Madhya Pradesh High Court
In Refrence (Suo Moto) vs Manoj on 28 July, 2021
Author: Gurpal Singh Ahluwalia
1
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
DIVISION BENCH
G.S. Ahluwalia and Rajeev Kumar Shrivastava J.J.
(CRRFC No.8 of 2019)
In Reference (Suo Moto) Vs. Manoj
&
(Cr.A. No.4554 of 2019)
Manoj Vs. State of M.P.
Shri Rajesh Shukla, Deputy Advocate General for the State.
Shri Padam Singh and Shri Vijay Dutt Sharma, Counsels for the
respondent in CRRFC No.8 of 2019 and for appellant in Cr.A. No.
4554 of 2019). Both the Counsels were provided to the accused by
Legal Aid.
Date of Hearing : 23-July-2021
Date of Judgment : 28-July-2021
Whether approved for reporting : Yes
Heard through Video Conferencing
JUDGMENT
28-July-2021
Per G.S. Ahluwalia J.
CRRFC No.8 of 2019 is a reference under Section 366 of
Cr.P.C. for confirmation of death sentence passed by Xth Additional
Sessions Judge/Special Judge (POCSO Act) Gwalior on 8-5-2019 in
Special Sessions Trial No.130/2017 and Cr.A. No.4554 of 2019 has
been filed by the appellant Manoj against the same judgment and
sentence.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
2. By this common judgment, the CRRFC No.8 of 2019 and Cr.A.
No.4554 of 2019 shall be decided.
3. The prosecution story in short is that on 5-7-2017 at 2:00 A.M.
in the night, FIR No.64 of 2017 was lodged by Hariram Prajapati, to
the effect that his minor daughter "X" aged about 7-8 years had left
her house on 4-7-2017 at about 10 A.M. for attending her school. She
is the student of class 2 in Nayagaon Govt. Primary School. In the
evening, she did not return back from the school. At about 17:15, the
complainant and other villagers saw from the window of the school
that the bag and water bottle of "X" is kept in the school. Thereafter,
the complainant and villagers tried to find out the whereabouts of
"X" in the nearby forest area and in the bushes, but her whereabouts
could not be traced. Accordingly, it was alleged that some unknown
person has kidnapped his minor daughter "X". Accordingly on 5-7-
2017 at 2:30 A.M. in the morning, Missing Person Registration was
done. The complainant thereafter noticed the dead body of "X" and
accordingly on 5-7-2017 at 6:00 A.M., Dehati Nalishi was recorded.
Notice under Section 175 of Cr.P.C. was given to the witnesses and
Naksha Panchnama was prepared. Spot map was prepared on 5-7-
2017 at 6:40 A.M. The dead body of "X" was sent for postmortem.
The Scene of Crime Mobile Unit of Gwalior carried out the spot
inspection on 5-7-2017 in between 8:30 A.M. To 9:50 A.M. One
plastic bag of white colour which was stained with blood, the hairs
found on the said white coloured plastic bag and from the nearby
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
places, plain earth from inside the Pator (room), earth containing the
spit, one empty packet of Rajshri Gutka and one empty packet of
tobacco, one button of a shirt of white colour with broken pieces of
thread were seized from the spot on 5-7-2017 at about 9:10 A.M. On
5-7-2017 at about 9:30 A.M., the plain earth from the place where the
dead body of "X" was lying and the earth having saliva of the
deceased were also seized. The postmortem was conducted on 5-7-
2017 itself, and the dead body was handed over to the father of the
deceased "X" on 5-7-2017 itself. Viscera, Vaginal slide and swab of
the deceased "X", cloths of the deceased, nail clippings of the
deceased, specimen of seal were also seized on 5-7-2017 at 14:35.
Unnatural death was registered under Section 174 of Cr.P.C. The
respondent/accused was arrested on 6-7-2017 at 12:30 P.M. His
memorandum under Section 27 of Evidence Act was recorded. He
was got medically examined and his pubic hairs, undergarments,
skull hairs, semen slide and outer garments were sealed and were
handed over to the Police Constable which were seized on 6-7-2017
at 14:30. The school record of the deceased "X" was seized. The
birth certificate of the deceased "X" was also obtained from the
school according to which the date of birth was 19-10-2009. The
attendance register was also seized. On 10-7-2017, the plastic white
coloured bag, hairs collected from white coloured plastic bag and
from the surrounding areas, Viscera of the deceased, one sealed
packet of salt, cloths of the deceased, vaginal slide and swab of the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
deceased, nail clippings of the deceased, the outer garments of the
respondent/accused, underwear of respondent/accused, semen slide
of respondent/accused, pubic hairs of respondent/accused, Saliva
mixed earth, and the plain earth were sent to F.S.L. Gwalior to find
out as to whether Human Blood is present and if so, its group,
Whether the hairs are human hairs, Whether poison is present in the
viscera or not, whether the articles F,G,I,J,K and L contains human
semen/sperms and whether human skin is present in the nail clippings
or not. The report dated 20-7-2017 was received from F.S.L. Gwalior.
The blood sample of the respondent/accused was taken on 29-7-2017.
By draft dated 31-7-2017, DNA report was also sought from F.S.L.
Sagar. The police also recorded the statements of the witnesses. The
photographs of the dead body and spot were taken and after
completing the investigation, the police filed the charge-sheet against
the respondent/accused for offence under Sections 363, 366, 376(2),
302, 201 of I.P.C. and under Section 5/6 of Protection Of Children
From Sexual Offences Act, 2012 (In Short "POCSO Act").
4. The Trial Court by order dated 14-2-2018 framed charges
under Sections 366, 376-A, 302, 201 of I.P.C., and under Section 5(L)
read with Section 6 of POCSO Act.
5. The respondent/accused abjured his guilt and pleaded not
guilty.
6. The prosecution in order to prove its case, examined Hariram
Prajapati (P.W.1), Ramsewak Prajapati (P.W.2), Hari Singh Batham
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
(P.W.3), Bheem (P.W.4), Pappu (P.W.5), Ramesh Prajapati (P.W.6),
Smt. Sagun (P.W.7), Smt. Ramdehi (P.W.8), Motiram Rajouriya
(P.W.9), Ajeet Agrawal (P.W.10), Dr. Ajay Gupta (P.W.11), Dr. Ajeet
Kumar Minz (P.W.12), Devlal Koli (P.W. 13), H.K. Tiwari (P.W.14),
Dr. Anand Kumar Pandey (P.W. 15), Daini Kumar (P.W. 16), Dr.
Vinod Kumar Doneriya (P.W. 17), Jugal Kishore Dubey (P.W. 18),
Ashok Kumar (P.W. 19), Sayara Bano (P.W. 20), Dharmendra Singh
Jat (P.W. 21), Ashok Singh (P.W. 22), Shishram (P.W. 23), Dr. Pankaj
Shrivastava (P.W. 24), Dr. Neha Dodiya (P.W. 25), Dr. M.K.
Dudhariya (P.W.26), Dr. Sandeep Tomar (P.W. 27), and Alok Singh
(P.W. 28).
7. The respondent/accused examined Poonam (D.W.1) and Neetu
(D.W.2) in his defence.
8. The Trial Court by judgment and sentence dated 8-5-2019
convicted and sentenced the respondent/accused as under :
Conviction under Sentence Fine
Section
366 of I.P.C. 10 Years R.I. Rs. 2,000/- in default
1 month R.I.
376-A of I.P.C. Death Sentence ----
302 of I.P.C. Death Sentence ----
201 of I.P.C. 7 years R.I. Rs. 2,000/- in default
1 month R.I.
5(L) R/w 6 of No separate sentence
POCSO Act in the light of Section
42 of POCSO Act.
9. Accordingly, this reference under Section 366 of Cr.P.C. has
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
been made for confirmation of death sentence and Cr.A. No.4554 of
2019 has been filed by the respondent/accused against the same
judgment and sentence.
10. Challenging the judgment and sentence awarded by the Trial
Court, it is submitted by the Counsel for the respondent/accused that
the case is based on circumstantial evidence and the chain is not
complete. The respondent/accused is the cousin brother of the
deceased "X". There are material omissions and contradictions in the
F.I.R. and the statements of the witnesses. In fact, nobody had
witnessed the deceased "X" in the company of the
respondent/accused for the last time. In the FIR, it is mentioned that
the deceased is the student of Class 2, whereas according to the
school record, she was the student of Class 3. Although it is the case
of the prosecution that the deceased "X" had left her house for the
school, and her bag and bottle were noticed in the school, but as per
the attendance register, the deceased "X" was absent on 4-7-2017.
The school bag and bottle of the deceased were not seized at all.
There is a considerable delay in sending the blood sample and other
articles to F.S.L., Sagar, therefore, DNA report is not reliable. Further,
there is a discrepancy in A/RM code given to blood sample of the
respondent/accused, which makes the DNA report unreliable. There
is material difference in the Naksha Panchayatnama and the
postmortem report as no injury was noticed on the head of the
deceased at the time of preparation of Naksha Panchayatnama. The
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
F.I.R. is ante dated and ante timed. There is a material discrepancy as
to in which container the internal organs of the deceased were stored,
because in the post-mortem report, it has been mentioned that the
internal organs were kept in a bottle, whereas in the seizure memo it
is mentioned that boxes were seized. Arguments on the question of
framing charge were advanced by a Counsel who was never engaged
by the respondent/accused, thereby causing serious prejudice to the
respondent/accused. The investigation is faulty and the arrest of the
respondent/accused was the result of public agitation. The Trial Court
has wrongly discarded the evidence of defence witnesses. The blood
sample of the respondent/accused was not taken in accordance with
law. No injury was found on the genital organs of the
respondent/accused, which is indicative of fact that no forceful
intercourse was done by him. It is further submitted that the diameter
and thickness of the button seized from the spot and that of the button
of the shirt of the respondent/accused was not similar. Grandmother
of the deceased was not examined in order to prove that the deceased
had left the house at 10:00 A.M. Further, the scalp hairs of the
respondent/accused were collected, but they were not compared with
the hairs found on the spot. Independent witnesses of the locality
have not been examined by the prosecution. It is further submitted
that in the alternative, the death sentence awarded by the Court below
is excessive and is liable to be annulled and the appellant may be
awarded Life Imprisonment. To buttress their contentions, the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
Counsels for the respondent/accused relied upon the judgments
passed by the Supreme Court in the case of M.A. Antony alias
Antappan v. State of Kerala reported in AIR 2019 SC 194,
Rajendra Pralhadrao Wasnik v. State of Maharashtra reported in
AIR 2019 SC 1, Vijay Raikwar Vs. State of M.P. reported in (2019)
4 SCC 210, Parsuram Vs. State of M.P. reported in (2019) 8 SCC
382, Chhannu Lal Verma v. State of Chhattisgarh reported in AIR
2019 SC 243, Bachan Singh Vs. State of Punjab reported in (1980)
2 SCC 684, Machhi Singh Vs. State of Punjab reported in (1983) 3
SCC 470, Kamti Devi Vs. Poshi Ram reported in (2001) 5 SCC
311, Mohd. Aman Vs. State of Rajasthan reported in (1997) 10
SCC 44, Bodhraj Vs. State of J&K reported in (2002) 8 SCC 45,
Naneethakrishnan Vs. State by Inspector of Police reported in
(2018) 16 SCC 161, Ganpat Singh Vs. State of M.P. reported in
(2017) 16 SCC 353, Digamber Vaishnav and Anr. v. State of
Chhattisgarh reported in AIR 2019 SC 1367, Hanumant Govind
Nargundkar and another v. State of Madhya Pradesh reported in
AIR 1952 SC 343, Sharad Birdhichand Sarda Vs. State of
Maharashtra reported in (1984) 4 SCC 116, Raj Kumar Singh @
Raju @ Batya Vs. State of Rajasthan reported in AIR 2013 SC
3150, Madhu Vs. State of Kerala reported in (2012) 2 SCC 399,
Sujit Biswas Vs. State of Assam reported in (2013) 12 SCC 406,
State of Rajasthan Vs. Mahesh Kumar reported in (2019) 7 SCC
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
678, and Kumar Vs. State represented by Inspector of Police
reported in (2018) 7 SCC 536.
11. Per contra, the State Counsel has supported the judgment and
sentence. It is submitted that a minor girl was raped and was killed by
smothering. It is submitted that it is incorrect to suggest that non-
examination of independent witnesses has given any dent to the
prosecution story. It is submitted that social thread in the villages is
to be understood. If the spot map is seen, then it is clear that the
incident took place in the colony of persons belonging to Prajapati
community. Generally the members of one community do not come
forward to depose against the member of the same community.
Further, the contention that since, the grandmother of the deceased
was not examined and therefore, it is not prove that the deceased had
left the house at 10 A.M. is concerned, it is submitted that in the
present case, the deceased and the accused both are the grandchildren
of the mother of the complainant. She must be in a fix as to whether
to speak against the accused or not. It is further submitted that so far
as the discrepancy in A/RM code of Article R in the DNA report is
concerned, it is merely a typographical error. Article Q which was
given A/RM 8279 code, was never opened which is clear from the
DNA report itself. Further, it is submitted that no question in this
regard was put to Dr. Pankaj Shrivastava (P.W.24) otherwise, he
would have certainly clarified the anomaly. It is further submitted that
it is incorrect to say that there was any difference in the button of the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
shirt recovered from the spot and the button found on the shirt of the
respondent/accused. The engraving, number of holes, material, colour
were same. However, there was some difference in the measurement
of diameter and thickness of the button which too was in fraction of
millimeters. It is submitted that this difference can happen during
manufacturing process. So far as non-comparison of hairs of the
respondent/accused from the hairs found on the spot is concerned, it
is submitted that since, the DNA profile of the respondent/accused
was already found on the incriminating articles including the vaginal
slide and swab of the deceased, therefore, it is proved beyond
reasonable doubt, that the applicant was the perpetrator of offence. It
is further submitted that non-seizure of school bag and bottle by the
investigating officer from the school might be a lapse on his part, but
it has also come on record, that after the recovery of dead body of the
deceased, there was an uproar in the village, and agitating villagers
had blocked the road, as a result, the investigating officer was
immediately required to rush to the main road with police force, in
order to calm down the agitating villagers. It is further submitted that
the surrounding circumstances under which the investigating officer
was conducting the investigation should be kept in mind while
appreciating the evidence. It is further submitted that even the father
of the respondent/accused did not come forward to depose in favor of
his son. It is further submitted that the evidence of Last Seen
Together has been duly proved beyond reasonable doubt. The
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
respondent/accused is cousin brother of the deceased and he has
committed a heinous offence in a gruesome manner. Even after
committing the heinous offence of committing rape and murder of his
minor cousin sister, he did not show any remorse and was trying to
project that he is an innocent person. Thus, it is clear that there is no
possibility of his improvement. The applicant is a danger for civil
society and therefore, the death sentence awarded to him should be
confirmed and the appeal filed by the respondent/accused may be
dismissed. To buttress his contentions, the Counsel for the State has
relied upon the judgment passed by the Supreme Court in the case of
State of H.P. Vs. Gian Chand reported in (2001) 6 SCC 71,
Sahadevan Vs. State represented by Inspector of Police, Chennai
reported in (2003) 1 SCC 534, State of Rajasthan Vs. Kashiram
reported in (2006) 12 SCC 254, Jagroop Singh Vs. State of Punjab
reported in (2012) 11 SCC 768 and Mahavir Singh Vs. State of
Haryana reported in (0214) 6 SCC 716.
12. Heard the learned Counsel for the parties.
13. Before considering the merits of the case, it would be
appropriate to find out as to whether the deceased "X" had died a
homicidal death or not?
14. The Postmortem of the deceased "X" was conducted by Dr.
Ajay Gupta (P.W.11). As per the Postmortem report Ex. P.18,
following injuries were found :
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
Ante-mortem Ecchymosis over Occipital Area
8x6 cm size and subdural and Subarachnoid
hemorrhage present all over the brain.
(i) Red Abrasion on right side of mandible 0.3 x .2
cm size.
(ii) Red Abrasion anterior to right external ear 0.4 x .
3 cm.
(iii) Upper lip reddish blue contused 3x2 cm size.
(iv) Lower Lip contused reddish blue 4x1.5 cm.
(v) Red Abrasion left leg lower end anterio laterally
3x1.5 cm.
(vi) Contusion right Nostril 2 x 1 cm Reddish blue.
(vii) Both cheeks diffusely swollen and bluish
coloured
A bundle of clothings, nail clippings, two vaginal slides and
two vaginal swab, viscera in saturated salt solution, stomach and its
contents and pieces of liver, spleen and kidney were sealed. Salt
sample and seal specimen were also handed over to the police
Constable.
It was found that the death was due to Asphyxia as a result of
smothering.
Signs of Head Injury were also evident which were sufficient
to cause death in ordinary course of action.
Nature of death was homicidal.
Signs of Physical violence were present.
Signs of forceful vaginal penetration were evident.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
Duration of death was within 12 to 36 hours.
15. Dr. Ajay Gupta (P.W.11) was cross examined and he accepted
that at the time of conducting postmortem, the police had not
provided the copy of F.I.R. He also admitted that ID proof of the
deceased "X" and of her father was not provided to him. He denied
that postmortem report was prepared as per the instructions of the
police and also denied that he is giving false evidence in the Court.
Thus, it is clear that in fact no cross-examination was done with
regard to the findings recorded by this witness in the postmortem
report, Ex. P.18.
16. Therefore, it is held that the deceased "X" died due to
smothering and she was subjected to rape and multiple injuries were
also found on her body.
17. Now, the moot question for consideration is that whether the
prosecution has succeeded in establishing the guilt of the
respondent/accused beyond reasonable doubt or not?
18. The case is based on circumstantial evidence. Before
appreciating the material available on record, this Court thinks it
apposite to consider the law governing the field of Circumstantial
Evidence. Although various judgments have been cited by the
Counsel for the respondent/accused, but instead of burdening this
judgment by considering each and every judgment cited, this Court
thinks it apposite to consider few judgments covering the field of
Circumstantial Evidence.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
19. The Supreme Court in the case of Sharad Birdhichandra
Sarda Vs. State of Maharashtra reported in AIR 1985 SC 1622 has
held as under :
152. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should
be proved' as was held by this Court in Shivaji Sahebrao
Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR
1973 SC 2622) where the following observations were
made :
"certainly, it is a primary principle 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."
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty.
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused.
153. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.
154. It may be interesting to note that as regards the mode
of proof in a criminal case depending on circumstantial
evidence, in the absence of a corpus delicti, the statement of
law as to proof of the same was laid down by Gresson, J.
(and concurred by 3 more Judges) in The King v. Horry,
(1952) NZLR 111, thus :
"Before he can be convicted, the fact of death should be
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
proved by such circumstances as render the commission of
the crime morally certain and leave no ground for
reasonable doubt : the circumstantial evidence should be so
cogent and compelling as to convince a jury that upon no
rational hypothesis other than murder can the facts be
accounted for."
155. Lord Goddard slightly modified the expression
'morally certain' by 'such circumstances as render the
commission of the crime certain'.
156. This indicates the cardinal principle of criminal
jurisprudence that a case can be said to be proved only
when there is certain and explicit evidence and no person
can be convicted on pure moral conviction. Horry's case
(supra) was approved by this Court in Anant Chintaman
Lagu v. State of Bombay, (1960) 2 SCR 460 : (AIR 1960
SC 500). Lagu's case as also the principles enunciated by
this Court in Hanumant's case (supra) have been uniformly
and consistently followed in all later decisions of this Court
without any single exception. To quote a few cases -Tufail's
case (1969 (3) SCC 198) (supra). Ramgopal's case (AIR
1972 SC 656) (supra). Chandrakant Nyalchand Seth v. State
of Bombay (Criminal Appeal No. 120 of 1957 decided on
19-2-1958), Charambir Singh v. State of Punjab (Criminal
Appeal No. 98 of 1958 decided on 4-11-1958). There are a
number of other cases where although Hanumant's case has
not been expressly noticed but the same principles have
been expounded and reiterated, as in Naseem Ahmed v.
Delhi Administration, (1974) 2 SCR 694(696): (AIR 1974
SC 691 at p. 693), Mohan Lal Pangasa v. State of U. P., AIR
1974 SC 1144 (1146), Shankarlal Gyarasilal Dixit v. State
of Maharashtra, (1981) 2 SCR 384 (390) : (AIR 1981 SC
765 at p. 767) and M. G. Agarwal v. State of Maharashtra,
(1963) 2 SCR 405 (419) : (AIR 1963 SC 200 at p. 206) a
five-Judge Bench decision
157. It may be necessary here to notice a very forceful
argument submitted by the Additional Solicitor-General
relying on a decision of this Court in Deonandan Mishra v.
State of Bihar, (1955) 2 SCR 570 (582): (AIR 1955 SC 801
at p. 806), to supplement his argument that if the defence
case is false it would constitute an additional link so as to
fortify the prosecution case. With due respect to the learned
Additional Solicitor General we are unable to agree with
the interpretation given by him of the aforesaid case, the
relevant portion of which may be extracted thus :
"But in a case like this where the various links as stated
above have been satisfactorily made out and the
circumstances point to the appellant as the probable
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
assailant, with reasonable definiteness and in proximity to
the deceased as regards time and situation ... ... ... ... ... such
absence of explanation or false explanation would itself be
an additional link which completes the chain."
20. The present case is based on following Circumstances :
(i) The deceased, a minor girl aged about 8 years,
went to school on 4-7-2017 and thereafter, she left the
school after leaving her bag and bottle in the school.
(ii) As the deceased did not come back from School
at 4 :00 P.M., therefore, her father started searching for
her. The school bag and bottle of the deceased was
seen lying in the School.
(iii) F.I.R. regarding missing of deceased was lodged
on 5-7-2017 at 2:00 A.M. in the night.
(iv) The dead body of the deceased was recovered
on 5-7-2017 at 6:00 A.M. which was lying in front of
the Pator of Ram Prasad Prajapati.
(v) There were signs of dragging the dead body
from inside the Pator of Ram Prasad Prajapati, till the
door of the Pator.
(vi) Blood stained plastic bag, hairs, button, saliva
mixed earth, spit, empty packet of Rajshree and
Tobacco etc. were seized from the spot.
(vii) Abrasion was found on the nose of the
respondent/accused.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
(viii) Human skin was found in the nail clippings of
the deceased.
(ix) Last Seen Together.
(x) The respondent/accused was seen coming from
the Pator of Ramprasad in the afternoon of 4-7-2017.
(xi) The respondent was seen in a frightened
condition in the afternoon of 4-7-2017 and respondent
was seen all alone at 4:00 A.M. on 5-7-2017.
(xii) As per post-mortem report, multiple injuries
were found on the dead body of the deceased and there
were signs of forceful vaginal penetration.
(xiii) Hymen of the deceased was found torn.
(xiv) Injuries on private parts of the deceased were
found.
(xv) Blood sample of the respondent/accused was
collected.
(xvi) DNA profile of the respondent/accused was
found in the cloths, vaginal slide and swab of the
deceased.
(xvii) DNA profile of the deceased was found on the
cloths of the respondent/accused.
(xviii)Button with broken pieces of thread seized from
the spot was found to be that of the shirt of the
respondent/accused.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
Last Seen Together
21. Hariram Prajapati (P.W.1) has stated that the deceased "X" is
his daughter and was a student of Class 2 and was studying in a Govt.
School, and was aged about 8 years. On 4-7-2017, he went to his
work at 8 A.M. and came back at 3-3:00 P.M. After having his meals,
he went to bed and woke up at 5:00 P.M. He was informed by his
mother that the deceased "X" has not returned back from the school.
Thereafter, he searched for the deceased in neighborhood. He also
went to the house of Bheem (P.W.4). Bheem (P.W.4) told him that he
had seen the deceased "X" along with the respondent/accused at
about 1 P.M. near the pator (room) of Ramprasad. Thereafter, Bheem
(P.W.4) informed this witness that he has to go to Gwalior on the next
morning and whether this witness can arrange for one more person.
When this witness went to look for the another labourer, then he
found that respondent/accused, Ramsewak Prajapati, Jitendra Parihar,
Ashok Kushwaha were sitting on a trolley. When he enquired from
the respondent/accused, that whether he would like to go to Gwalior
or not, then he agreed for the same. Thereafter, he came back to his
house. He was informed by his mother, that the deceased "X" has not
returned back. Thereafter, all the villagers gathered and started
searching for the deceased "X". Thereafter, they went to the school of
the deceased and from the window they noticed that the bag and
bottle of the deceased were lying in the school. When they could not
search out the deceased, then F.I.R., Ex.P.1 was lodged and thereafter,
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
the police also started searching for the deceased. At about 3 A.M.,
the police personell told that they have already searched extensively
and this witness must also be tired therefore, they would search after
the sunrise. Thereafter, this witness came back to his house, and some
of the villagers were sitting there. At about 5-6 A.M., he again went
in search of the deceased. At that time, he heard the noise of cries of
his Bhabhi Gayatri. They went to the Pator of Jaikishan. The dead
body of his daughter was lying behind a trolley and was in a very bad
shape. Her cloths were stained with blood. The police also reached
there and Dehati Nalishi Ex. P.3 was written and spot map Ex. P.4
was prepared. Safina form Ex.P.5 was prepared and Naksha
Panchayatnama Ex. P.6 was prepared. After the postmortem, the dead
body of the deceased "X" was handed over to him vide
supurdaginama Ex. P.7. The report under Section 174 of Cr.P.C. is
Ex. P.8. It was further stated that since, there was Kanya Bhoj on
account of Dev Uthani Gyaras, therefore, her daughter after leaving
her bag and bottle in the school, went to have Kanya Bhoj. Bheem
(P.W.4) had told that he had seen the deceased in the company of the
respondent/accused at about 1 P.M. When he was searching for his
daughter, then Hari Singh Batham had also told him that he had seen
the deceased in the company of the respondent/accused. The
statement of this witness recorded under Section 164 of Cr.P.C. is Ex.
P.9. This witness was cross-examined. In cross-examination, this
witness admitted that the respondent/accused is his real nephew, and
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
resides in his neighborhood. The respondent/accused is also a
labourer. At the time of incident, this witness had gone for labour
work. He had not seen the respondent/accused entering inside the
Pator. He was interrogated by the police on the very same day. His
statements were recorded at about 6 to 6:30 A.M. on the same day,
when the dead body of his daughter was recovered. He denied the
suggestion that the police had obtained his signatures on Ex. P.1 to
P.8 in the police station. He clarified on his own, that some
documents were signed in the police station and some were signed on
the spot. He further denied that he is having any enmity with his
brother Jagdish or his son (respondent/accused). He further stated
that his daughter was studying in Govt. School Nayagaon. She used
to go to school at 10:00 in the morning and used to come back at 4:00
in the afternoon. He denied that the police had not recorded his
statement. He further denied that the respondent/ accused has been
falsely implicated due to enmity. He further denied that he was not
told by anybody that his daughter was seen for the last time in the
company of the respondent/accused. He further denied that he is
giving a false evidence before the Court.
22. Thus, it is clear that this witness was not cross-examined
effectively. No omissions or contradictions in his F.I.R. Ex. P.1 or
police statement Ex. D.1 were pointed out.
23. Ram Sewak Prajapati (P.W.2) is the witness of last seen
together. He has stated that on 4-7-2017, at about 1 P.M., he was
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
sitting in front of the door of his house. He saw that the respondent/
accused was going towards the Pator of Ramprasad Prajapati along
with the deceased. Since, both were cousin brother and sister,
therefore he did not notice it seriously. Thereafter, he took his goats
and came back to house in the evening. He further stated that on 5-7-
2017 at about 6 A.M., he heard the noise of crying. He came out of
his house and found that lot of persons had gathered near the Pator of
Ramprasad and the dead body of the deceased "X" was lying behind
the trolley. The police was informed. The police also reached there
after some time, and written work was done, and the dead body was
sent for postmortem. He further stated that in the afternoon, he was
interrogated by the police and he accordingly informed that he had
seen the respondent/accused going along with the deceased "X" at
about 1 P.M. and his Court Statement (Under Section 164 of Cr.P.C.)
is Ex. P.10. This witness was cross-examined. He admitted that he
know Jagdish who is the father of respondent/accused. He is brother
being of same Gotra. He further admitted that he has been brought by
the Police to the Court for recording of his evidence, but denied that
he was tutored by Police. He further clarified that whatever was seen
by him has been deposed by him. He further clarified that the
statement was recorded by the police at about 10-11 A.M. He further
denied that he is deposing falsely against the respondent/accused due
to enmity.
24. Bheem (P.W. 4) is also a witness of last seen together, who has
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
stated that on 4-7-2017, Hariram (P.W.1) had come to him and
enquired about his daughter "X". He further stated that accordingly,
he had informed Hariram (P.W.1) that at 1 P.M., he had seen his
daughter "X" along with the respondent/accused. Thereafter, the
deceased was searched but could not be traced. However, at about 5-
6 A.M., her dead body was found lying near the trolley. Her cloths
were stained with blood. The police had recovered one plastic bag,
another blood stained plastic bag, hairs, plain earth, spit, packet of
Rajshree Tobacco, empty packet of tobacco, one button of a shirt,
from inside the pator vide seizure memo Ex. P.12. The plain earth
from the place where the dead body of the deceased was lying and
saliva mixed earth was also seized vide seizure memo Ex. P.13. His
statements under Section 164 of Cr.P.C. are Ex. P.14. This witness
was cross examined. He stated that on the date of incident, he was
doing the labour work in the village itself. When he came back to his
house for having his lunch then, in the afternoon, he had seen the
deceased in the school and thereafter did not see her.
25. Challenging the evidence of Last Seen Together, it is submitted
by the Counsel for the respondent/accused that Ram Sewak Prajapati
(P.W.2) and Bheem (P.W. 4) as well as Hariram (P.W.1) have stated
that much prior to lodging of F.I.R, Hariram (P.W.1) was already
informed by Ram Sewak Prajapati (P.W.2) and Bheem (P.W.4) about
the fact that the deceased was seen along with the respondent/
accused, but the said fact is missing in F.I.R. Ex. P.1. Therefore, it is
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
clear that the witnesses of last seen together are unreliable and thus
liable to be disbelieved.
26. However, the Counsel for the respondent/accused fairly
conceded that the omission in the F.I.R. regarding information given
to Hariram (P.W.1) by Ram Sewak Prajapati (P.W.2) and Bheem
(P.W.4) about the last seen together was not confronted and the
attention of Harirram (P.W.1) was not drawn towards the omission.
27. It is a trite law that if the attention of the witness is not drawn
towards the omissions in his previous statement, then the accused
cannot take advantage of such omissions and contradictions.
28. Section 145 of Evidence Act, reads as under :
145. Cross-examination as to previous statements in
writing.--A witness may be cross-examined as to previous
statements made by him in writing or reduced into writing,
and relevant to matters in question, without such writing
being shown to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must, before the
writing can be proved, be called to those parts of it which
are to be used for the purpose of contradicting him.
29. Thus, it is clear that if a party intends to contradict a witness,
then his attention must be called to those parts of it which are to be
used for the purpose of contradicting him.
30. The Supreme Court in the case of Rajender Singh Vs. State of
Bihar reported in (2000) 4 SCC 298 has held as under :
6..........But if the witness during trial is intended to be
contradicted by his former statement then his attention has
to be drawn to those parts of the statement which are
required to be used for the purpose of contradicting him
before the said statement in question can be proved as
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
provided under Section 145 of the Evidence Act. Mr
Mishra, learned Senior Counsel appearing for the appellant
relying upon the decision of this Court in Bhagwan Singh v.
State of Punjab contended before us that if there has been
substantial compliance with Section 145 of the Evidence
Act and if the necessary particulars of the former statement
has been put to the witness in cross-examination then
notwithstanding the fact that the provisions of Section 145
of the Evidence Act is not complied with in letter i.e. by not
drawing the attention of the witness to that part of the
former statement yet the statement could be utilised and the
veracity of the witness could be impeached. According to
Mr Mishra the former statement of PW 8 which has been
exhibited as Exhibit B was to the effect that Kameshwar
was assaulted with a bhala by Rajender and Surender and he
did not see whether any other person had been assaulted or
not, whereas in the course of trial the substantive evidence
of the witness is that it is Rajender and Triloki who
assaulted the deceased and, therefore, it belies the entire
prosecution case. The question of contradicting evidence
and the requirements of compliance with Section 145 of the
Evidence Act has been considered by this Court in the
Constitution Bench decision in the case of Tahsildar Singh
v. State of U.P. The Court in the aforesaid case was
examining the question as to when an omission in the
former statement can be held to be a contradiction and it has
also been indicated as to how a witness can be contradicted
in respect of his former statement by drawing particular
attention to that portion of the former statement. This
question has been recently considered in the case of Binay
Kumar Singh v. State of Bihar and the Court has taken note
of the earlier decision in Bhagwan Singh and explained
away the same with the observation that on the facts of that
case there cannot be a dispute with the proposition laid
down therein. But in elaborating the second limb of Section
145 of the Evidence Act it was held that if it is intended to
contradict him by the writing his attention must be called to
those parts of it which are to be used for the purpose for
contradicting him. It has been further held that if the
witness disowns to have made any statement which is
inconsistent with his present stand, his testimony in court
on that score would not be vitiated until the cross-examiner
proceeds to comply with the procedure prescribed in the
second limb of Section 145 of the Evidence Act..........
(Underline supplied)
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
The Supreme Court in the case of Raj Kishore Jha Vs. State
of Bihar reported in (2003) 11 SCC 519 has also held the same
proposition of law.
31. Thus, it is held that since, the attention of Hariram (P.W. 1) was
not drawn towards the omission regarding information of last seen
together in his F.I.R., Ex. P.1, therefore, the evidence of Last Seen
Together cannot be held to be vitiated as the second limb of Section
145 of Cr.P.C. has not been complied with by the respondent/accused.
32. The next question for consideration is that whether Ram Sewak
Prajapati (P.W.2) and Bheem (P.W.4), who have claimed that they had
seen the deceased in the company of the respondent/accused are
reliable witnesses or not?
33. Challenging the reliability and credibility of Ram Sewak
Prajapati (P.W.2), it is submitted by the Counsel for the
respondent/accused that since, this witness was Kotwar of the village,
therefore, his statement should have been recorded by the police at
the earliest, whereas according to Alok Singh (P.W. 28), the statement
of Ram Sewak Prajapati (P.W. 2) was recorded on 10-7-2018. It is
submitted that thus, the delayed recording of statement of Ram
Sewak Prajapati (P.W.2) makes his evidence suspicious.
34. Considered the submissions made by the Counsel for the
respondent/accused.
35. It is a trite law that every delay in recording of police statement
is not fatal. If a plausible explanation is given for delayed recording
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
of statements, then it would not give any dent to the prosecution
story. However, the investigating officer and the witnesses are to be
questioned regarding delay. Unless and until, the investigating officer
is asked about the delay, the delayed recording of statements by itself
would not make the evidence of the witnesses suspicious.
The Supreme Court in the case of Vijay Kumar Arora v. State
(NCT of Delhi) reported in (2010) 2 SCC 353 has held as under :
55. On reappraisal of the evidence, this Court finds that it is
true that the police statements of the abovenamed three
witnesses were recorded after one month from the date of
the death of the deceased. However, neither an explanation
was sought from any of the witnesses as to why their police
statements were recorded after a delay of one month nor the
investigating officer was questioned about the delay in
recording statements of those witnesses. The law on the
point is well settled. Unless the investigating officer is
asked questions about delay in recording statements and an
explanation is sought from the witnesses as to why their
statements were recorded late, the statements by themselves
did not become suspicious or concocted.
The Supreme Court in the case of V.K. Mishra v. State of
Uttarakhand, reported in (2015) 9 SCC 588 has held as under :
27.........It is pertinent to point out that on the delayed
examination of PW 2, no question was put to the
investigating officer (PW 14) by the defence. Had such
question been put to PW 14, he would have certainly
explained the reason for not examining PW 2 from 15-8-
1997 to 17-8-1997. Having not done so, the appellants are
not right in contending that there was delay in recording the
statement of PW 2.
26. It cannot be held as a rule of universal application that
the testimony of a witness becomes unreliable merely
because there is delay in examination of a particular
witness. In Sunil Kumar v. State of Rajasthan, it was held
that the question of delay in examining a witness during
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
investigation is material only if it is indicative and
suggestive of some unfair practice by the investigating
agency for the purpose of introducing a core of witness to
falsely support the prosecution case. As such there was no
delay in recording the statement of PW 2 and even
assuming that there was delay in questioning PW 2, that by
itself cannot amount to any infirmity in the prosecution
case.
The Supreme Court in the case of Shyamal Ghosh v. State of
W.B., reported in (2012) 7 SCC 646 has held as under :
51. On the contra, the submission on behalf of the State is
that the delay has been explained and though the
investigating officer was cross-examined at length, not even
a suggestion was put to him as to the reason for such delay
and, thus, the accused cannot take any benefit thereof at
this stage. Reliance in this regard on behalf of the State is
placed on Brathi v. State of Punjab, Banti v. State of M.P.
and State of U.P. v. Satish.
52. These are the issues which are no more res integra. The
consistent view of this Court has been that if the
explanation offered for the delayed examination of a
particular witness is plausible and acceptable and the Court
accepts the same as plausible, there is no reason to interfere
with the conclusion arrived at by the courts. This is the
view expressed in Banti. Furthermore, this Court has also
taken the view that no doubt when the Court has to
appreciate the evidence given by the witnesses who are
closely related to the deceased, it has to be very careful in
evaluating such evidence but the mechanical rejection of
the evidence on the sole ground that it is that of an
interested witness would inevitably relate to failure of
justice (Brathi). In Satish, this Court further held that the
explanation offered by the investigating officer on being
questioned on the aspect of delayed examination by the
accused has to be tested by the Court on the touchstone of
credibility. It may not have any effect on the credibility of
the prosecution evidence tendered by other witnesses.
53. The delay in examination of witnesses is a variable
factor. It would depend upon a number of circumstances.
For example, non-availability of witnesses, the
investigating officer being preoccupied in serious matters,
the investigating officer spending his time in arresting the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
accused who are absconding, being occupied in other
spheres of investigation of the same case which may require
his attention urgently and importantly, etc.
54. In the present case, it has come in evidence that the
accused persons were absconding and the investigating
officer had to make serious effort and even go to various
places for arresting the accused, including coming from
West Bengal to Delhi. The investigating officer has
specifically stated, that too voluntarily, that he had
attempted raiding the houses of the accused even after
cornering the area, but of no avail. He had ensured that the
mutilated body parts of the deceased reached the hospital
and also effected recovery of various items at the behest of
the arrested accused. Furthermore, the witnesses whose
statements were recorded themselves belonged to the poor
strata, who must be moving from one place to another to
earn their livelihood. The statement of the available
witnesses like PW 2, PW 4, PW 6, and the doctor, PW 16,
another material witness, had been recorded at the earliest.
The investigating officer recorded the statements of nearly
28 witnesses. Some delay was bound to occur in recording
the statements of the witnesses whose names came to light
after certain investigation had been carried out by the
investigating officer.
36. Alok Singh (P.W. 28) has stated in his examination-in-chief,
that after the recovery of dead body of the deceased "X", there was
an uproar in the society, and roads were blocked and he was required
to go to the place of agitation along with police force. Further, it is
not the case of the respondent/accused, that the investigating officer
was not investigating the matter at all. While appreciating the
evidence, this Court cannot lose sight of surrounding circumstances
which were present at the time of investigation. The Supreme Court
in the case of V.K. Mishra (Supra) has held that the fact that the
investigating officer was preoccupied in arresting accused, or other
spheres of investigation, then this aspect cannot be lost sight of.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
After the dead body of the deceased minor girl was recovered, there
was an unrest in the Society, and the people had started agitating the
matter, and question of law and order situation had arisen, requiring
the investigating officer, to immediately go to the place of agitation
along with police force, in order to calm down and defuse the
agitation. Therefore, this Court is of the considered opinion, that the
unrest in the Society must have diverted the attention of the
investigating officer, and thus, it cannot be said that the delayed
recording of statement of Ram Sevak Prajapati (P.W.2) was an
outcome of creation of evidence. Further, the statement of another
witness of Last Seen Together, Bheem (P.W. 4) was recorded on 5-7-
2017 itself. Thus, it is held that in absence of any question to the
investigating officer regarding the delay in recording the statement of
Ram Sewak Prajapati (P.W.2) on 5-7-2017, it cannot be said that the
evidence of Ram Sewak Prajapati (P.W.2) is not reliable.
37. It is next contended by the Counsel for the respondent/accused,
that Bheem (P.W.4) has admitted in his cross-examination that in the
afternoon he had seen the deceased "X" in the school and thereafter,
he had never seen her.
38. It is a trite law that while appreciating the evidence of
witnesses, the entire evidence is to be seen as a whole and stray
sentence from one place to another cannot be picked up. Hariram
(P.W.1) has stated that in the evening, when he went to the house of
Bheem (P.W.4) in order to trace out the whereabouts of his daughter,
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
then he was informed by Bheem (P.W.4) that he had seen his
daughter along with the respondent/accused. Bheem (P.W.4) has also
stated in his examination-in-chief that he had seen the deceased in the
company of the respondent/accused for the last time in the afternoon.
It is the case of the prosecution itself, that the Pator of Ramprasad
Prajapati is situated at a distance of 200 Mts. from the house of
Hariram (P.W.1) whereas School is situated quite nearer to the Pator
of Ram Prasad i.e., the place of incident, as it is evident from the spot
map Ex. P.4. Therefore, the statement of this witness in his cross-
examination that in the afternoon he had seen the deceased in the
school cannot be given much importance so as to discard the entire
prosecution story, specifically in the light of the evidence of Motiram
Rajoria (P.W. 9) that even in the afternoon, the deceased "X" was not
seen in the school.
39. It is next contended by the Counsel for the respondent/accused
that since, Ram Sewak Prajapati (P.W.2) and Bheem (P.W. 4) have
stated that the deceased and respondent/accused were going back and
forth, therefore, it cannot be said that the deceased was seen in the
company of the respondent/accused for the last time.
40. The Pator of Ram Prasad Prajapati is situated at a rough place
and is not connected with any road except a footpath, as it is evident
from the spot map, Ex. P.4. There was no occasion for the deceased
"X" to go to a rough place on her own. It appears that since, the
respondent/accused is the cousin brother of the deceased "X",
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
therefore, she must have faith in him, and taking advantage of said
faith, the respondent/accused took her to a lonely room. If the
deceased was following the respondent/accused out of faith, then it
cannot be said that she was not in the company of the
respondent/accused.
41. Now the next question for consideration is that whether the
evidence of Last Seen Together indicates towards the culpability of
the respondent/accused or not?
42. The Supreme Court in the case of Shailendra Rajdev Pasvan
v. State of Gujarat, reported in (2020) 14 SCC 750 has held as
under :
15. Another important aspect to be considered in a case
resting on circumstantial evidence is the lapse of time
between the point when the accused and deceased were
seen together and when the deceased is found dead. It ought
to be so minimal so as to exclude the possibility of any
intervening event involving the death at the hands of some
other person. In Bodhraj v. State of J&K, Rambraksh v.
State of Chhattisgarh, Anjan Kumar Sarma v. State of
Assam following principle of law, in this regard, has been
enunciated: (Shailendra Rajdev Pasvan case, SCC OnLine
Guj para 16)
"16. ...The last seen theory comes into play where the
time gap between the point of time when the accused
and 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
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 a long
gap and possibility of other persons coming in
between exists. In the absence of any other positive
evidence to conclude that accused and deceased were
last seen together, it would be hazardous to come to a
conclusion of guilt in those cases."
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
The Supreme Court in the case of Ashok v. State of
Maharashtra, reported in (2015) 4 SCC 393 has held as under :
12. From the study of abovestated judgments and many
others delivered by this Court over a period of years, the
rule can be summarised as that the initial burden of proof is
on the prosecution to bring sufficient evidence pointing
towards guilt of the accused. However, in case of last seen
together, the prosecution is exempted to prove exact
happening of the incident as the accused himself would
have special knowledge of the incident and thus, would
have burden of proof as per Section 106 of the Evidence
Act. Therefore, last seen together itself is not a conclusive
proof but along with other circumstances surrounding the
incident, like relations between the accused and the
deceased, enmity between them, previous history of
hostility, recovery of weapon from the accused, etc. non-
explanation of death of the deceased, may lead to a
presumption of guilt.
13. Here another judgment in Harivadan Babubhai Patel
v. State of Gujarat, would be relevant. In this case, this
Court found that the time-gap between the death of the
deceased and the time when he was last seen with the
accused may also be relevant.
The Supreme Court in the case of Mahavir Singh (Supra)
has held as under :
12. Undoubtedly, it is a settled legal proposition that the
last seen theory comes into play only in a case where the
time-gap between the point of time when the accused and
the deceased were seen alive and when the deceased was
found dead (sic is small). Since the gap is very small there
may not be any possibility that any person other than the
accused may be the author of the crime............
The Supreme Court in the case of Jagroop Singh (Supra) has
held as under :
27. Quite apart from the above, what is argued is that there
is a long gap between the last seen and recovery of the dead
body of the deceased. As per the material on record, the
informant searched for his son in the village in the late
evening and next day in the morning he went to the fields
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
and the dead body was found. The post-mortem report
indicates that the death had occurred within 24 hours. Thus,
the duration is not so long as to defeat or frustrate the
version of the prosecution. Therefore, there can be no trace
of doubt that the deceased was last seen in the company of
the accused persons.
43. According, to the witnesses, they had seen the deceased for the
last time in the company of the respondent/accused at about 1 P.M.
The deceased did not come back to her house, whereas she was
supposed to come back from School at 4 P.M. Thereafter, from 5
P.M., Hariram (P.W.1) started searching for the deceased and
ultimately, her dead body was found at 6:00 A.M. on 5-7-2017. As
per the postmortem report the duration of her death was also in
between 12 to 36 hours. Therefore, it is held that the prosecution has
succeeded in establishing that there was minimum time gap between
the time when she was seen in the company of the
respondent/accused for the last time and when the death took place
and the dead body of the deceased was recovered. Accordingly, it is
held that the deceased was seen for the last time in the company of
the respondent/accused and thereafter, she was never seen alive.
Thus, the burden had shifted onto the respondent/accused, to explain
as to when he parted away with the company of the deceased, but that
burden has not been discharged by the respondent/accused.
Respondent/accused was seen at 4:00 A.M. on 5-7-2017
44. Ramesh Prajapati (P.W. 6) has stated that on 5-7-2017 at about
4:00 A.M., he had noticed that respondent/accused was going
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
towards the house of Hariram (P.W1), and he had identified him from
his back, style of walking and body buildup. This witness was cross
examined, and in the cross examination also, this witness reiterated
that he had seen the respondent/accused at 4 A.M. and he was all
alone.
45. Challenging the evidence of this witness, it is submitted by the
Counsel for the respondent/accused, that since, this witness had not
seen the face of the person, therefore, the claim of this witness
regarding identifying the said person from his back as
respondent/accused, cannot be relied upon.
46. Considered the submission made by the Counsel for the
respondent/accused.
47. It is a matter of common knowledge, that the villagers have the
ability of identifying the things even in the poor light. Villages have
limited number of inhabitants and are closely watched by each and
every resident of the village. The evidence of this witness is that he
had identified the said person from his back, style of walking, and
body buildup, then it cannot be said that such witness is unreliable or
he cannot identify the resident of the village from his back, or style of
walking or body buildup, as the eyes of the villagers are conditioned
to identify the villagers in poor light or from their walking style, or
body build up etc.
48. The Supreme Court in the case of Ramesh Vs. State reported
in (2010) 15 SCC 49 has held as under ;
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
15. As stated earlier, the appellant and these two witnesses
(PWs 3 and 4) are neighbours and, therefore, knew the
appellant well and their claim of identification cannot be
rejected only on the ground that they have identified him in
the evening, when there was less light. It has to be borne in
mind that the capacity of the witnesses living in rural areas
cannot be compared with that of urban people who are
acclimatised to fluorescent light. Visible (sic visual)
capacity of the witnesses coming from the village is
conditioned and their evidence cannot be discarded on the
ground that there was meagre light in the evening. There is
nothing on record to show that these two witnesses are in
any way interested and inimical to the appellant. Their
evidence clearly shows that the deceased was last seen with
the appellant and the High Court did not err in relying on
their evidence.
Conduct of respondent/accused
49. Hari Singh Batham (P.W. 3) has stated that the dead body of
the deceased "X" was recovered at about 5:30-6 AM. One day prior
to the recovery of dead body, he had seen the respondent/accused
near the pator of Ramprasad Prajapti and was in a frightened
condition. He further stated that the deceased "X" was raped and was
killed by smothering. On cross examination, he denied that he had
not seen the respondent/accused on the date of incident.
50. Thus, it is clear that the prosecution has succeeded in
establishing that the respondent/accused was seen in a frightened
condition in the afternoon of 4-7-2017.
51. After considering the evidence of last seen together coupled
with the fact that not only he was seen near the pator of Ram Prasad
in the afternoon of 4-7-2017, but he was in a frightened condition,
this Court is of the considered opinion, that the deceased was never
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
seen alive, after she was seen in the company of the
respondent/accused and due to minimum time gap between the last
seen together and the time of death and recovery of dead body, it
cannot be said that the respondent/accused is not the perpetrator of
the offence.
Whether the deceased went missing from School or She had not
attended the School at all
52. Smt. Sagun (P.W. 7) has stated that she is working as a cook as
well as also do the work of mopping and cleaning in the school. On
4-7-2017, she had seen that the daughter of Hariram (P.W.1) was
coming to the school along with her school bag and bottle. After
some time, she went outside the school after keeping her school bag
and bottle in the class room. she was cross examined by the
respondent/accused. In cross examination, this witness clarified that
after about half an hour of coming to school, the deceased had gone
out. She further clarified that there is no guard on the gate of the
school and any child may come to school at any time and may go out.
53. Smt. Ramdehi (P.W. 8) who is also working in the school as a
cook and also do work of mopping and dusting has stated that she
had seen the deceased "X" coming to the school at 10 A.M. This
witness was cross-examined, however, she denied that she had not
seen the deceased coming to school.
54. Motiram Rajoria (P.W. 9) is the Head Master of the school. He
has stated that in the prayer session of 4-7-2017, the deceased "X"
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
was not present. Thereafter, he had taken the attendance of Class 3
students, and the deceased "X" was not present. It was further stated
that the absence of the deceased "X" is also mentioned in the
attendance register. The date of birth of the deceased "X" is 19-10-
2009. The original admission register is Ex. P.15 and the photocopy
of the same is Ex. P. 15C. The date of birth certificate issued on the
basis of admission register is Ex. P.16 and the attendance register of
Class 3 is Ex. P.17, in which the absence of the deceased "X" is
marked. In cross-examination, this witness has stated that there is a
boundary around the school building and if a student is required to
leave the school, then he can do so with his permission. He further
denied that Ex. P.15, P.16 and P.17 have been falsely prepared on the
instructions of the police.
55. By referring to the evidence of Motiram Rajoria (P.W. 9), it is
submitted by the Counsel for the respondent/accused that since, the
deceased "X" had not come to the school, therefore, the prosecution
has failed to prove that the deceased had left her house at 10 A.M. for
attending the school. It is further submitted that the evidence of grand
mother of the deceased was not recorded to prove that the deceased
had left the house at 10:00 A.M. for attending the school. It is further
submitted that although it is the case of the prosecution that the
school bag and bottle of the deceased was lying in the school, but the
same was not seized by the investigating officer.
56. Considered the submissions made by the Counsel for the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
parties.
57. Hariram (P.W.1) has stated that since, there was Kanya Bhoj on
account of Dev Uthani Gyaras, therefore, his daughter had left the
school after leaving her school bag and bottle in the school. Smt.
Sagun (P.W.7) and Ramdehi (P.W.8) had seen the deceased "X"
coming to the school and thereafter leaving the school. If the
evidence of Hariram (P.W.1), Smt. Sagun (P.W. 7), Ramdehi (P.W.8)
and Motiram Rajoria (P.W.9) are read together, then it is clear that the
deceased "X" left her house at 10 A.M. for attending the school. In
fact she came to school and after leaving her school bag and bottle in
the class room, she left the school for attending Kanya Bhoj. It is
clear that the deceased "X" did not attend the prayer session and also
did not attend the classes, therefore, she must have left the school
prior to prayer session. According to Hariram (P.W.1), he had seen
from the window that the school bag and bottle of the deceased were
lying in the school. This fact is also mentioned in the F.I.R., Ex. P.1.
Although the Investigating Officer, did not seize the school bag and
bottle, but at the most, it can be said to be a lapse in the investigation
and the accused would not get the advantage of the same in the light
of other clinching evidence available on record. Furthermore, this
Court cannot lose sight of the fact that immediately after recovery of
dead body of the deceased, there was an unrest in the locality and the
people had started agitating and Chinnor Road was blocked and
therefore, the investigating officer was compelled to rush towards the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
place of agitation along with police force, and some part of
investigation was done by Devlal Koli (P.W. 13), like preparation of
Naksha Panchayatnama, Ex. P.6, preparation of requisition for post-
mortem, Ex. P.22 as well as issuing notice under Section 175 of
Cr.P.C. Therefore, when the attention of the investigating officer was
completely diverted due to aggressive agitation by the residents of
the locality, then this Court cannot lose sight of the said surrounding
circumstance. Further, the fact that the school bag and bottle of the
deceased were lying in the school had already come in the F.I.R.
Ex.P.1, therefore, it cannot be said that the non-seizure of School Bag
and Bottle of the deceased from the school would belie the
prosecution case.
58. Under these facts and circumstances of the case, this Court is
of the considered opinion that since, the investigating officer was
required to maintain the law and order situation apart from doing
investigation, therefore, the non-seizure of school bag and bottle of
the deceased cannot be said to be even a faulty investigation.
59. Furthermore, mere non-seizure of school bag and bottle of the
deceased would not wash out the other reliable and trustworthy
evidence.
60. The Supreme Court in the case of Babu and another v. State
represented by Inspector of Police, Chennai, reported in (2013) 4
SCC 448 has held as under :
18.......If a defect in the investigation does not create a
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
reasonable doubt on the guilt of the accused, the court
cannot discard the prosecution case on the ground that there
was some defect in the investigation.
The Supreme Court in the case of Ganga Singh Vs. State of
M.P. reported in (2013) 7 SCC 278 has held as under :
17. We are also unable to accept the submission of Mr
Mehrotra that the investigation by the police is shoddy and
hasty and there are defects in the investigation and therefore
benefit of doubt should be given to the appellant and he
should be acquitted of the charge of rape. The settled
position of law is that the prosecution is required to
establish the guilt of the accused beyond reasonable doubt
by adducing evidence. Hence, if the prosecution in a given
case adduces evidence to establish the guilt of the accused
beyond reasonable doubt, the court cannot acquit the
accused on the ground that there are some defects in the
investigation, but if the defects in the investigation are such
as to cast a reasonable doubt in the prosecution case, then of
course the accused is entitled to acquittal because of such
doubt. In the present case, as we have seen, the evidence of
PW 5 as corroborated by the evidence of PW 2 and the FIR
establish beyond reasonable doubt that the appellant has
committed rape on PW 5 and thus the appellant is not
entitled to acquittal.
The Supreme Court in the case of Gargi v. State of Haryana,
reported in (2019) 9 SCC 738 has held as under :
20.7. The abovementioned unexplained shortcomings,
perforce, indicate that in this case, the investigation was
carried out either with preconceived notions or with a
particular result in view. It is difficult to accept that the
investigation in this case had been fair and impartial. From
another viewpoint, on the facts and in the circumstances of
this case, the omissions on the part of investigating agency
cannot be ignored as mere oversight. These omissions,
perforce, give rise to adverse inferences against the
prosecution.
Thus, every faulty investigation would not make the
prosecution unreliable. But the faulty investigation must lead to an
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
inference that the investigation was being done with a preconceived
notions. If the prosecution, otherwise, succeeds in establishing the
guilt of the accused beyond reasonable doubt, then some minor
omissions on the part of the investigating officer, would not give any
dent to the prosecution case.
61. It is next contended by the Counsel for the respondent/accused
that since, the grandmother of the deceased was not examined,
therefore, it cannot be said that on 4-7-2017, the prosecution has
proved that the deceased had left her house for attending the school
at 10:00 A.M..
62. Considered the submissions made by the Counsel for the
parties.
63. It is well established principle of law that it is the quality and
not the quantity of the witnesses which decides the fate of a trial.
Further, the social scenario of the village cannot be lose sight of. In
the present case, the unfortunate part is that the deceased and the
accused are the grandchildren of the mother of Hariram (P.W.1). If
the grandmother could not collect the courage to depose against the
respondent/accused, then it cannot be said that non-examination of
mother of Hariram (P.W.1) would give any dent to the prosecution
case. It is once again pointed out that in the FIR, Ex. P.1 itself, it was
mentioned that the deceased had left her house at 10 A.M. Further,
Smt. Sagun (P.W. 7) and Smt. Ramdehi (P.W.8) had seen the deceased
in the school at 10:00 A.M. According to Smt. Sagun (P.W. 7), the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
deceased left the school after half an hour. Thus, non-examination of
grandmother of the deceased would not make the evidence of the
prosecution witnesses unreliable.
64. The Supreme Court in the case of Sarwan Singh Vs. State of
Punjab reported in (1976) 4 SCC 369 has held as under :
The onus of proving the prosecution case rests entirely on
the prosecution and it follows as a logical corollary that the
prosecution has complete liberty to choose its witnesses if it
is to prove its case. The court cannot compel the
prosecution to examine one witness or the other as its
witness. At the most, if a material witness is withheld, the
court may draw an adverse inference against the
prosecution. But it is not the law that the omission to
examine any and every witness even on minor points would
undoubtedly lead to rejection of the prosecution case or
drawing of an adverse inference against the prosecution.
The law is well-settled that the prosecution is bound to
produce only such witnesses as are essential for unfolding
of the prosecution narrative. In other words, before an
adverse inference against the prosecution can be drawn it
must be proved to the satisfaction of the court that the
witnesses who had been withheld were eyewitnesses who
had actually seen the occurrence and were therefore
material to prove the case. It is not necessary for the
prosecution to multiply witnesses after witnesses on the
same point; it is the quality rather than the quantity of the
evidence that matters. In the instant case, the evidence of
the eyewitnesses does not suffer from any infirmity or any
manifest defect on its intrinsic merit. Secondly, there is
nothing to show that at the time when the deceased was
assaulted a large crowd had gathered and some of the
members of the crowd had actually seen the occurrence and
were cited as witnesses for the prosecution and then
withheld. We must not forget that in our country there is a
general tendency amongst the witnesses in mofussil to shun
giving evidence in courts because of the cumbersome and
dilatory procedure of our courts, the harassment to which
they are subjected by the police and the searching cross-
examination which they have to face before the courts.
The Supreme Court in the case of State of M.P. Vs. Laakhan
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
reported in (2009) 14 SCC 433 has held as under :
10. Even the evidence of a solitary witness can be
sufficient to record conviction if the same is wholly reliable.
No particular number of witnesses is necessary to prove any
fact, as statutorily provided in Section 134 of the Evidence
Act, 1872 (in short "the Evidence Act"). It is the quality and
not the quantity of the evidence that matters. The court
cannot take a closed view in such matters.
The Supreme Court in the case of S.P.S. Rathore Vs. CBI
reported in (2017) 5 SCC 817 has held as under :
53. No particular number of witnesses is required for
proving a certain fact. It is the quality and not the quantity
of the witnesses that matters. Evidence is weighed and not
counted. Evidence of even a single eyewitness, truthful,
consistent and inspiring confidence is sufficient for
maintaining conviction. It is not necessary that all those
persons who were present at the spot must be examined by
the prosecution in order to prove the guilt of the accused.
Having examined all the witnesses, even if other persons
present nearby are not examined, the evidence of
eyewitness cannot be discarded.
65. The evidence is to be weighed and not counted. Each and
every possible witness is not required to be examined. It is for the
prosecution to decide that on which witness, it would like to rely. If
the evidence of the witnesses so examined by the prosecution are
found to be trustworthy and reliable, then their evidence cannot be
discarded only on the ground that some more witnesses should have
been examined in order to corroborate the prosecution witnesses.
Thus, it is held that the prosecution has succeeded in establishing that
on 4-7-2017, the deceased "X" left her house at 10 A.M., for
attending the school. She came to school and after leaving her school
bag and bottle, went away.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
D.N.A.
(i) DNA Profile of respondent/accused in the vaginal slide,
swab and cloths of deceased "X"
66. It is submitted by the Counsel for the respondent/accused that
as per DNA report, Ex. P.29, DNA profile of the respondent/accused
was found on Article F i.e., cloths of deceased and G i.e., Vaginal
Slide and Swab of the deceased. However, it is submitted that it is
clear that the blood sample of the respondent/accused was marked as
Article R and was given A/RM code 7280. However, it is fairly
conceded that looking to the A/RM codes given to the other articles,
A/RM-7280 appears to be a typographical error and it should have
been A/RM 8280. However, it is submitted that on the second page
of report, A/RM code of Article R is mentioned as 8279 whereas
A/RM 8279 code was given to Article Q which was Scalp Hair of
accused. Therefore, it is submitted that it is incorrect to say that the
DNA profile found on the cloths and Vaginal Slide and Swab of the
deceased was containing the DNA profile of the respondent/accused,
because it is for the prosecution to prove the guilt of the accused
beyond reasonable doubt, and since, the DNA report itself creates
doubt on its correctness, therefore, the circumstance of presence of
DNA profile of respondent/accused on the cloths and Vaginal Slide
and Swab of the deceased cannot be relied upon.
67. It is not out of place to mention here that inspite of the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
provisions of Section 293 of Cr.P.C., as well as even in absence of
any application for cross-examination of Scientific Officer, the
Scientific Officer Dr. Pankaj Shrivastava (P.W.24) was examined.
However, no question with regard to the above mentioned anomaly
was asked. But, it is submitted by the Counsel for the
respondent/accused, that the prosecution has to stand on its own legs
and cannot take advantage of the weakness of the accused. Therefore,
it was incumbent upon the prosecution to prove beyond reasonable
doubt that the DNA of the respondent/accused was extracted from the
blood sample of the respondent/accused, but having failed to do so, it
is submitted that the DNA report, Ex. P. 29 has no evidentiary value.
68. Undisputedly, Dr. Pankaj Shrivastava (P.W. 24) was not asked
any question with regard to the above mentioned anomaly in A/RM
code of Article R. Whether there is typographical error in mentioning
the A/RM code of Article R in the DNA report, Ex. P.29 or it is fatal
to the prosecution story?
69. From the DNA report, Ex. P.29, it is clear that Article Q was
given A/RM code 8279. In the DNA report, Ex. P.29 itself, it is
mentioned that Article Q was not opened and it was returned back
unopened. When Article Q was not opened at all, then there is no
question of extracting the DNA profile of the respondent/accused
from Article Q having A/RM code 8279 i.e., scalp hair of
respondent/accused. Thus, it is clear that A/RM code of Article R
mentioned on 2nd page of DNA report, Ex. P.29 is a typographical
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
error and nothing more. Further, Dr. Pankaj Shrivastava (P.W.24) has
stated that the DNA of the respondent/accused was extracted from his
blood sample (Article R) and this evidence of Dr. Pankaj Shrivastava
(P.W. 24) was not controverted by respondent/accused by putting any
question in the cross-examination. Therefore, in the light of the fact
that Article Q which was given A/RM 8279 was never opened,
therefore, there is no question of any confusion regarding the Article
from which the DNA of the respondent/accused was extracted. Thus,
it is clear that DNA profile of the respondent/accused was extracted
from his blood sample only.
70. The DNA report, Ex. P.29 can be seen from another point of
view. Article I and J are cloths of respondent/accused. It is not out of
place to mention here that seizure of cloths of the respondent/accused
vide seizure memo Ex. P.24 has not been challenged. Further, no
question was put to Ashok Kumar (P.W. 19) to make his evidence
unreliable. Similar female DNA profile was detected on the source of
article A (Plastic Bag), Article F Stain 2 (Cloths of deceased), Article
G (Vaginal slide of deceased), Article I and J (Cloths of
respondent/accused). Thus, it is clear that the DNA profile of the
deceased was also found on the cloths of the respondent/accused.
For ascertaining the DNA profile of the deceased, the blood sample
of the respondent/accused was not required. Thus, the presence of
DNA profile of the deceased on the cloths of the respondent/accused,
clearly indicates the involvement of the respondent/accused in the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
crime.
71. Thus, even if anomaly in A/RM code of Article R is seen in the
light of the presence of DNA profile of the deceased on the cloths of
the respondent/accused, then it can be safely held that discrepancy in
A/RM of Article R is a result of typographical error only. Further,
had the accused put any question to Dr. Pankaj Shrivastava (P.W. 24)
in this regard, then he could have explained the discrepancy.
72. So far as the contention of the Counsel for the
respondent/accused that the prosecution has to stand on its own legs
is concerned, it is true that the burden is on the prosecution to prove
the guilt of the accused beyond reasonable doubt. However, when
there is any discrepancy which does not go to the root of the matter,
thereby making it inadmissible or unreliable, then the prosecution
witness should also get an opportunity to explain such discrepancy.
Without asking any question, the prosecution cannot be taken by
surprise and if the discrepancy does not go to the root of the
evidentiary value and admissibility of evidence, then the prosecution
cannot be thrown overboard only on account of some typographical
errors in the A/RM code of the Articles, specifically when, apart from
mentioning the A/RM code, Article R is also mentioned in the DNA
report Ex. P.29.
73. Under these circumstances, no importance can be given to
discrepancy in A/RM of Article R.
74. As per the DNA report, Ex. P.29, all the alleles observed in the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
DNA profile of respondent/accused were observed in the male mixed
DNA profile generated on F (Stain1) and same male DNA profile was
detected on Article F (Cloths of the deceased) Article G (Vaginal
Slide and Swab) of the deceased.
75. Further, as per the postmortem report, Ex. P.18, signs of
forceful vaginal penetration were found. With regard to reproductive
organ, external genitalia was found diffusely swollen and reddening,
labia majora was reddened and swollen. Labia Minora was swollen.
Hymen Tear was irregular and circumferentialy from 4 O'Clock to 8
O'clock position. Hymen tear was extending upto posterior vaginal
wall and also involving anal blood stained Mucosa Vulva. Thus, it is
clear that the deceased was raped, and not only injuries were found
on labia majora and labia minora, but hymen was also found torn.
76. It is next contended by the Counsel for the respondent/accused
that although, the respondent/accused was in custody, but no
permission from the Court of competent jurisdiction was obtained
before collecting the blood sample of the respondent/accused.
77. The submission made by the Counsel for the
respondent/accused is misconceived and is contrary to record.
78. It is clear from the order sheets of the Magistrate that an
application for collecting blood sample was made on 27-7-2017 and
the said application was allowed by order dated 29-7-2017, after
hearing the respondent/accused. As the respondent/accused was in
custody, and no objection was raised by respondent/accused,
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
therefore, permission was granted. Thus, it is clear that the blood
sample of the respondent/accused was collected, after obtaining due
permission from the Court of competent jurisdiction.
79. It is next contended by the Counsel for the respondent/accused
that since, there is nothing on record to show that the blood sample
was preserved and stored in a proper condition, therefore, there is a
every chance that the blood sample of the respondent/accused might
have got spoiled.
80. Considered the submissions made by the Counsel for the
respondent/accused.
81. There is no suggestion either to Dr. Ajeet Kumar Minz
(P.W.12), Dr. Pankaj Shrivastava (P.W. 24) or to Alok Singh (P.W. 28)
in this regard. There is no scientific material on record to show that
unless and until the blood sample is preserved in a particular manner,
the same would get spoiled and it would not be possible to extract
DNA from the said sample.
82. The Counsel for the respondent/accused could not point out the
life of DNA. According to medical science, the DNA has a half life of
521 years i.e., after 521 years, half of the bonds between nucleotides
in the backbone of a sample would break and after another 521 years,
half of the remaining bonds would break and so on. Thus, it cannot be
said that if the blood sample is not kept properly, then it would result
in loss of DNA. Accordingly it is held that even in absence of
material to show that the blood sample was kept in a hygienic
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
condition, still it would not result in loss of DNA. Further, the seal of
the container was found intact at the time of receipt of blood sample
in the F.S.L., Sagar.
83. There is another aspect of the matter. The blood sample of the
deceased was collected on 29-7-2017, and the blood sampling form is
Ex. P.20 and sealed blood sample was seized vide seizure memo Ex.
P.21. The blood sample was sent for DNA test to F.S.L. Sagar on 31-
7-2017 and it was received in the Laboratory on 2-8-2017. Thus, even
otherwise, there is no delay in dispatch and receipt of blood sample
by FSL Sagar.
84. Thus, it is held that DNA profile of the respondent/accused was
found in the Cloths, Vaginal Slide and Swab of the deceased and the
female DNA profile of the deceased was found on the cloths of the
respondent/accused.
Recovery of Button of the shirt of respondent/accused from the
spot
85. It is submitted by the Counsel for the respondent/accused that
the thickness and diameter of the button seized from the spot was
different from the button recovered from the T-Shirt of the
respondent/accused therefore, it cannot be said that the button seized
from the spot was that of the shirt of the respondent/accused.
86. Considered the submissions made by the Counsel for the
parties.
87. On 5-7-2017 at 9:10 A.M., apart from other articles, one button
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
with broken threads was also seized from the spot vide seizure memo
Ex. P.12. Bheem (P.W. 4) and Pappu Prajapati (P.W. 5) have proved
the seizure of button from the spot.
88. T-Shirt of respondent/accused was marked as Article I1,
whereas lower of respondent/accused was marked as I2. The button
seized from the spot was marked as Article S1 and broken threads
were marked as Article S2. In the T-Shirt, it was found that it had
three places for stitching buttons. Button at serial no.1 was broken,
whereas button at serial no.3 was intact and button at serial no. 2 was
missing.
89. Dr. Neha Dodia (P.W.25), after comparing the button with
threads seized from the spot with the button and thread of the T-Shirt
of respondent/accused, gave the following findings :
Comparison Point Button stitched on T- Article S1
Shirt Article I1
Material and Size Circular and plastic Circular and plastic
like like
Colour and design White, Translucent, White, Translucent,
Depth of holes, Upper Depth of holes, Upper
surface paravartak surface paravartak
and lower surface and lower surface
white. white.
Diameter 0.274 Cm 0.288 Cm
Thickness 0.108 Cm 1.118 Cm
Engraving SCHOTT SCHOTT
The following findings were given by Dr. Neha Dodia (P.W.
25) after comparing the threads of the T-Shirt and threads found
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
along with button seized from spot. The findings are as under :
Comparison point Threads taken from T- Pieces of thread S2
Shirt Article I1
Colour White White
Type of Twist Z type Z type
Burning point of fiber Fiber form bead by Fiber form bead by
sticking together sticking together
Nature of fiber Synthesized Synthesized
Cylindrical Nature Cylindrical Nature
Accordingly, it was found that the button seized from the spot
and the button found on the T-Shirt of the respondent/accused were
almost same and the broken pieces of thread found along with button
seized from the spot and the threads found on the T-Shirt of the
respondent/accused were same.
90. It is submitted by the Counsel for the respondent/accused, that
since, the thickness and diameter of the button seized from the spot
was different from the button found on the T-Shirt of the
respondent/accused, therefore, it is incorrect to say that both were
almost same.
91. Considered the submissions.
92. It is not out of place to mention here that no question with
regard to difference in thickness and diameter of the button seized
from the spot and the button found on the T-Shrit of
respondent/accused was asked to Dr. Neha Dodia (P.W. 25). Further,
if the comparison chart prepared by Dr. Neha Dodia (P.W. 25) is seen,
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
then it is clear that Colour and Design, No. of Holes, Material and
Size as well as Engraving on the button seized from the spot and
button found on the T-Shirt of respondent/accused were same. There
is a difference of fraction of Millimeters in thickness and diameter of
both the buttons. This difference may take place during
manufacturing process. As no question was put to Dr. Neha Dodia
(P.W. 25) in this regard, therefore, considering the fact that difference
of fraction of Millimeters in thickness and diameter of buttons may
occur during manufacturing process, this Court is of the considered
opinion that after considering the remaining readings including that
of Engraving, the findings given by Dr. Neha Dodia (P.W. 25) that
both the buttons are almost same cannot be said to be incorrect.
Furthermore, this Court cannot lose sight of the fact, that broken
thread was also found with the button seized from the spot. The
pieces of thread found with the button seized from the spot, and the
thread of T-Shirt of respondent/accused were identically same.
Therefore, it is held that the button with broken pieces of thread
which was seized from the spot, was that of the T-Shirt of the
respondent/accused.
Presence of injuries on the nose of the respondent/accused
93. The respondent/accused Manoj was got medically examined on
5-7-2017 and as per M.LC. Report, Ex. P.25, Dr. Vinod Kumar
Doneriya (P.W. 17) found the following injuries on the body of the
respondent/accused :
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
(5) No injury seen on genital organ.
(7) Abrasion 1x1/2 cm on nose simple in nature caused
by human nails duration 24-48 hours.
94. It is submitted by the Counsel for the respondent/accused that
in the nail clippings of the deceased, although human skin was found,
but the source of the said skin was not ascertained, therefore, it
cannot be said that the skin found in the nail clippings of the
deceased was that of the respondent/accused.
95. Considered the submissions made by the Counsel for the
respondent/accused.
96. As per FSL report Ex. P.31, human skin was found in the nail
clippings of the deceased and it was found insufficient for further
examination.
97. It is true that the source of human skin could not be ascertained
due to insufficient quantity for examination, but if the circumstance
of presence of human skin in the nail clippings of the deceased is
considered in the light of the other circumstances, then the non-
ascertainment of source of human skin would not be fatal to the
prosecution story. Undisputedly, abrasion was found on the nose of
the respondent/accused as per his M.L.C., Ex. P.25. The photographs,
Ex. A.34 and A.35 of respondent/accused also shows the presence of
abrasion on his nose. Further, the presence of the respondent/accused
on the spot and his involvement in the offence is proved beyond
reasonable doubt in the light of the presence of his DNA profile in the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
cloths and vaginal slide and swab of the deceased, therefore, it is held
that the human skin found in the nail clippings of the deceased was
that of the respondent/accused.
98. Further, a suggestion was given to Dr. Vinod Kumar Doneriya
(P.W. 17) that due to itching, if some one scratches his nose, then
abrasion may be caused, which was denied by this witness. Thus, the
possibility of self inflicted abrasion was ruled out by this witness.
Thus, it is held that the respondent/accused must have suffered
abrasion on the nose due to resistance offered by the deceased.
Absence of injuries on genitals of the respondent/accused.
99. It is submitted that if a forcible intercourse is done with a
virgin minor girl, then there should be some injuries on the genitals of
the accused. However, in the present case, it is clear that no injury
was found on the genitals of the respondent/accused, therefore, the
possibility of committing rape on the minor prosecutrix is ruled out.
100. Considered the submissions made by the Counsel for the
respondent/accused.
101. Presence of injuries on male organ of the accused is not
necessary in all cases.
102. The Supreme Court after considering the Modi's jurisprudence,
has held in the case of State of H.P. v. Gian Chand, reported in
(2001) 6 SCC 71, as under :
15. The observations made and noted by Dr Mudita Gupta
during the medico-legal examination of PW 7 clearly make
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
out the prosecutrix having been subjected to rape. The
prosecutrix has spoken of "penetration" in her statement.
The discovery of spermatozoa in the private parts of the
victim is not a must to establish penetration. There are
several factors which may negative the presence of
spermatozoa (see Narayanamma v. State of Karnataka).
Slightest penetration of penis into vagina without rupturing
the hymen would constitute rape (see Madan Gopal
Kakkad v. Naval Dubey). The suggestion made in the cross-
examination of Dr Mudita Gupta that injury of the nature
found on hymen of the prosecutrix could be caused by a fall
does not lead us anywhere. Firstly, no such suggestion was
given to the prosecutrix or her mother during cross-
examination. Secondly, why would the girl or her mother
implicate the accused, charging him with rape, if the injury
was caused by a fall? There is nothing to draw such an
inference, not even a suggestion, to be found on record. The
answer to the suggestion made to Dr Gupta cannot discredit
the prosecution case in the absence of any other material to
support the suggestion. So is the case with the absence of
external marks of violence on the body of the victim. In
case of children who are incapable of offering any
resistance external marks of violence may not be found.
(See Modi's Medical Jurisprudence, 22nd Edn., p. 502.) It
is true that marks of external injury have not been found on
the person of the accused but that by itself does not negate
the prosecution case. Modi has opined (see Modi, ibid, p.
509) that even in the case of a child victim being ravished
by a grown-up person it is not necessary that there should
always be marks of injuries on the penis in such cases.
Further, it is to be noted that about two days had elapsed
between the time of the incident and medical examination
of the accused within which time minor injuries, even if
caused, might have healed.
103. In the present case, the offence was committed on 4-7-2017
and the respondent/accused was medically examined on 6-7-2017 at
2:00 P.M. i.e., after 48 hours of incident. Therefore, the possibility of
healing of any minor injury on the genital organs of the
respondent/accused is also not ruled out. Further, it is clear from
Modi's Jurisprudence that it is not necessary that there should always
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
be mark of injuries on the penis of the accused.
104. Therefore, the absence of any injury on the penis of the
respondent/accused, would not belie the prosecution case.
Non-Examination of Gayatri
105. Hariram (P.W.1) has stated that after hearing the cries of
Bhabhi Gayatri, they found that the dead body of the deceased was
lying behind the trolley which was parked in front of the Pator of Jai
Kishan Prajapati. It is submitted that in fact the dead body of the
deceased was found in front of the Pator of Ram Prasad Prajapati. It
is submitted that Bhabhi Gayatri was the best witness as she had
noticed the dead body for the first time but she has not been
examined, therefore, the recovery of the dead body of the deceased
itself becomes doubtful.
106. Considered the submissions made by the Counsel for the
parties.
107. The respondent/accused has not disputed the fact that the dead
body of deceased "X" was found in front of the Pator of Ramprasad
Prajapti. The photographs of the deceased and the spot were taken by
Jugal Kishore Dubey (P.W. 18) which have been marked as Article 1
to Article 26. Even from the spot map, Ex. P.4, as well as
photographs Article 1 to 26, it is clear that the dead body was found
in front of the Pator of Ramprasad Prajapati. Under these
circumstances, the non-examination of Bhabhi Gayatri would not
give any dent to the prosecution story. Further, it is the submission of
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
the Counsel for the State that in the village where the population is
scanty and each and every person knows each other, then generally
they do not come forward in order to save their relationship with the
family of the accused. It is not known as to whether Gayatri is the
mother of the respondent/accused or She was called Bhabhi by
Hariram (P.W.1) being the resident of the same village. Even if it is
presumed that Gayatri was called Bhabhi by Hariram (P.W.1) being
the resident of same village, but this Court cannot lose sight of the
social thread running through the residents of the village. She might
not be interested in coming into picture in order to save her
contacts/relationship with the family of the respondent/accused.
Further, an independent witness may hesitate in coming forward in
order to avoid becoming part of police investigation or attending the
Court. Further, the Supreme Court in the case of Gian Singh (Supra)
has held as under :
14. So far as non-examination of other witnesses and an
adverse inference drawn by the High Court therefrom is
concerned, here again we find ourselves not persuaded to
subscribe to the view taken by the High Court. The
prosecutrix, PW 7 has stated that soon before the incident
she was playing with three girl-children of the same age as
hers and they were present when the accused committed
rape on her. One of the girls picked up a broom and had
tried to scare away the accused by striking the broom on
him. This little friend of the victim had also raised a hue
and cry but none from the neighbourhood came to the spot.
These girls were none else than daughters of her uncle.
What the High Court has failed to see is that these girls
were of tender age and could hardly be expected to describe
the act of forcible sexual intercourse committed by the
accused on PW 7. Secondly, these girls would obviously be
under the influence of their parents. We have already noted
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
the co-sister of PW 1 turning hostile and not supporting the
prosecution version. How could these little girls be
expected to be away from the influence of their parents and
depose freely and truthfully in the court? Non-examination
of a material witness is again not a mathematical formula
for discarding the weight of the testimony available on
record howsoever natural, trustworthy and convincing it
may be. The charge of withholding a material witness from
the court levelled against the prosecution should be
examined in the background of facts and circumstances of
each case so as to find whether the witnesses were available
for being examined in the court and were yet withheld by
the prosecution. The court has first to assess the
trustworthiness of the evidence adduced and available on
record. If the court finds the evidence adduced worthy of
being relied on then the testimony has to be accepted and
acted on though there may be other witnesses available who
could also have been examined but were not examined.
However, if the available evidence suffers from some
infirmity or cannot be accepted in the absence of other
evidence, which though available has been withheld from
the court, then the question of drawing an adverse inference
against the prosecution for non-examination of such
witnesses may arise. It is now well settled that conviction
for an offence of rape can be based on the sole testimony of
the prosecutrix corroborated by medical evidence and other
circumstances such as the report of chemical examination
etc. if the same is found to be natural, trustworthy and
worth being relied on.
The Supreme Court in the case of Mahesh v. State of
Maharashtra, reported in (2008) 13 SCC 271 has held as under :
55. As regards non-examination of the independent
witnesses who probably witnessed the occurrence on the
roadside, suffice it to say that testimony of PW Sanjay, an
eyewitness, who received injuries in the occurrence, if
found to be trustworthy of belief, cannot be discarded
merely for non-examination of the independent witnesses.
The High Court has held in its judgment and, in our view,
rightly that the reasons given by the learned trial Judge for
discarding and disbelieving the testimony of PWs 4, 5, 6
and 8 were wholly unreasonable, untenable and perverse.
The occurrence of the incident, as noticed earlier, is not in
serious dispute. PW Prakash Deshkar has also admitted that
he had lodged complaint to the police about the incident on
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
the basis of which FIR came to be registered and this
witness has supported in his deposition the contents of the
complaint to some extent. It is well settled that in such
cases many a times, independent witnesses do not come
forward to depose in favour of the prosecution. There are
many reasons that persons sometimes are not inclined to
become witnesses in the case for a variety of reasons. It is
well settled that merely because the witnesses examined by
the prosecution are relatives of the victim, that fact by itself
will not be sufficient to discard and discredit the evidence
of the relative witnesses, if otherwise they are found to be
truthful witnesses and rule of caution is that the evidence of
the relative witnesses has to be reliable evidence which has
to be accepted after deep and thorough scrutiny.
The Supreme Court in the case of Vijendra Singh v. State of
U.P., (2017) 11 SCC 129 has held as under :
35. The next plank of argument of Mr Giri is that since
Nepal Singh who had been stated to have accompanied PW
2 and PW 3 has not been examined and similarly, Ram Kala
and Bansa who had been stated to have arrived at the
tubewell as per the testimony of PW 2, have not been
examined, the prosecution's version has to be discarded, for
it has deliberately not cited the independent material
witnesses. It is noticeable from the decision of the trial
court and the High Court, that reliance has been placed on
the testimony of PWs 1 to 3 and their version has been
accepted. They have treated PW 2 and PW 3 as natural
witnesses who have testified that the accused persons were
leaving the place after commission of the offence and they
had seen them quite closely. The contention that they were
interested witnesses and their implication is due to inimical
disposition towards accused persons has not been accepted
and we have concurred with the said finding. It has come
out in evidence that witnesses and the accused persons
belong to the same village. The submission of Mr Giri is
that non-examination of Nepal Singh, Ramlal and Kalsa is
quite critical for the case of the prosecution and as put forth
by him, their non-examination crucially affects the
prosecution version and creates a sense of doubt. According
to Mr Giri, Nepal Singh is a material witness. In this regard
we may refer to the authority in State of H.P. v. Gian Chand
wherein it has been held that: (SCC p. 81, para 14)
"14. Non-examination of a material witness is again
not a mathematical formula for discarding the weight
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
of the testimony available on record howsoever
natural, trustworthy and convincing it may be. The
charge of withholding a material witness from the
court levelled against the prosecution should be
examined in the background of the facts and
circumstances of each case so as to find whether the
witnesses were available for being examined in the
court and were yet withheld by the prosecution."
The Court after so holding further ruled that it is the duty of
the court to first assess the trustworthiness of the evidence
available on record and if the court finds the evidence
adduced worthy of being relied on and deserves acceptance,
then non-examination of any other witnesses available who
could also have been examined but were not examined,
does not affect the case of the prosecution.
36. In Takhaji Hiraji v. Thakore Kubersing Chamansing, it
has been held that: (SCC p. 155, para 19)
"19. ... if a material witness, who would unfold the
genesis of the incident or an essential part of the
prosecution case, not convincingly brought to fore
otherwise, or where there is a gap or infirmity in the
prosecution case which could have been supplied or
made good by examining a witness who though
available is not examined, the prosecution case can be
termed as suffering from a deficiency and withholding
of such a material witness would oblige the court to
draw an adverse inference against the prosecution by
holding that if the witness would have been examined
it would not have supported the prosecution case. On
the other hand, if already overwhelming evidence is
available and examination of other witnesses would
only be a repetition or duplication of the evidence
already adduced, non-examination of such other
witnesses may not be material. ... If the witnesses
already examined are reliable and the testimony
coming from their mouth is unimpeachable, the court
can safely act upon it, uninfluenced by the factum of
non-examination of other witnesses."
37. In Dahari v. State of U.P., while discussing about the
non-examination of material witness, the Court expressed
the view that when he was not the only competent witness
who would have been fully capable of explaining the
factual situation correctly and the prosecution case stood
fully corroborated by the medical evidence and the
testimony of other reliable witnesses, no adverse inference
could be drawn against the prosecution. Similar view has
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
been expressed in Manjit Singh v. State of Punjab and
Joginder Singh v. State of Haryana.
108. Thus, it is held that non-examination of Gayatri would not give
any blow to the prosecution much less a fatal blow.
109. As there is no dispute regarding the place from where the dead
body of the deceased "X" was found, it is held that non-examination
of Gayatri is not fatal to the prosecution case.
Non-examination of Jitendra Parihar and Ashok Kushwaha
110. By referring to Examination-in-chief of Hariram (P.W.1), it is
submitted by the Counsel for the respondent/accused that when
Hariram (P.W.1) asked the respondent/accused, as to whether he
would like to go to Gwalior for labour work or not, at that time
Jitendra Parihar and Ashok Kushwaha were also sitting there, and
they have not been examined.
111. The submission made by the Counsel for the
respondent/accused is liable to be rejected only on the ground that it
is the quality and not quantity which decides the fate of a trial. The
evidence is to be weighed and not calculated. Further, it has already
been held that generally independent witnesses do not want to come
forward and specifically when the social thread running in the
residents of villages is so strong, therefore, it is difficult that every
independent witness would come forward to depose against the
accused.
Discrepancy in Naksha Panchayatnama, Ex.P.6 and the Post-
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
mortem report, Ex.P.18
112. It is submitted by the Counsel for the respondent/accused that
as per Naksha Panchayatnama,Ex. P.6, the witnesses had not found
any injury on the head of the deceased "X" whereas in the Post-
mortem report, head injury was found and it was also opined by Dr.
Ajay Gupta (P.W. 11) that head injury might also be the cause of
death.
113. Considered the submissions made by the Counsel for the
respondent/accused.
114. As per the post-mortem report, Ex. P.18, Ante-mortem
Ecchymosis over Occipital area of 8X6 cm with subdural and
Subarachnoid hemorrhage was found all over the brain. Thus, it is
clear that only internal injury in the head was found with no
corresponding external injury. Under these circumstances, if the
witnesses could not notice any injury on the head of the deceased
"X", then it cannot be said that there was any discrepancy in the
Naksha Panchayanama, Ex. P.6 and post-mortem report, Ex. P.18.
115. It is next contended by the Counsel for the respondent/accused
that in the Naksha Panchayatnama, Ex P.6, it has not been mentioned
that the private part of the deceased was seen by the lady constable.
Further, in the Naksha Panchayatnama, Ex. P.6, no external injury
was found on the private part of the deceased, whereas in the post-
mortem report, Ex. P.18, injuries were found on the private part of the
deceased, therefore, there is a discrepancy on this aspect.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
116. Considered the submissions made by the Counsel for the
respondent/accused.
117. Naksha Panchayatnama Ex.P.6 was prepared in the presence
of 6 witnesses including Head Constable Syara Bano. Syara Bano
(P.W. 20) has stated that she had seen the private part of the deceased
and since, stool had come out, therefore, it was not clearly visible.
Further, it is well known that while conducting post-mortem, the
autopsy surgeon inspects the body more meticulously. In the post-
mortem report, Ex. P.18, it is specifically mentioned that stool had
come out. Further, when one of the witness of Naksha
Panchayatnama Ex.P.6 was a lady, then it is not necessary to mention
that the private part of the deceased was seen by the lady and not by
all the witnesses. Under these circumstances, it cannot be said that
there was any discrepancy in the Naksha Panchayatnama, Ex.P.6 and
the Post-mortem report,Ex. P.18.
Discrepancy regarding bottle and box
118. It is submitted by the Counsel for the respondent/accused that
in the post-mortem report, Ex. P.18, it is mentioned that nail clippings
of both hands of the deceased, two vaginal slides and two vaginal
swabs of deceased were sealed in a bottle. Similarly, Viscera was
sealed in two bottles with saturated salt solution. Similarly one Bottle
contains stomach and its content and another bottle contains pieces of
liver, spleen and kidney. The above mentioned articles were handed
over to the police constable accompanying the body. It is submitted
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
that these articles were seized from Constable Dharmendra vide
seizure memo Ex. P.26 and from the seizure memo, Ex. P.26, it is
clear that Bottles became Box (fMCck), therefore, it is clear that the
internal organs which were handed over by the hospital were changed
and the internal organs which were sealed in boxes were seized.
119. Considered the submissions made by the Counsel for the
respondent/accused.
120. Bottle, box (fMCck) are some words which are used to describe
the container. Bottle means a container having narrow neck, whereas
internal organs of the deceased cannot be kept in a bottle having
narrow neck. They are to be preserved and sealed in a bottle having
broad neck which is known as "Jar". Thus Dr. Ajay Gupta (P.W. 11)
did not use the correct word for the container by describing as bottle,
but in fact more appropriate word i.e., "Jar" should have been used.
Since, the internal organs cannot be given in a bottle with narrow
neck, therefore, the internal organs must have been given in a
container having broad neck, therefore, if a constable described the
said container as box (fMCck), then it cannot be said that the sealed
container given by the hospital was tempered. The use of word bottle
or box (fMCck) is nothing but description of "Jar" or bottle with broad
neck, and would not make any difference in the matter. Further, the
seal of the hospital was found intact by the F.S.L. Sagar. Further,
Dharmendra Jat (P.W.21) had taken the dead body for post-mortem,
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
and the sealed articles were handed over to him. No question was put
to Dharmendra Jat (P.W. 21) about "bottle" and "box". Dharmendra
Jat (P.W.21) has specifically stated in his cross examination that he
had not seen the sealed articles by opening the same. Therefore, the
submissions made by the Counsel for the respondent/accused that
bottle became box is nothing but an attempt to make a mountain out
of a molehill.
Medical Examination of respondent/accused was not conducted
as per Section 53-A of Cr.P.C.
121. Section 53-A of Cr.P.C. reads as under :
53-A. Examination of person accused of rape by medical
practitioner.--(1) When a person is arrested on a charge of
committing an offence of rape or an attempt to commit rape
and there are reasonable grounds for believing that an
examination of his person will afford evidence as to the
commission of such offence, it shall be lawful for a
registered medical practitioner employed in a hospital run
by the Government or by a local authority and in the
absence of such a practitioner within the radius of sixteen
kilometers from the place where the offence has been
committed, by any other registered medical practitioner,
acting at the request of a police officer not below the rank
of a sub-inspector, and for any person acting in good faith
in his aid and under his direction, to make such an
examination of the arrested person and to use such force as
is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such
examination shall, without delay, examine such person and
prepare a report of his examination giving the following
particulars, namely:--
(i) the name and address of the accused and of the
person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the
accused,
(iv) the description of material taken from the person
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each
conclusion arrived at.
(4) The exact time of commencement and completion of the
examination shall also be noted in the report.
(5) The registered medical practitioner shall, without delay,
forward the report to the investigating officer, who shall
forward it to the Magistrate referred to in Section 173 as
part of the documents referred to in clause (a) of sub-
section (5) of that section.
122. The accused was medically examined by Dr. Vinod Kumar
Doneriya (P.W. 17) and M.L.C. report of the respondent/accused is
Ex. P.25 and it was seized vide seizure memo Ex. P.24. It is true that
the prosecution has not produced the copy of requisition for
conducting M.L.C. of the respondent/accused but has examined Daini
Kumar (P.W. 16) who had taken the respondent/accused for medical
examination. In the cross-examination, a suggestion was given to
this witness that he had taken the respondent/accused for medical
examination on the instructions of his senior police officers, which
was accepted by this witness.
123. It also appears that even the Public Prosecutor was not vigilant
at the time of recording of evidence. Part "B" of Trial Court's record
contain an un-exhibited requisition form given by investigating
officer, for medical examination of respondent/accused. However, it
is well settled principle of law that un-exhibited document(s) cannot
be read in favor of the prosecution.
124. But, no suggestion was given to Dr. Vinod Kumar Doneriya
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
(P.W.17) that he had conducted the medical examination of the
respondent/accused without there being any requisition by the
investigating officer.
125. However, in view of suggestion given to Daini Kumar
(P.W.16), that he had taken the respondent/accused for medical
examination of respondent/accused on the instructions of his senior
police officers, it is held that the respondent/ accused was medically
examined at the request of the investigating officer.
Whether F.I.R., Ex. P.1 is an ante-dated and ante-timed document
126. It is submitted by the Counsel for the respondent/accused that
F.I.R., Ex.P.1 is an ante-dated and ante-timed document, because if
the F.I.R., Ex. P.1 was already lodged at 2:00 A.M. on 5-7-2017, then
there was no necessity of Missing Person Registration, Ex. P.2, which
was prepared at 2:30 A.M. on 5-7-2017.
127. Considered the submissions made by the Counsel for the
respondent/accused.
128. Section 19 of POCSO Act, reads as under :
19. Reporting of offences.--(1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of
1974), any person (including the child), who has
apprehension that an offence under this Act is likely to be
committed or has knowledge that such an offence has been
committed, he shall provide such information to,--
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be--
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
(3) Where the report under sub-section (1) is given by a
child, the same shall be recorded under sub-section (2) in a
simple language so that the child understands contents
being recorded.
(4) In case contents are being recorded in the language not
understood by the child or wherever it is deemed necessary,
a translator or an interpreter, having such qualifications,
experience and on payment of such fees as may be
prescribed, shall be provided to the child if he fails to
understand the same.
(5) Where the Special Juvenile Police Unit or local police is
satisfied that the child against whom an offence has been
committed is in need of care and protection, then, it shall,
after recording the reasons in writing, make immediate
arrangement to give him such care and protection
(including admitting the child into shelter home or to the
nearest hospital) within twenty-four hours of the report, as
may be prescribed.
(6) The Special Juvenile Police Unit or local police shall,
without unnecessary delay but within a period of twenty-
four hours, report the matter to the Child Welfare
Committee and the Special Court or where no Special Court
has been designated, to the Court of Session, including need
of the child for care and protection and steps taken in this
regard.
(7) No person shall incur any liability, whether civil or
criminal, for giving the information in good faith for the
purpose of sub-section (1).
129. Thus, it is clear that when an information was given to the
police regarding the missing of a minor girl and a clear apprehension
was expressed by Hariram (P.W.1) in the F.I.R., Ex. P.1 that his
daughter has been kidnapped by some unknown person, then the
police did the right thing in lodging the F.I.R. Since, it was not clear
as to whether the minor daughter of the complainant was kidnapped
or any other offence has been committed or she is lost for any other
reason, therefore, the police also registered under the category
missing person. Further, this aspect of the matter could have been
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
clarified by Alok Singh (P.W. 28), the investigating officer, but no
question in this regard was put to him.
130. Further, a copy of the F.I.R. was forwarded to the concerning
Magistrate on 5-7-2017 and the acknowledgment of receipt of the
same is Ex. P.28. Thus, it is clear that the provisions of Section 157
of Cr.P.C. were also followed. Accordingly, this Court is of the
considered opinion, that it is incorrect to say that F.I.R., Ex. P.1 is an
ante-dated and ante-timed document.
Whether arguments on the question of framing of charges were
advanced by a Counsel not engaged by the respondent/accused
and if so, its effect
131. It is submitted by Shri Vijay Dutt Sharma, that the order-sheets
of the Trial Court, indicate that on 10-8-2017, the charge sheet was
filed and on 5-9-2017, time was granted to engage Counsel and to
argue on the question of framing of charge. On 4-10-2017, one Shri
Ashwani, Advocate filed his Vakalatnama on behalf of the
respondent/accused and prayed for time to argue on the question of
framing of charge. Again on 27-10-2017, time was granted to argue
on the question of framing of charge. On 10-11-2017, Shri Ashwani,
Advocate, withdrew his Vakalatnama and accordingly, Shri O.P.
Sharma (wrongly mentioned as Chaturvedi in the order sheet) was
appointed as Counsel for the respondent/accused from Legal Aid and
time was granted to argue on the question of framing of charge.
Again on 28-11-2017 and 14-12-2017, time was granted at the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
request of Shri O.P. Sharma, Counsel for respondent/accused. On 12-
1-2018, Shri Arvind Chouhan, Advocate appeared on behalf of
respondent/accused and prayed for time and accordingly time was
granted and case was adjourned to 14-2-2018. On 14-2-2018, Shri
Arvind Chouhan, Advocate argued on behalf of the
respondent/accused on the question of framing of charges and
accordingly, charges were framed.
132. It is submitted by Shri Vijay Dutt Sharma, Advocate, that Shri
Arvind Chouhan, Advocate was never engaged by the
respondent/accused, nor was provided by the Court, and therefore,
the Court should not have heard Shri Arvind Chouhan, Advocate, on
the question of framing of charges.
133. Heard the learned Counsel for the respondent/accused.
134. From Part "B" of Trial Court's record, it is clear that earlier
Shri Ashwani, had filed his Vakalatnama on behalf of the respondent/
accused, but the same does not contain the signatures of respondent/
accused. Thereafter, Shri O.P. Sharma, Advocate was provided to the
respondent/accused from Legal Aid. From the Vakalatnama of Shri
O.P. Sharma, it is clear that it does not contain the signatures or name
of any other Lawyer.
135. The Vakalatnama of Shri Arvind Chouhan is not available on
record. Thus, it appears that Shri Arvind Chouhan might have
appeared as a proxy Counsel on behalf of Shri O.P. Sharma,
Advocate.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
136. From the order sheet dated 14-2-2018 it is clear that Shri
Arvind Chouhan, Advocate was heard on the question of framing of
charges. Thus, it is held that Shri Arvind Chouhan, Advocate, in
absence of any authority of law, was not competent to argue on behalf
of respondent/accused on the question of framing of charges.
137. The next question for consideration is that what would be
effect of this mistake which remained unnoticed by the Trial Court.
138. Section 461 of Cr.P.C. deals with certain infringements or
irregularities, which would vitiate the trial. Section 461 of Cr.P.C.
reads as under :
461. Irregularities which vitiate proceedings.-- If any
Magistrate, not being empowered by law in this behalf,
does any of the following things, namely:--
(a) attaches and sells property under Section 83;
(b) issues a search warrant for a document, parcel or
other thing in the custody of a postal or telegraph
authority;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good
behaviour;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under Section 133 as to a local
nuisance;
(i) prohibits, under Section 143, the repetition or
continuance of a public nuisance;
(j) makes an order under Part C or Part D of Chapter
X;
(k) takes cognizance of an offence under clause (c) of
sub-section (1) of Section 190;
(l) tries an offender;
(m) tries an offender summarily;
(n) passes a sentence, under Section 325, on
proceedings recorded by another Magistrate;
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
(o) decides an appeal;
(p) calls, under Section 397, for proceedings; or
(q) revises an order passed under Section 446,
139. Thus, if any irregularity or infringement falling under Section
461 of Cr.P.C. is committed by the Court below, only then such
irregularity would vitiate the trial.
140. Section 464 of Cr.P.C. reads as under :
464. Effect of omission to frame, or absence of, or error
in, charge.-- (1) No finding, sentence or order by a Court
of competent jurisdiction shall be deemed invalid merely on
the ground that no charge was framed or on the ground of
any error, omission or irregularity in the charge including
any misjoinder of charges, unless, in the opinion of the
Court of appeal, confirmation or revision, a failure of justice
has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of
opinion that a failure of justice has in fact been occasioned,
it may--
(a) in the case of an omission to frame a charge, order
that a charge be framed and that the trial be
recommenced from the point immediately after the
framing of the charge;
(b) in the case of an error, omission or irregularity in
the charge, direct a new trial to be had upon a charge
framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the
case are such that no valid charge could be preferred against
the accused in respect of the facts proved, it shall quash the
conviction.
141. In order to consider the fact as to whether any failure of justice
was caused to the respondent/accused or not, it is necessary to
consider the scope of interference at the stage of framing of charges.
The Supreme Court in the case of Atma ram Vs. State of Rajasthan
reported in (2019) 20 SCC 481 has held as under :
19. The emphasis was laid by Dr Manish Singhvi, learned
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
Senior Advocate for the State on the articles relied upon by
him to submit that the theory of "harmless error" which has
been recognised in criminal jurisprudence and that there
must be a remedial approach. Again, we need not go into
these broader concepts as the provisions of the Code, in our
considered view, are clearly indicative and lay down with
clarity as to which infringements per se, would result in
vitiation of proceedings. Chapter XXXV of the Code deals
with "Irregular Proceedings", and Section 461 stipulates
certain infringements or irregularities which vitiate
proceedings. Barring those stipulated in Section 461, the
thrust of the Chapter is that any infringement or irregularity
would not vitiate the proceedings unless, as a result of such
infringement or irregularity, great prejudice had occasioned
to the accused..........
142. Thus, in order to consider the submissions made by the
Counsel for the respondent/accused, it is necessary to find out as to
whether any "failure of justice" has occasioned to the respondent/
accused or not?
143. The Supreme Court in the case of Dilawar Balu Kurane v.
State of Maharashtra, reported in (2002) 2 SCC 135 has held as
under :
12. Now the next question is whether a prima facie case has
been made out against the appellant. In exercising powers
under Section 227 of the Code of Criminal Procedure, the
settled position of law is that the Judge while considering
the question of framing the charges under the said section
has the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a prima
facie case against the accused has been made out; where the
materials placed before the court disclose grave suspicion
against the accused which has not been properly explained
the court will be fully justified in framing a charge and
proceeding with the trial; by and large if two views are
equally possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion
but not grave suspicion against the accused, he will be fully
justified to discharge the accused, and in exercising
jurisdiction under Section 227 of the Code of Criminal
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
Procedure, the Judge cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and
the documents produced before the court but should not
make a roving enquiry into the pros and cons of the matter
and weigh the evidence as if he was conducting a trial (see
Union of India v. Prafulla Kumar Samal).
The Supreme Court in the case of Sheoraj Singh Ahlawat Vs.
State of U.P. reported in (2013) 11 SCC 476 has held as under :
20. To the same effect is the decision of this Court in Union
of India v. Prafulla Kumar Samal where this Court was
examining a similar question in the context of Section 227
of the Code of Criminal Procedure. The legal position was
summed up as under: (SCC p. 9, para 10)
"10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge:
(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has
the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a prima
facie case against the accused has been made out.
(2) Where the materials placed before the court disclose
grave suspicion against the accused which has not been
properly explained the court will be fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible and
the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his
right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227
of the Code the Judge which under the present Code is a
senior and experienced Judge cannot act merely as a post
office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total
effect of the evidence and the documents produced
before the court, any basic infirmities appearing in the
case and so on. This however does not mean that the
Judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
conducting a trial."
21. Coming then to the case at hand, the allegations made
against the appellants are specific not only against the
husband but also against the parents-in-law of the
complainant wife. Whether or not those allegations are true
is a matter which cannot be determined at the stage of
framing of charges. Any such determination can take place
only at the conclusion of the trial. This may at times put an
innocent party, falsely accused of commission of an offence
to avoidable harassment but so long as the legal requirement
and the settled principles do not permit a discharge the court
would find it difficult to do much, conceding that legal
process at times is abused by unscrupulous litigants
especially in matrimonial cases where the tendency has
been to involve as many members of the family of the
opposite party as possible. While such tendency needs to be
curbed, the court will not be able to speculate whether the
allegations made against the accused are true or false at the
preliminary stage to be able to direct a discharge. Two of the
appellants in this case happen to be the parents-in-law of the
complainant who are senior citizens. Appellant 1 who
happens to be the father-in-law of the complainant wife has
been a Major General, by all means, a respectable position
in the Army. But the nature of the allegations made against
the couple and those against the husband, appear to be much
too specific to be ignored at least at the stage of framing of
charges. The courts below, therefore, did not commit any
mistake in refusing a discharge.
The Supreme Court in the case of State of Orissa Vs.
Debendranath Padhi reported in (2005) 1 SCC 568 has held as
under :
18. We are unable to accept the aforesaid contention. The
reliance on Articles 14 and 21 is misplaced. The scheme of
the Code and object with which Section 227 was
incorporated and Sections 207 and 207-A omitted have
already been noticed. Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If the
contention of the accused is accepted, there would be a
mini-trial at the stage of framing of charge. That would
defeat the object of the Code. It is well settled that at the
stage of framing of charge the defence of the accused
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
cannot be put forth. The acceptance of the contention of the
learned counsel for the accused would mean permitting the
accused to adduce his defence at the stage of framing of
charge and for examination thereof at that stage which is
against the criminal jurisprudence. By way of illustration, it
may be noted that the plea of alibi taken by the accused may
have to be examined at the stage of framing of charge if the
contention of the accused is accepted despite the well-
settled proposition that it is for the accused to lead evidence
at the trial to sustain such a plea. The accused would be
entitled to produce materials and documents in proof of
such a plea at the stage of framing of the charge, in case we
accept the contention put forth on behalf of the accused.
That has never been the intention of the law well settled for
over one hundred years now. It is in this light that the
provision about hearing the submissions of the accused as
postulated by Section 227 is to be understood. It only means
hearing the submissions of the accused on the record of the
case as filed by the prosecution and documents submitted
therewith and nothing more. The expression "hearing the
submissions of the accused" cannot mean opportunity to file
material to be granted to the accused and thereby changing
the settled law. At the stage of framing of charge hearing the
submissions of the accused has to be confined to the
material produced by the police.
144. In the present case, the police had filed the charge sheet on 10-
8-2017 on the basis of circumstantial evidence of Last Seen Together,
Injury on the nose of the respondent/accused, F.S.L., Ex. P.31
according to which human skin was found in nail clippings of the
deceased as well as human semen and sperms were found on cloths,
and vaginal slide of the deceased, blood was found on the cloths,
vaginal slide and swab, articles seized from the spot, nail clippings of
the deceased, saliva mixed earth etc., another F.S.L. report Ex. P.32,
F.S.L. report Ex. P.33 according to which the hairs were human hairs,
and F.S.L. report, Ex. P.34 according to which no poison was found
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
in the viscera of the deceased as well as the post-mortem report, Ex.
P.18 of the deceased, according to which not only she was raped but
the death was homicidal in nature. The blood sample and cloths,
vaginal slide / swab of the deceased etc were already sent for DNA
test. Accordingly, Shri Vijay Dutt Sharma, Advocate was requested to
point out as to whether the Documentary and Ocular evidence filed
along with the charge-sheet was not sufficient to raise a grave
suspicion against the respondent/accused, warranting his trial, or
there was no grave suspicion against the respondent/accused ? It was
replied by Shri Sharma, that he cannot say that whether the Counsel
for the respondent/accused could have succeeded in persuading the
Trial Court to discharge the accused or not.
145. If the documentary and ocular evidence filed by the
prosecution along with the charge sheet is considered in the light of
the well established law regarding scope of enquiry on the question
of framing of charges, this Court is of the considered opinion, that no
"prejudice resulting in failure of justice" was caused to the
respondent/accused warranting re-trial from the stage of framing of
charge. There was sufficient material available on record to raise a
grave suspicion against the respondent/accused, that he might have
committed the offence warranting his trial.
146. Accordingly, with a word of advice to the Trial Court, that it
should ensure that only the Counsel engaged by the accused or
Counsel provided to the accused by Legal Aid, must appear on behalf
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
of the accused, it is held that since, no "prejudice" much less then
"prejudice causing failure of justice" was caused to the respondent/
accused, therefore, there is no need to send the respondent/accused
for re-trial from the stage of framing of charge.
Whether the arrest of the respondent/accused was illegal or not?
147. It is submitted by the Counsel for the respondent/accused, that
the accused was arrested on 6-7-2017 at 12:30 P.M. However, till
that time, no material was available against him, therefore, it is clear
that the arrest of the respondent/accused was illegal and was made
under the pressure of general public.
148. Considered the submissions made by the Counsel for the
respondent/accused.
149. Alok Singh (P.W.20) has stated that he had recorded the
statement of Bheem (P.W. 4) on 5-7-2017. Thus, it is clear that the
evidence of Last Seen Together was already available against the
respondent/accused warranting his arrest him. Thus, it cannot be said
that the respondent/accused was arrested by the police, without there
being any material against him.
150. The Privy Council in the case of Parbhu Vs. King Emperor
reported in AIR 1944 PC 73 has held that irregularity and illegality
of arrest would not affect the culpability of the offence if the same is
proved by cogent evidence.
Whether the deceased was student of Class 2 or Class 3
151. It is submitted by the Counsel for the respondent/accused, that
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
according to Hariram (P.W.1) the deceased was the student of Class 2,
whereas according to Motiram Rajouriya (P.W.9), she was the student
of Class 3.
152. It is clear from the birth certificate, Ex. P.16, that the deceased
was admitted in class 1 on 16-6-2015. Thus, it is clear that she must
have passed Class 2 in the year 2017 itself, and since, the incident
took place on 4-7-2017, therefore, if Hariram (P.W.1) has stated that
the deceased was student of Class 2, then it cannot be said that it was
such a mistake which would make the prosecution case
untrustworthy. Further, the pivotal question in the present case is that
whether the deceased was a student of Govt. Primary School,
Nayagaon, or not? This fact has been proved by Motiram Rajouriya
(P.W.9) by producing the school record of the deceased i.e.,
admission register, Ex. P.15C, Birth Certificate, Ex. P.16, Attendance
register, Ex. P.17. Accordingly, it is held that evidence of Hariram
(P.W.1) that the deceased was the student of Class 2 would not make
any difference in the matter.
Effect of non-comparison of scalp hairs of the
respondent/accused with the hairs found on the spot.
153. So far as the contention of the Counsel for the
respondent/accused that since, scalp hairs of the respondent/accused
were not compared with the hairs found on the spot is concerned, it is
suffice to mention here that the DNA profile of the
respondent/accused has been found on the cloths and vaginal slide
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
and swab of the deceased. Even the DNA profile of the deceased was
found on the cloths of the respondent/accused. The button found on
the spot, has been found to be that of the shirt of the
respondent/accused. It is once again clarified that it is the quality of
evidence and not quantity of evidence, which decides the fate of a
trial. DNA test is one of the authentic tests to find out the presence of
DNA profile of the accused on incriminating articles. Further, the
scalp hairs of the respondent/accused were sent to F.S.L., Sagar, but
the same were returned back unopened. No question has been put to
Dr. Pankaj Shrivastava (P.W. 24) in this regard. Under these
circumstances, non-comparison of scalp hairs of the
respondent/accused, with the hairs found on the spot, would not
belie the prosecution case.
Whether defence witnesses examined by respondent/accused are
reliable witnesses, and whether the respondent/accused has
proved his plea of alibi?
154. It is submitted by the Counsel for the respondent/accused that
he had examined Ms. Poonam (D.W.1) and Neetu (D.W.2), but their
evidence has been discarded for no valid reason.
155. Heard the learned Counsel for the respondent/accused.
156. It is true that the evidence of a defence witness is also required
to be appreciated in the same manner, in which the evidence of
prosecution is appreciated.
157. If the evidence of Poonam (D.W.1) is considered, then it is
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
clear that she has stated that on 4-7-2017 at about 10:30 A.M., the
respondent/accused had come to her house at Gwalior by Tempo. On
4-7-2017 itself, she and her younger sister went to Quila along with
the respondent/accused. The respondent/accused was having mobile
with him but he did not receive any call and also did not talk to any
body on his mobile. She further stated that she does not have any
mobile. She further stated that even her family members were not
knowing that the respondent/accused had gone with her for a walk.
She further admitted that the brother of the respondent/accused had
informed her that she has to come to Court for giving evidence. She
further admitted that the fact of walking with respondent/accused was
never disclosed by her to any body including her family members.
158. Neetu (D.W.2) has stated that respondent/accused had come on
a Tempo and her house is at a distance of 10-15 minutes of walking
from the place where the Tempos stop. She further admitted that
Tempo stand is not visible from her house. She further stated that her
sister namely Poonam (D.W.1) was having her mobile with her
whereas respondent/accused was having his mobile. He was
continuously using his mobile and was talking to various persons on
mobile. She further admitted that the fact that respondent/accused
had come to her house was not disclosed by her to any body. This
witness on her own also clarified that this was not even informed to
her mother.
159. Thus, if the evidence of Poonam (D.W.1) and Neetu (D.W.2)
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
are considered, then it is clear that there are material contradictions in
their evidence. Poonam (D.W.1) has stated that she does not have
mobile, whereas Neetu (D.W.2) has stated that Poonam (D.W.1) was
having mobile with her. Further, Neetu (D.W.2) has admitted that the
place where the Tempos stop is not visible from her house and is at a
distance of 10-15 minutes of walking, therefore, it was not possible
for these witnesses to claim that respondent/accused had come on a
Tempo. Further, Neetu (D.W.2) on her own has said that the fact of
visit of respondent/accused in the house of these two witnesses was
not known even to her mother. They have also admitted that the fact
of going on walk to Quila was also not disclosed to any body and for
the first time, they are making such statement before the Court.
Poonam (D.W.1) has also stated that they have come to depose on the
instructions of brother of the respondent/accused. Accordingly in the
light of the material contradictions in the evidence of Poonam
(D.W.1) and Neetu (D.W.2), it is held that both the defence witnesses
are not reliable and accordingly they are disbelieved.
160. Further, the burden to prove the plea of alibi is on the accused
to dislodge the prosecution evidence. The Supreme Court in the case
of Jitender Kumar Vs. State of Haryana reported in (2012) 6 SCC
204 has held as under :
71.........The plea of alibi in fact is required to be proved
with certainty so as to completely exclude the possibility of
the presence of the accused at the place of occurrence and in
the house which was the home of their relatives. (Ref. Sk.
Sattar v. State of Maharashtra)
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
The Supreme Court in the case of Mukesh v. State (NCT of
Delhi), reported in (2017) 6 SCC 1 has held as under :
257. While weighing the plea of "alibi", the same has to be
weighed against the positive evidence led by the
prosecution i.e. not only the substantive evidence of PW 1
and the dying declarations, Ext. PW-27/A and Ext. PW-
30/D-1, but also against the scientific evidence viz. the
DNA analysis, fingerprint analysis and bite marks analysis,
the accuracy of which is scientifically acclaimed.........
The Supreme Court in the case of Binay Kumar Singh Vs.
State of Bihar reported in (1997) 1 SCC 283 has held as under :
22. We must bear in mind that an alibi is not an exception
(special or general) envisaged in the Indian Penal Code or
any other law. It is only a rule of evidence recognised in
Section 11 of the Evidence Act that facts which are
inconsistent with the fact in issue are relevant. Illustration
(a) given under the provision is worth reproducing in this
context:
"The question is whether A committed a crime at
Calcutta on a certain date; the fact that on that date, A
was at Lahore is relevant."
23. The Latin word alibi means "elsewhere" and that word
is used for convenience when an accused takes recourse to a
defence line that when the occurrence took place he was so
far away from the place of occurrence that it is extremely
improbable that he would have participated in the crime. It
is a basic law that in a criminal case, in which the accused is
alleged to have inflicted physical injury to another person,
the burden is on the prosecution to prove that the accused
was present at the scene and has participated in the crime.
The burden would not be lessened by the mere fact that the
accused has adopted the defence of alibi. The plea of the
accused in such cases need be considered only when the
burden has been discharged by the prosecution
satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who
adopts the plea of alibi, to prove it with absolute certainty
so as to exclude the possibility of his presence at the place
of occurrence. When the presence of the accused at the
scene of occurrence has been established satisfactorily by
the prosecution through reliable evidence, normally the
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
court would be slow to believe any counter-evidence to the
effect that he was elsewhere when the occurrence happened.
But if the evidence adduced by the accused is of such a
quality and of such a standard that the court may entertain
some reasonable doubt regarding his presence at the scene
when the occurrence took place, the accused would, no
doubt, be entitled to the benefit of that reasonable doubt.
For that purpose, it would be a sound proposition to be laid
down that, in such circumstances, the burden on the accused
is rather heavy. It follows, therefore, that strict proof is
required for establishing the plea of alibi. This Court has
observed so on earlier occasions (vide Dudh Nath Pandey v.
State of U.P.; State of Maharashtra v. Narsingrao
Gangaram Pimple.
161. Since, it has already been held that Poonam (D.W.1) and Neetu
(D.W.2) are unreliable and untrustworthy witnesses, therefore, it is
held that the respondent/accused has failed in discharging his burden
to prove "plea of alibi".
162. Thus, in view of the above mentioned discussion, this Court is
of the considered opinion, that the prosecution has succeeded in
establishing the guilt of the respondent/accused for offence under
Section 366, 376-A, 302, 201 of I.P.C. and under Section 5(L) read
with Section 6 of POCSO Act and therefore, the conviction of the
respondent/accused by the Trial Court, for the above mentioned
offences is hereby affirmed.
Whether death sentence is liable to be confirmed or not?
163. It is submitted by the Counsel for the respondent/accused, that
the case in hand does not fall within the category of "rarest of rare"
cases. It appears that while committing rape, the respondent/accused
might have gagged the mouth of the deceased, so that she may not
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
raise an alarm, which unfortunately resulted in smothering. It is
submitted that there is nothing on record to suggest that there is no
possibility of improvement on the part of the respondent/accused.
The Trial Court did not consider the aggravating and mitigating
circumstances to decide the question of sentence. It is further
submitted that the Trial Court must have been swayed by the public
opinion, which cannot be approved.
164. Per contra, the Counsel for the State supported the death
sentence awarded to the respondent/accused. It is submitted that the
respondent/accused is the cousin brother of the minor deceased aged
about 8 years. By committing rape on her, he has not only broken the
brother and sister relationship but also sent a wave of shivering in the
Society because now even a small girl aged about 7-8 years is not
secure in the Society and cannot live her childhood freely and
without any fear. Even the cousin brother has not hesitated in
committing rape and thereafter brutally murdering his cousin sister. It
is further submitted that even after committing rape, the respondent /
accused did not show remorse and all the time, was trying to project
himself as an innocent person, by projecting to search the minor
deceased along with other residents of the village. It is submitted that
such persons are danger/threat to the Civilized Society, therefore, the
Trial Court has rightly awarded the death sentence.
165. Considered the submissions made by the Counsel for the
parties.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
166. First of all, this Court would like to find out as to whether a
proper opportunity of hearing was given to the respondent/accused
on the question sentence or not?
167. Order sheet dated 8-5-2019 passed by the Trial Court reads as
under :
8-05-2019 jkT; dh vksj ls Jh eukst tSu fo'ks"k yksd vfHk;kstdA
vkjksih eukst iztkifr U;kf;d vfHkj{kk es tsy ls is'k lfgr
Jh vks-ih- 'kekZ vf/koDrkA
izdj.k fu.kZ; gsrq fu;r gSA
izdj.k es fu.kZ; i`Fkd ls Vafdr djk;k tkdj [kqys U;k;ky;
es /kksf"kr] gLrk{kfjr ,oa fnukafdr fd;k x;k A fu.kZ;kuqlkj vkjksih eukst
iztkifr dks Hkk-n-la- dh /kkjk 366]376d]302 ,oa 201 rFkk /kkjk 5,y
lgifBr /kkjk 6 ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 ds
vkjksi es nks"kfl} Bgjk;k x;kA
1- vkjksih eukst iztkifr dks /kkjk 366 Hkk-na-la ds vkjksi ds fy,
10 o"kZ ¼nl o"kZ½ ds lJe dkjkokl ,oa 2000 @& ¼nks gtkj
:i;s½ vFkZnaM ls nafMr fd;k tkrk gSA vFkZn.M ds O;frdze dh n'kk
es vkjksih dks 01 ekg ¼,d ekg½ dk vfrfjDr lJe dkjkokl Hkqxrk;k
tkosA
2- vkjksih eukst iztkifr dks /kkjk 376¼d½ la'kks/ku vf/kfu;e
2013 dzekad 2013 izdk'ku frfFk [email protected]@2013 ¼Hkwyy{kh izHkko
ls½ ds vkjksi es "e`R;qn.M" ls nafMr fd;k tkrk gS vkSj blds fy,
vkjksih dks xnZu es Qkalh yxkdj rc rd yVdk;k tk,] tc
rd fd mldh e`R;q u gks tk,A bl laca/k es ;g mYys[k fd;k
tkrk gS fd e`R;qn.M dh ltk dk fdz;kUo;u rc rd u fd;k tk,
tc rd fd ekuuh; mPp U;k;ky; }kjk bldh iqf"V u dj nh tkosA
3- vkjksih eukst iztkifr dks /kkjk 302 Hkk-na-la- ds vkjksi es
"e`R;qn.M" ls nafMr fd;k tkrk gS vkSj blds fy, vkjksih dks xnZu
es Qkalh yxkdj rc rd yVdk;k tk,] tc rd fd mldh
e`R;q u gks tk,A bl lac/a k es ;g mYys[k fd;k tkrk gS fd
e`R;qn.M dh ltk dk fdz;kUo;u rc rd u fd;k tk, tc rd fd
ekuuh; mPp U;k;ky; }kjk bldh iqf"V u dj nh tkosA
4- vkjksih eukst iztkifr dks /kkjk 201 Hkk-na-la- ds vkjksi ds fy,
07 o"kZ ¼lkr o"kZ½ ds lJe dkjkokl ,oa 2000 @& ¼nks
gtkj :i;s½ vFkZnaM ls nafMr fd;k tkrk gSA vFkZn.M ds O;frdze
dh n'kk es vkjksih dks 01 ekg ¼,d ekg½ dk vfrfjDr lJe
dkjkokl ls nf.Mr fd;k x;kA-------------------------------
168. From the above order sheet, it is clear that there is no mention
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
of the fact that after holding the respondent/accused guilty of offence
under Sections 366, 376-A, 302, 201 of I.P.C. and under Section 5(L)
read with Section 6 of POCSO Act, the further proceedings were
deferred for hearing on the question of sentence. Although from the
judgment, it appears that the case was deferred for hearing on the
question of sentence.
169. In absence of any such observation in the order sheet, it
appears that no effective hearing was given to the respondent/accused
on the question of sentence. Further, in order to give an opportunity
of effective hearing to the accused, the Trial Court, must express its
intentions to award Death Sentence, so that the accused may also
argue on the question of sentence in the light of "Aggravating" and
"Mitigating" Circumstances.
170. Although the sentence was also imposed on the very same day,
on which the respondent/accused was held guilty, but there is no
impediment in law in doing so. The Supreme Court in the case of
Mohd. Mannan v. State of Bihar, reported in (2019) 16 SCC 584
has held as under :
77. Imposition of death sentence on the same day after
pronouncement of the judgment and order of conviction
may not, in itself, vitiate the sentence, provided the convict
is given a meaningful and effective hearing on the question
of sentence under Section 235(2) CrPC with opportunity to
bring on record mitigating factors.
It has been further held in the case of Mohd. Mannan (Supra)
that :
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
39. For effective hearing under Section 235(2) of the Code
of Criminal Procedure, the suggestion that the court intends
to impose death penalty should specifically be made to the
accused, to enable the accused to make an effective
representation against death sentence, by placing mitigating
circumstances before the Court. This has not been done.
The trial court made no attempt to elicit relevant facts. Nor
did the trial court give any opportunity to the petitioner the
opportunity to file an affidavit placing on record mitigating
factors. As such the petitioner has been denied an effective
hearing.
The Supreme Court in the case of Dattatraya v. State of
Maharashtra, reported in (2020) 14 SCC 290 has held as under :
123. There can be no doubt that rape and murder of a 5-
year-old girl shocks the conscience. It is barbaric. There is,
however, no evidence to support the finding that the murder
was pre-meditated. The petitioner did not carry any weapon.
The possibility that the appellant-accused might not have
realised that his act could lead to death cannot altogether be
ruled out. Moreover, the trial court has apparently not
considered the question of whether the crime is the rarest of
rare crimes as mandated by the Supreme Court in Bachan
Singh.
124. In Rajendra Pralhadrao Wasnik v. State of
Maharashtra the Court commuted the death sentence, in a
case of rape and murder of a three-year-old child to life
imprisonment, inter alia, observing that the case did not fall
in the category of the rarest of the rare.
125. As argued by the learned counsel appearing on behalf
of the petitioner, the High Court found the offence to be in
the category of the rarest of rare cases, having regard to the
nature of the offence and the age of the victim.
126. The counsel for the appellant-accused submitted that
the brutality of the crime and age of the victim was not
ground enough to inflict death sentence. The learned
counsel submitted that the petitioner had been convicted on
circumstantial evidence, based on faulty investigation.
127. However, as observed above, the forensic evidence
construed in the light of the evidence of PW 18, Asha, wife
of the appellant-accused, that the appellant-accused had
confessed to the crime to her, establishes the guilt of the
appellant-accused and death sentence can be imposed even
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
where conviction is based on circumstantial evidence,
provided the case falls in the category of the rarest of rare
and there are no mitigating circumstances and no possibility
of reform or rehabilitation of the convict.
128. On analogy of the reasoning in Rajendra Pralhadrao
Wasnik v. State of Maharashtra, this Court is constrained to
hold that this case does not fall in the category of the rarest
of rare cases. Moreover, the appellant-accused was not
defended effectively. The lawyer representing the appellant-
accused only pleaded not guilty, emphasising that there was
no eyewitness to the incident and sought leniency only on
the ground of the age of the appellant-accused which was
53 years.
129. The appellant-accused neither sought nor was given
the opportunity to file any affidavit placing on record
relevant mitigating circumstances. The legal assistance
availed by the appellant-accused was patently not
satisfactory and he was not accompanied by a social worker.
No attempt was made to place on record mitigating
circumstances. No argument was advanced to the effect that
there was no similar case against the appellant-accused. In
the absence of any arguments, the trial court did not
consider the question of whether the appellant-accused
could be reformed.
130. Considering the nature of the crime against a five-
year-old child, the trial court imposed the extreme penalty
of death without deciding the question of whether there was
no alternative to imposing death sentence on the appellant-
accused. There is no finding that in the absence of death
sentence, the appellant-accused would continue to be a
threat to the society. The question of whether the appellant-
accused could be reformed, had not at all been considered.
131. As held in Dagdu irrespective of whether these issues
were raised on behalf of the accused, the Court is obliged
on its own to elicit facts relevant to the question of
existence of mitigating circumstances. The Court made no
attempt to elicit any facts relevant to the sentence.
132. For effective hearing under Section 235(2) of the Code
of Criminal Procedure, the suggestion that the court intends
to impose death penalty should specifically be made to the
accused, to enable the accused to make an effective
representation against death sentence, by placing mitigating
circumstances before the Court. This has not been done.
The trial court made no attempt to elicit relevant facts, nor
did the trial court give any opportunity to the petitioner to
file an affidavit placing on record mitigating factors. As
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
such the petitioner has been denied an effective hearing.
133. Contrary to the dictum of this Court, inter alia, in
Dagdu and Santa Singh the petitioner was not given a real,
effective and meaningful hearing on the question of
sentence under Section 235(2) CrPC. The death sentence
imposed on the petitioner is liable to be commuted to life
imprisonment on this ground.
(Underline supplied)
134. There can be no doubt that the rape and murder of a
five years old child is absolutely heinous and barbaric, but
as observed above, it cannot be said to be in the category of
rarest of rare cases.
(Underline supplied)
135. In Mulla v. State of U.P., this Court has affirmed that it
is open to the Court to prescribe the length of incarceration.
This is especially true in cases where death sentence has
been replaced by the life imprisonment. This Court
observed: (SCC p. 538, para 85)
"85. ... The court should be free to determine the
length of imprisonment which will suffice the offence
committed."
(emphasis supplied)
136. Even though life imprisonment means imprisonment
for entire life, convicts are often granted reprieve and/or
remission of sentence after imprisonment of not less than
14 years. In this case, considering the heinous, revolting,
abhorrent and despicable nature of the crime committed by
the appellant, we feel that the appellant should undergo
imprisonment for life, till his natural death and no
remission of sentence be granted to him.
(Underline supplied)
137. For the above reasons, we are of the view that the
present appeals are one of such cases where we would be
justified in holding that confinement till natural life of the
appellant-accused shall fulfil the requisite criteria of
punishment considering the peculiar facts and
circumstances of the present case. Accordingly, the death
sentence awarded by the trial court is hereby modified to
"life imprisonment" i.e. imprisonment for the natural life of
the appellant herein. The appeals are allowed accordingly
to the extent indicated above.
171. If the order sheet dated 8-5-2019 is considered, then it is clear
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
that no effective hearing on the question of sentence as required
under Section 235(2) of Cr.P.C. was given to the respondent/accused.
No suggestion was given to the respondent/accused, that the Trial
Court is intending to award Death Sentence, so as to give an
opportunity to the respondent/accused to argue in the light of
"Aggravating" and "Mitigating" circumstances. Even the Trial Court
has not considered the "Mitigating" circumstances.
172. Under these circumstances, this Court finds it difficult to
confirm the Death Sentence awarded to the respondent/accused.
173. If the allegations, which have been found proved against the
respondent/accused are considered, then it is clear that not only he
has violated the pious relationship of brother and sister, but also
committed rape on his 8 years old minor cousin sister and also killed
her. Thereafter, in order to project himself as an innocent person, he
was projecting that he is also trying to search for the deceased.
174. The Supreme Court in the case of Dattatraya (Supra) after
considering the effect of non-grant of effective opportunity of hearing
on the question of sentence and in the case of Mohd. Mannan
(Supra), has awarded Life Imprisonment till the natural death.
175. Therefore, the death sentence awarded by the Trial Court to the
respondent/accused is hereby commuted to Life Imprisonment till his
natural death. The respondent/accused shall not be entitled for any
remission.
In Ref. (Suo Moto) Vs. Manoj (CRRFC No. 8 of 2019)
Manoj Vs. State of M.P. (Cr.A. No.4554 of 2019)
176. Before parting with this judgment, this Court would like to
record its appreciation for the assistance rendered by Shri Padam
Singh and Shri Vijay Dutt Sharma, Advocates, who tried their level
best to point out each and every minor discrepancy in the evidence of
the prosecution in order to effectively put forward the case of the
respondent/ accused.
177. With aforesaid modification in sentence, the judgment dated 8-
5-2019 passed by Xth Additional Sessions Judge/Special Judge
(POCSO Act), Gwalior in Special Sessions Trial No.130/2017 is
hereby affirmed.
178. The respondent/accused/appellant in Cr.A. No.4554/2019
namely Manoj Prajapati, is in jail. He shall undergo the remaining
jail sentence till his natural death.
179. A copy of this Judgment be immediately sent to the
respondent/accused/Appellant in Cr.A. No.4554/2019, Manoj
Prajapati, free of cost.
180. The CRRFC No.8/2019 is answered accordingly and Cr.A.
No.4554/2019 is Partly Allowed to the extent mentioned above.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.07.29 10:46:16 +05'30'
