for the

murder of his wife and also in a case under section 380/ 457

IPC, but was not convicted in those cases, hence the Apex

Court considered the High Court allegation against the

appellant of having criminal antecedents not to have been

established, and the case in hand was therefore not

considered the rarest of rare cases for award of the death

penalty. Justice Radhakrishnan in paragraphs 37,38 and 39 of

the law report specifically faulted the judgements in Mohd.

Mannan, Rajendra Prahladrao Vasnik and Bantu for applying

the "balancing test."

In his separate opinion Justice Madan B. Lokur has

observed in paragraph 123 of the law report, that the

possibility of reform or rehabilitation of the appellant was not

ruled out by any expert evidence in Mohd. Mannan, unlike

some other cases the conviction being based only on

circumstantial evidence was not held to be a mitigating factor.

In the aforesaid background we are of the opinion that

this is not the rarest of rare cases, where the special reasons

exist for only awarding the death penalty and where the other

option of awarding a sentence of imprisonment for life is

unquestionably foreclosed.

In Shankar Kisanrao Khade the Apex Court had directed

that the life sentence (after commutation of the death

penalty) for murder and the life sentence for rape and the

sentences under other provisions run consecutively and not

concurrently. However, we see some difficulties in making the

sentences run consecutively and not concurrently, as under

section 386(b)(iii) Cr.P.C. it is clarified that whereas in an

appeal from conviction, the nature and extent of the sentence

may be altered, "but not so as to enhance the same."

In another similar case of rape and murder of an

eighteen year old girl, by a young painter working in the

house, who was suddenly overwhelmed by a sense of lust,

and who after committing the murder tried to conceal the

corpse in a trunk in the house, this Court in Sanjay Kumar v

State of U.P., (2012) 77 ACC 65 after relying on the decisions

in Ramraj v State of Chattisgarh, (2010) 1 SCC 573, Mulla v

State of U.P, (2010) 3 SCC 508, and Rameshbhai Chandubhai

Rathod (2) v State of Gujarat (2011) 2 SCC 764, had

commuted the sentence of death, to a sentence of

imprisonment for life for the remainder of the appellant's life

subject to the clemency powers of the President or Governor

under Articles 72 or 161 or the State's powers of remission

under the relevant statute. In an appeal preferred against the

said judgment in State of U.P. v Sanjay Kumar, reported in

(2012) 8 ACC 537, the Apex Court after reviewing the case

law on the point, had regarded this approach of the High

Court as finding an appropriate via media, for situations where

the Court may be loath to impose a sentence of death for any

extenuating circumstances, and yet may feel that the routine

sentence for life which in practice works out to a sentence of

14 years or 20 years in view of guidelines framed by the State

was grossly inadequate or disproportionately small. For such

offences, the sentencing or the Appellate Court for

proportionate sentencing whilst doing away with the death

sentence in a particular case, could impose a sentence even

extending for the prisoner's entire remaining natural life, or

for a fixed term over and above the mandatory 14 years

actual jail term under section 433 A Cr.P.C, subject to the

State retaining its powers of exercise of clemency or for

granting remission, in a bona fide and non-arbitrary and

objective manner.

That a minimum sentence for the prisoner's whole life or

for a fixed number of years over and above the statutory

minimum of 14 years can be prescribed by the Court before

the accused is entitled to the benefit of the powers of

remission to be exercised by the government and the

concerned authorities under the appropriate statutory

provisions, has been held to be valid by the three judge

decision in Swamy Shraddananda v. State of Karnataka,

(2008) 13 SCC 767. Recently Sahib Hussain v. State of

Rajasthan, (2013) 9 SCC 778 has held the view of the two

judge decision in Sangeet v. State of Haryana (2013) 2 SCC

452 to be per incuriam on the point where it had adversely

commented on the view of the larger bench in Swamy

Shraddananda (2), regarding the permissibility of prescribing

a minimum sentence in life imprisonment matters without

referring the case to the Chief Justice for constituting a larger

bench. This view in Sahib Hussain is in accord with the view

expressed in the Constitutional bench decision in Central

Board of Dawoodi Bohra Community v. State of Maharashtra,

(2005) 2 SCC 673 on the inappropriateness of a smaller bench

doubting the correctness of a larger bench decision without

referring the matter to the Chief Justice for constituting a

bench larger than the bench which has expressed the opinion

which was being doubted.

On these considerations we are of the view that the

judgement of the trial judge convicting the appellant as above

be upheld. However the death sentence awarded to the

appellant under section 302 IPC is commuted to a sentence of

imprisonment for life, which is to run for the remainder of the

appellant's natural life, subject to a bona fide exercise of the

clemency powers of the President or Governor or the powers

of remission of the State under the appropriate statutory

provisions. The remaining sentences awarded by the trial

Court are upheld.

Adverse comments on manner of investigation

and trial

Before parting however we must express our unease with

the casual manner in which the investigation and trial in this

case has been conducted.

No doubt this Court relying on the observations in Zahira

Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374,

recommending to Courts not to act as mute spectators and

mere recording machines, this Court had in the interest of of

justice for the accused, victim and society acted proactively

and called for and examined the samples of hair of the

deceased and appellant and other materials collected in this

case on 29.10.13 which were thereafter sent to the C.D.F.D.,

Hyderabad for DNA analysis. As mentioned above, according

to the DNA report the hair of the deceased, which was cut by

the doctor conducting the post mortem examination, was of

the same person whose hair was found in the room and bed in

possession of the appellant Also the hair, which was taken

from between the fingers of the deceased matched with the

hair of the appellant, which has been cut in jail on the orders

of this Court. The said material as we have shown above has

gone a long way for establishing the complicity of the

appellant in this offence. However, we find gross negligence in

the I.O. and ineptitude on part of the the trial Court in not

themselves sending the hair samples, which were collected at

the place of occurrence and from the deceased, for D.N.A.

examination which were crucial for establishing the complicity

of the appellant in this offence. We also see negligence on

part of the the I.O. in not examining Dr. R.K. Singh, who had

initially taken the hair samples and blood sample of the

appellant and also in not keeping the sample in a proper

condition causing us to find that the seal and bottle of the

sample were damaged. We had therefore directed that fresh

sample of hair of the appellants be cut and collected in the jail

where he was lodged by the order dated 29.10.13. It is also a

source of anxiety to us that in a case of such gravity as the

present case, the Investigating Officer has only examined two

witnesses of fact viz. P.W. 1 Baise Ali and P.W. 2 Afzal and

only three other witnesses P.W. 3 Dr. Amit Kumar, P.W. 4

Constable Parul Yadav and himself PW 5 S.I. Ashok Kumar

Singh.

We must state categorically that this is not the manner

to prove a charge of rape and murder of a 12 year old girl,

and actually if we had not ourselves sent the samples of hair

of the deceased and the hair found at the place of incident

which had been collected and got a fresh sample of the hair of

the appellant cut and got the same sent for DNA matching to

th the CDFD, Hyderabad, the order of conviction may have

suffered from some infirmities in view of the improbabilities

alluded to by the learned counsel for the appellant, and there

was a risk that such a grave case of rape and murder a 12

year old girl may have resulted in undeserved acquittal,

eroding the confidence of the victim and the public in our

system of justice.

It may be noted that this Court has earlier also adversely

commented against negligent investigations in cases of rape

and murder of minor girls, viz. Criminal Capital Appeal (Jail)

No. 2531 of 2010], Bhairo vs. State of U.P. and Chhotu @ Ajay

vs. State of U.P., Capital Case No. 863 of 2011 which had

ended in unwarranted acquittals because D.N.A. samples were

not collected or the accused not subjected to medical

examination or where witnesses did not appear or support the

accused after being won over, and other grave lacunae were

inadvertently or designedly left by inept or dishonest

investigations. This Court had issued directions in those cases

to the Director General of Police, U.P. to improve the process

of investigations, especially in cases of rape and murder of

minor girls. which have been reiterated in the on-going

Criminal Writ Petition - Public interest Litigation No. 1797 of

2011, Qasim Vs. State of U.P., where this Court has been

taking steps and issuing directions for improving the

techniques and procedure for investigations in the State of

U.P.

We may mention that in the case of Dayal Singh vs.

State of Uttaranchal, 2012 (8) SCC, 263, where the deceased

and injured were said to have been assaulted with lathies, but

it appeared that the doctor conducting the post mortem

examination and the Investigating Officer had colluded with

the accused and no blunt object injury had been shown on the

deceased in the postmortem report. Also although the viscera

of the deceased was preserved for sending to the Forensic

Science Laboratory, it deliberately appeared not to have been

sent. The Apex Court noted with approval that the trial Court

and High Court relying on the evidence of the eyewitnesses in

preference to the medical report had held the accused guilty.

The trial Court had even recommended action against the

doctor and the police officer to the Director General (Health)

and DGP. The Apex Court even initiated contempt proceedings

against the Director General Health Services of U.P. /

Uttarakhand and Director General of Police, U.P./ Uttarakhand

under the provisions of the Contempt of Court Act for not

complying with the directions of the trial Court and in failing to

take action against the errant Medical Officer and

Investigating Officer for dereliction of their duties and also

directed that disciplinary proceedings be initiated against

them. It was further clarified that in case the I.O. and the

Medical officer had retired, action could be taken against

them even by withdrawal of their pensions. It was further

observed in Dayal Singh (supra) that " if primacy is given to

such designed or negligent investigations, omission and lapse

by perfunctory investigation or omissions, the faith and

confidence of the people would be shaken not only in the

enforcement agency, but also in the administration of justice."

We are also disturbed by the manner, in which the trial

Judge has recorded the 313 Cr. P. C. statement, which only

consisted of six questions compositely putting the case, the

witnesses and documents to the accused and simply

questioning him as to why he was prosecuted and whether he

had anything else to say or defence to lead, instead of seeking

the explanation of the accused on each of the incriminating

circumstances which appeared against him in the evidence on

record, which is the requirement of law.

We were therefore constrained to re-frame detailed

questions against the accused with the assistance of the

learned G.A. on all the existing incriminating circumstances on

the record, in addition to the further specific questions which

were framed regarding the DNA analysis and other co-related

material when the accused was re-examined under section

313 Cr.P.C by this Court on 27.1.14.

Direction issued to concerned authorities for

improving investigations and trials in rape and

murder cases

We therefore find it imperative to issue the following

directions:-

(1) That in cases of rape and murder of minor girls,

which are based on circumstantial evidence, as far as

possible, material which is collected from the deceased

or the accused for example hair or blood of the victim or

the accused, which is found on the persons or clothes of

the victim or the accused or or at the spot, seminal

stains of the accused on the clothes or body of the

victim, Seminal swabs which may be collected from the

vaginal or other orifices of the victim and the blood and

other materials extracted from the accused which

constitutes the control sample should be sent for D.N.A.

Analysis, for ensuring that forensic evidence for

establishing the participation of the accused in the crime,

is available.

(2) We also direct the Director General Medical Health

U.P., Principal Secretary Health, U.P., and D.G.P., U.P. to

mandate sending the accused for medical examination in

each case for ascertaining whether he has any injuries

caused by the resisting victim, or when he attempts to

cause harm to her as is provided under section 53 A of

the Code of Criminal Procedure Code, which was

introduced by Act 25 of 2005, (w.e.f 23.6.2006). In

particular if the rape suspect is apprehended at an early

date after the crime, it should be made compulsory to

take both dry and wet swabs from the penis, urinary

tract, skin of scrotum or other hidden or visible regions,

after thorough examination for ascertaining the presence

of vaginal epithelia or other female discharges which are

also a good source for isolating the victim's DNA and

necessary specialized trainings be imparted to the

examining forensic medical practitioners for this purpose.

(3) We direct the Principal Secretary (Health), U.P.,

Director General (Health and Medical Services) U.P. to

prohibit conducting the finger insertion test on rape

survivors, and to employ modern gadget based or other

techniques for ascertaining whether the victim has been

subjected to forcible or normal intercourse. These finger

insertion tests in female orifices without the victim's

consent have been held to be degrading, violative of her

mental and physical integrity and dignity and right to

privacy and are re-traumatizing for the rape victim.

Relying on the International Covenant on Economic,

Social, and Cultural Rights, 1966 and the United Nations

Declaration of Basic Principles of Justice for Victims of

Crime and Abuse of Power, 1985 it was further held in

Lillu v. State of Haryana, (2013) 14 SCC 643 that no

presumption of consent could be drawn ipso facto on the

strength of an affirmative report based on the

unwarranted two fingers test.

(4) We find that there is absence of an adequately

equipped D.N.A. Laboratory in U.P. which has advanced

mitochondrial DNA analysis facilities, comparable to the

CDFD, Hyderabad, (from where we were able to obtain

positive results in this case, after unsuccessful DNA

matching in an earlier case [Criminal Capital Appeal (Jail)

No. 2531 of 2010], Bhairo vs. State of U.P.(decided on

6.9.11) where this Court had sent the sample of vaginal

smear slides and swabs and appellant's underwear to the

U.P. DNA laboratory, viz. Forensic Science Laboratory,

Agra), and we direct that such a DNA centre comparable

to the CDFD be established in the State of U.P. at the

earliest so that Courts and investigating agencies are not

compelled to send DNA samples at high costs to the

specialized facility of the CDFD at Hyderabad.

(5) The Director General of Prosecution, U.P., the

Director General of Police U.P. and Director General

Medical Health should ensure that blind cases of rape

and murder of minor girls or other complicated cases are

thoroughly investigated by efficient Investigating

Officers. Effective steps should be taken for forensic

investigations by collecting and promptly sending for

DNA analysis all possible incriminating material collected

from the deceased, victim, accused, and at the scene of

the crime etc. which may give information about the

identity of the accused and his involvement in the crime,

after taking precautions for preventing the contamination

of the material. This is necessary to prevent Courts being

rendered helpless because the prosecution and

investigating agency are lax in producing witnesses or

because witnesses have been won over or are reluctant

to depose in Court. Steps should also be taken for

preventing witnesses from turning hostile, by

prosecuting such witnesses, and even by cancelling bails

of accused where they have secured bails where it is

apparent that efforts are being made to win over

witnesses and by providing witnesses with protection

where ever necessary so that they can give evidence in

Court without fear or pressure. In case there is reason to

think that the Investigating Officers or medical officers or

others have colluded with the accused, strict action be

initiated against the colluding officials as was

recommended in the case of Dayal Singh vs. State of

Uttaranchal (supra). It is necessary that policies and

protocols be developed by the DGP, U.P., Principal

Secretary Health, Director Medical Health U.P., Director

of Prosecutions, U.P., for the aforesaid purposes.

(6) The JTRI, Lucknow must ensure that proper training

is given to Judicial Officers on framing proper questions

for 313 Cr. P. C. examination, so that the entire

circumstances of the case are put to the accused and

they cannot claim the benefit of being inadequately

questioned about the incriminating circumstances of the

case

Copies of this order should also be placed on the record

in the case of Qasim v. State of U.P., Criminal Writ Petition -

Public interest Litigation No. 1797 of 2011 We also direct the

Registry to forthwith forward this order to the respondents

above mentioned who are to submit a compliance report of

these directions in the on-going PIL, Qasim (supra) within 4

weeks.

Subject to the aforesaid observations modifying the

sentence and issuing directions as above this Appeal stands

dismissed.

The Reference for confirming the death sentence is also

rejected.

The Registry is directed to circulate copies of this

judgement to all District Judges for ensuring compliance of the

direction herein above.

Date: 28.8.2014

sfa/