Chandan vs State Of U.P.
2022 Latest Caselaw 21567 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED 
 
AFR
 
Court No. - 29
 
Connected with Reference No.3 of 2021
 
Case :- CAPITAL CASES No. - 4 of 2021
 

 
Appellant :- Chandan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail, Shweta Singh Rana, Vinay Saran (Senior Adv.) (A.C.)
 
Counsel for Respondent :- G.A., 
 

 
Hon'ble Manoj Misra,J.

Hon'ble Sameer Jain,J.

(Delivered by Manoj Misra, J.)

1. By the impugned judgment and order dated 18.01.2021 /20.01.2021 passed by Special Judge (Pocso Act)/ Additional District and Sessions Judge, Ghaziabad in Case No.313 of 2020, arising out of Case Crime No.1470 of 2020, P.S. Kavi Nagar, District Ghaziabad, the appellant has been convicted under Sections 302, 376-A, 376-AB, 201 IPC and Section 5(i)(M)/6(1) of Protection of Children from Sexual Offences Act (Pocso Act) and as the offences punishable under Sections 376-A, 376-AB IPC and Section 5(i)(m)/ 6(1) of Pocso Act were offences of the same nature, upon noticing that the sentence under Section 5(i)(m)/ 6(1) of the Pocso Act is greater, in light of the provisions of Section 42 of the Pocso Act, the appellant has been punished as follows:- (i) Death penalty under Section 5(i)(m)/6(1) of Pocso Act; (ii) Imprisonment for life as well as fine of Rs. 1,00,000/- under Section 302 IPC; Seven years R.I. as well as fine of Rs.50,000/- under Section 201 IPC, coupled with default sentence of additional one year.

2. As death penalty was awarded by the trial court, the trial court submitted a reference under section 366 of the Code of Criminal Procedure, 1973 for confirmation of death penalty, which has been registered as Reference No.3 of 2021.

3. The convicted accused requested the Jail Authorities to forward his appeal against the order of conviction and sentence, as a result whereof, the Jail Superintendent, District Jail, Ghaziabad has forwarded the appeal of the appellant vide letter dated 25.01.2021 giving rise to Capital Cases No.4 of 2021.

4. This appeal was earlier heard by a Bench comprising Pankaj Naqvi, J. and Naveen Srivastava, JJ. After hearing the counsel for the parties, on 19.07.2021 the judgment was reserved. However, instead of pronouncing the judgment, the matter was directed to be listed for further hearing and, ultimately, was directed to be put up before appropriate Bench. Thereafter we heard the matter and reserved the judgment. But before we could deliver the judgment our Bench was dissolved, consequently, the judgment could not be delivered. Whereafter, the matter was again nominated to us by order of the Chief Justice dated 24.11.2022. On 9.12.2022 we heard the matter again and reserved the judgment, which is now being delivered.

5. We have heard Sri Vinay Saran, learned Senior Counsel, as Amicus Curiae, assisted by Sri Pradeep Kumar Mishra, for the appellant; and Sri J.K. Upadhyay, learned AGA, for the State.

6. Considering the nature of the crime, we are not disclosing the name of the victim /members of her family including the witnesses of that area therefore, wherever required they have been described by a pseudo name or their witness number.

INTRODUCTORY FACTS

7. A written report (Ex. Ka-1) was submitted by PW-1 (the father of the victim) at P.S. Kavi Nagar, District Ghaziabad on 20.10.2020, at 14.34 hrs, giving rise to Case Crime No.1470 of 2020. The written report was scribed by nephew of the informant, namely, PW-3. In the written report it is alleged as follows: that the informant is a resident of Bihar; he had been residing with his wife and children in a rented accommodation in the industrial area of Kavi Nagar, District Ghaziabad, which is owned by X; that the accused-appellant, who is also a resident of Bihar, had been regularly visiting informant's house for the last 10 years; that on 19.10.2020, the informant, the accused-appellant and two others, namely, ''Y' and ''Z' were having drinks (liquor) at / near informant's house; during the course of the drinking session, the accused-appellant at about 8.00 pm went to informant's room, asked informant's wife (PW-2) to handover informant's younger daughter i.e. the victim, aged about 2½ years, and took the victim away under the pretext that he would play with her; that when the informant entered his room, his wife (PW-2) told the informant that the accused-appellant has taken the victim to play with her; that, thereafter, the entire night, along with the police, a search for the victim was made; that next day i.e. 20.10.2020, at about 12.30 hrs, information was received that dead body of the victim has been found near a drain adjoining Beer Factory Road close to RTO office. By alleging that the informant has reason to believe that the accused-appellant has raped and killed informant's daughter, the aforesaid written report was registered as a first information report (FIR).

8. After the FIR was lodged, inquest was conducted on 20.10.2020 and completed by 15.30 hrs. Inquest report (Ex. Ka-2) was prepared by S.I. Mehak Singh Baliyan (PW-6). PW-1 (the informant), PW-4 (aunt of the victim) and PW-3 (the nephew of the informant and scribe of the written report) were, inter alia, witnesses of the inquest report. The inquest report recites that the body of the victim was naked and near the body a yellow coloured frock was lying. The entire body including face and private parts disclosed marks of injuries.

9. On 20.10.2020, at about 7 pm, a team of doctors, of which PW-7 and PW-8 were part, conducted autopsy of the cadaver. The relevant features of the autopsy report (Ex. Ka-5) are as follows:-

Age: 2 ½ years.

Sex: Female.

External General Appearance

(i) General appearance: Average body found nude. Eyes congested, Nails cyanosed, Tongue clenched between teeth.

(ii) Rigor mortis present all over body.

Ante-mortem external injuries:-

(i) Abraded contusion (multiple) 12 cm x 6 cm on anterior region of neck (max: 5 cm x 1 cm, min: 1 cm x 0.5 cm). Contusion mark is 6 cm below from right ear, 4 cm below from chin and 4 cm below from left ear. On suction effusion of blood under deeper tissues is present.

(ii) Contusion 10 cm x 7 cm on left cheek.

(iii) Contusion 9 cm x 6 cm on right cheek.

(iv) Abraded contusion 2 cm x 2 cm over and above the tip of nose.

(v) Multiple abraded contusion 19 cm x 10 cm (max: 1 cm x 1 cm and min: 0.5 cm x 0.5 cm) on both side of chest just below the clavicle.

(vi) Multiple abraded contusion 35 cm x 18 cm (max 5 cm x 0.5 cm and min 0.5 cm x 0.5 cm) on back of chest and abdomen both side.

(vii) Contusion 1 cm x 1 cm anterior region of left elbow joint.

(viii) Contusion 1.5 cm x 0.5 cm right thigh inner side, 13 cm above right knee joint.

Internal examination:-

(i) Trachea congested. Tracheal ring fractured; hyoid bone fractured.

(ii) About 50 ml semi digested food present in stomach. Small Intestine: Digested food and gases. Liver: congested. Gallbladder: half full and congested.

(iii) Uterus empty swelling over vulval area. Hymen ruptured. Contusion present in inner aspect of vulval region.

(iv) Rectovaginal tearing present.

Time since death: About one day.

Cause and manner of death: Asphyxia as a result of ante-mortem throttling.

10. As per autopsy report following items were preserved for forensic examination/ DNA analysis:- (i) one frock, (ii) one tooth, (iii) one pair vaginal slide (iv) one vaginal swab, (v) one pair anal slide, (vi) and one anal swab, (vii) one pair oral slide (viii) one oral swab, (ix) nail scrape and (x) one hair present on pubic area. All items were sealed and handed over to concerned constable for spermatozoa and further examination.

11. During the course of investigation, the site plan of the place from where the body was recovered was prepared which was proved by PW-9 and exhibited as Ex. Ka-6. The index of the site plan (Ex. Ka-6) would suggest that it was an open place having access to all. It also suggests that near the place where the body was found, empty pouches of salted snacks, an empty water bottle and two one rupee coin was noticed. The index of the site plan suggests that wet soil and plain soil was lifted from there. It be noted that a seizure memo of these articles lifted from the spot was also prepared by PW-9, which was marked as Ex. Ka-7.

12. On 20.10.2020, Mehak Singh Baliya (PW-6) effected arrest of the accused from near Atma Ram Steel Underpass, Kavi Nagar. The arrest memo (Ex. Ka-4) prepared pursuant to directions issued by the Apex Court in D.K. Basu's case, reflects the date and time of arrest as 20.10.2020 and 21.50 hrs, respectively. It bears the signature of the accused and carries an acknowledgement of the arrested person (i.e. the appellant) that he was subjected to medical examination and that on the medical report, his thumb impression has been obtained and that a copy thereof has been handed over to the arrested person. This medical report of the accused-appellant is there on record as paper no.6-Ka but the doctor who examined the appellant has not been examined as a witness and is also not separately marked as an exhibit in the record of the court below. But since in the arrest memo which has been exhibited it is stated that the accused was medically examined at the time of arrest and was given the injury report we propose to notice the contents of the injury report. The injury report reflects that the medical examination of the accused-appellant was conducted on 20.10.2020 at 11.30 pm. At the time of his medical examination, the doctor noticed following injuries:-

(i) Contusion at left forearm, size 10 cm x 5 cm just above left wrist joint.

(ii) Contusion at right forearm, size 9 cm x 5 cm just above right wrist joint.

(iii) Contusion at left thigh (posterior), size 10 cm x 6 cm: 10 cm above left knee joint.

(iv) Contusion at right thigh (posterior), size 11 cm x 6 cm: 10 cm above right knee joint.

(v) Contusion at posterior of left lower leg, size 8 cm x 5 cm.

(vi) Contusion at posterior of right lower leg. Size 8 cm x 5 cm.

(vii) Contusion at left buttock, size 10 cm 5 cm.

Injuries are simple in nature caused by hard and blunt object.

It be noted that blood sample and undergarments of the accused-appellant were taken for the purposes of DNA profiling along with his oral smear, penile swab and swabs from urethral meatus, frenulum, glans, scrotum, shaft, perineum and nail clipping.

13. On 21.10.2020, the investigating officer - Nagendra Chaubey (PW-9- the I.O.) recorded the statement of the witnesses including the statement of Mehak Singh Baliyan who carried out the inquest proceeding and on 22.10.2020 the I.O. inspected the spot where the accused, the informant and others were having their drinks and prepared site plan (Ex. Ka-8). On the same day, I.O. also obtained CCTV footage from the owner of the premises and a seizure memo in respect thereof was prepared as Ex. Ka-9. On 24.10.2020, I.O. entered the postmortem report in the CD and recorded the statement of the doctors who were part of the team of doctors that carried out autopsy of the cadaver. On 26.10.2020, vide Parcha No.5, the materials collected were sent for forensic examination to FSL, Ghaziabad.

14. On 16.11.2020, the investigation of the case was assigned to Ajay Kumar Singh (PW-10). PW-10 sent reminder letters on 21.11.2020 and 01.12.2020 for providing forensic reports. On 16.12.2020, upon finding sufficient material against the accused-appellant, charge sheet (Ex. Ka-10) was submitted. On 05.01.2021, report was obtained from the Forensic Laboratory, Ghaziabad which was entered in the supplementary case diary and the report was filed in court as paper No.25-Ka/3.

15. After taking cognisance, on 24.12.2020 the Special Court, Pocso Act charged the appellant for commission of offences punishable under Sections 376-A, 376-AB, 302 and 201 IPC and Section 5(i)(M)/6(1) of the Pocso Act. The accused-appellant denied the charges and claimed trial.

PROSECUTION EVIDENCE

16. During trial, the prosecution examined 10 witnesses. Their testimony, in brief, is as under:-

17. PW-1 - the informant - father of the deceased/victim. - He stated that on 19.10.2020 he along with the accused-appellant and two others were having drinks (liquor) at the ground level near his apartment. While they were having liquor, the accused-appellant stood up, went to informant's room and took away informant's daughter under the pretext that he would be playing with her. When PW-1 went to his apartment, his wife (PW-2) informed that the accused has taken the victim to play with her. Thereafter, PW-1 along with the police searched for the victim in the night but could not find her. PW-1 stated that on 20.10.2020, at about 12.30 hrs, he got information that his daughter (the victim) is lying dead near a drain close to the R.T.O Office on the Beer factory road. He proved the written report (Ex. Ka-1).

During cross examination, PW-1 stated that they were having liquor at about 8 pm on the ground floor, below his own apartment, in the room of ''Y'; ''Y' used to stay alone in his room and his family used to reside in the village; liquor bottle was brought by the accused-appellant; it was country made liquor; PW-1 entered that room with his own liquor pouch at about 8.30 pm whereas, the accused-appellant and ''Y' were having their drinks since day time and were totally drunk but were in a position to walk. While they were having drinks, between 8.45 and 9 pm, accused-appellant stood up and went, saying that he is going to his room. When PW-1 reached his apartment at about 9.30 pm, he was informed that the accused-appellant had come and had taken the victim under the pretext that he was taking her to PW-1. PW-1 added that the accused did not bring his daughter to him. He then stated that the accused-appellant stays nearby at "Bhatia Mod" (crossing) but his family use to reside in the village and he used to stay near one of his friends about whom he has no knowledge. PW-1 added that he first met the accused-appellant in Ghaziabad and had been in touch with him for the last 10-12 years in as much as they were both from Bihar and used to work as labourers. He, however, clarified that the accused-appellant and he were not regular visitors to each other's house though, on a few occasion he had called the accused-appellant over to his house to have food.

On further cross examination, in respect of the night of the incident, PW-1 stated that after he had searched for the victim in the lanes of the area, in the night of 19.10.2020 itself, he gave written information to the police. At that time, along with him his Bhabhi, nephew, brother and sister were there. He stated that when they had lodged the report it must be about mid-night of 19/20.10.2020 whereas the body of the victim was found next day (i.e. 20.10.2020) around noon time (12 hrs).

In respect of discovery of the body of the deceased, PW-1 stated that "fn0 20 rkjh[k dks feyh FkhA esjh csVh vkjk/;k dh MsM ckMh iqfyl okykssa dks feyh FkhA iqfyl okyksa us gesa lwpuk nh Fkh tgka ij cPph dh MsM ckMh feyh Fkh ogak ij njksxk th us fy[kr i He denied the suggestion that his daughter was not killed by the accused-appellant.

18. PW-2- mother of the victim (wife of the informant). She stated that the accused-appellant had been visiting them for the last 10 years; that the accused-appellant and few others including her husband used to work for a Thekedar (i.e. contractor); her own children were well acquainted with the accused-appellant; her daughter (the deceased) used to call accused-appellant "Chacha" (uncle); the accused-appellant did not have a fixed abode; sometimes he used to stay overnight at Thekedar's place. On the date of the incident, her husband, accused-appellant and two others were having liquor; between 7.30 and 8 pm, accused-appellant came to her room and took the victim outside to play with her under the pretext that her father (i.e. the informant) had called for her; that, initially, she resisted but her daughter started playing with the accused and she got busy in her own work therefore, the accused-appellant lifted her daughter and took her away by saying that he will bring her back shortly. PW-2 stated that when she told her husband (i.e. PW-1) that the accused-appellant had told her that he was taking their daughter to PW-1, she was informed by her husband (i.e. PW-1) that the accused-appellant had not brought his daughter to him. Whereafter, they all started searching for their daughter. During the course of search, PW-1's nephew (i.e. PW-3) came and informed them that he saw accused-appellant carrying the victim on his shoulder. PW-2 stated that on the next day, the body of the deceased was found near a drain.

During cross examination, PW-2 stated that she was married seven years ago; the accused-appellant had been known to her husband for the last 10-12 years since before her marriage; the accused-appellant was a married person with two children but his wife and children were not noticed by her though, she had spoken to them over the telephone. PW-2 stated that accused-appellant's wife had complained about her husband beating her and not sending her sufficient money for expenses. PW-2 stated that she never expected that the accused-appellant could commit such a heinous crime with her daughter. In respect of the day of the incident, PW-2 stated that she was aware that the accused-appellant and her husband were having liquor together. She stated that her husband was more intoxicated than the accused-appellant at that time. She stated that initially she tried to stop accused-appellant from taking her daughter because her husband was under the influence of liquor but, later, she did not resist the accused-appellant as he was well acquainted to her husband and she believed that he would return her daughter safely. On further cross examination, she stated that she had lodged the report forthwith at the police chowki; and next day, the dead body of her daughter was found. She stated that after the body was found, papers were written at the police station and some were written at the spot and thereafter, the body was sent for autopsy. She stated that when papers were being written, her entire family was present. She again reiterated about lodging of the report on the day of the incident. Her statement in that regard is as follows:- ^^fjiksVZ ?kVuk okys fnu gh esjs }kjk djk nh x;h Fkh vxys fnu esjh csVh dh MsM ckMh ,d cts ds djhc fnu esa feyh FkhA pUnu ik.Ms dks iqfyl us jkr es ?kVuk ds ckn gh idM fy;k FkkA eSus pUnu ik.Ms ls csVh ds xk;c gksus ds ckn iwNrkN dh Fkh fd esjh csVh dgk gS rks pUnu us dqN ugha crk;k vkSj ;g dg jgk Fkk fd eSus rqEgkjh csVh dks rqEgkjs ifr ds ikl NksM fn;k FkkA pUnu esjs ifr dks Qalkus ds pDdj esa yx jgk FkkA^^

After stating as above, PW-2 stated that on the next day the police came to the house of her landlord and took the CCTV footage of the camera placed over the mobile phone shop from which it was confirmed that the accused-appellant took away her daughter. She denied the suggestion that whatever she has stated is incorrect and false and that the accused-appellant did not assault and kill her daughter.

19. PW-3 - nephew of the informant and scribe of the report. He stated that on the date of the incident while he was going to his house on his cycle, he saw the accused-appellant carrying the victim on his shoulder near Anmol Biscuit Factory. When he reached the house, he saw everybody worried and searching for the victim. PW-3 told them what he had seen. After that, they went in search of the victim. Later, the body of the victim was found near a drain. He recognised the appellant as the person who was carrying the victim and stated that he has reason to believe that it is the appellant who has committed the heinous crime. He stated that on the dictation of his uncle (the informant), he had written the written report on which his uncle has put his thumb impression. He stated that during investigation his statement was recorded by the I.O.

During cross examination, he stated that he had been knowing the accused appellant for the last 10-12 years. He also comes from the same State (i.e. Bihar) but from a different district. PW-3 stated that at the time when they went to lodge the report at the police station along with him and his uncle (PW-1), his aunt (Bua) was also there. He stated that after the body had been discovered, the report was written between 1 and 1.30 pm of 20.10.2020. PW-3 stated that the inquest papers were prepared in his presence by the Chowki Incharge and at the time when those papers were being prepared all family members were present. He stated that the I.O. recorded his statement on 21.10.2020. PW-3 also stated that his uncle (PW-1) did not use to have drinks with the accused-appellant on a daily basis but they use to drink together at least once or twice in a week. PW-3 stated that the informant (PW-1) is his real uncle (Chacha); that his aunt (Chachi) had told him that the victim was taken away by the accused-appellant; that his uncle (PW-1) never had a fight, or any kind of enmity, with the accused-appellant and that he had good relations with the accused-appellant. PW-3 denied the suggestion that because of his uncle, he scribed a false report. He also denied the suggestion that he is telling lies.

20. PW-4 - aunt of the deceased. She stated that her husband is a heart patient; on the date of the incident, she had ventured out to fetch medicine for him. She then saw the accused-appellant standing outside and playing with the victim. When she went upstairs to her room, victim's mother told her that the accused-appellant had taken the victim; PW-4 confirmed that she informed victim's mother what she had just seen i.e. the victim with the appellant. She stated that later, when they could not find the victim, a search for the victim was made. She stated that police had taken her statement and that she was a witness of the inquest report. She proved her signatures on the inquest report which was marked Ex. Ka-2.

During cross examination, she stated that her apartment and her brother's (informant's) apartment are adjacent to each other. They are both tenants of ''X'. On further questioning, she stated that the accused-appellant was arrested on 19.10.2020. She stated that she herself had caught the accused-appellant and had called the police. Though she could not remember the number at which she had called but stated that the I.O. had himself given the number to her. She stated that when she had caught the accused-appellant, he was alone and had blood on his trouser. She added that when the accused-appellant was apprehended by her, her Bhabhi (PW-2) was also there. PW-4 stated that the body of the victim was recovered by the police on the next day and papers in respect of inquest was prepared by the police in front of her. PW-4 stated that when the body was dispatched for autopsy, she had accompanied the body. She also stated that she had learnt that the accused-appellant killed his own daughter in the village and, therefore, she had warned her Bhabhi (PW-2) and brother (PW-1) about it. She also stated that she hated the accused-appellant because of his habits. She denied the suggestions that the accused-appellant did not kill her niece; that she is telling lies; and has falsely implicated the accused-appellant.

21. PW-5 - son of ''X' (the landlord). He stated that he has a mobile phone shop in the complex where the informant resides as a tenant of his father (X). The shop has a CCTV camera installed over it. In the evening of 19.10.2020, he received a call from Daroga (Sub Inspector) that he needs the CCTV footage of his shop. On the next day i.e. 20.10.2020, in the morning, at about 7.30 am, he gave the DVR of the CCTV recording to the Daroga which was played. He stated that the CCTV footage disclosed that the accused-appellant was carrying the deceased on his shoulders between 8.50 and 8.55 pm. He stated that this clip was given by him to the Daroga. He stated that video clip which he gave to the Daroga was not tampered. He stated that he had also given a certificate of the footage. The certificate given by PW-5 was marked as Ex. Ka-3.

During cross examination, PW-5 stated that the informant and his family had been residing as tenants of the accommodation for last 4-5 years and the accused-appellant had been a regular visitor of his tenants and he had seen him several times. He denied tampering the CCTV footage or the DVR. He denied the suggestion that he is telling lies.

22. PW-6 - S.I. Mehak Singh Baliya. He stated that on 20.10.2020 he was posted at P.S. Kavi Nagar. On the written report of the informant, the FIR was registered. The FIR alleged that the body of the deceased was lying on the road side near RTO office close to Beer factory. He stated that upon receipt of the information, he along with Senior Inspector, constable and lady constable along with Inquest register and other papers left to go to the spot. At the spot, he saw the body of the deceased. The body was examined by a lady constable and after appointing inquest witnesses, the inquest proceedings were completed. On the same day i.e. 20.10.2020, at about 23.00 hrs (Note: arrest memo reflects time of arrest as 21.50 hrs), he along with his police team arrested the accused-appellant near Atma Ram Steel Underpass. After his arrest, he got the arrest memo prepared, which was marked Ex. Ka-4. He also proved his signature on the inquest report as also the signature of PW-4 thereon.

During cross examination, PW-6 stated that at the time of inquest the family members of the informant were present and amongst those, informant's sister (PW-4), informant's nephew (PW-3), informant's relative (not examined) and informant's neighbour (not examined) were there. PW-6 stated that he arrested the accused on the information received from an informer. He specifically denied that the accused was apprehended by any one other than the police. He specifically denied receiving any information from any of the family members of the deceased in respect of the accused being apprehended. PW-6 denied the suggestion that the inquest was not conducted on the spot and that it was conducted while sitting at the police station. He also denied the suggestion that whatever he has stated is false.

23. PW-7 - Dr. Sudhir Kumar Sharma - Autopsy Surgeon. He proved the autopsy report of the victim and stated that the body of the deceased was brought to the mortuary for autopsy in a sealed condition. He stated that on the body there was one Pajeb (thread tied around waist) and a frock which was kept separate. He stated that the Pajeb and frock was separately sealed and handed over to the constable. He described the injuries that were noticed and mentioned in the autopsy report (As we have already noticed the injuries above, we do not propose to notice it again here). He stated that following articles were sealed at the time of autopsy:- one tooth for DNA profiling, one pair vaginal slide and one vaginal swab, one pair anal slide and one anal swab, one pair oral slide and one oral swab, nail scrape and one hair present on pubic area of the deceased. He stated that all the above articles were sealed for forensic examination. He also stated that the entire autopsy procedure was video recorded. After autopsy, the body was handed over to the constable. According to his opinion, death had occurred a day before due to asphyxia on account of ante-mortem throttling. He stated that there were other doctors also in his team and they were Dr. Dinesh Kumar and Dr. Sushma Bharti (PW-8). He stated that at the time of autopsy, the hymen and vulva was found ruptured and there was recto-vaginal tear which could have been a result of forceful penetration of hard object either in the vagina or in the anus.

During cross examination, he stated that rigor mortis was noticed by him all over the body. Rigor mortis could set in within 2-3 hours of death and covers the entire body within 12 hours and remains there for the next 12 hours and thereafter it passes off in next 12 hours. He accepted the possibility that recto-vaginal tear noticed by him could be on account of insertion of any hard object or human penis. He was questioned by the court as regards allele. He stated that allele is part of DNA.

24. PW-8 - Dr. Sushma Bharti. She stated that she was part of the team of doctors that conducted autopsy of the cadaver. She confirmed the autopsy report which was marked Ex. Ka-5.

During cross examination, she stated that from the bleeding caused by the injury, the victim could have died but the victim of the present case died on account of strangulation. She denied the suggestion that she was not part of the team that conducted autopsy.

25. PW- 9 - Nagendra Chaubey - Investigating Officer. He stated that on 20.10.2020 he was the police officer incharge of P.S. Kavi Nagar. After registration of the case, the investigation of the case was taken over by him. He stated that he recorded the statement of the informant as also of the arrested accused which was entered in the CD. On 20.10.2020, he prepared the site plan of that area from where the body was recovered at the instance of the informant, which was marked Ex. Ka-6. He stated that he recovered an empty bottle, three empty pouches of salted snacks, two one rupee coin and wet soil and plain soil from the spot from where the body of the deceased was recovered. The recovery memo was exhibited as Ex. Ka-7. PW-9 stated that on 21.10.2020, he obtained the medical report of the accused and entered the same in the CD and took blood sample for DNA profile. He stated that he entered the inquest report prepared by PW-6 in the CD and also recorded the statement of other police personnel and proceeded further with the investigation. On 22.10.2020, he prepared the site plan of the spot where the deceased was last seen alive with the accused. He stated that the site plan was prepared at the instance of the informant. The site plan was marked as Ex. Ka.-8. PW-9 stated that on the same day, he prepared a seizure memo of the CCTV footage and recorded the statement of other witnesses. He proved the seizure memo of the CCTV footage, which was marked Ex. Ka-9. He stated that a pen drive was taken and sealed. The same was opened before the court and the pen drive was marked as material Ex.1. He stated that on 24.10.2020 he entered the postmortem report of the deceased in the CD and recorded the statement of the doctors, which was in the CD. He stated that on 26.10.2020 he dispatched the recovered articles for forensic examination.

During cross examination, he stated that the accused was arrested by Mehak Singh Baliyan on 20.10.2020; and that the statement of PW-4 was recorded on 22.10.2020. He denied the suggestion that PW-4 had stated that she had herself arrested the accused-appellant and had informed the police about it on the phone. He stated that he does not know the reason why she gave such statement, if any. He denied the suggestion that the CCTV footage and pen drive of it was not taken by him and no seizure memo thereof was prepared. He also denied the suggestion that he had not prepared the site plan by going to the spot. He denied the suggestion that the entire investigation was carried out while sitting at the police station. He denied the suggestion that whatever he has stated is a lie.

26. PW-10 - SHO Ajay Kumar Singh - Second Investigating Officer. He stated that the investigation of the case was assigned to him on 16.11.2020. He prepared Parcha No.6 and thereafter prepared CD Parcha No.7 on 21.11.2020 by sending a reminder for obtaining the forensic report. He stated that a second reminder was sent by him on 01.12.2020 of which entry was made in CD Parcha No.8. He stated that on 16.12.2020 after finding sufficient evidence against the accused-appellant, he submitted charge sheet of which entry was made in CD Parcha No.9. The charge sheet submitted by him was marked Ex. Ka -10. He stated that on 05.01.2021 he prepared a supplementary CD parcha after receiving report from the Forensic Laboratory, Ghaziabad. He stated that the report obtained from the Forensic Laboratory, Ghaziabad has been placed by him on record as paper No.25-Ka/3.

During cross examination, he admitted that he had not recorded statement of any of the witnesses in support of the charge sheet. He also admitted that the charge sheet was submitted by him before receiving report from the Forensic Laboratory. He denied the suggestion that he submitted charge sheet without following due procedure.

27. At this stage, we may notice the forensic evidence brought in the form of a report provided by the Forensic Science Laboratory, U.P., Ghaziabad. This forensic report is dated 29.12.2020 and was entered in the supplementary case diary on 05.01.2021, i.e. after submission of the charge sheet. The same was taken on record by the trial court on 08.01.2021. The entire forensic report is reproduced below:-

dk;kZy; fof/k fOkKku iz;ksx'kkyk m0 iz0 xkft;kckn C-2414

izs"kd]

la;qDr funs'kd]

fof/k foKku iz;ksx'kkyk] m0 iz0]

xkft;kcknA

lsok esa]

iqfyl v/kh{kd uxjA

xkft;kcknA

i=kad% 4760&Mh0,u0,0&2020 fnukad%

v0la0& [email protected] Fkkuk% dfouxj

jkT; cuke% pUnu ik.Ms; /kkjk%376AB]302]201 Hkk-n-fo- [email protected] iksDlks ,DV

i= la[;k% Nil fnukad% 25-10-2020

mi;ZqqDr ekeys ls lEcfU/kr izn'kZ Ikz;ksx'kkyk esa fnukad 26-10-2020 dks fo'ks"k okgd }kjk izkIr gq;sA

iklZy o lhy dk fooj.k

ukS leqfnzr fyQkQs] nks leqfnzr caMy ¼caMYk$FkekZdksy½ rFkk nks IykfLVd fMCch] fyQkQs ¼1½ ls ¼7½ o nks IykfLVd fMCch ¼8½ o ¼9½ rFkk ,d caMy ¼10½ ij DISTT. MORTURY GZB] eqnzk uewukuqlkj] nks fyQkQks ¼11½ o ¼12½ rFkk ¼13½ FkekZdksy ij EMO M.M.G. GZB] eqnzk uewuklkj v{kr FkhA

izn'kZ dk fooj.k

1- nkar¼,d½ A e`rdk vkjk/;k ls ,d leqfnzr fyQkQs esaA

2- oStkbuy LykbM ¼nks½ A e`rdk vkjk/;k ls ,d leqfnzr fyQkQs esaA

3- vksjy LykbM ¼nks½ A e`rdk vkjk/;k ls ,d leqfnzr fyQkQs esaA

4- ,uy LykbM ¼nks½ A e`rdk vkjk/;k ls ,d leqfnzr fyQkQs esaA

5- ,uy LoSc ¼,d½ A e`rdk vkjk/;k ls ,d leqfnzr fyQkQs esaA

6- oStkbuy LoSc A e`rdk vkjk/;k ls ,d leqfnzr fyQkQs esaA

7- vksjy LoSc A e`rdk vkjk/;k ls ,d leqfnzr fyQkQs esaA

8- usYl ds VqdMs A e`rdk vkjk/;k ls ,d leqfnzr IykfLVd fMCch esaA

9- cky ¼,d½ A e`rdk vkjk/;k ls ,d leqfnzr IykfLVd fMCch esaA

10- Qzkd A e`rdk vkjk/;k ls ,d leqfnzr caMy esaA

11- ,d ik;y ¼lQsn /kkrq½ A

12- v.Mjfo;j A vfHk0 pUnu ik.Ms; ls ,d leq0 fyQkQs esaA

13- LykbM ¼nks½ A vfHk0 pUnu ik.Ms; ls ,d leq0 fyQkQs esaA

14- ;wjsFkzy ehV~l LoSc¼,d½ A

15- Qzsuwye LoSc¼,d½ A

16- XykUl LoSc¼,d½ A

17- QksjfLdu LoSc¼,d½ A

18- LdksVªu LoSc¼,d½ A

19- 'kkQ~V LoSc¼,d½ A

20- vksjy Leh;j¼,d½ A

21- gs;j ¼cky½ ¼dkxt esa½ A

22- usYl ds VqdMs ¼dkxt esa½ A

23- jDr uewuk ¼,d ok;y esa½ A ,d leqfnzr FkekZdky fMCcs es vfHk0 pUnu ik.Ms; lsA

uksV% vxzs"k.k i= o fyQkQs ij vfHk;qDr ds vUMjfo;j o cfu;ku of.kZr Fks] fdUrq vUMj fo;j gh izkIr gqvkA

dk;kZy; fof/k fOkKku iz;ksx'kkyk m0 iz0 xkft;kckn C-2415

i=kad% 4760& Mh0 ,u0 ,0&2020 xkft;kckn

ijh{kk ifj.kke

izkIr izn'kksZa ¼1½ ls ¼23½ dk Mh0 ,u0 ,0 ijh{k.k fd;k x;kA

lzksr izn'kksZa ¼12½ ¼vfHk0 pUnu ik.Ms; ls½ ij mifLFkr ck;ksykftdy nzO; dk lzksr] izn'kZ ¼3½ o ¼7½ ¼e`rdk ls½ ij mifLFkr lzksr ds leku ik;k x;k] rFkk izn'kZ ¼12½ ds lzksr esa] lzksr izn'kZ ¼23½ ¼pUnu ikUMs; ls½ ds ,yhYl dh mifLFkfr Hkh ik;h x;hA ¼HID & Y STR Kit½

lzksr izn'kZ ¼2½] ¼4½] ¼5½] ¼6½ o ¼10½ ¼e`rdk ls½ esa iq#"k fof'k"V ,yhy dh mifLFkfr ik;h x;h fdUrq vkaf'kd Mh0 ,u0 ,0 izksQkby tsujsV gksus ds dkj.k] lzksr izn'kZ ¼23½ ¼vfHk;qDr ls½ ls feyku ds lEcU/k esa vfHker fn;k tkuk laHko u gks ldkA ¼HID & Y STR Kit½

lzksr izn'kZ ¼1½ o ¼8½ dk Mh0 ,u0 ,0 izksQkby] lzksr izn'kZ ¼3½ o ¼7½ ds leku o L=h ewy dk ik;k x;kA

lzksr izn'kZ ¼13½ ls ¼20½ dk Mh0 ,u0 ,0 izksQkby] lzksr izn'kZ ¼23½ ds leku rFkk iq#"k ewy dk ik;k x;kA

lzksr izn'kZ ¼9½] ¼11½] ¼21½ o ¼22½ esa Mh0 ,u0 ,0 fu"d"kZ.k u gks ldkA

Mh0 ,u0 ,0 ijh{k.k eas tsusfVd ,usykbZtj o thu eSij lkQ~Vos;j dk iz;ksx fd;k x;kA

mDr ijh{k.k esa ekud fof/k;ka iz;ksx esa yk;h x;hA

uksV& ijh{k.kksijkUr leLr izn'kksZa dks ,d leqfnzr c.My esa okil ykSVk;k tk jgk gSA

g0 vi0 g0 vi0

29-12-2020 29-12-2020

T;s"B oSKkfud lgk;d vko';d dk;Zokgh gsrq vxzlkfjr oSKkfud vf/kdkjh

d#u dqekj g0 vi0 Mk0 jktsUnz flag

T;s"B oSKkfud lgk;d 29-12-2020 ¼oSKkfud vf/kdkjh½

fof/k foKku iz;ksx'kkyk Mk0 lq/khj dqekj fof/k foKku iz;ksx'kkyk

xkft;kckn] m0 iz0 ¼mi funs'kd½ xkft;kckn

fof/k foKku iz;ksx'kkyk

xkft;kckn

STATEMENT OF THE ACCUSED UNDER SECTION 313 CrPC

28. On 12.01.2021, the statement of the accused-appellant was recorded under Section 313 CrPC. The accused-appellant denied commission of rape and murder by him and claimed that he has been falsely implicated. The statement of the accused-appellant in respect of question nos.7, 8, 11, 17 and 19 gives an explanation of certain incriminating circumstances appearing against him in the prosecution evidence. We therefore deem it appropriate to extract and reproduce those questions and answers for a bird's eye view of the defence. They read as follows:-

^^ iz'u%&7 lk{kh ih0 MCyw&1 ohjsUnz Bkdqj us vius 'kiFkiw.kZ c;ku dh eq[; ijh{kk esa dgk gS fd fn0 19-20-20 dks eSa pUnu vkSj nks vU; O;fDr lkgsc vkSj vejthr vius ?kj ds ikl 'kjkc ih jgs Fks ml le; pUnu gekjs ikl ls mBdj dejs ij x;k vkSj esjh iRuh ls esjh csVh vkjk/;k dks f[kykus dks dgdj ?kj ls ys x;kA esjh csVh dh mez djhc s iwjk fo'okl gS fd pUnu us gh esjh csVh ds lkFk xyr dke djds mldh gR;k dj nhA eSus iqfyl dks Hkh ;g c;ku fn;k FkkA eSUks ,d rgjhj fy[kokdj Fkkuk dfouxj ij viuk vaxwBk yxkdj nh FkhA ftlesa eSus ?kVuk dh lkjh lPpkbZ cksydj fy[kkbZ FkhA mDr rgjhj i=koyh ij ekStwn gS ftl ij lk{kh us viuh vaxwBs dh f'kuk[r djrs gq, iz0 d0 & 1 ds #i eas lkfcr fd;k gSA bl ckjs esa vkidks D;k dguk gS\

mRrj& ih0 MCyw0 1 ds c;ku es ;g ckr lgh gS fd eSus fojsUnz] lkgsc o vejthr ds lkFk 'kjkc ih Fkh vkSj eS ohjsUnz dh iq=h dks mldh iRuh ds ikl ls yk;k D;ksafd ohjsUnz us gh esjs ls ,slk djus dks dgk Fkk fojsUnz us viuh csVh vkjk/;k dks nl #i;s fn;s Fks rFkk vkjk/;k 10 #i;s ysdj pyh x;h Fkh fQj okil ugh vk;hA eS rks ohjsUnz ds ikl gh 'kjkc ihrk jgk rFkk mlds ckn vius ?kj pyk x;kA

iz'u%&8 lk{kh ih0 MCyw0 & 2 xqatu nsoh us vius c;ku dh eq[; ijh{kk esa ;g vfHkdFku fd;k gS fd pUnu gekjs ;gka 10 o"kksZa ls vkrk tkrk FkkA esjs ifr ds lkFk pUnu] lkfgc ikloku] vejthr m vejiky Bsdsnkj egs'kpUn 'kekZ ds ;gka dke djrs FksA esjs cPps mls tkurs igpkurs Fks vkSj esjh csVh pUnu dks pkpk dgrh FkhA mlds lksus dk dksbZ fBdkuk ugh Fkk dHkh esjs ;gka dHkh Bsdsnkj ds ;gka dHkh 'kekZ th ds ?kj ij lks tkrk FkkA gekjh 'kknh ls igys dHkh pUnu o esjs ifr ds chp >xM+k gqvk Fkk ijUrq fQj nksLrh gks x;h FkhA ?kVuk okys fnu esjs ifr o pUnu ikaMs] lkgsc ikloku vkSj vejthr nqdku ds ihNs cSBdj 'kjkc ih jgs FksA 'kke dks djhc 07-30 & 08-00 cts ds djhc pUnu gekjs dejs ij vk;k vkSj lus esjh csVh vkjk/;k dks ckgj f[kykus ds fy, ys tkus ds fy, vkjk/;k dks esjs ls tcjnLrh ys fy;k vkSj dgk mlds ikik eaxk jgs gSaA eSaus mls euk fd;k esjh cPph [ksyus yxh vkSj eSa vius dke esa yx x;h] blh chp pUnu esjh cPph dks esjs lkeus ls mBkdj ys x;k vkSj dgk fd vHkh ns tkmaxkA eSaus vius ifr ls iwNk fd vkjk/;k dgka gS pUnu mls ysdj x;k Fkk vkSj dg jgk Fkk fd vkids ikl ys tk jgk gwa rks esjs ifr us dgk fd pUnu esjs ikl vkjk/;k dks ysdj ugh vk;k FkkA mlds ckn geus csVh dks ryk'k djuk 'kq# fd;k] ij og ugh feyh] rc foDdh tks esjs ifr dk Hkrhtk gS us crk;k fd pUnu vkjk/;k dks da/ks ij cSBkdj ys tk jgk FkkA vxys fnu fc;j okyh QSDVªh jksM ij ryk'k djrs jgsA ckn esa esjh csVh dh yk'k lM+d ds fdukjs ukys ds ikl feyh FkhA esjk iwjk fo'okl gS fd ?kVuk okys fnu pUnu us gh esjh csVh vkjk/;k dk cykRdkj dj mldh gR;k dhA vkidks bl lEcU/k esa D;k dguk gS \

mRrj& ih0 MCyw0 & 2 dk c;ku ;gka rd lgh gS fd eS ohjsUnz ds ?kj 10 o"kksZa ls vkrk&tkrk Fkk rFkk egs'k 'kekZ Bsdsnkj ds ;gka dke djrs Fks rFkk ohjsUnz ls >xM+k gqvk FkkA blds vfrfjDr lkjk c;ku xyr o >wBk gSA ;g c;ku eq>s Qalkus ds fy, fn;k x;k gSA

iz'u%&11 lk{kh ih0 MCyw0&5 dqynhi ;kno us vius 'kiFk iw.kZ c;ku esa dgk gS fd vkS|ksfxd {ks= dfouxj esa /keZohj VsªoYl ds uke ls gekjh eksckbZy dh nqdku gSA nqdku ds mij cuk dejk firk th us ohjsUnz Bkdqj] xqatu nsoh] lrsUnz nsoh] jkuh nsoh dks fdjk;s ij ns j[kk gSA vHkh Hkh ;s yksx fdjk;s ij ogha jg jgs gSaA ml fnu fnukad 19-10-20 dh 'kke dks njksxk th dk esjs ikl Qksu vk;k fd nqdku ij yxs lh0 lh0 Vh0 oh0 QqVSt dh t#jr gS rks eSus vxys fnu 20-10-20 dh lqcg 07-30 cts ds djhc njksxk th dks Mh0 oh0 vkj0 miyC/k djk nh Fkh] D;ksafd lh0 lh0 Vh0 oh0 QqVSt dks eSus o xqatu nsoh o mlds ifjokj ds vU; yksxks us njksxk th ds lkeus pykdj ns[kk Fkk rks gkftj vnkyr panu vius da/ks ij e`rdk dks cSBkdj le; 08-50 ls 08-55 ih0 ,e0 rd ?kVuk okys fnu pUnu dks ys tkrs gq, fDyi esa ns[kk FkkA ;gh QqVSt o Mh0 oh0 vkj0 eSus njksxk th dks ns fn;k FkkA eSus lh0 lh0 Vh0 oh0 QqVSt tks njksxk th dks nh gS mlesa dksbZ NsMNkM ugha dh gSA og tSlh Fkh oSlh gh njksxk th dks ns fn;k FkkA diMs esa j[kdj lhy fd;k Fkk] uewuk eksgj Hkh cuk;k x;k FkkA mDr lh0 lh0 Vh0 oh0 QqVSt dk izek.k i= vUrxZr /kkjk 65 ch lk{; vf/kfu;e i=koyh ij ekStwn gS ml ij lk{kh us vius gLrk{kj ns[kdj rLnhd dj izek.k i= dks iz0 d&3 ds #i esa lkfcr fd;k gSA bl ckjs esa vkidks D;k dguk gS \

mRrj& dqynhi ;kno dk ;g c;ku lgh gS fd ohjsUnz] lR;sUnz o dqynhi dh eksckby dh nqdku ds mij fdjk;s ij edku es oknh yksx jgrs gSa rFkk lh0 lh0 Vh0 oh0 QqVst es vkjk/;k dks ys tkrk gqvk eS fn[kkbZ fn;k ;g lgh gS D;ksafd ohjsUnz Bkdqj us gh eq>ls viuh iq=h dks eaxok;k FkkA

iz'u%&17 vkids fo#) eqdnek D;ksa pyk\

mRrj& ohjsUnz Bkdqj ds lkFk esjk >xMk gqvk Fkk mldk cnyk ysus ds fy, esjs fo#) >wBk eqdnek pyk gSA ohjsUnz Bkdqj dh iq=h vkjk/;k dks fdlh vkSj O;fDr us ekjk gS eSus ugh ekjk eS funksZ"k gwaA

iz'u%&19 D;k vkidks dqN vkSj dguk gS \

mRrj& Jheku th eSus ;g vijk/k ugh fd;k gS eS fcYdqy funksZ"k gwaA esjs eka&cki dkQh cqtqxZ gSA esjh ,d iRuh gS rFkk nks NksVs&NksVs cPps gSA esjs vykok dekus okyk dksbZ ugh gS eS ,dne xjhc vkneh gwa eq>s bUlkQ pkfg,A

29. At this stage, we may observe that neither the medical examination report of the accused-appellant nor the FSL report dated 29.12.2020 was put to the accused appellant to seek his explanation. The statement of PW-6, S.I. Mehak Singh Baliyan, was put to the accused-appellant vide question No.12. The accused-appellant denied the incriminating circumstances appearing therein in his answer to that question. For the sake of convenience, question no.12 and answer to question no.12 is being extracted below:-

^^ iz'u%&12 lk{kh ih0 MCyw&6 mifujh{kd egd flag ckfy;ku us vius 'kiFkiw.kZ c;ku dh eq[; ijh{kk esa dgk gS fd fn0 20-10-20 dks eSa Fkkuk dfouxj ij fu;qDr FkkA ml fnu oknh eqdnek dh fyf[kr rgjhj ds vk/kkj ij Fkkuk gktk ij eq0 v0 la0 [email protected] /kkjk 302]201]376 , ch Hkk0 na0 la0 o [email protected] iksDlks vf/kfu;e iathd`r gqvk FkkA ml fnu ,Q0 vkbZ0 vkj0 esa vafdr eqdnek mijksDr esa e`rdk dq0 vkjk/;k vk;q djhc mRrj& PW 6 dk lkjk c;ku xyr gSA

30. At this stage, we may also notice that in his answer to question no.11, which related to PW-5's statement regarding the CCTV footage of the period between 8.50 and 8.55 pm showing the deceased on the shoulder of accused-appellant, the accused-appellant admitted that deceased's father (PW-1) was a tenant of an accommodation situated above the shop of PW-5 and that the CCTV footage does disclose him carrying the deceased on his shoulder. However, he clarified that the deceased's father (PW-1) had asked the accused-appellant to get his daughter (the deceased). In his answer to question no.7, the appellant admitted taking drinks with the informant (PW-1) and two others and also admitted that he had brought informant's daughter from informant's wife to the place where informant was having drinks because informant himself had requested him to bring his daughter and after informant's daughter was brought to the informant, the informant gave her rupee 10 and thereafter she went away but did not return. Appellant stated that he kept having drinks with the informant and thereafter he went to his home. In reply to question no.8, the accused-appellant admitted that he was on visiting terms with the informant for the last 10 years. In respect of the reason for false implication, in reply to question no.17, he stated that he had a dispute with the informant in the past and because of that dispute, he has been falsely implicated.

TRIAL COURT FINDINGS

31. The trial court found:- (i) that it is not only proved by PW-1 and PW-2 but also admitted to the accused-appellant that in the evening of 19.10.2020 the accused-appellant, the informant and two others were having drinks (liquor) together and that the accused-appellant left the place where they were having drinks and, thereafter, took custody of informant's daughter (i.e. the deceased) from her mother; (ii) that the CCTV footage confirms that the deceased was on the shoulder of accused-appellant and, therefore, it is proved beyond doubt that the deceased was with the accused-appellant at or about 8.50 pm of 19.10.2020; (iii) that PW-3 and PW-4 have also confirmed that the accused-appellant and the deceased were together on the date of the incident; (iv) that the deceased was not seen alive thereafter and on 20.10.2020 her body was recovered; (v) that the medical/forensic evidence suggests that she was raped and murdered; and (vi) that the forensic report confirms that the underwear recovered from the appellant carried biological material which matched with the biological material present in the oral slide and oral swab obtained from the body of the deceased. The trial court found the aforesaid incriminating circumstances as forming a chain so complete that it conclusively pointed towards the guilt of the appellant for committing the offences of rape and murder of the child consequently, upon finding the explanation of the accused-appellant false and unconvincing, convicted and punished the appellant, as above.

SUBMISSIONS ON BEHALF OF THE APPELLANT

32. Sri Vinay Saran, learned Senior Counsel, appearing as Amicus Curiae, on behalf of the appellant, submitted that (i) the accused was on visiting terms with the informant and his family; their relationship had a span of 10-12 years; the child (victim) used to call the appellant Chacha and was very friendly with the appellant and so was the appellant with the child; even the CCTV footage would suggest that the child was in a playful mood and was on the shoulder of the appellant therefore, mere presence of the deceased with the appellant by itself cannot be taken as an incriminating circumstance because they had close bonding with each other. (ii) from the testimonies of PW-1 (the informant) and PW-2 (informant's wife) it is clear that the informant, two others and the appellant were having drinks for quite sometime; from the testimony of PW-2 (informant's wife) it is also clear that informant (PW-1) was drunk (in a state of intoxication); in these circumstances, the issue that needs to be examined is whether PW-1 was in his senses to have a clear understanding of the sequence of events, that is whether the deceased was brought by the accused-appellant to him as is claimed by the accused-appellant or not. In such a state of intoxication, where both persons are drunk it is difficult to decide as to whose version is to be accepted and believed therefore, the benefit of doubt must go to the accused; (iii) The two other persons who were there with the accused-appellant and the informant have not been examined by the prosecution. Their statement could have thrown light on rival claims whether the accused-appellant had brought the deceased to her father or not, as claimed by the accused-appellant, or after taking the deceased on his shoulder had walked away from the premises as claimed by the prosecution.

33. It was also urged that there is discrepancy in the statement of PW-1 (the informant) and his wife (PW-2) in respect of the time when the accused-appellant took the deceased (i.e. daughter of PW-1 and PW-2) to play with her. According to PW-1, he , the accused-appellant and two others were having drinks in the room of ''Y'. At about 8.30 pm, PW-1 brought a pouch of country made liquor to join the other drinking partners who were drinking since day time and completely drunk though, in a position to walk. PW-1 stated that between 8.45 and 9.00 pm the accused-appellant left them to go to the room. When PW-1 went to his room at 9.30 pm, he did not find his daughter. He was informed by his family members that the accused-appellant had taken his daughter with him by saying that PW-1 has called for her. Interestingly, the time disclosed by PW-2 regarding accused-appellant coming to the room to take the victim is between 7.30 and 8.00 pm which is a lot earlier than the time alleged by PW-1. In so far as PW-3 and PW-4 are concerned, they had not disclosed the time when they saw the accused-appellant and the deceased together. It has been urged that since it is an admitted fact that the accused-appellant had been a regular visitor to the house of the informant and used to play with the victim and were happy in each others company, it is very much possible that the accused-appellant took the deceased on his shoulder, played with the deceased for sometime, handed back the deceased to the informant and thereafter the deceased went somewhere and was not seen alive thereafter. As all the players, namely, the informant, the accused and the other two persons, who were having drinks together, were drunk and their consciousness impaired, the statement of these players in respect of what they have witnessed would have to be understood in light of the surrounding circumstances as their statement might be more on their belief than on their knowledge. Thus, what is crucial is, as to when the accused-appellant parted company of the informant and others while they continued to have their drinks. The CCTV footage shows the presence of the deceased on the shoulder of the appellant at about 8.51 pm. Whether the appellant thereafter went back to the informant is also important as regards which the evidence is not clear, inasmuch as, according to PW-1 the appellant parted his company between 8.45-9.00 pm, whereas, according to PW-2, the appellant came to fetch the victim between 7.30 and 8 pm and, in so far as the other two witnesses, namely, PW-3 and PW-4, are concerned, they do not disclose the time when they saw the appellant with the deceased. According to the learned counsel for the appellant, these circumstances by itself are not incriminating and are not conclusive as to enable the court to hold that the deceased was last seen alive in the company of the appellant and not thereafter. Learned counsel for the appellant next submitted that from the statement of PW-1 it appears that the police was informed on 19.10.2020 itself but the report in respect of that information has been suppressed by the prosecution. He submits that according to PW-4, the accused was arrested on 19.10.2020 by the complainant party and handed over to the police. Interestingly, the statement of PW-5 discloses that the police had contacted him on phone in the evening of 19.10.2020 for having a look at the CCTV footage, which he provided in the morning of 20.10.2020. This means that the police was given information about the missing girl on 19.10.2020 itself; the information was inconclusive and, therefore, the I.O. wanted to confirm from the CCTV footage of the spot. In these circumstances, it can be said that the prosecution has deliberately suppressed the earliest information given to the police as a result whereof, an adverse inference need be drawn against the prosecution.

34. In addition to above, it was submitted that there is a serious doubt as regards the date and time of arrest of the appellant. According to PW-6, the appellant was arrested on 20.10.2020 at 23.00 hrs from a place near the underpass of Atma Ram Steel. Interestingly, the arrest memo (Ex.Ka-4) reveals that the time of arrest was 21.50 hrs. The testimony of PW-4 (sister of the informant), who resides in the same complex, is to the effect that the accused-appellant was arrested by her on 19.10.2020 and she informed the police on the number provided by the I.O. It is submitted that the statement of PW-4 finds corroboration in the statement of PW-3 to the extent that the report of the incident was given on the same day and the body was recovered on the next day. The fact that some report was lodged in the night itself and next day body was recovered is also corroborated by statement of PW-2 extracted below:-

^^mlds ckn pUnu esjh csVh dks ys x;k rks eSus blfy, euk ugh fd;k fd og esjs ifr dk tkuus okyk gS vkSj esjh csVh dks f[kyk dj okil ys vk;sxkA bl ?kVuk dh fjiksVZ eSus rqjUr iqfyl pkSdh esa djk;h FkhA esjh csVh ?kVuk ds vxys fnu MsM ckMh ds #i es feyh FkhA^^

The statement of PW-4 also suggests that the police had arrested the appellant in the night of the incident itself. Further, PW-2's statement also indicates that when the appellant was arrested and interrogated, he had stated that the victim was handed over to the informant. In these circumstances, it was submitted that there was some information to the police about the missing girl; that information has deliberately been suppressed; that the appellant was arrested on the same day by the police and was interrogated; that the appellant maintained that he had handed over the daughter of the informant to the informant; that the body of the victim was recovered on the next day; that there is no clue in the entire prosecution case as to how the body was recovered; that the doctor who prepared the injury report of the appellant has not been produced to avoid close cross-examination as regards presence of torture marks on the body of the accused. The reason for not producing the doctor is that the body of the accused-appellant carried multiple injuries simple in nature caused by hard and blunt object and it was not disclosed in the medical report dated 20.10.2020 that the injuries were fresh, which means that those injuries must have been caused much earlier and might have been caused either by the police that arrested the appellant on 19.10.2020, or by the witnesses who apprehended the appellant and handed him over to the police. Importantly, despite torture, to extract confession/disclosure, nothing could come out of the appellant, whereas the body was recovered from some other information, which too has been suppressed. Thus, the appellant was implicated by suppressing all the earlier developments. It has been urged that all these circumstances would suggest that the appellant has been falsely implicated only on ground of strong suspicion.

35. With regard to forensic evidence i.e. the report of FSL, Ghaziabad, learned counsel for the appellant submitted that firstly, the report has not been put to the appellant while recording his explanation under Section 313 CrPC therefore, the same cannot be taken into consideration and, secondly, the incriminating part of the report, namely, the biological material found on the underwear matching with the biological material found in the oral slide/swab of the deceased cannot be accepted in evidence because there is no evidence on record with regard to the recovery/seizure of the underwear from the appellant and, thirdly, another interesting feature which emerges from the FSL report is that in the note put in the report it is mentioned that the cover of the envelop /forwarding letter mentioned that the envelop contains an underwear and a Baniyan (vest) of the accused but inside the envelop only an underwear was found which means that the envelop was tampered. It was also urged that the underwear alleged to have been recovered and sent for DNA profiling has not been produced as a material exhibit during the course of trial and there is no link evidence led by the prosecution to demonstrate that the underwear recovered from the appellant was sealed and handed over to a person in whose custody it was kept safely and the sanctity of the seal was maintained till its testing by FSL. It was urged that in absence of evidence as to how the underwear was kept and given for forensic examination, the forensic report in respect thereof cannot be read in evidence against the appellant.

36. In addition to what has been noticed above, learned counsel for the appellant submitted that there is a serious doubt with regard to the recovery of dead body of the deceased from the place alleged by the prosecution. According to the FIR, the informant (PW-1) received information about discovery of the body and on the basis of that information, at 12.30 hrs, on 20.10.2020, he saw the body of the deceased lying on the side of a drain adjoining a road near RTO office. Whereas according to PW-1, police personnel found the dead body of the deceased and they informed the informant about recovery of the body, whereafter the inquest was held. Similar is the statement of PW-4, but, interestingly, the police has suppressed the evidence as to how they were able to find the dead body which suggests that the prosecution is suppressing material facts that might have thrown light on the involvement of some other person in the crime. It was also argued that suppression of evidence by the prosecution is also evident from the fact that the place from where the body was recovered, a bottle, three empty pouches of salted snacks etc were lifted but no effort was made to match the finger prints on that bottle with that of the accused-appellant because it could have clearly established that the accused-appellant was not involved. It is, therefore, a case where the prosecution is guilty of suppressing material evidence.

37. After submitting as above, learned counsel for the appellant submitted that the trial court did not properly scrutinise the evidence on record and it failed to notice whether the forensic report could be taken into consideration in absence of link evidence i.e. proof of recovery of the material and its safe custody till its examination. Moreover, the report was not put to the accused while recording his statement under Section 313 CrPC. It was thus contended that the trial court's judgment and order of conviction is erroneous in law and the same deserves to be set aside. In the alternative, learned counsel for the appellant submitted that if the appellant is held guilty then death penalty would not be justified, inasmuch as, as per the prosecution evidence, the appellant was under the influence of liquor and therefore might not be in a position to have control over his acts. In such circumstances, bearing in mind that the appellant is a married person with children, he is entitled for commutation of death penalty to imprisonment for life which may serve as a reformative measure.

SUBMISSIONS ON BEHALF OF THE STATE

38. Sri J.K. Upadhyay, learned AGA, submitted that it is proved on record that the appellant had the deceased with him on his shoulder at 8.51 pm on 19.10.2020 and, thereafter the deceased was not seen alive. The statement of the appellant that he had handed over the deceased to the informant (father of the deceased) is not proved by any legally admissible evidence except the statement of the appellant recorded under Section 313 CrPC. The testimony of PW-3 and PW-4 also confirms that the appellant was seen with the deceased that evening therefore, in absence of clear and cogent evidence led by the appellant that he handed over the deceased to her lawful guardian, the logical inference would be that whatever happened to the deceased was the wrongdoing of the appellant. Consequently, the trial court was justified in convicting the appellant. As regards admissibility of the forensic report, learned AGA submitted that under Section 293 CrPC a report of scientific expert can be used as evidence in any inquiry or trial or other proceeding without the requirement of formal proof. Learned AGA also submitted that although the medical examination report of the accused-appellant may not have been formally proved by examination of the doctor but the arrest memo (Ex. Ka-4) specifically mentions that the appellant has been medically examined and that he has put his thumb impression on the report. The report bears the thumb impression of the appellant therefore, the contents of the report can be read in evidence. He submits that the medical examination report indicates that in compliance of the provisions of Section 53-A CrPC, to enable forensic examination, following materials were taken from the accused: "Oral smear; penile swab; scrotum swab; shaft swab, perineum, nail cutting, undergarments and blood vials."

39. Further, the FSL report indicates that the biological material found in the underwear of the appellant carried genes of the appellant as well as of the deceased, inasmuch as it matched with the oral smear obtained from the body of the deceased as well as the blood of the appellant. Learned AGA submitted that this being a case dealing with an offence punishable under the Pocso Act, the benefit of legal presumption would be available to the prosecution. Thus, the trial court on the basis of evidence led by the prosecution was justified in recording conviction. He also submitted that as it is a case relating to rape and murder of a child, 2 ½ years old, who had been treating the appellant as her uncle, it is one of the rarest of rare cases where conviction must result in a death penalty. He, therefore, prayed that the conviction and sentence recorded by the trial court be affirmed and death penalty awarded to the appellant be confirmed.

40. In response to the submission of the learned counsel for the appellant that the prosecution is guilty of suppressing vital facts, learned AGA submitted that assuming that the finger prints expert report was not obtained or placed on record, the DNA profiling report indicates involvement of the appellant and the circumstance that the deceased was last seen with the appellant clinches the issue therefore, even if the finger prints expert report was not obtained, it would not be fatal to the prosecution as there were other clinching circumstances linking the appellant to the crime.

ANALYSIS

41. Having noticed the rival submissions and the evidence brought during the course of trial, this is a case based on circumstantial evidence. There is no direct eye-witness account of the incident. As to when on the basis of evidence circumstantial in nature, conviction can be recorded, the law is well settled, which is, that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of hypothesis other than that of the guilt of the accused and inconsistent with their innocence (vide Vijay Shankar V. State of Haryana, (2015) 12 SCC 644; Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116; Bablu V. State of Rajasthan, (2006) 13 SCC 116). Further, in the celebrated judgment of the Supreme Court in Sharad Birdhichand Sarda's case (supra), it has been clarified that the circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby they 'must or should' and not 'may be' established. In addition to above, we must bear in mind that the most fundamental principle of criminal jurisprudence is that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions (vide Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793). These settled legal principles have again been reiterated in a three-judge Bench decision of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows:-

"18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.

19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."

42. In light of the law noticed above, what we have to see is whether the incriminating circumstances sought to be proved against the appellant have been proved beyond reasonable doubt. If yes, whether those circumstances put together constitute a chain so complete as to point out out that in all human probability it is the appellant and no one else who committed the crime.

43. In the instant case, to bring home the charge the prosecution places reliance on the following circumstances : (i) that the appellant took the child from her mother to play with him; (ii) that the child was last seen alive on the shoulders of the appellant or so to say in the company of the appellant on or about 9 pm on 19.10.2022; (iii) that thereafter the child was not seen alive; (iv) on 20.10.2022, at about 12.30 hrs, the body of the child was found, brutally killed and ravished; (v) that the underwear of the appellant revealed presence of biological material which matched with oral smear obtained from the cadaver of the child; and (v) lastly, the explanation of the appellant that he handed over the child to her father was found false.

44. Before we proceed to test the prosecution evidence on the circumstances specified above, it would be useful to discuss the legal worth of the circumstance of the deceased being last seen alive in the company of the accused. Ordinarily, the circumstance of the deceased being last seen alive with the accused may alone not be sufficient to record conviction (vide Nizam V. State of Rajasthan, (2016) 1 SCC 550; and Navneetakrishnan V. State, (2018) 16 SCC 161). But, it is an important link in the chain of circumstances that could point towards the guilt of the accused with some certainty. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is long gap and possibility of other persons coming in between exists (vide State of U.P. V. Satish, (2005) 3 SCC 114). Similar view has been taken in Ramreddy Rajesh Khanna Reddy & Another V. State of A.P., (2006) 10 SCC 172, where following the decisions in State of U.P. V. Satish (supra) and Bodhraj V. State of J & K, (2002) 8 SCC 45, in paragraph 27 of the judgment, it was held that "the last seen theory, furthermore, comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. Even in such cases the courts should look for some corroboration."

45. In matters based on circumstantial evidence, when the prosecution is successful in establishing a chain of incriminating circumstances leading to the logical inference that in all human probability it is the accused and accused alone who could have committed the crime, the burden shifts upon the accused to explain those circumstances and in absence whereof an adverse inference can be drawn against the accused with the aid of section 106 of the Evidence Act. Therefore, it would be useful to notice the law as to when a conviction could be sustained with the aid of section 106 of the Evidence Act. In the case of Shambu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404, the Supreme Court had explained the scope of Section 106 of the Evidence Act in criminal trial. It was held in para 9:

"9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor [AIR 1936 PC 169] and Seneviratne v. R. [(1936) 3 All ER 36, 49]."

46. The Apex Court in Nagendra Sah Vs. State of Bihar (2021) 10 SCC 725 observed in paragraphs 22 and 23 as:-

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

47. Further, in the case of Shivaji Chintappa Patil V. State of Maharashtra, (2021) 5 SCC 626 in paragraph no. 25 it was observed:-

"25. Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under Section 313 Cr.P.C. By now it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda (supra)."

48. In Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254, the Supreme Court in paragraph 26 of the judgment, clarified the law with regard to the provisions of Section 106 of the Evidence Act in the following words:-

"It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd."

49. Before we proceed to analyse the evidence led by the prosecution in respect of the circumstances through which the prosecution seeks to bring home the charge against the appellant, as this case also deals with an offence punishable under the provisions of the Pocso Act, it would be useful to examine as to when the presumption under section 29 of the Pocso Act could be raised against the accused. In this regard, in the case of Monu Thakur Vs. State of U.P. (Capital Cases No.13 of 2021, decided on March 14, 2022) we had the occasion to decide the issue as to when and in what situation a presumption under Section 29 of the Pocso Act could be raised. After noticing various judgments of the Apex Court and other High Courts, we, in paragraph 33, held as follows:-

"33. In the light of the decisions noticed above, the legal position that emerges is that though the presumption of innocence is a human right but there can be statutory exceptions to it. A statutory provision laying down the procedure for holding an accused guilty of an offence by raising a presumption with regard to his guilt, must meet the tests of being fair, just and reasonable as enshrined in Articles 14 and 21 of the Constitution of India. To ensure that a statutory provision putting a reverse burden on the accused does not violate the mandate of Articles 14 and 21 of the Constitution, it has to be interpreted in a manner that it does not lead to absurd result such as mistaken conviction on mere failure to lead satisfactory evidence in defence after submission of police report. As a result, the courts have been consistent in holding that the burden to prove his innocence can be cast on the accused with the aid of presumptive clause only where the prosecution succeeds in proving the basic or foundational facts with regard to commission of the offence by the accused in respect of which the presumption is available to the prosecution under the statute. Mere registration of a case punishable under the statute, without proving the foundational facts with regard to its commission by the accused, will not ipso facto shift the burden on to the accused to prove his innocence. More so, because to prove a negative is difficult, if not impossible. It is only when a foundation is laid to prove, at least prima facie, existence of a fact that one can expect a person, called upon to refute its existence, to lead evidence negating its existence. Interpreting the provisions of section 29 of the Act in a manner that it puts absolute burden on the accused to prove a negative i.e. innocence, even in absence of prosecution proving the basic facts with regard to commission of specified offence(s) by the accused, in our view, would lead to complete miscarriage of justice and thereby render the provisions of section 29 of the Act vulnerable and in the teeth of Articles 14 and 21 of the Constitution. We, therefore, hold that to take the benefit of the presumptive provisions of section 29 of the Pocso Act, the prosecution, by leading legally admissible evidence, would have to prove the foundational or basic facts in respect of commission of the offence(s) specified therein by the accused. Mere submission of police report against the accused in respect of the offence(s) specified in section 29 of the Pocso Act would not absolve the prosecution of its responsibility to lead legally admissible evidence to prove the foundational facts with regard to their commission by the accused."

50. In Monu Thakur's case (supra), we had also clarified in paragraph 36 of our judgment that the presumptive provisions contained in Sections 29 and 30 of the Pocso Act were limited to the offences specified therein. Paragraph 36 of our decision in Monu Thakur's case (supra) is extracted below:-

"36. At this stage, we may clarify that though the presumptive provisions contained in sections 29 and 30 are there in the Act but their operation is limited to the offences specified therein. No doubt, by virtue of sub-section (2) of section 28 of the Act, while trying an offence under the Act, a Special Court has also to try an offence other than the offence referred to in sub-section (1) of section 28 of the Act (i.e. the offences punishable under the Act), with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial but, as the presumptive provisions of section 29 are applicable only to the offences specified therein, they would not apply to prove an offence of murder punishable under section 302 IPC. In our view therefore, the trial court completely misunderstood the true import of the presumptive provisions contained in section 29 of the Pocso Act."

51. From the law noticed above it is clear that benefit of the presumption would be available to the prosecution under Section 29 of the Act only when the foundational facts are proved by the prosecution by legally admissible evidence and that too, only in respect of offences specified therein. As the instant case is based on circumstantial evidence, the prosecution would have to establish the incriminating circumstances with the aid of legally admissible evidence.

52. We now proceed to examine whether the prosecution has been successful in proving those incriminating circumstances.

53. The incriminating circumstances on which the prosecution places reliance to bring home the charge against the appellant are recapitulated below: (i) that the appellant took the deceased from her mother (PW-2) under the pretext to play with her or to bring her to her father (PW-1); that PW-4 saw the appellant playing with the deceased in the night whereafter the deceased went missing; that PW-3 also saw the deceased on the shoulders of the appellant near Anmol Biscuit Factory whereafter, he did not notice the deceased alive; that on 20.10.2020, the body of the deceased was found, examination of which suggested that she was sexually assaulted and brutally murdered; on 20.10.2020, the appellant was arrested, at the time of his medical examination, his undergarments were taken and sealed; and that the underwear of the appellant carried biological material which matched with the oral swab/oral smear taken from the body of the deceased. Thus, in a nutshell, there are four incriminating circumstances against the appellant:- (a) the deceased being last seen alive with the appellant on or about 9.00 p.m. on 19.10.2020; (b) the body of the deceased being found at 12.30 hrs on 20.10.2020 i.e. the day following the evening she was last seen alive with the appellant; (c) the autopsy report of the deceased indicated that she was sexually assaulted and murdered and the probable time of her death matches with the time when she was last seen alive with the appellant; and (d) the forensic evidence confirms the presence of biological material of the body of the deceased on the underwear of the appellant.

54. Before we proceed to deal with each of the circumstances noticed above, at this stage, we may clarify that this is a case where the body of the victim was found in an open place which has no connect with the appellant. More over, the body has not been recovered on the disclosure made by the appellant or at his pointing out. In fact, it is not clear from the prosecution evidence as to who found the body. PW-1 and PW-4, namely, the informant and sister of the informant, maintain that the police found the body and they were given information regarding discovery of the body whereas the police witnesses maintain a golden silence in that regard. PW-6, the Sub-Inspector, who conducted inquest after the FIR was lodged, in his deposition states that the written report (Ex. Ka-1) was the source of information that the body has been found. The investigating officer (PW-9) gives no indication as to how discovery of body came to their notice. He simply states that after the first information report was lodged, he took over the investigation of the case and proceeded with the investigation. The other police witness, namely, PW-10, who submitted the charge sheet, took over investigation on 16.11.2020, therefore, he is not a witness competent to depose about the information resulting in discovery/recovery of the body. As no evidence is coming from the police witnesses as to how the body was found whereas, to the contrary, the informant (PW-1) and informant's sister (PW-4) maintain that the body was found by the police and police gave information regarding discovery of the body, this cleavage in the testimony of two sets of witnesses assumes importance because there has to be some information from somewhere leading to the discovery of the body. This information may also be incriminating against some person therefore, suppression of this information by the prosecution assumes importance and causes us to ponder whether some one else was the perpetrator of crime whom the police is shielding. More so, because in a case based on circumstantial evidence, the court can record conviction not only when the chain of incriminating circumstances is complete, unerringly pointing towards the guilt of the accused, but it leaves no room for any hypothesis consistent with the innocence of the accused by ruling out the involvement of some other person in the crime.

55. In light of what we have discussed above, there is another circumstance which indicate that the investigation had been lethargic and not up to the mark to ascertain the truth, which is, that from the spot near the body an empty bottle of water, empty pouches of snacks and two one rupee coins were recovered but no effort was made to get finger prints on them matched with the accused appellant.

56. In addition to above, when we carefully look at the testimony of the prosecution witnesses including the statement made in the first information report by the informant it appears to us that some information was given to the police on 19.10.2020 regarding the girl having gone missing and in furtherance of that information the accused-appellant was arrested that very day in the night itself and was also interrogated but, during investigation, the accused-appellant maintained that he had handed over the child to her father. In this regard, we may notice that in the FIR also, which was lodged on the next day i.e. 20.10.2020 at 14.34 hrs, it was specifically mentioned by the informant (PW-1) that with the help of police a search for the girl started in the night itself and next day, the body was found. The statement of PW-5 is also to the effect that in the evening of 19.10.2020 the Sub-Inspector had asked him for the CCTV footage of the camera installed at his shop. Not only that, PW-5 states that the Sub-Inspector viewed the CCTV footage (DVR) in the morning at 7.30 am of 20.10.2020. When these evidences are read together in conjunction with the statement of PW-1 that on 19.10.2020 at about midnight the report was lodged by him and the body was discovered by the police it leaves a lingering doubt in our mind with regard to involvement of some other person because as to what was that information which led to the discovery of the body has been suppressed by the prosecution. What is also important is that the family members of the deceased have maintained that on 19.10.2020 the appellant was handed over to the police and was interrogated by the police. The wife of the informant also admits that the appellant denied his involvement and vehemently maintained that he had handed over the deceased to the informant. In these circumstances it appears to us that the police was not sure with regard to the involvement of the appellant and therefore they had waited for the CCTV footage to confirm the accusation, if any, against the appellant. Bearing the above discussion in mind, we now proceed to evaluate the prosecution evidence in respect of the circumstances which the trial court relied upon to record conviction

(A) LAST SEEN CIRCUMSTANCE

57. In so far as the circumstance of the deceased being last seen alive with the appellant is concerned, the prosecution relies on the testimony of three witnesses, namely, PW-2 (mother of the deceased), PW-3 (nephew of the informant) and PW-4 (sister of the informant); and the CCTV footage. PW-2 states that the accused-appellant, her husband (PW-1) and two others (not examined) were having liquor when, between 7.30 pm and 8 pm, the accused-appellant arrived in her room and took the deceased with him under the pretext that her father (PW-1) has asked for her and he would also play with her. PW-2 stated that later, on arrival of her husband, when she asked her husband (PW-1) as to where her daughter is, then her husband told her that the accused-appellant did not bring his daughter to him. PW-2 also stated that PW-3 informed her that he saw the appellant carrying the deceased on his shoulder. During cross examination, PW-2 stated that initially she resisted handing over her daughter to the accused-appellant because her husband was intoxicated and that the accused-appellant was also under the influence of liquor, though not to that extent as her husband was, but she could not resist much because the accused-appellant was well acquainted with the child as well as her husband and she, therefore, had no doubts in her mind that he would bring the child back. During cross examination, PW-2 admitted that report of the incident was given to the police on the same day whereas the body was recovered on the next day. She also stated that the police had arrested the accused-appellant in the night itself and when the accused-appellant was interrogated he stated that he had left the child with her father. A careful scrutiny of the statement of PW-2 would reflect that the accused-appellant, the informant and two others were having liquor together in the evening and that the appellant had come to take the deceased (daughter of the informant and PW-2) at around 7.30 and 8 pm.

58. In so far as the statement of PW-3 is concerned, he stated that on the date of the incident while he was returning home on his cycle, near Anmol Biscuit Factory, he saw the appellant. The victim was noticed on appellant's shoulder. He stated that when he reached home, he noticed that everyone was worried about the victim. Then, he informed everyone that he had seen the appellant carrying the victim on his shoulder. He also stated that thereafter a search for the victim was made and her body was found near Beer factory. He admitted that the FIR was scribed by him. Notably, the report was lodged after finding the body on 20.10.2020. PW-3 also stated that her aunt had informed him that the victim had been taken away by the appellant.

59. The issue that arises for our consideration is whether the statement of PW-3 that he noticed the deceased on the shoulder of the appellant near Anmol Biscuit Factory is reliable or not. Notably, PW-3 is the scribe of the first information report which was lodged at the dictation of PW-1. In the written report (Ex. Ka-1) (FIR), which has lodged on the next day after the body was found, there is no mention that PW-3 had noticed the deceased with the appellant near Anmol Biscuit Factory. In these circumstances, while keeping in mind that PW-3 does not even disclose the time when he saw the deceased with the appellant and that, during cross examination, he stated that his aunt had informed him that the appellant had taken the deceased, coupled with the fact that the disclosure made by him is not reflected in the written report scribed by him, the testimony of PW-3 that he saw the appellant with the deceased near Anmol Biscuit Factory does not inspire our confidence. There is also another reason why we do not propose to rely on PW-3 as a witness of last seen circumstance because there is no disclosure in the prosecution evidence as to where Anmol Biscuit Factory is located and what he was doing there. Moreover, prosecution evidence is silent whether Anmol Biscuit Factory is near the place from where the body of the deceased was recovered. In these circumstances, PW-3 comes in the category of a chance witness whose reason for the presence at the spot is not disclosed.

60. Now we come to the testimony of PW-4 (sister of the informant). We notice from the evidence on record including the site plan (Ex. ka-8) that PW-4 resides in the same complex where the informant and his family resided. PW-4 stated that when she came out of her residence to fetch medicine for her husband who is a heart patient, she found the appellant playing there with the child. She stated that when she went upstairs in her room she disclosed this fact to victim's mother. She stated that thereafter they became worried and made a search for the victim. When we carefully scrutinise the evidence of PW-4, we notice that she has not disclosed the time when she saw the appellant playing with the deceased and she has also not disclosed the time gap between the time when she saw the deceased playing with the appellant and the time when search for the deceased started. In such circumstances, the testimony of PW-4 that the deceased was last seen alive with the appellant is inconclusive. It could be possible that she saw the appellant playing with the deceased earlier and thereafter the deceased might have been handed over to her father as is the defence of the accused-appellant. Moreover, there is no dispute that the appellant had been carrying the deceased on his shoulder and in the past also, he used to play with the deceased as he had been well acquainted with the family of the informant including the deceased, who used to call appellant Chacha (uncle). Further, she has not made any statement that she saw the deceased taking the child away. Playing at the spot where the child resides and taking away the child from the spot are two different things. For the reasons above, the evidence of PW-4 is firstly not conclusive that the deceased was last seen alive with the appellant and not seen thereafter, though it could be taken as an evidence of the deceased being with the appellant on or about the evening time of 19.10.2020 and, secondly, the circumstance which she has disclosed is not of a definite tendency as to unerringly point towards the guilt of the accused as the accused was noticed playing and not walking away with the child.

61. The other important feature in the testimony of PW-4 is that she claims that she had arrested the appellant on 19.10.2020 and handed him over to the police after informing the police on phone about appellant's arrest. But when she was asked on which number she gave information, she stated that it was the number which the Sub-Inspector gave to her while she and her family were searching for the deceased. Importantly, the Sub-Inspector denies having received any information from PW-4 regarding the arrest of the appellant rather, it is claimed by the police witnesses that the appellant was arrested in the night of 20.10.2020 on the basis of information provided by an informer. This discrepancy in the statement of PW-4 with that of the police witnesses creates a doubt with regard to the reliability of PW-4. However, even if we accept the testimony of PW-4, her testimony is inconclusive for two reasons:- (a) that she does not disclose the time when she saw the appellant playing with the deceased; and (b) that she does not state that the appellant was seen taking away the deceased. Rather, her testimony is that the appellant was seen playing with the deceased which we do not find incriminating as admittedly the appellant was an old acquaintance and used to visit the house and play with the child.

62. Now, we shall take up the evidence captured in the CCTV footage. On 17.02.2022, during the course of hearing this matter, at the request of learned Senior Counsel appearing for the appellant, we had played the pen drive (material Ex. 1) which bears the record of CCTV footage of the place from where the victim was taken. After playing the video, on 17.02.2022, we had observed as follows:-

"On playing the video, we noticed that the video starts at 8.50 p.m. At 8.51.41 p.m., a man appears with a girl on his shoulders. Neither the face of the man nor of the girl is seen. That man takes a right turn at 8.51.48 p.m. and is not seen again. The video clip continues up to 8.57.18 and thereafter stops. It is also noticed that the man seen carrying the girl on his shoulders, is not seen climbing or descending the stairs but is at the ground level and there is a busy road in front."

The video clip as observed by us is barely of seven minutes.

63. Notably, in his statement recorded under Section 313 CrPC, the appellant raises no dispute with regard to the CCTV footage showing him carrying the child on his shoulder. The appellant in fact admits that at the request of the informant (PW-1 - father of the deceased) he brought the deceased to her father (PW-1) and, thereafter, he continued with his drinks and then left for home. The appellant states that the informant gave 10 rupees to the deceased and thereafter he does not know where the deceased went. As this video clip is barely of seven minutes and is not the DVR recording of the entire night of the incident one cannot rule out the defence case that after few minutes of playing with the girl, she was brought to her father.

64. Sri J.K. Upadhyay, learned AGA, who appeared for the State, at this juncture invited our attention to the site plan (Ex. Ka-8) to demonstrate that by taking right turn the appellant would have gone to the main street and not to the place where the appellant, the informant and the others were having their drinks, which means that the appellant did not take the girl (the victim) to her father but had taken her away.

65. In response to the above submission, learned counsel for the appellant submitted that assuming that the right turn would be towards the road and not towards the place where they were having drinks but that is not a conclusive evidence with regard to the appellant taking away the girl somewhere else, inasmuch as the video clip is of seven minutes only. It is possible that after playing for some time the girl might have been brought to her father. What is important is that PW-4 herself stated that the appellant was playing outside with the girl. Notably, PW-4 is a resident of the same complex and she had ventured out in that area to purchase medicine for her ailing husband. While she was crossing the road, the appellant was playing with that girl. According to the appellant's counsel it means that the appellant took the girl, played with her and thereafter brought the girl to her father. This circumstance therefore is not conclusive that the girl was taken away by the appellant. Learned counsel for the appellant further submits that the prosecution has laid no charge of the offence punishable under Section 363 IPC.

66. Having viewed the video clip, as regards its probative value, we are of the considered view that the CCTV footage is not such an evidence on the basis of which we may conclude that the appellant took away the girl to some other place. Rather, it is a proof of the appellant having the girl on his shoulder. But having the girl on his shoulder is not indicative of the fact that the appellant was walking away with the girl because, here, we are dealing with a case where the girl was pally with the accused. She use to play with the accused and called him Chacha. It is very normal to witness a child in a playful mood sitting on the shoulder. The appellant also admits that he brought the child to her father. As to whether the appellant took away the girl from that complex is not proved beyond reasonable doubt by that video clip. In fact, from the statement of PW-4, it appears that PW-4, while she was crossing the road to reach her apartment, noticed the appellant playing with the child which means that the child was in the vicinity. Moreover, the video clip is barely of seven minutes. It does not depict the events of the entire night to enable us to rule out the defence that the child was handed over to her father.

67. For the reasons discussed above, as we have found the testimony of PW-3 noticing the appellant with the deceased near Anmol Factory unreliable, the last seen circumstance which the prosecution has been able to prove is not of a definite tendency pointing towards the guilt of the accused as it fails to prove beyond reasonable doubt that the deceased left her residential area with the accused-appellant.

68. In addition to above, the last seen circumstance is a weak type of evidence. It becomes a clinching circumstance only when there is close proximity between the time and place where the deceased was last seen alive with the accused and the time and place from where the deceased's body is recovered. If there is huge gap in the place and time then possibility of the involvement of other persons cannot be ruled out therefore, courts are circumspect in taking the last seen circumstance as the sole basis of conviction. What is important in this case is that the prosecution has not charged the accused for the offence of kidnapping punishable under Section 363 IPC. No doubt, the charge can be altered at any stage but in the instant case the victim and the appellant were known to each other. The victim used to call the appellant Chacha (uncle) and the appellant had been a regular visitor to the house of the victim since before her birth. It is thus not in dispute that in the past also the appellant used to play with the victim. Moreover, the testimony of PW-4 is also to the effect that the appellant was playing with the victim when PW-4 saw the victim with the appellant. The prosecution therefore, rightly, did not put the charge of kidnapping as it might not have sustained against the appellant.

69. We also observe that in the instant case there is no evidence that the appellant and the deceased were seen near the spot from where the body of the deceased was recovered. The prosecution has, in fact, led no evidence to demonstrate that the said spot was in close proximity to the place from where the deceased took the appellant or was close to the place where the deceased was last seen alive with the appellant. Thus, in our considered view, the last seen circumstance on which the prosecution places reliance is inconclusive and cannot form the basis of conviction of the appellant.

(B) MEDICAL/FORENSIC EVIDENCE

70. The prosecution has placed heavy reliance on the report of FSL, Ghaziabad as per which the biological material found on the underwear of the appellant matched with the biological material found in the oral swab taken from the body of the deceased. No doubt, scientific expert report becomes admissible in evidence without formal proof thereof, but to connect the forensic report with the accused, there has to be evidence that the incriminating material in respect of which forensic report has been obtained was duly seized/recovered, properly sealed, kept untampered, examined by FSL (laboratory) and produced in court in a sealed condition. If the incriminating material is recovered from the spot then there has to be a seizure memo in respect thereof which has to be brought on record as a piece of evidence. Likewise, if there is seizure of incriminating material from the accused, a memorandum of seizure has to be made and that seizure has to be proved. Only when the seizure is duly proved and evidence is led to the satisfaction of the court that the seized article was kept in a sealed state and was sent untampered for forensic examination, the forensic report becomes a reliable piece of evidence and may form the basis of conviction.

71. In the instant case, there is no separate memorandum of recovery of the underwear from the accused. Undergarments of the accused were allegedly taken and entry to that effect was made in the medical report of the appellant but the doctor who prepared the report has not been examined. No doubt, the prosecution has proved the arrest memo which was marked Ex. Ka-4 but the arrest memo only states that the accused was medically examined and that he has put his thumb impression on the report. But, the doctor who medically examined the accused has not been examined as a prosecution witness. There is no separate memorandum on record to demonstrate that the underwear/undergarment obtained from the appellant was sealed and sent for forensic examination. Thus, the entry in the medical examination report, which itself has not been proved nor exhibited, cannot be read as a piece of evidence of seizure of undergarments from the accused. Even if we assume that the undergarments of the appellant were taken, what renders the report unworthy of credit is that the FSL report would indicate that the envelop and the forwarding letter disclosed that a Baniyan (vest) and an underwear was forwarded for forensic examination but the envelop that arrived at FSL only had an underwear. There was no Baniyan (vest). If the forwarding letter and envelop shows dispatch of two articles but only one arrives at the laboratory, a serious doubt arises with regard to the envelop being tampered. Notwithstanding that in the forensic report it is mentioned that sealed envelops were received but there is no evidence on record to show that it bore the same seal with which it was sealed at the time of collection. We could not notice from the record that sample seals maintained by the police were exhibited during trial or that the articles sent for forensic examination were produced in a sealed condition in the court to demonstrate that such and such article were submitted for forensic examination. In such circumstances, the doubt that arises from the note put in the forensic report is not dispelled by the prosecution.

72. That apart, neither the medical examination report of the appellant which discloses collection of undergarments nor FSL report were put to the appellant during his examination under Section 313 CrPC. In view whereof, in our considered view, this incriminating circumstance would have to be eschewed from consideration.

73. At this stage, we may observe that though the forwarding letter sending articles for forensic examination has not been made material exhibit in the trial court proceeding but it is there on record as part of the case diary etc. A perusal of that letter would reveal that FSL was required to submit answers to the following questions:-

^^ iz'u%&1 mijksDr izn'kksZ ds vUnj j[kh oLrqvksa ij ekuo lheu gS vFkok ugh

2- e`rdk vjk/;k ds uk[kwu esa fdlh ds jDr o Ropk ds js'ks gSaA vFkok ughA

3- e`rdk ds Vaginal Area ij Ikk;k x;k cky vkSj vfHk0 pUnu ikUMs ds ckyks ls DNA esy [kkrk gSA vFkok ughA

4- ihfMrk ds uk[kwu es CyM o js'ks ik;s tkrs gSa rks D;k vfHk0 ds CyM ls DNA ls esy [kkrs gSaA vFkok ughA

74. Interestingly, the forensic report on which the trial court has placed reliance is inconclusive in respect of vaginal slide, anal slide, anal swab, vaginal swab and frock of the deceased, inasmuch as, in the report it is stated that though the presence of male allele is found but the DNA profiling could not be done to enable its comparison with the blood sample of the accused. Similarly, the profiling of DNA on item No.9 (hair of the deceased), item no.11 (metallic payal of the deceased), item no.21 (hair found in the pubic area of the deceased which might have been of the cuplrit) and item no.22 (nail clipping of the accused) could not be successful. Further, the forensic report is silent in respect of presence of spermatozoa. In our view, therefore, the forensic report on which heavy reliance has been placed by the trial court to record conviction cannot form a valid piece of evidence as against the appellant for the following reasons:- (i) the only item of the appellant that could connect the appellant to the crime was the underwear (item no.12) but the seizure of this underwear from the appellant has not been proved, inasmuch as, the medical report which shows that undergarments were recovered from the appellant has neither been proved by examining the doctor nor is marked as an exhibit more over the underwear sent for forensic examination has not been produced in court as a material exhibit; (ii) the forensic report makes a note that the envelop containing the underwear and Baniyan (vest) of the accused, when opened, disclosed presence of only an underwear. There is no evidence led by the prosecution that the underwear when collected from the appellant was duly sealed and was properly kept in a sealed condition for transmission to the forensic laboratory and that the same seal with which it was sealed was matched and found intact. Further, as the contents of the envelop were different than what was noted on its cover or in the forwarding letter/ envelop, the possibility of the envelop being tampered cannot be ruled out, particularly, when the sample of the seals by which those envelops were sealed for transmission and sent back by the forensic laboratory after examination were not proved or made exhibits; and (iii) neither seizure of the underwear nor the forensic report was to put to the appellant while recording his statement under Section 313 CrPC.

75. For all the reasons recorded above, we are of the considered view that the trial court erred in law by placing reliance on the forensic report as to connect the appellant with the crime.

76. In addition to above, we are also of the view that the prosecution has suppressed material facts, inasmuch as --

(1) The evidence of the prosecution witnesses, namely, PW-1, PW-4 and PW-2, is consistent that a report of the incident was made to the police on 19.10.2020 and that the police had carried out search for the victim in the night itself. The fact that the incident was reported to the police on 19.10.2020 itself is corroborated by the statement of PW-5 also, who states that the police on 19.10.2020 had asked for the CCTV footage from him. But, unfortunately, that report has been suppressed by the prosecution. As to who was the suspect in that report and from where the child went missing could have thrown light on the truth but as this piece of information has been suppressed by the prosecution, the court is left guessing as to whether there was someone else who was involved in the crime;

(2) PW-1, PW-2 and PW-3 stated that the accused was arrested in the night of 19.10.2020 whereas the police discloses the arrest of the appellant on 20.10.2020 at 21.50 hrs; this gives us a feeling that the police wants to hide the fact that despite in depth interrogation nothing incriminating could be found against the appellant and that nothing incriminating could be recovered at his instance;

(3) The prosecution has not examined the doctor who conducted the medical examination of the appellant at the time of his arrest. This assumes importance because the medical examination report of the appellant is there on the record of the trial court and it indicates that the medical examination was conducted at 11.30 pm on 20.10.2020 and as many as seven injuries were noticed on the body of the appellant, which were simple in nature caused by hard and blunt object. The medical report does not disclose that those injuries were fresh in nature therefore, the possibility of the appellant being arrested earlier and beaten cannot be ruled out therefore, to ensure that the police might not be caught on the wrong foot, the doctor was not examined to prove that report;

(4) The first information report suggests that information about the body being found was received at 12.30 hrs on 20.10.2020 whereafter the FIR was lodged. The oral deposition of the witnesses is to the effect that the body was found by the police and they informed the informant that the body has been found. The prosecution has led no evidence as to on whose information the body was found. This creates a doubt in our mind as to whether the incriminating information regarding the place where the body was dumped is being suppressed with a view to save someone else;

(5) A bottle and the other articles were lifted from near the spot where the body was found but they have not been sent for forensic examination or for finger prints expert report as to rule out the involvement of some other person;

(6) The prosecution has not examined those two other persons who were having drinks with the informant at the time when the appellant is stated to have got up to fetch the daughter of the informant. These witnesses could have thrown light on the defence taken by the appellant that he had brought informant's daughter to her father where they all were having liquor.

77. In view of the discussion above, though the prosecution has been successful in proving that the victim was sexually assaulted and killed but it has failed to prove that the victim was sexually assaulted and killed by the appellant. It is an unfortunate case where it appears that the father of the victim and the other three including the appellant were so drunk that they were not conscious of their acts. The appellant who was having drinks with the victim's father and had brought the victim down stairs was noticed playing with her therefore, he was the prime suspect. But, whether the victim was brought to her father or she was left on the road is anybody's guess. Rather, it appears to be a case where these three persons were so drunk that they were not even conscious of their responsibility towards the child. Whether the child was picked up by an unknown stranger or the child was handed over to a stranger or the child was brought to her father and thereafter the father sent her somewhere is just a matter of speculation. What goes in favour of the appellant is that there is nothing against the appellant as to why he would commit such a heinous crime, particularly, when he himself was a married person with children and the victim was like his own niece with whom he used to play. What also goes in favour of the appellant is that the appellant has not denied having taken the child from her mother, rather, he has maintained his stand throughout, even while he was interrogated, that he had handed over the child to his father and thereafter his father gave some money to the child and that they continued with their drinks (liquor). What further goes in favour of the appellant is that from the evidence brought on record it appears that the accused was apprehended in the night of 19.10.2020 itself but despite interrogation there appeared no disclosure leading to discovery of any incriminating material at his instance. What goes against the prosecution is that they have not come out with clean hands and they have tried to suppress material facts which we have already noticed above. Further, what goes against the prosecution is that they have not taken care to lead convincing evidence in respect of seizure of underwear of the appellant and transmission of underwear for forensic examination in a sealed and untampered condition. What also goes against the prosecution is that the incriminating circumstance relating to seizure of the underwear was not even formally proved and even the forensic report was not put to the accused during his examination under Section 313 CrPC. What further goes against the prosecution is that all the other materials except that underwear could not connect the appellant to the crime. But, since the seizure of that underwear was not proved, its transmission to FSL in a sealed/untampered condition becomes doubtful and the underwear was not made material exhibit, the forensic report becomes an unreliable piece of evidence.

78. Thus, for all the reasons recorded above, we have no hesitation in allowing the appeal and rejecting the reference. The appeal is allowed. The judgment and order of the trial court is set aside. The reference to confirm the death penalty is answered in the negative. The appellant is acquitted of the charges for which he has been tried. He shall be set at liberty forthwith unless wanted in any other case subject to compliance of the provisions of section 437-A CrPC to the satisfaction of the trial court below.

79. At this stage, we would like to put on record that our predecessor Bench by order dated 28.07.2021 had called for a report from the Jail Superintendent regarding the conduct and behaviour of the accused-appellant. The said report has been placed by the office in a sealed cover which we have not opened as we have already taken a decision to acquit the appellant.

80. Let the lower court record be sent along with certified copy of the order to the trial court for compliance.

Order Date :- 19.12.2022

AKShukla/-