State vs Bharat Singh
2014 Latest Caselaw 1936 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                         DEATH SENTENCE REF. No. 1 of 2013

        STATE                                                  ..... Petitioner
                                 Through: Mr. Varun Goswami, Advocate.

                                 versus
        BHARAT SINGH                                         ..... Respondent
                                 Through: Mr. Sumeet Verma, Advocate.

                                 AND
                         CRIMINAL APPEAL No. 509 of 2013

        BHARAT SINGH                                         ..... Appellant
                                 Through: Mr. Sumeet Verma, Advocate.
                                 versus

        STATE (NCT OF DELHI)                  ..... Respondent
                      Through: Mr. Varun Goswami, Advocate.
        CORAM:
        HON'BLE DR. JUSTICE S. MURALIDHAR
        HON'BLE MS. JUSTICE MUKTA GUPTA

Dr. S. Muralidhar, J.

1. By the judgment dated 14th January 2014 in SC 14 of 2013, the Additional Sessions Judge (ASJ), Special Fast Tract Court convicted Bharat Singh for the offence under Sections 376 (2) (f) and 302 of the Indian Penal Code (IPC) while acquitting co-accused Sanjay and Arvind for the offence under Section 201 IPC. By the consequent order on sentence dated 15th January 2013, the learned ASJ sentenced the accused Bharat Singh to rigorous imprisonment for life with a fine of Rs. 50,000 for the offence under Section 376 (2) (f) IPC and in default of payment of fine, to undergo further imprisonment for a

period of one year, and to death for the offence under Section 302 IPC with fine of Rs. 50,000.

2. The State has sought confirmation of the death sentence through Death Sentence Reference No. 1 of 2013. The accused has filed Criminal Appeal No. 509 of 2013 challenging the judgment dated 14th January 2013 and the order on sentence dated 15th January 2013.

The prosecution case

3. The prosecution case is that Mr. Mohd. Anwar (PW-3) was resident of House No. 280, House of Sultan Master, Gali No.1, near Hanuman Mandir, Kapashera, Delhi. He had a daughter, aged about 3 years, who has been referred to as „S‟ in the trial Court judgment. She is referred to as such in the present judgment as well. „S‟ went missing since the evening of 9 th April 2011 and this was brought to the notice of PW-3 by his wife Majida Khatoon (PW-11). PW-3 presumed that „S‟ had gone to the house of her grandparents. „S‟ was wearing a dark brown skirt top and red bangles in her hands.

4. When they could not trace her, at around 12 midnight, PW-3 went to police station Kapashera and lodged a complaint (Ex.PW-3/A). The police asked PW-3 to come to the police station at around 6 am to inform them whether „S‟ had been traced. While PW-3 and the police were still searching for „S‟, in the morning of 10th April 2011 ASI Dilbag Singh (PW-33) received Daily Diary („DD‟) No.16A in relation to a dead body of a minor girl aged about 2 to 3 years lying near Gupta Farm near Bijwasan Road. Meanwhile Aaisha Khatoon (PW-17), aunt of PW-3, on being informed by

her son Mustkeen (PW-4), picked up „S‟s dead body which was lying on the Bijwasan Road near a farm house at about 11.40 am. PW-17 thought „S‟ was still alive and brought her to the house of PW-3.

5. Meanwhile, when PW-33 went to the Gupta Farm House on receipt of DD No. 16A, he went there along with SI Rajender Singh (PW-37) and Constable Vinod (PW-29). They could not trace out any dead body there. However, PW-37 found blood stains outside the Shivraj Gupta Farm House on the lower portion of the bark of bushes and small plants. He found some blood stains inside the farm house near the railing. PW 37 also found one blood stained skirt at a distance of 70 to 80 yards from the previous spot. He found one white colour piece of cloth stained with something like blood near the northern side wall of the farm house. One pair of slippers (adult size) was found near the spot. Meanwhile, PW 37 got information that the dead body of „S‟ had been taken to the house of PW-3. He received information in the meanwhile that the crime team had reached the spot.

6. The spot was photographed (Ex.PW-5/A-1 to Ex.PW5/A-7). At the house of PW-3, the dead body of „S‟ was photographed (Ex.PW5/A-8 to Ex.PW5/A-13). The dead body of „S‟ was sent to the mortuary of DDU Hospital through Constable Vinod. Ex.PW-20/A is the post-mortem report. The autopsy started at 11.30 am on 11th April 2011 and ended at 12:30 pm.

7. The post-mortem report noted the external injuries as under:

"1. Multiple scratches and nail marks present on the face, bilateral arms and lower abdomen and thighs with reddish brown in colour.

2. Multiple bruises of different shape and size present on the both upper and lower limbs, back, medial aspect thigh, left inguinal region and mons pubis with reddish brown in colour.

3. The vagina and anus extensively dilated and ruptured with tearing of perineum which caused communicated both orifices with regard to severity of the injury minimal amount of blood and blood clots revealed into the anal and vaginal introitus and appeared peri mortem in nature with collection of sufficient amount of clotted blood into the vicinity of the wound along with lacerated all tissue adjacent to wound. The loops of intestines protruded through anus (common introitus) with dark in colour due to set up of putrefaction (initial stage)."

8. The internal examination noted that "All cartilages of neck and hyoid bone are intact. Tracheal mucosa mild congested with frothy secretion." As far as examination of the genital organ was concerned, the observation was as under:

"1. Urinary Bladder : Empty

2. Rectum : Empty

3. Genital organs: Vagina, labia minora along with anal canal severally lacerated and torn off due to forcefully penetration of inproportionate penile organs during the act of intercourse as detailed mentioned in injury no.3"

9. The opinion rendered was as under:

"1. The cause of death is due to neurogenic shock caused by forcefully and painful committed sexual intercourse.

2. All injuries are ante mortem in nature. The injury no.1 & 2 were inflicted during the course of scuffle while injury no.3 was caused by forcefully penetration of in proportionate

penile organ during the act of sexual intercourse. The injury no. 3 was sufficient to cause death in ordinary course of nature.

3. Manner of death is homicide with sexual assault.

4. Time since death of deceased is approx 1½ days prior to post-mortem examination."

10. Dr. B. N. Mishra (PW-20), the Medical Officer, Department of Forensic Medicine, DDU Hospital who prepared the post-mortem report also preserved the following samples/specimen for further forensic examination:

"1. Clothes-for identification of soil, detection of semen and blood spots.

2. Finger tips with nails-for detection of any foreign body/tissue related to accused.

3. Vaginal swab (internal and external area) - along with anal swabs for detection and matching of semen with accused.

4. Blood on gauze piece-for matching/control sample.

5. Matted scalp hair-for detection of semen or any other biological secretion of accused.

6. The mud/soil scrubbed out from the body of deceased for control sample to establish the scene of crime along with identification of suspected accused person.

All above mentioned exhibits preserved accordingly with labelled and sealed with seal of "DFMT, DDU" hospital and handed over to I.O. concern."

11. Meanwhile, the Investigating Officer („IO‟) Anil Kumar (PW-38) zeroed

in on five suspects namely Bharat Singh, Sanjay, Ranjit, Jagan Paswan and Shanker. Out of them Bharat Singh and his nephew Ranjit were on night duty at the farm house on the intervening night of 9 th/10th April 2011. They were interrogated. Another guard, Sanjay, who was on duty on 10th April 2011 at day time, was also interrogated. All five persons were medically examined and taken to Safdarjung Hospital for that purpose.

12. Bharat Singh was examined by Dr. Ataur Rehman (PW-6) at the Safdarjung Hospital and on the clinical examination of Bharat Singh, he made the following observations:

"1. Abrasion present over corona glandis.

2. Smegma present.

3. No phemosis."

PW-6 then sent swab from the genital organ to the Forensic Department.

13. Dr. Atul (PW-13) who was in the Forensic Medicine Department, Safdarjung Hospital, New Delhi again examined Bharat Singh and found "a pinkish partially healed abrasion (scab fallen off) 1x0.5 cm on right side front of chest, upper aspect in the mid clavicular region." On local examination he found "excoriation with thickening of skin over the scrotum. Both testis were present. On retraction of prepuce whitish smegma was present all over the glans. The mucosal skin showed reddish raw area in the upper part of penile shaft. The frenulum showed old scar injuries. The meatel opening is small, circular. Anus showed thickening of peri anal skin with skin tags." PW-13

further opined that that there was nothing to suggest that Bharat Singh was not capable of performing sexual intercourse.

14. It must be noted at this stage that in his cross-examination, PW-13 clarified as under:

"The two injuries on private part of the accused were the mucosal skin showed reddish raw area in the upper part of penile shaft and old scar injuries on the frenulum. The old scar injury was more than six weeks old. The other injury on glands which was fresh injury was about 24 hours old with plus minus of 8 hours on either side".

15. It is stated that thereafter Bharat Singh made a disclosure statement which led to the recovery of the pant worn by him. Blood stains were also found near the zip of the pant. M/s. Walsons Security Company was providing security to the farm house. Its Manager was one Mr. Sehdevan (PW-24). PW- 24 stated that on 10th April 2011 at around 10 am, one Security Guard Sanjay and Gardener Shankar telephoned him to say that the dead body of one small girl child was lying in the farm house. He then contacted Mr. Shiv Raj Gupta (PW-25), the owner of the farm house and asked him to call the police. On his part, PW-25 asked PW-24 to reach the spot.

16. The statements of the child witnesses, Mustkin (PW-4), Deepak (PW-8) and Rehman (PW-9) were recorded under Section 164 CrPC.

The DNA tests

17. The DNA Fingerprinting Unit of FSL, Rohini, submitted its report dated 30th September 2011. This was concerning "one blood sample and three

sealed forensic samples". As regards the forensic samples received on 25 th April 2011, the description of the parcels was as under:

"Forensic Sample received on 25.04.2011

Parcel 1: One sealed polythene bag parcel sealed with the seal of DFMT DDU Hospital, containing exhibit „I‟.

Exhibit 1: One baby‟s frock along with muddy deposition.

Parcel 2: One sealed polythene bag parcel sealed with the seal of DFMT DDU Hospital, containing Two sealed plastic dibbi sealed with the seal of DFMT DDU Hospital marked „2A‟& „2B‟said to be vaginal swab and anal swab described as of deceased.

Parcel 2A: One sealed plastic dibbi sealed with the seal of DFMT DDU Hospital, containing exhibits „2A1‟and „2A2‟.

Exhibits 2A1 & 2A2: Two cotton wool swabs on a wooden stick along with muddy deposition.

Parcel 2B: One sealed plastic dibbi sealed with the seal of DFMT DDU Hospital, containing exhibits „2B1‟, „2B2‟ and „2B3‟.

Exhibits 2B1, 2B2 and 2B3: Three Gauze cloth pieces having dirty stains.

Parcel3: One sealed envelope sealed with the seal of „S‟. Nn. FSL Delhi, containing exhibit 3.

Exhibit 3: Brown gauze cloth piece, described as deceased blood gauze."

18. The blood samples received on 20th April 2011 was that of Bharat Singh and that was Exhibit 4.

19. The operative portion of the report reads as under:

"The exhibits „1‟, „2A1‟, „2A2‟, „2B1‟, „2B2‟, „2B3‟, „3‟ & „4‟ were subjected to DNA isolation. The DNA could not be isolated from the exhibits „1‟, „2A1‟ & „2A2‟. The DNA was isolated from the exhibits „2B1‟, „2B2‟, „2B3‟, „3‟ & „4‟ and DNA Fingerprint profile were prepared for the exhibits „2B1‟, „2B2‟, „2B3‟, „3‟ and „4‟. The STR analysis was used for each of the sample. Data was analyzed by using Genescan and Genotyper software.

Results of examination The alleles from the source of exhibit „4‟ (Blood sample of Sh. Bharat Singh) are accounted in the alleles from source of exhibits „2B1‟, „2B2‟ & „2B3‟ (Gauze cloth pieces having dirty stains).

Conclusion The DNA fingerprint profiling (STR analysis) performed on the exhibits „2B1‟, „2B2‟, „2B3‟ provided is sufficient to conclude that the source of exhibit „4‟ (Blood sample of Sh. Bharat Singh) is responsible for the Biological stains on exhibits „2B1‟, „2B2‟& „2B3‟ (Gauze cloth piece having dirty stains.)

Note:

1. Remnants of the exhibits „1‟, „2A1‟, „2A2‟, „2B1‟, „2B2‟, „2B3‟, „3‟have been sealed with seal of „SB FSL Delhi‟.

2. Exhibit „4‟has been consumed during examination."

20. The supporting document for the above report was the allelic data analysis dated 30th September 2011 (Ex.PW-41/A) which confirmed that "the allelic data of the source of exhibits „4‟ are accounted in the allelic data of the source of Exhibits 2B1 to 2B3."

Serological examination

21. As regards the serological examination, the FSL gave a separate report dated 20th September 2011. It described in detail the parcels, of which the relevant ones were parcel Ex.R-4 which was "one small size baby skirt" and Ex.R-8 "one dirty pant". The report stated that human semen was detected on both the above exhibits. Although the hair found in Ex.R-3, H-1, H-2 and H- 3 (being the hair belonging to the accused) was found to be human in origin, no further opinion regarding the matching of the hair could be given due to less number of hairs in Ex.R-3.

22. The above report was accompanied by the serological analysis which reads as under:

"Portion of exhibits as detailed in the main Biology Report have been examined using various serological techniques. The results obtained have been analysed as given below:

            Exhibits             Species of Origin   ABO

                                                     Grouping/Remarks

            Blood stains:-       Human               No reaction
            „P-4‟Soil
            „P-5‟Finger          Human               No reaction
            tips
            „R-2‟Blood           Human               No reaction
            stained earth
            „R-4‟Skirt           Human               Inconclusive

            „R-5‟Piece of Human                      No reaction
            cloth
            „R-7‟         Human                      No reaction
            Concrete

             material
            „R-8‟Pant            Human         No reaction

            „EC-1‟Stone          Human         No reaction
            pieces
            „EC-3‟Soil           Human         No reaction

            „A-1‟Blood    Human                Inconclusive
            stained gauze
            cloth
            „P-6‟Blood    Human                Inconclusive
            stained gauze
            cloth
            Semen           ---                Inconclusive
            stains:-
            „R-4‟Skirt
            „R-8‟Pant       ---                No reaction

23. After completion of the investigation, the charge sheet was filed and the case was thereafter committed to the Court of Sessions. By an order dated 8 th August 2011, charges were framed against Bharat Singh for committing the offence punishable under Section 366 IPC for keeping the deceased girl „S‟ out of her lawful guardian without their consent and with an intention to force her into illicit intercourse, and under Section 376(2)(f) IPC for raping her in the guard room, and under Section 302 IPC for committing her murder, and under Section 201 IPC for causing the material evidence to disappear by throwing the dead body of „S‟ outside the farm house and by throwing the skirt and the newspaper with which he had cleaned his semen at different places in the farm house and by hiding his own clothes. A separate charge was framed against co-accused Sanjay and Arvind under Section 201 read

with 34 IPC for causing material evidence to disappear by throwing the dead body of the „S‟ outside the farm house.

Statement of the accused under Section 313 Cr PC

24. Forty-two witnesses were examined on behalf of the prosecution. In response to the questions under Section 313 CrPC, the accused Bharat Singh gave a standard answer of "I do not know" in respect to the various questions. In response to Question No. 25 regarding his being posted as Security Guard in the farm house in the intervening night of 9 th/10th April 2011 and his being interrogated, he answered "It is correct". He also stated that it was correct that he was taken to the Safdarjung Hospital for examination. In response to Question No. 29 that Bharat Singh had not come to PW-10 Duniya Lal Jha‟s tea shop, near the Gupta Farm House, at 6 am on 10th April 2011, he answered "It is correct". In response to Question No. 36 that he was again examined on 20th April 2011 and sample of his hair from different body parts was taken he stated "It was correct". He also confirmed in response to Question No. 42 that along with the co-accused he had been taken for medical examination to Safdarjung Hospital and after medical examination the doctor handed over one plastic dibbi containing the blood gauze of Bharat Singh which was deposited with the Moharar Malkhana. In response to Question No. 56, he admitted as correct that during the medical examination, the doctor opined that he had abrasion mark on his penis and was referred to the Forensic Department. However, he denied his involvement in the murder or that he made any disclosure statement. In response to the question whether he wanted to lead any evidence, he replied

in the negative. He stated that he had been falsely implicated and when asked if he wanted to say anything else, he stated that he was innocent.

The trial Court judgment

25. The trial Court undertook a detailed analysis of the evidence and, in particular, held that the following circumstances stood proved by the prosecution beyond all reasonable doubts:

"(i) Deceased „S‟ went missing from the evening of 9 th April 2011;

(ii) PW-4 and PW-8 had seen the deceased going towards farm house again and again. They stopped her and brought her back to house;

(iii) Deceased had been raped and killed on the nigh intervening between 9th April 2011 and 10th April 2011;

(iv) The dead body of deceased was found outside Gupta Farm House in the morning of 10th April 2011;

(v) Accused Bharat Singh was on night duty as a security guard along with Rajesh in the Gupta Farm House on the night intervening between 9th April 2011 and 10th April 2011;

(vi) The blood stained frock and chappal of the deceased were recovered from inside Gupta Farm House;

(vii) Accused Bharat Singh, pursuant to his disclosure

statement, pointed the guard room in the farm house where deceased had been raped and killed and also the place inside the farm house where her dead body had been thrown on the grass after her death;

(viii) Blood stains were found on the floor of the guard room and on the grass;

(ix) Accused also got recovered his pant from beneath the stones outside the farm house and there were blood stains on the base of the pant‟s zip;

(x) The accused Bharat Singh has failed to explain how he came to know that the deceased had been raped and murdered in the guard room and then her dead body was thrown in the grass. He also failed to explain blood stains on his pant;

(xi) An abrasion was found on the penis of accused Bharat Singh during his medical examination, which also he has not explained;

(xii) DNA in the blood or accused matched with the DNA present in vaginal and anal swab of the deceased; and

(xiii) The accused Bharat Singh did not take tea on the tea stall of PW-10, where he used to take tea daily in the morning and he has not furnished any particular reason for the same".

26. It was held that circumstances (vii) to (xiii) unerringly pointed towards the guilt of Bharat Singh and were inconsistent with his innocence. It was accordingly concluded that the prosecution had been successful in proving that the accused Bharat Singh had raped and murdered the minor child „S‟. However, the prosecution failed to lead evidence that the co-accused Sanjay and Arvind knew the offender at that time and they threw the dead body out of farm house in order to shield the offender. At that time, as per the case of the prosecution itself, it was unknown to everybody as to who had committed the offence. Accordingly, the learned trial Court concluded that they threw the dead body to protect the goodwill and reputation of their employer company and to show that the dead body was not found inside the farm house. Accordingly, co-accused Sanjay and Arvind were acquitted for the offence under Section 201 read with 34 IPC.

27. By the order on sentence dated 15th January 2013, the trial Court concluded that the case fell in the category of rarest of rare cases warranting the capital punishment. It was stated that no mitigating circumstances were able to be found. Only the old age of the convict was sought to be projected by his counsel. Accordingly, the sentences as mentioned earlier were awarded for the offence under Section 376 and 302.

28. Mr. Varun Goswami, learned APP, has been heard for the State and Mr. Sumeet Verma, learned counsel for the accused Bharat Singh, the Appellant in Criminal Appeal No. 509 of 2013.

The chain of circumstances

29. The Court has gone through the entire evidence again in great detail. From the evidence of PW-4 Mustkim it is seen that „S‟ was first noticed going towards Deepan Hospital in the direction of the farm house when PW- 4 stopped her and brought her back to the house. He then returned her to house. Next morning when the family members started searching for „S‟, PW-4 stopped her near the wall of the farm house and then called his mother PW-17.

30. PW-8 Master Deepak also stated that „S‟ was found going towards the farm house time and again while he and PW-4 were playing near the Hanuman Temple in the evening of 9th April 2011. They then caught and sent her inside the plot where her tenanted room was situated.

31. PW-9 Master Rehman Ali was present with the family members on the morning of 10th April 2011 when they were searching for „S‟. He confirmed that PW-4 touched „S‟ when she was found lying near a tree just outside the wall of Gupta Farm House and that when PW-4 went to call PW-17, PW-9 sat near the body.

32. The above three children have spoken as natural witnesses and there is an indication that the infant child „S‟ kept going towards the farm house.

33. From the evidence of PW-37 SI Rajender Singh, it is clear that the distance between the farm house and the house of the victim was approximately less than 1 km. There was a tea stall at some distance from the farm house. PW-37 clearly stated that "I had inspected the entire farm house. The wall towards East side was partly broken. It is correct that any person can enter in the farm house from that place. There was no light arrangement in that portion of farm house."

34. Mr. Goswami referred to the disclosure statement of the accused Bharat Singh and submitted that to the extent a portion of the said statement could not be said to be incriminating but reflective of the conduct of the accused, it was admissible in evidence in terms of Section 8 of the Evidence Act. In particular, Mr. Goswami referred to the portion of the statement of Bharat Singh where he states that he was performing his duty from the last ten months at the Gupta Farm House along with his nephew Ranjit; that his wife expired more than 20 years ago; that he had to come to duty after consuming liquor; that on 9th April 2011 due to work of road construction, trucks had been parked outside the farm house and they had left by 9.30 pm; that at around 10.30 pm when he reached near the broken wall of the farm house while taking a round around the wall of the farm house he saw a girl aged about 2½ to 3 years sobbing while standing alone near the broken wall; that he pacified her and brought her near the guard room constructed in the farm house. In support of his submission that the aforementioned portions could be relied upon, Mr. Goswami referred to the decisions in Bheru Singh v. State

of Rajasthan II (1994) CCR 342 (SC) and Anuj Kumar Gupta v. State of Bihar VII (2013) SLT 383.

35. The Court is of the view that the last portion of the statement where the accused is stated to have disclosed that while taking a round of the wall of the farm house he saw the girl cannot be taken note in so far as it confirms that the girl was last seen in the company of the accused. In any event, as far as the present case is concerned, the above statement need not be looked into at all except to the limited extent of it constituting disclosure for the purposes of Section 27 of the Evidence Act. The fact that Bharat Singh was employed as a guard and was on duty during the intervening night of 9th/10th April 2011 has been admitted by him in his examination under Section 313 CrPC. That apart, his identification form (Ex.PX-1) and his appointment letters (Ex.PW- 26/A to Ex.PW-26/F) have been proved. There is no doubt, therefore, that Bharat Singh was on duty as a guard on the intervening night when the crime occurred.

The medical evidence

36. The post-mortem report which has been proved by PW-20 confirms that death was "due to neurogenic shock caused by forcefully and painful committed sexual intercourse". All injuries were ante mortem in nature. Injury No. 1 and 2 were inflicted during the course of scuffle while injury No.3 was caused by "forcefully penetration of improportionate penile organs during the act of intercourse and same was sufficient to cause death in ordinary course of nature" and the manner of death was "homicide with

sexual assault". The time since death was "approximately 1½ days prior to the date of post-mortem examination" which was started at 11.30 am on 11 th April 2011. There was no cross-examination of PW-20. The above evidence clearly indicates that the death was homicidal.

Forensic evidence

37. Turning to the forensic evidence, it is seen that when the post-mortem report was prepared, PW-20 preserved samples/specimen samples for further forensic examination. Included in this were the vaginal swabs (internal and external area) along with anal swabs for detecting and matching of the semen stains with the accused. Another specimen was the blood on a gauze piece for the matching/control sample. All these samples were labelled and sealed with seal of DFMT, DDU. The DNA Fingerprint Unit report dated 30 th September 2011 (Ex.PW-38/B) referred to the sample received on 25th April 2011 as containing two parcels with the aforementioned seal of DFMT, DDU. Inside this one sealed polythene bag parcel, with the seal of DFMT DDU Hospital, there were two sealed plastic dibbis again sealed with DFMT DDU. They were marked 2A and 2B. In the report dated 30th September 2011, these are described as "Two sealed plastic dibbi sealed with the seal of DFMT DDU HOSPITAL marked 2A and 2B said to be vaginal swab and anal swab described as of deceased".

38. It was submitted by Mr. Sumeet Verma, learned counsel for the accused, that the report dated 30th September 2011 does not categorically confirm that the plastic dibbi marked „2B‟ was the one containing the anal swabs. However, this Court has no doubt that the plastic dibbi marked „2B‟

contained the exhibits „2B1‟, „2B2‟ and „2B3‟. Although the word "respectively" has not been mentioned after the words "and anal swab", there can be no doubt that the plastic dibbi marked 2A contained the vaginal swab and the plastic dibbi marked 2B contained the anal swab. Parcel 2A containing the vaginal swab in turn contained Exhibits „2A1‟and „2A2‟ which were "two cotton wool swabs on a wooden stick along with muddy deposition". DNA could not be isolated from the exhibits „1‟, „2A1‟ and „2A2‟. Parcel 2B, which contained the anal swabs, contained exhibits „2B1‟, „2B2‟ and „2B3‟ which were three gauze cloth pieces having dirty stains. The report made it clear that these three gauze cloth pieces i.e. „2B1‟, „2B2‟ and „2B3‟ were analysed for the DNA Fingerprint profile. STR analysis was used for each of the samples. The data was analysed by using Genescan and Genotyper software. The report confirmed that the alleles from the blood sample of Bharat Singh were accounted in the alleles from source of the aforementioned three gauze cloth pieces. While Exhibit-4 was consumed during the examination, the remnants of the above three gauze pieces were sealed with the seal of „SB FSL DELHI‟.

39. The above confirmation by the DNA Fingerprint Analysis that the anal swabs taken from the victim matched blood sample of the accused was reiterated by Ms. Shashi Bala (PW41) who is the Senior Scientific Officer, Biology, FSL, Rohini. She confirmed in her examination-in-chief as under:

"In my opinion, the DNA finger print profiling performed on the exhibits „2B1‟, „2B2‟ and „2B3‟ provided is sufficient to conclude that the source of exhibit 4 i.e. blood sample of Bharat Singh is responsible for the biological stains on the exhibits „2B1‟, „2B2‟ and „2B3‟ (gauze cloth piece having dirty stains)."

40. PW 41was cross-examined and she confirmed that "one plastic dibbi was containing two cotton wools swabs, same were marked 2A1 and 2A2 and another plastic dibbi was containing three gauze cloth pieces mark 2B1, 2B2 and 2B3." While she was asked about the vaginal swabs 2A1 and 2A2, she answered that the DNA could not be isolated from the vaginal swabs. There was no question put to her regarding DNA being isolated from „2B1‟, „2B2‟ and „2B3‟ i.e. the three gauze cloth pieces containing the anal swabs.

41. Mr. Sumeet Verma then drew the attention of the Court to the alleles data accompanying the forensic report of the DNA Fingerprint Unit of the FSL. Comparing the alleles data from exhibits „2B1‟ to „2B3‟ and the alleles data for Exhibit-4, he pointed out that in one parameter i.e. CSFIPO under the column title "Loci" while the alleles data from exhibits „2B1‟ to „2B3‟ was „Nil‟, the alleles data for exhibit-4 was 8/10. This, according to Mr. Verma, raised a reasonable doubt as to whether the allelic data for Exhibt-4 was fully accounted for in the allelic data of „2B1‟ to „2B3‟. However, no question regarding this was put to PW-41. Her expert opinion that the allelic data of exhibit-4 was fully accounted for in the allelic data of exhibits „2B1‟ to „2B3‟ stood unchallenged.

42. Before discussing the above submission, the Court would like to briefly dwell upon the instances of the reliance placed by Courts on DNA profiling evidence. In Sunil Dutt Sharma v. State 2013 (12) SCALE 473 the Supreme Court referred to the fact that while the initial post-mortem report attributed death of the victim in that case to excessive bleeding, the trickle of blood found at the crime scene was confirmed by DNA testing. In S.K. Singh v.

State (2010) 9 SCC 747, the Supreme Court confirmed the judgment of this High Court which relied on the DNA test to determine the guilt of the accused in that case.

43. In Anil @ Anthony Arokiaswamy Joseph v. State of Maharashtra JT 2014 (3) SC 217 the Supreme Court relied on the forensic evidence which confirmed that the DNA profile of the blood of the accused matched with the DNA profile of the anal swab of the deceased. It was held in paras 17 and 18 as under:

"Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory.

18. PW5, Dr. Varsha Rathod, stated that since 1994 she was working as Assistant Chemical Analyzer and has analyzed thousands of samples including DNA test. She has stated that she had conducted two tests, one STR and second YSTR. Both the tests are scientifically proven and the competence of the doctor who conducted the test is also not questioned. Consequently, the DNA test report could be safely accepted, which shows that the deceased boy was subjected to unnatural sex and offence under Section 377 has been clearly made out."

44. In a recent judgment of the Supreme Court of the United States in

Maryland v. King (decision dated 3rd June 2013), the use of DNA technology has been commented upon as under:

"The advent of DNA technology is one of the most significant scientific advancements of our era. The full potential for use of genetic makers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, see J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) (hereinafter Butler), law enforcement, the defense bar, and the courts have acknowledged DNA testing‟s "unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigation practices." District Attorney's Office for Third Judicial Dist. V. Osborne, 557 U.S.52, 55 (2009).

The current standard for forensic DNA testing relies on an analysis of the chromosomes located within the nucleus of all human cells. "The DNA material in chromosomes is composed of „coding‟ and „noncoding‟ regions. The coding regions are known as genes and contain the information necessary for a cell to make proteins...Non-protein-coding regions... are not related directly to making proteins, [and]l have been referred to as „junk‟ DNA." Butler 25. The adjective "junk" may mislead the layperson, for in fact this is the DNA regions used with near certainty to identify a person. The term apparently is intended to indicate that this particular noncoding region, while useful and even dispositive for purposes like identity, does not show more far-reaching and complex characteristics like genetic traits.

Many of the patterns found in DNA are shared among all people, so forensic analysis focuses on "repeated DNA sequences scattered throughout the human genome, known as "short tandem repeats" (STRs). Id., at 147-148. The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as

"alleles," id., at 25; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve present technology, but even now STR analysis makes it "possible to determine whether a biological tissue matches a suspect with near certainty." Osborne, supra, at 62."

45. Apart from the fact that DNA profiling analysis is relied on by Courts as corroborative evidence, it has also received legislative recognition. Section 53A (2) (iv) of the Cr PC, introduced with effect from 23rd June 2006 requires, inter alia, a medical practitioner conducting the examination of a person accused of rape to prepare a report of his examination giving a "description of the material taken from the person of the accused for DNA profiling". Thus, the use of DNA as a scientific tool in forensic medical examination has been statutorily acknowledged.

46. The Court is of the view that in the present case the DNA Fingerprint Analysis confirms that the anal swabs taken from the victim contained alleles were fully accounted for in the blood sample taken from the accused. This clinches the issue as far as the rape, and consequential murder of the victim, by the accused is concerned.

47. Mr. Verma submitted that there was no testing of blood in the remaining samples and matching the same with the semen stains found on the skirt (Ex.R-4). Indeed, the serological report (Ex.PW-40/A) does state that the testing of the semen stains on the skirt was inconclusive as far as the semen stains on Ex.R-8 was concerned. The report stated: "no reaction". Ms. Seema Nain (PW-40) who prepared the forensic report proved the report. She was

not cross-examined. In the considered view of the Court, the failure to match the blood stains on various articles including finger tips, the skirt, the pant etc. does not in any manner rule out the clinching nature of the DNA Fingerprint Analysis.

Murder by rape

48. It was submitted by Mr. Verma that this was not a case where the victim was murdered after rape but that rape was the cause of death itself. He sought to suggest that the intention of the accused was at best to commit rape on the child and not to murder her.

49. The Court is unable to countenance the above submission. The very description of the injuries suffered by the child of such a tender age on her genitals completely belies the above argument. There can be no doubt that the accused must have been aware of the consequences of subjecting such a tender child to the heinous act of brutal rape and cannot be heard to plea that he did not intend, by committing such act, to kill the child. The photographs of the deceased child starkly depict the brutal nature of the assault to which the child was subjected to by the accused. There can be no manner of doubt that the homicidal death of the child „S‟ was caused by the accused by his brutal act of rape.

50. The Court is of the view that each of the circumstances pointed out by the trial Court has been fully established by the prosecution beyond all reasonable doubt. They point unerringly to the guilt of the accused.

51. For all of the aforementioned reasons, the Court is satisfied that no error has been committed by the trial Court in so far as the conclusion reached by it that the accused Bharat Singh raped the deceased minor girl „S‟ and thereby murdered her.

52. The judgment dated 14th January 2013 of the trial Court insofar as it convicts the accused Bharat Singh for the offences under Sections 376 (2) (f) and Section 302 IPC is, therefore, affirmed.

Sentence for the offence of rape

53. The learned trial Court has awarded the accused Bharat Singh life imprisonment for the offence under Section 376 (2) (f) IPC together with fine of Rs.50,000 and in default to undergo RI for a period of one year. This Court finds no reason whatsoever to interfere with the above sentence. The order on sentence dated 15th January 2013 insofar as it sentences accused Bharat Singh to life imprisonment for the offence under Section 376 (2) (f) IPC together with fine of Rs.50,000 and in default to undergo RI for a period of one year, is hereby affirmed.

Punishment for murder

54. The next question that arises is whether the trial Court was justified in sentencing the accused to death with the fine of Rs.50,000 for the offence under Section 302 IPC subject to confirmation by the High Court under Section 366 CrPC.

55. In Bachan Singh v. State of Punjab; (1980) 2 SCC 684, while laying down the proposition that life sentence was the rule and the death sentence

was the exception, the Supreme Court mandated that death sentence should be awarded only in the „rarest of rare cases‟. The aggravating circumstances suggested by Dr. Y.V. Chitaley, Senior Advocate, who appeared in Bachan Singh, were illustratively set out in para 202. One of those illustrations was "if the murder involves exceptional depravity". There can be little doubt that as far as the present case is concerned, the rape and murder of an innocent three-year old child by a 56 year old man fits the description of a crime of "exceptional depravity."

56. However, as far as the sentencing exercise is concerned, the matter does not end there. In Bachan Singh the Supreme Court also set out the mitigating circumstances suggested by Dr. Chitaley as under:

"206. Dr. Chitaley has suggested these mitigating factors: Mitigating circumstances: - In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct."

57. Thereafter the Supreme Court in Bachan Singh held as under:

"209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354 (3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save

in the rarest of rare cases when the alternative option is unquestionably foreclosed."

Crime, Criminal and R-R Test

58. The Court finds that recent trend in the judgments of the Supreme Court has indicated a significant shift in how the aggravating and the mitigating circumstances, illustratively pointed out in Bachan Singh should be evaluated. In Swamy Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767 the Supreme Court noted that there was a lack of evenness in the sentencing policy and its application and that the rarest of rare principle has not been followed uniformly and consistently. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 the Court expressed "unease and sense of disquiet" and held that the Bachan Singh threshold of the rarest of rare cases has been most variedly and inconsistently applied by the various High Courts as well as the Supreme Court.

59. In Sangeet v. State of Haryana (2013) 2 SCC 452 a two-Judge Bench of the Supreme Court held that it was not the mandate of the Court in Bachan Singh that there had to be a „balancing‟ of the aggravating and mitigating circumstances because "considerations for both are distinct and unrelated". In Sangeet the Court noted that in Machhi Singh v. State of Punjab (1983) 3 SCC 470, the Court had revived the balancing of the mitigating circumstances although the Court in Bachan Singh had discarded the proposition 4(a) of the decision in Jagmohan Singh v. State of UP (1973) 1 SCC 20 that the discretion in the matter of sentence was to be exercised by the Judge after balancing of the aggravating and mitigating circumstances.

The Court in Sangeet pointed out that the balancing cannot be drawn up "of two distinct and different constituents of an incident" and Observed: "it appears to us even though Bachan Singh intended principled sentencing, sentencing has now really become Judge-centric as highlighted in Swamy Shraddananda and Bariyar".

60. In Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546, the two-Judge Bench of the Supreme Court reiterated, in para 49, the aggravating circumstances (Crime test) and the mitigating circumstances (Criminal test). These were, however, only illustrative. The Court pointed out that in Bachan Singh it had been emphasised that for the fourth of the mitigating circumstances enumerated i.e. "the chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated", the State ought to produce evidence. Developing on the above theme, the two Judge Bench in Shankar Kisanrao Khade explained in para 52 as under:

"52. Aggravating Circumstances as pointed out above, of course, are not exhaustive so also the Mitigating Circumstances. In my considered view that the tests that we have to apply, while awarding death sentence, are "crime test", "criminal test" and the R-R Test and not "balancing test". To award death sentence, the "crime test" has to be fully satisfied, that is 100% and "criminal test" 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the "criminal test" may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have

to apply finally the Rarest of Rare Case test (R-R lest). R-R Test depends upon the perception of the society that is "society centric" and not "Judge centric" that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges." (emphasis in original)

61. It may be noticed that Shankar Kisanrao Khade dealt with the murder by strangulation after the repeated rape and sodomy of an 11 year old minor girl with an intellectual disability by a man of 52 years. In that case, despite the satisfaction of the Crime Test, the Criminal Test and the Rarest of Rare Case test, the Court was of the view that the extreme sentence of death penalty was not warranted. It directed the life sentences awarded for rape and murder to run consecutively. In the leading judgment of Justice Radhakrishnan, it was pointed out that in similar instances of rape and murder of minor girls, there had been an inconsistency in the award of the death penalty. In 10 cases it had been awarded and in 8 others it had been commuted. The concurrent judgment of Justice Lokur set out, in para 106, an exhaustive list of cases where death penalty had been commuted to life imprisonment.

62. More recently, a three-Judge Bench of the Supreme Court in Mahesh

Dhanaji Shinde v. State of Maharashtra 2014 (3) SCALE 96 observed in para 24 as under:

"A reference to several other pronouncements made by this Court at different points of time with regard to what could be considered as mitigating and aggravating circumstances and how they are to be reconciled has already been detailed hereinabove. All that would be necessary to say is that the Constitution Bench in Bachan Singh (supra) had sounded a note of caution against treating the aggravating and mitigating circumstances in separate water-tight compartments as in many situations it may be impossible to isolate them and both sets of circumstances will have to be considered to cull out the cumulative effect thereof. Viewed in the aforesaid context the observations contained in para 52 of Shankar Kisanrao Khade (supra) noted above, namely, 100% crime test and 0% criminal test may create situations which may well go beyond what was laid down in Bachan Singh (supra)."

63. The Court in Mahesh Dhanaji Shinde then proceeded to take note of the concurrent judgment of Justice Lokur in Shankar Kisanrao Khade and after balancing the aggravating and mitigating circumstances, commuted the death sentence to life imprisonment "for the rest of their lives subject to remissions..."

64. The Supreme Court has also been emphasising on the need for the trial Court, faced with the question whether it should award the death penalty, to be satisfied about the probability that the accused would not commit criminal acts of violence and that probability that the accused can be reformed and rehabilitated. In Rameshbhai Chandubhai Rathod (1) v. State of Gujarat (2009) 5 SCC 740 there was a difference of opinion between the two learned Judges who constituted the Bench on the award of death penalty. When the

matter was heard thereafter by a three-Judge Bench, by a unanimous opinion in Rameshbhai Chandubhai Rathod (2) v. State of Gujarat (2011) 2 SCC 764 the Court agreed with the view of the learned Judge who had favoured commutation and held that it was obligatory on the trial Court to have given a finding as to a possible rehabilitation of the accused "and the possibility that that the accused can become a useful member of the society in case the accused is given a chance to do so."

65. In the above judgments, however, it was not clarified what the consequences would be if the State failed to place materials before the trial Court regarding "the probability that the accused would not commit criminal acts of violence and that probability that the accused can be reformed and rehabilitated". This was reflected upon by Supreme Court in two recent cases. In Birju v. State of MP 2014 (2) SCALE 293, the Court observed in para 18 as under:

"18. In the instant case, the Court took the view that there was no probability that the accused would not commit criminal acts of violence and would constitute a continuing threat to the society and there would be no probability that the accused could be reformed or rehabilitated. In Shankar Kisanrao Khade's case (supra), while dealing with the criminal test (mitigating circumstances), this Court noticed one of the circumstances to be considered by the trial Court, while applying the test, is with regard to the chances of the accused not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. We find, in several cases, the trial Court while applying the criminal test, without any material on hand, either will hold that there would be no possibility of the accused indulging in commission of crime or that he would indulge in such offences in future and, therefore, it would not be possible to

reform or rehabilitate him. Courts used to apply reformative theory in certain minor offences and while convicting persons, the Court sometimes release the accused on probation in terms of Section 360 CrPC and Sections 3 and 4 of the Probation of Offenders Act, 1958. Sections 13 and 14 of the Act provide for appointment of Probation Officers and the nature of duties to be performed. Courts also, while exercising power under Section 4, call for a report from the Probation Officer. In our view, while awarding sentence, in appropriate cases, while hearing the accused under Section 235(2) CrPC, Courts can also call for a report from the Probation Officer, while applying the Crime Test guideline No.3, as laid down in Shankar Kisanrao Khade's case (supra). Court can then examine whether the accused is likely to indulge in commission of any crime or there is any probability of the accused being reformed and rehabilitated."

66. This was followed by Anil @ Anthony Arikswamy Joseph v. State of Maharashtra 2014 (2) SCALE 554 wherein it was observed, para 31, as under:

"In Bachan Singh (supra), this Court has categorically stated, "the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society", is a relevant circumstance that must be given great weight in the determination of sentence. This was further expressed in Santosh Kumar Satishbhushan Bariyar (supra). Many-a-times, while determining the sentence, the Courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation, while it is the duty of the Court to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. Facts, which the Courts, deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with offences like Section

302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case."

67. Turning to the case on hand, while there is little difficulty as regards the existence of aggravating circumstances, i.e. the satisfaction of the „Crime Test‟, admittedly no materials have been placed by the State to show whether the accused is capable of being reformed and rehabilitated. The decisions in Birju and Anil are a pointer towards what is expected of the criminal Court when the State fails to place materials on the above aspect before it. For the purposes of reference proceedings for confirmation of the death sentence under Section 366 Cr PC, the criminal Court would include the High Courts as well. The decision in Anil is categorical that the criminal Courts after conviction may need to determine whether the accused can be reformed or rehabilitated. In Birju, it has been stated that while hearing the accused during sentencing, Courts can also call for a report from the Probation Officer („PO‟). The Court can then examine whether the accused is likely to indulge in criminal activity or whether there is any probability of the accused being reformed or rehabilitated.

68. Therefore, in the present case, the Court considers it appropriate, before deliberating on the question of sentence to be awarded to the accused Bharat Singh for the offence under Section 302 IPC, to direct the Secretary, Home Department, Government of NCT of Delhi to assign to any one PO, the task of submitting to this Court a report specifically on the following two aspects:

(i) Is there a probability that, in the future, the accused would commit criminal acts of violence as would constitute a continuing threat to society?

(ii) Is there a probability that the accused can be reformed and rehabilitated?

69. The decisions discussed above which will provide adequate guidance to the PO as to how he has to go about his task of preparing and presenting a detailed report on the above two aspects. The PO will, inter alia:

(a) enquire from the jail administration and seek a report as to the conduct of the accused while in jail. The jail authorities will extend their full co- operation to the PO in this regard.

(b) meet the family of the accused and the local people even if it requires travelling to the place from where the accused hails. He will seek their inputs on the behavioural traits of the accused with particular reference to the two issues highlighted.

(c) The PO shall consult and seek specific inputs from two professionals with not less than ten years‟ experience from the fields of Clinical Psychology and Sociology.

(d) The State, through the Secretary, Home Department, GNCTD will make appropriate arrangements and reimburse the expenses incurred for the PO to comply with the directions issued in this judgment.

70. For the guidance of the PO, we may also point out that the United Nations Office on Drugs and Crimes has brought out a handbook on "Prevention of Recidivism and Social Integration of Offenders" in December 2012 ( available at: https://www.unodc.org/documents/justice-and-prison-

reform/ crimeprevention/Prevention_of_Recidivism_and_Social_ Reintegration _12-55107_Ebook.pdf). There is also a document titled: „The Offender‟s Assessment and Sentence Management, 2005 (available at https://www.justice.gov.uk%2Fdownloads%2Foffenders% 2Fpsipso%2Fpso%2FPSO_2205_offender_assessment_and_sentence_manag ement.doc&ei=OXJNU7uNDY39rAeb4oHQAg&usg=AFQjCNFEaLJevrND a80zBf-eIPPSokGxEw&sig2=EGl76zO0eXCrayKyLjINeg&bvm= bv. 64764171,d.bmk). Both these documents are useful in ascertaining the recent trend in assessment of an offender‟s risk of re-offending and the "risk-needs- responsivity framework" which helps such evaluation.

71. The report of the PO will be submitted within a period of ten weeks to this Court in a sealed cover. As soon as the sealed cover is received, it will be opened by the Registrar General and four copies made thereof, two for the Court which will be kept along with the original in the cover and resealed and two given to each of the learned counsel for the parties, both of whom shall maintain confidentiality of the said document. Of course, learned counsel for the accused can seek his instructions on the report before making submissions on the next date.

72. The accused shall be produced from custody on the next date.

73. The matter is part-heard. List before this Bench on 11th July 2014 at 2.15 pm.

74. A copy of this order be delivered by Special Messenger to the Secretary, Home Department, GNCT of Delhi, forthwith for compliance.

S. MURALIDHAR, J.

MUKTA GUPTA, J.

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