Madhya Pradesh High Court
Irfan vs The State Of Madhya Pradesh on 9 September, 2021
Author: Vivek Rusia
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CRA.Nos.7215/2018 and 7269/2018
THE HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
BEFORE DIVISION BENCH: JUSTICE VIVEK RUSIA AND
JUSTICE SHRI SHAILENDRA SHUKLA
Case No. : CRRFC.No.14/2018 &
CRA.Nos.7215/2018 and 7269/2018
Parties name : State of M.P. v/s. Irfan & Anr.
(CRRFC.No.14/2018),
Irfan v/s. State of M.P.
CRA. No.7215/2018) and
Asif vs. State of M.P.
(CRA.No.7269/2018).
Date of Judgement : 09/09/2021
Bench constituted of : Hon'ble Justice Shri Vivek Rusia and
Hon'ble Justice Shri Shailendra Shukla
Judgement delivered by : Hon'ble Justice Shailendra Shukla
Whether approved for : Yes
reporting
Name of counsels for the : Shri Pushyamitra Bhargava, learned Addl.
Advocate General for appellant/State.
parties Shri Amit Dube and Shri Noor Ahmad
Sheikh, learned counsel for
respondent/appellant Irfan.
Shri Z.A. Khan, learned Senior counsel with
Shri R.R. Bhatnagar, learned counsel for
respondent/appellant Asif.
Law laid down : Held: Conviction and sentence of
appellants under Section 376(DB) of
IPC -
(i) Prosecutrix, a child of seven years of
age was proved to have been subjected to
violent gang rape by appellants and
prosecutrix was also inflicted life
threatening injuries.
(Significant paragraph nos. - 46 to 51)
(ii) Conviction under Section 376(DB)
of IPC and sentence of hanging by trial
Court - Affirmed - Sentencing Policy
Discussed - Legislature has imposed
death penalty in incidents of child sexual
abuse even though the victim has not
died. There is shift in the policy of
legislature in view of alarming rise in
such cases.
(Significant paragraph nos. - 114 to 123,
128 to 141)
(iii) Dock identification of prosecutrix
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CRA.Nos.7215/2018 and 7269/2018
shortly after the incident - is reliable
even though TIP not conducted.
(Significant paragraph nos. - 22 to 25)
(iv) Prosecutrix admitted in serious
condition in hospital - Identified
appellants through photo album
containing photographs of appellants
along with other persons - looking to the
condition of prosecutrix, adopting this
mode cannot be considered to be
inappropriate.
(Significant paragraph no. - 26)
(v) The mobile of appellants was found
to be switched off at the time of incident -
is a relevant material under Section 8 of
Evidence Act, as had the same not been
switched off the location of appellants
could have been traced.
(Significant paragraph no. - 76)
(vi) Mobile being sold off by the
appellants, moments after the incident - is
also a relevant fact against the appellants
under Section 8 of Evidence Act.
(Significant paragraph no. - 77)
(vii) Objection by appellants that sentence
was pronounced on the same day when
they were convicted and thus they were
not given opportunity to be heard on the
question of sentence - held - it is not
statutorily required to postpone the case to
a future date for hearing on quantum of
sentence.
(Significant paragraph nos. - 135 to 136)
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
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CRA.Nos.7215/2018 and 7269/2018
HIGH COURT OF M.P. BENCH AT INDORE
Criminal Reference No.14/2018
(State of M.P. vs. Irfan & Ors.)
In Reference
(Received from IInd Additional Sessions
Judge / Special Judge, POCSO Act
Mandsaur, District Mandsaur)
In reference - Versus - Irfan Mevati
Criminal Appeal No.7215/2018
Irfan @ Bhayu Mevati - Versus - State of Madhya Pradesh,
S/o. Jahir @ Jahid @ Kalu Mevati,
Aged 20 years, Caste Musalman,
Occupation Labourer.
R/o. - Chandan Ki Gali, Madarpura Mandsaur,
Distt. Mandsaur (M.P.)
In reference - Versus - Asif Mevati
Criminal Appeal No.7269/2018
Asif Mevati - Versus - State of Madhya Pradesh,
S/o.Julfikar Mevati, Aged 24 years, Caste Musalman,
Occupation - Centering work.
R/o. - Harijan Basti, Madarpura, Mandsaur,
Distt. Mandsaur (M.P.)
-----------------------------------------------------------------------------------
CORAM :
Hon'ble Shri Justice Vivek Rusia, Judge
Hon'ble Shri Justice Shailendra Shukla, Judge
-----------------------------------------------------------------------------------
Shri Pushyamitra Bhargava, learned Addl. Advocate General for
appellant/State.
Shri Amit Dube, learned counsel and Shri Noor Ahmad Sheikh,
learned counsel for respondent/appellant Irfan.
Shri Z.A. Khan, learned Senior counsel with Shri R.R. Bhatnagar,
learned counsel for respondent/appellant Asif.
_______________________________________________________
JUDGMENT
(Delivered on 09/9/2021)
Per Shailendra Shukla, J:-
1. The present reference has been made for confirmation of order
of capital punishment of death awarded which is arising out of
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CRA.Nos.7215/2018 and 7269/2018
judgment dated 21.8.2018, pronounced in S.T.No.88/2018, passed by
the 2nd A.S.J. Mandsaur / Special Judge (POCSO) Act whereby, the
appellants/accused have been convicted under Sections 363, 366A,
376(2)(m), 376(DB) of IPC and as per Criminal Law (Amendment)
Ordinance, 2018, 307 of IPC, (appellant Asif has been convicted and
Section 307 read with Section 34 of IPC), as also under Section 5(g)
(r) read with Section 6 of POCSO Act, 2012. The over all penal
provisions under which the appellants have been convicted and
sentenced is tabulated as under :-
Conviction Sentence
Sections & Imprisonment Fine Amount Imprisonment
Act in lieu of fine
363 of IPC 7 Rs.10,000/- 6 months
366(A) 7 Rs.10,000/- 6 months
307 of IPC (in L.I. Rs.10,000/- 6 months
respect of
appellant
Irfan)
307/34 of IPC L.I. Rs.10,000/- 6 months
in respect of
appellant Asif.
376(DB) of To be Hanged
IPC by neck till
Criminal Law death.
(Amendment)
Ordinance,
2. The accused/appellants have filed separate appeals (Criminal
Appeals Nos.7215/2015 and 7269/2018 against the said judgment
therefore, the reference and appeals are being taken up for hearing
together and are being disposed of by common order.
3. As per prosecution story, on 26.6.2018, Kamlabai (PW7),
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CRA.Nos.7215/2018 and 7269/2018
grand mother of the prosecutrix lodged a report at police station City
Kotwali, Mandsaur that her grand - daughter studying in 3 rd Std. at
Saraswati Shishu Mandir School had been missing from her school
premises after the classes were over for the day. The police registered
case under Section 363 of IPC and enquiry was initiated. On the next
day, ie., 27.6.2018, the prosecutrix was found in injured condition by
the witness namely Karan (PW10). When police came to know, the
prosecutrix was taken to civil hospital at Mandsaur and was
examined. Looking to her serious condition she was referred to M.Y.
Hospital at Indore. The prosecutrix was given treatment and
operation was performed upon her. She narrated the story to the
police as per which it was stated by her that on the day of the
incident, after the school was closed down, she was waiting outside
the school when a person came and forcibly put some sweet ('Ladu')
in her mouth and took her to a secluded spot. He also called another
person at the spot. Subsequently, she was undressed, forcibly raped
by the person who had taken her while the other person had caught
hold of her hands. The police sprung into action and fanned out in
search of the miscreants. They searched the spot where the incident
had taken place and collected incriminating items from there such as
the underwear of the prosecutrix, rocks, a beer bottle, school bag,
shoes, blood stained soil and normal soil and sealed the same and
sent it to the FSL laboratory. The enquiry was also made from nearby
shopkeepers and CCTV footages from 3 shops namely Mayank
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Fashion Store, Esequare Showroom and Aman Mobile were collected
and on finding suspicious movements, the persons and relatives
known to the minor prosecutrix and appellant were shown the
footages who identified the prosecutrix and the appellants.
Panchnamas were drawn. Subsequently TIP parade was carried in jail
premises where the appellants were identified by the witnesses who
had seen the appellant accompanying the prosecutrix. The
prosecutrix who was admitted in serious condition in M.Y. Hospital
at Indore, was also shown photo albums carrying photographs of the
appellants and other persons bearing similarity in countenances and
the prosecutrix rightly identified the appellants from the album as the
accused persons who had committed sinister offence against her. The
specimens such as oral swab, vegenal slides, vulval pad etc of
prosecutrix had been drawn at district hospital at Mandsaur. The
sealed specimens were handed over to the Investigating Officer who
dispatched them to FSL Laboratory and DNA analysis. The
appellants who had been arrested were interrogated by police who
gave their separate memoranda leading to recovery of clothes used
by them at the time of incident, the vehicle used by appellant Asif
were recovered by Investigating Officer. Their blood samples, semen
slides, hair including pubic hair, nails etc were collected by
Investigating Officer and the appellants were also subjected to
medical examination. Appellant Irfan was found to have marks of
scratches and teeth-bite on his body and it was also found that his
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CRA.Nos.7215/2018 and 7269/2018
private organ carried redness which was pointer at forcible
intercourse on his part. The medical examination of the prosecutrix
has already been revealed that she had not only been subjected to
violent sexual intercourse, but she was also subjected to very serious
assault resulting in injuries to throat, stab injuries on private part and
one of her eye was found to be bulging due to compression with
affected visibility, the perineum and anus were found to be pierced
through and through and a passage was created in her abdomen for
bringing out her stools. Due to huge blood loss, her haemoglobin had
also plummeted to 6.5. grms dl. After intensive care and operations,
she slowly recovered. In the meanwhile, the residual investigation
involving statement of witnesses was carried by the police and
charge sheet was filed against the appellants.
4. The learned trial Court framed charges against the appellants
under Sections 363, 366A, 376(2)(m), 307, 307/34 and Section
376(DB) of IPC under (Law Amendment Ordinance), 2018 as also
under Section 5(g), 5(j)(iii)(m) and Section 5(r), read with Section 6
of POCSO Act. The appellants abjured their guilt and claimed
innocence.
5. The prosecution has examined 37 witnesses along with
documents including electronic evidence and forensic evidence. No
defence witness had been produced by the appellants. After
conclusion of the trial, the learned trial Court has framed charges
shown in para 1 of this judgment and has awarded the sentences as
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CRA.Nos.7215/2018 and 7269/2018
mentioned earlier.
6. Aggrieved, the appellants have preferred separate appeals
against the order of conviction and sentence. Conjointly speaking the
grounds mentioned in the appeals are that the appellants have been
wrongly framed by the police as perpetrators of crime, that there is
discrepancy in the statements of the prosecutrix and other witnesses
regarding identifying the appellants, that their mobiles have been
shown to be switched off deliberately by the police so as to wipe out
their defence that they were nowhere near the school and at the spot,
that there are mutual contradictions in the statements of the
prosecutrix and other witnesses who have claimed to see the
appellants, that the prosecution has not examined all relevant
witnesses who had handled the specimens sealed samples of the
prosecutrix and the appellants, rise to the possibility that these
samples were tampered with, that the electronic evidence had not
been proven as per mandate of Evidence Act, that CCTV footages of
the school have not been collected, that there was suspected
interpolation of school register in order to show the presence of the
prosecutrix in the school on the date of the incident, that there are
inherent infirmities in the evidence of prosecutrix vis-a-vis; her 164
and 161 Cr.P.C statements. It has been submitted that in the video
footages the clear faces of the appellants are not seen and that the
person who had conducted the test identification parade has not been
examined. It has been further submitted that the impugned act does
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CRA.Nos.7215/2018 and 7269/2018
not come within the purview of rarest of rare case and while
appellant Asif is married with two children dependent upon the
appellant, appellant Irfan is barely 20 years of age and only child of
his parents and therefore, it was not proper for the trial Court to
award death penalty on appellants.
7. The appellant have also filed an application under Section 367
of Cr.P.C for recording further evidence before adjudicating this
reference. In the aforesaid application, it has been mentioned that
CSP Rakesh Mohan Shukla (PW31) has stated that he had filed a
scrutiny report of mobile numbers of the accused obtained from the
Cyber Cell and has further stated in his testimony that as per the
conclusion drawn on the basis of report, it was not proved that both
the respondents had communicated amongst themselves on the date
and time of the incident. This report although filed along with the
charge sheet, has however not been marked as Exhibit for unknown
reasons. This report is part of the soft copy of documents provided to
counsel appearing for the appellant before the High Court and for
just and fair decision in this case, the report of Cyber Cell referred to
by Shri Rakesh Mohan Shukla (PW31) is required to be taken in
evidence. The footages of the crime scene have also not been made
part of the evidence taken and recorded during the course of the trial,
although the same was before the learned trial Court, for a just and
fair decision. These footages are also taken to be in evidence. Hence
it has been prayed that appropriate orders be passed for recording
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CRA.Nos.7215/2018 and 7269/2018
further evidence as mentioned in the application.
8. The question for consideration before this Court is (i) whether
in view of the grounds contained in the appeals, the conviction of the
appellants is liable to be set aside ?.
(ii) that whether the application filed under Section 467 of
Cr.P.C by the appellants seeking recording of further evidence
deserves to be allowed ?.
(iii) that whether in case of affirming the order of conviction,
the sentence of death imposed upon the appellants is disproportionate
to the crime committed and also considering the status of the
appellants, does not come within the purview of rarest of rare case ?.
9. Kamlabai (PW7) is the grand - mother of the prosecutrix who
states that her grand - daughter (prosecutrix) studies in Saraswati
Shishu Mandir School and her school timings are from 11.00 AM to
4.30 PM, that on the date of the incident, she had gone to fetch her
daughter from the school and was late by 10 minutes, that she did not
find her grand - daughter in the school. She enquired her wherebaout
and not been able to find about her whereabouts, the missing person
report Exhibit P/14 was filed and the report is Exhibit P/13.
Kaushalya Bai (PW4) is the mother of the prosecutrix who has stated
that the grand - mother of the prosecutrix had gone to the school
where her daughter could not be traced, pursuant to which the grand
- mother called a witness on phone and asked as to whether the
prosecutrix had returned. The witness, then accompanied by cousin
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CRA.Nos.7215/2018 and 7269/2018
of the prosecutrix namely Ajay Mali and other relatives also came
and searched for the prosecutrix which led to lodging of the report by
grand - mother of the prosecutrix. Kailash Mali (PW6) is the father
of the prosecutrix who has stated that after coming to know that his
daughter was missing, he accompanied his mother Kamla Bai to
police station where her mother lodged a report. Bhanu Pratap Singh
(PW30) has stated that while he was posted as ASI at police station
Mandsaur on 26.6.2018, a missing person's report was lodged which
was recorded by him and his signatures are appended from A to A
part on Exhibit P/14. He states that Aadhar Card and other
documents regarding her age was given to him by Kamla Bai, on
perusing which, he lodged the FIR Exhibit P/13 under Section 363 of
IPC.
10. Rakesh Mukati (PW3) has stated that he was posted as
Principal of Saraswati Shishu Mandir School situated at Keshav
Nagar, Mandsaur and police had seized school attendance register of
class 3 from 15.6.2018 to 26.6.2018. Seizure memo Exhibit P/6 and
the register is Exhibit P/7. He states that the timings of the class 3 are
form 11.00 AM to 4.30 PM. After perusing the relevant entry, he has
submitted that the prosecutrix had marked her presence in the school
on 26.6.2018. He admits that the attendance of the students in
Exhibit P/7 has not been taken by him. In cross examination, he
denied the suggestion that on 26.6.2018, the prosecutrix was absent.
He admits that from 20.6.2018 to 22.6.2018 she was absent and again
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CRA.Nos.7215/2018 and 7269/2018
admits that from 16.6.2018 to 17.6.2018 her attendance has been
marked erroneously which has been scored off and actually she was
absent on these days.
11. No suggestion to the mother, grand - mother and father of the
prosecutrix has been given suggesting that prosecutrix was in fact,
not present in the school on 26.6.2018. For the first time this
suggestion has been given to the Principal Rakesh Mukhati (PW3).
There is no reason to assume that there is any interpolation in the
register Exhibit P/7 whereby the presence of the prosecutrix in the
school on 26.6.2018 has been sought to be made out deliberately.
Thus, it is proved that the prosecutrix had attended the school on
26.6.2018 and had gone missing from the school. It is also apparent
that at the time of incident prosecutrix was a student of class 3 in the
aforesaid school.
12. Kailash Mali (PW6), the father of the prosecutrix has stated
that the age of the prosecutrix is 7 years. These statements have not
been controverted in cross examination. Kaushalya Bai (PW4)
mother of the prosecutrix has stated that her daughter is into the 8 th
year of her age and denies the suggestion that the daughter is aged
between 12 to 14 years.
13. Mukesh Pathak (PW2) is acting Principal of Saraswati Shishu
Mandir who has produced the scholar register showing the date of
birth of the prosecutrix to be 14.12.2010. The birth certificate has
also been certified by him. The scholar register is Exhibit P/5 and
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CRA.Nos.7215/2018 and 7269/2018
seizure memo is Exhibit P/4. He in his cross - examination admits
that the entries in scholar register are not in his own handwriting and
there is no mention in the register as to who had got the prosecutrix
admitted in the school then he says that it was done by father of the
prosecutrix. As already seen, father Kailash Mali (PW6) has not been
challenged in the cross - examination regarding his statement made
by him earlier that his daughter was 7 years old at the time of
incident. There is no reason to doubt his averment and also there is
no reason to discredit the entries made in the scholar register. It has
been found proved that prosecutrix was a student of class 3 in the
school on the date of incident. Thus her age would appropriately
between 7 to 8 years. It is thus proved that prosecutrix was below 12
years of age on the date of the incident.
14. It has been proved that the prosecutrix had gone missing from
school. The prosecution story is that she was kidnapped from the
school.
15. Prosecutrix (PW-5), being 8 years old, has been asked
questions to determine her capability to understand. Having been
satisfied with her capability, she has been put to examination-in-chief
without affirmation on oath. She has stated that after her school she
was waiting outside the gate on a bench at about 5 pm for her parents
to come and fetch her. Thereafter a boy came and asked her to eat
sweetmeat (Laddu), which offer was declined by her, then the boy
took her to Jungle and there he called another boy and she thereafter
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CRA.Nos.7215/2018 and 7269/2018
narrates the offence which was perpetrated by the offenders against
her. She has stated in Para-3 that while she was sitting on the bench,
Anand and Gajendra were playing in the garden. She has been given
a suggestion that she was not taken from school to Jungle. This
suggestion has been denied by her. Anand (PW.16), a student in the
same school, has stated that on the date of the incident while he was
in the garden, the prosecutrix was sitting on a chair inside the gate of
the school after the school was over. At that time a person came and
took the prosecutrix from there and handed over to another person.
The person who had so taken the prosecutrix was wearing an orange
coloured shirt and another person sported a beard. He has denied the
suggestion in cross-examination that on the date of the incident he
was not in the school and also denies that he does not study in the
same school. He admits that prosecutrix is related to him as his
cousin.
16. Learned counsel for the appellants has pointed out towards the
lapse on the part of prosecution regarding not obtaining the CCTV
footage from cameras installed in the school. Mukesh Pathak (PW-2)
has admitted that CCTV cameras are installed in his school. This
witness is acting Principal of the school Saraswati Shishu Mandir. It
is admitted on the part of the prosecution that CCTV footage from
the school have not been obtained. Learned counsel has pointed out
that apart from the aforesaid lapse, there is variance in the deposition
of prosecutrix (PW.5) and Anand (PW.16) in the sense that while
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prosecutrix has stated that only one person had come and had taken
her to the Jungle from school where another person had joined,
Anand (PW.16) has stated that a person had come and taken the
prosecutrix and handed over her to another person.
17. Considered.
18. This variance apart, one thread which runs commonly in the
statements of these two witnesses is that the prosecutrix was indeed
taken away from the school. This fact has not been challenged in
cross-examination of these witnesses credibly. Hence, it is proved
that the minor prosecutrix was kidnapped from her school.
19. The question for consideration is, whether it was the
appellant Irfan, who had kidnapped the prosecutrix from school,
or Asif was also involved in Kidnapping ?.
20. As already stated earlier, the prosecutrix has identified that
it was Irfan who had kidnapped her.
21. Anand (PW.16) has stated that two persons had come
inside the school gate, one of whom had taken out prosecutrix
and handed over to another person. As far as witness Anand
(PW.16) is concerned, he has admitted that when the incident
had occurred, he was playing in the garden near gate No.1,
which is shown in the map (Ex.P/15) as gate 'A' and the incident
had occurred at gate 'B'. He has been asked a question that it is
not possible to see from behind gate 'A' as to what has happened
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at gate 'B'. The witness has denied such suggestion. Later on,
the test identification parade has been carried out in which
Anand (PW.16) has identified both the appellants. This
identification has been carried out by Nayab Tehsildar Tejram
Sharma (PW.17) and he has stated that vide test identification
parade document (Ex.P/44), Anand (PW.16) had identified both
the appellants. Anand (PW.16) in his cross-examination has
admitted that before identification, he had seen the photographs
of the accused in the newspaper. He also admits that he is
relative of prosecutrix. In view of such statement to have seen
both the accused in the photographs appearing in the newspaper,
test identification parade looses its sanctity and it would be
appropriate to consider the statements of prosecutrix.
22. The prosecutrix (PW.5), during her deposition before the
Court recorded 1 month 4 days after the incident has pointed out
that appellant Irfan as the one who had taken her away from the
school. The doc identification of the accused barely 1 month 4
days after the incident is an important piece of evidence. As
such, the doc identification document is a substantive piece of
evidence contrary to test identification parade document, which
can be used for corroborative purposes only.
23. There is no rule of law that in absence of test
identification, the prosecution story would be rendered
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CRA.Nos.7215/2018 and 7269/2018
unreliable leading to acquittal. The High Court of M.P. (Gwalior
Bench) in Criminal Appeal No.653/2006 (Aftab Khan vs.State
of M.P.), proved the Apex Court judgments on the issue have
been cited. It would be appropriate to reproduce the relevant
paragraphs of the aforesaid judgment :-
"15. An identification parade is not mandatory, [Ravi
Kapur V/s. State of Rajasthan, (2012) 9 SCC 284], nor
can it be claimed by the suspect as a matter of right. [R.
Shaji v. State of Kerala, (2013) 14 SCC 266]. The
purpose of pretrial identification evidence is to assure
the investigating agency that the investigation is going
on in the right direction and to provide corroboration of
the evidence to be given by the witness or victim later in
court at the trial. [Rameshwar Singh v. State of J&K,
(1971) 2 SCC 715]. If the suspect is a complete stranger
to the witness or victim, then an identification parade is
desirable, [Mulla v. State of U.P., (2010) 3 SCC 508],
[Kishore Chand v. State of H.P., (1991) 1 SCC 286],
unless the suspect has been seen by the witness or victim
for some length of time. [State of U.P. v. Boota Singh,
(1979) 1 SCC 31]. In Malkhan Singh v. State of M.P.,
(2003) 5 SCC 746, it was held:-
"7........The identification parades belong to
the stage of investigation, and there is no
provision in the Code of Criminal
Procedure which obliges the investigating
agency to hold, or confers a right upon the
accused to claim a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test
identification parade would not make
inadmissible the evidence of identification
in court. The weight to be attached to such
identification should be a matter for the
courts of fact."
24. The Supreme Court in the case of Sheo Shankar Singh vs.
State of Jharkhand & Anr. reported in (2011) 3 SCC 654 has held as
under :-
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"46. It is fairly well-settled that identification of the
accused in the Court by the witness constitutes the
substantive evidence in a case although any such
identification for the first time at the trial may more
often than not appear to be evidence of a weak
character. That being so a test identification parade
is conducted with a view to strengthening the
trustworthiness of the evidence. Such a TIP then
provides corroboration to the witness in the Court
who claims to identify the accused persons
otherwise unknown to him. Test Identification
parades, therefore, remain in the realm of
investigation.
47. The Code of Criminal Procedure does not oblige
the investigating agency to necessarily hold a test
identification parade nor is there any provision
under which the accused may claim a right to the
holding of a test identification parade. The failure of
the investigating agency to hold a test identification
parade does not, in that view, have the effect of
weakening the evidence of identification in the
Court. As to what should be the weight attached to
such an identification is a matter which the Court
will determine in the peculiar facts and
circumstances of each case. In appropriate cases the
Court may accept the evidence of identification in
the Court even without insisting on corroboration.
48. The decisions of this Court on the subject are
legion. It is, therefore, unnecessary to refer to all
such decisions. We remain content with a reference
to the following observations made by this Court in
Malkhansingh and Ors. v. State of M.P. (2003) 5
SCC 746 : -
"7. It is trite to say that the substantive
evidence is the evidence of identification
in court. Apart from the clear provisions of
Section 9 of the Evidence Act, the position
in law is well settled by a catena of
decisions of this Court. The facts, which
establish the identity of the accused
persons, are relevant under Section 9 of
the Evidence Act. As a general rule, the
substantive evidence of a witness is the
statement made in court. The evidence of
mere identification of the accused person
at the trial for the first time is from its very
nature inherently of a weak character. The
purpose of a prior test identification,
therefore, is to test and strengthen the
trustworthiness of that evidence. It is
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accordingly considered a safe rule of
prudence to generally look for
corroboration of the sworn testimony of
witnesses in court as to the identity of the
accused who are strangers to them, in the
form of earlier identification proceedings.
This rule of prudence, however, is subject
to exceptions, when, for example, the court
is impressed by a particular witness on
whose testimony it can safely rely, without
such or other corroboration. The
identification parades belong to the stage
of investigation, and there is no provision
in the Code of Criminal Procedure which
obliges the investigating agency to hold,
or confers a right upon the accused to
claim a test identification parade. They do
not constitute substantive evidence and
these parades are essentially governed by
Section 162 of the Code of Criminal
Procedure. Failure to hold a test
identification parade would not make
inadmissible the evidence of identification
in court. The weight to be attached to such
identification should be a matter for the
courts of fact. In appropriate cases it may
accept the evidence of identification even
without insisting on corroboration. (See
Kanta Prashad v. Delhi Admn. AIR 1958
SC 350, Vaikuntam Chandrappa v. State of
A.P. AIR 1960 SC1340, Budhsen v. State of
U.P. (1970) 2 SCC 128 and Rameshwar
Singh v. State of J&K. (1971) 2 SCC 715)"
25. In the present case, dock identification shortly after the
incident enhances the credibility of the prosecutrix.
26. Prior to such doc identification, prosecutrix has also identified
appellant Irfan when she was shown photo album marked as Article
A-1. This album contained photographs of similar other persons
from whom the prosecutrix had correctly identified appellant Irfan.
During the Court deposition also, she was again shown the album
and she correctly identified the appellant. This was done prior to her
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CRA.Nos.7215/2018 and 7269/2018
actual seeing the appellant physically in the Court. The identification
memo is Ex.P/11. Although the aforesaid method of identification
has been challenged by the learned counsel submitting that it is not
an appropriate method as various persons shown in the album are
wearing different clothes and that appellant himself had no
opportunity to see the manner in which this identification has been
carried out, however, looking to the serious condition of prosecutrix,
the aforesaid method was one of the reasonable and appropriate
method. A perusal of the evidence of prosecutrix does not show that
there is any contradiction or omission in her statements regarding
identification through photo album. The appellants have not been
able to show that prosecutrix had been shown photographs of the
appellants before the album was shown to her.
27. It would further be appropriate to see as to whether there is
any other corroborative piece of evidence which fortifies the doc
identification of appellant Irfan by prosecutrix as the one who had
kidnapped her.
28. The aforesaid corroborative piece of evidence has been
gathered by Investigating Officer Mr. Gaurav Laad (PW.28) in the
form of CCTV footages collected from various shops situated at
Hazari Road at Mandsaur. This witness has stated that he had
checked the CCTV footages in DVRs installed in various shops from
which suspicious movements involving of prosecutrix and appellant
could be traced. In the process, he found relevant CCTV footages in
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the shops namely; Mayank Fashion Shop, Aman Mobile Shop and E-
Square Plaza. The footages found in the Mayank Fashion Shop and
Aman Mobile Shop were relevant for the purpose of identifying the
kidnapper and the prosecutrix.
29. Gaurav Laad (PW.28) states that on checking the CCTV footage
of Mayank Fashion Shop, he had seen the abductee girl / prosecutrix
to be following a person. This footage was shown to Ajay Mali
(PW.18) who is the cousin of prosecutrix, who identified the
prosecutrix as seen in the footages to be his cousin and identification
memo was drawn which is Ex.P/21. The aforesaid CCTV footage
having been found relevant, the DVR of SRCHR Company carrying
with camera and adopter was seized vide Ex.P/56.
30. Ajay Mali (PW.8) has stated that prosecutrix is her cousin and
after her missing from school, she was being searched and he was
called by the police to Mayank Fashion Shop where he had
identified her vide identification memo Ex.P/21.
31. Gaurav Laad (PW.28) further states that the same CCTV
footages were shown to Rashid (PW.18) who identified the person
accompanying the prosecutrix and moving ahead of her to be Irfan
@ Bhaiyyu and identification memo Ex.P/22 was drawn. In para 13
of the cross - examination, this witness states that Rashid works as a
labourer in the bus-stand and has been called by Constable Digpal
Singh. Rashid (PW.18) has stated that he knows Irfan @ Bhaiyyu
who lives in Madarpur lane of Mandsaur and this lane is occupied by
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Sheikhs. He states that he was shown CCTV footages of appellant
Irfan @ Bhaiyyu in which he had identified Irfan, the signatures of
this witness are on C to C part in Ex.C/22. Photo prints of the
footages are Exs. P/51, P/52 and P/53. In cross-examination, he
admits that he frequents the police-station, however he denies that he
has deposed falsely under the influence of police. This witness
cannot be brushed aside just because he frequents the police-station.
The witness himself resides in Madarpur and it was natural for him
to identify Irfan who also resides in the same locality.
32. The witness Gaurav Laad (PW.28) has further stated that on
04.07.2018 he had seen the CCTV footages of Aman Mobile Shop in
which also appellant Irfan @ Bhaiyyu was visible along with
prosecutrix and therefore Ajay Mali (PW.8) was again called. Ajay
Mali (PW.8) saw the footages in which it was found that the hand of
prosecutrix was being held by appellant Irfan. The identification
memo is Ex.P/23. This CCTV footages found to be relevant, the
DVR of SECURUS Company along with adopter were seized vide
seizure memo Ex.P/24. These are articles A-9 and A-10. The timings
of the CCTV footages and recordings are shown in the Aman Mobile
Shop which is from 6:13 pm to 6:15 pm, while the recordings of
Mayank Fashion Shop are from 5:39 pm to 5:44 pm.
33. The CCTV footages available in both the DVRs, as also in the
DVR seized from E-Square Plaza does not have any relevance as far
as kidnapping part is concerned and it shall be considered later on.
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CRA.Nos.7215/2018 and 7269/2018
All these footages were downloaded in a pen-drive by Constable
Rajesh Sharma (PW.29) posted in Cyber Cell, Police-Station, Ujjain.
This witness states that Mr. S.S. Sisodiya had brought 3 DVRs and a
mobile phone for the purpose of downloading it in a pen-drive which
he did. The memo of opening of DVRs and resealing is Ex.P/144. He
states that after downloading of the same he had prepared a
certificate under Section 65(B) of Evidence Act, 1872 which is
Ex.P/145. The pen-drive was seized from him by Mr. S.S. Sisodiya
as per Ex.P/146.
34. S.S. Sisodiya (PW.35) has stated that on 07.07.2018, these
DVRs were opened and again sealed and its contents were
downloaded in the pendrive and the seizure memo is Exhibit-P/144
bearing signatures from B to B part. This witness and Rajesh Sharma
(PW.29) both have admitted that when the DVRs were brought
before Rajesh Sharma, they were not sealed and only after
downloading in the pendrive, they were sealed.
35. Rajesh Sharma (PW.29) has admitted that before bringing the
DVRs to him if any footages have been inserted by the police, then
he does now know about the same. However, no such suggestion has
been given to S.S. Sisodiya (PW/35). Gaurav Laad (PW/28), who
had first checked the aforesaid footages and had called Ajay Mali,
Rashid and Pradeep for identifying the accused has not been given
any suggestion in cross-examination that he has inserted these
footages in order to implicate accused Irfan. Thus, there is no reason
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to nurse a doubt regarding the possibility of interpolation in the
CCTV footages by the police deliberately in order to implicate
accused Irfan.
36. The footages in the pendrive are admissible in view of the
certificate executed in accordance with Section 65-B of the Evidence
Act. The Investigating Officer has also exhibited certificates under
Section 65-B of the Evidence Act of footages which have been
contained in the DVRs. These certificates are Exs.P/54, P/56 and
P/58. However, DVRs were the primary source containing the
electronic evidence and there was infact no need to prepare such
certificates which are necessary only when proving electronic
through secondary evidence. The witness of seizure of DVRs are
Sumit (PW.19), Tulsi (PW.20) and Mohd. Ayub (PW.21) and the
seizure memos have been drawn by Gaurav Laad (PW.28).
37. Tulsi (PW.20) is the seizure witness of DVR from Mayank
Fashion Shop of which he is the proprietor of the shop Sumit
(PW.19) is the witness of DVR from E-Square showroom of which
he is the employee whereas, Mohd. Ayub (PW.21) is the proprietor of
Aman Mobile Shop, who has exhibited the seizure memo of DVR
as Ex.P/24.
38. As already stated, Ex.P/145 is the certificate under Section 65-B
of the Evidence Act showing downloading in the pendrive from the
CCTV footages which is exhibited by Rajesh Sharma (PW.29). On
perusal of these documents show that the DVRs of SECURA
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CRA.Nos.7215/2018 and 7269/2018
Company shows that the same was recorded between 6.13 PM to
6.15 PM on 26.06.2018. These DVRs were installed in the Aman
Mobile Shop in which accused has been shown to be holding hands
of the prosecutrix while walking. Another DVR bearing Model
No.9008N, which is recorded between 17.39 to 17.44 PM, which
pertains to the DVR installed at Mayank Fashion Shop in which the
prosecutrix has been shown to be following the accused Irfan and
Irfan is shown to be keeping an eye on prosecutrix by side-way
glance.
39. Thus from the footages of Mayank Fashion Shop, appellant
Irfan is seen moving ahead of prosecutrix and he is keeping an eye
over her and while the footages drawn from the Aman Mobile Shop,
the appellant Irfan is seen holding the hand of prosecutrix.
40. The aforesaid corroborative piece of evidence along with doc
identification by prosecutrix of Irfan as the one who had carried her
proved that it was appellant Irfan who had kidnapped the
prosecutrix.
41. Before proceeding to consider as to what other offences were
committed upon the prosecutrix. It would be appropriate to consider
as to how the prosecutrix was found and what was her condition and
thereafter it shall be considered as to what kind of offence was
committed upon her by the appellant Irfan @ Bhaiyyu.
42. The manner in which prosecutrix was traced has been
described by witness Karan (PW.10) and Shakti Singh (PW.11).
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Karan (PW.10) has stated that on 27.6.2018 (on the next day of
kidnapping) at about 12 to 1 pm while the witness was coming back
after handing over his father's tiffin, he saw prosecutrix coming in a
lane from below a place called Laxman Darwaja. She was slowly
walking taking support of the wall and asked the witness to take her
to her home. Witness states that he saw that the girl was injured,
there was cut mark on her throat, her eyes were swollen and there
were injuries below her eye and over her cheek. Witness states that
he told about the plight of the girl to a passerby, who called up the
police. The witness in his cross-examination has stated that on the
date of the incident he used to study in another school. He states that
he starts for his school at about 12 pm and reaches at 1.00 pm. He
denies that at the time of incident he was in his school.
43. Shakti Singh (PW.11) has stated that on 27.6.2018 at about 12
pm he was going on his bike via Bafna market towards fort road and
as he crossed Bafna market, besides some shops located near a Nala
he saw a child holding hand of a girl standing besides the road. He
went near the girl and saw an identity card hanging on her neck. The
condition of the girl was so serious that the witness started trembling.
There was a huge cut on her neck and there were injuries on her eyes
and cheek, her clothes were torn and soiled with mud. Witness states
that he had known about missing of a girl on Whatsapp. He
immediately made a call to police control room. The girl was taken in
a vehicle by police to the hospital, which was followed by him. The
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parents of the girl were also called over in the hospital after
determining her identity from identity card and the recovery of the
girl is exhibited as Ex.P/8. The seizure memo of identity card is
Ex.P/27.
44. Kaushalya (PW.4) who is the mother of the prosecutrix has
stated that her daughter had gone missing on 26.6.2018 and on
27.6.2018 the witness was called to the Government Hospital, where
recovery memo (Ex.P/8) was drawn. The grand mother of prosecutrix
(PW.7) has stated that while she was searching out for her grand
daughter, an information was received that the daughter has been
traced.
45. S.S. Sisodiya (PW.35) states that on 26.6.2018 he was posted
as ASI in City Kotwali police station at Mandsaur. He received an
information on 27.6.2018 that a girl child has been found near
Laxman Darwaja. The witness states that he arrived at the spot and
found that the prosecutrix had already been taken to hospital. There
is no reason to discredit statements of Karan (PW.10) and Shakti
Singh (PW.11). Thus it is found proved that prosecutrix was seen
coming out from a lane which opens at Laxman Darwaja and
physically she was in very weak condition and with various injuries
on her person with her clothes soiled in mud.
46. Dr. Bahadur Katare (PW.27) states that on 27.6.2017 (wrongly
mentioned as 2017 whereas in Ex.P/139 date 27.6.2018 is written) a
constable namely Narayan had brought the injured girl child for
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examination at 1.00 pm. Following injuries were found on her
person:-
(i) On the anterior part of throat an incised wound
measuring 4" x 1/2" x 1/2".
(ii) There was swelling in both the eyes. X-ray was
advised.
(iii) There was a lacerated wound on the left ear
measuring 1 x ½ x ½ cm.
(iv) There was a lacerated wound on her nose measuring
1/2 x 1/2 x 1/2 cm.
47. As per this witness, all these injuries were caused with hard
and blunt object within 24 hours. Shirt of the school dress was brown
in colour with light blue skirt, which were smeared in dirt and water
and were wet carrying traces of blood. These items were sealed and
given to the constable. The witness states that prosecutrix was not
wearing any underwear. Report is Ex.P/139. Witness states that upon
obtaining a query regarding the nature of injuries, he had termed the
injuries to be dangerous to life. The query report is Ex.P/73 carrying
signatures of the witness from B to B part. He admits in Para-13 that
in the report (Ex.P/139) there is no mention of injuries apart from the
injuries described by him in examination-in-chief. He also admits
that if there were other injuries on prosecutrix, he would have
mentioned the same in Ex.P/139. In para-16 he admits that such
injuries could have been caused by fall from motorcycle. He denies
that there were deliberate gaps perceptible in Ex.P/139 giving room
for any suitable fabrication at a later stage.
48. Ex.P/139 was perused. Injury No.1 on the throat has been
termed to be lacerated wound in the aforesaid report whereas the
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witness, in his court statement, has stated that it was an incised
wound. The aforesaid injury on neck is 10 cm long. It is doubtful as
to whether such an injury can be caused by hard and blunt object.
49. Dr. Neha Jain (PW.23) has stated that on 27.6.2018 she was
posted in emergency duty in District Hospital at Mandsaur. At about
2 pm constable Narayan (No.253) had brought the prosecutrix before
the witness, whose medical examination was conducted by the
witness after obtaining permission from the grand mother of
prosecutrix namely Kamla Bai. The witness states that the general
condition of the prosecutrix was not good and was serious in nature.
There were marks of injuries on the body of the prosecutrix,
specifically on her face and throat, her eyes were swollen, there was
swelling in her legs and skin of her legs had developed wrinkles due
to constantly being in wet condition. Her internal examination was
then conducted by the witness. There were innumerable injury marks
on her private parts. The vaginal part was swollen, number of injuries
were there on her thighs with swelling, number of tree leaves were
found to be stuck on her private parts, there was fourth degree
perineal tear on her private part, there was fecal incontinence, which
mean that the child was subjected to forcible vaginal and anal
intercourse resulting in tearing off of her vagina and anal region.
There was constant flow of blood from her private part. She was
administered IV fluids and antibiotics and tetanus injection was
administered. Her haemoglobin was found to have plummeted to 7.8
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CRA.Nos.7215/2018 and 7269/2018
gm whereas it should have been 14 to 15 gms normally. The report is
Ex.P/72 carrying her signatures. In the query report Exhibit P/73 she
had found the injuries on the prosecutrix to be dangerous to life. In
cross-examination on behalf of appellant Irfan, she admits that the
condition of the girl was serious and, therefore, she was referred to
Indore.
50. The statements made by Dr. Neha (PW.23) have not been
subjected to such cross-examination which would render her an
unreliable witness. Hence, it is proved that the prosecutrix had
received such injuries on her person which had endangered her life.
Further, the prosecutrix had been subjected to violent penetrative
sexual assault leading to piercing of vaginal and anal region causing
huge loss of blood.
51. Dr. Brajesh Kumar Lahoti (PW.25) has stated that he was
posted as Professor Pediatrics Surgery from April 2018 onwards. On
27.6.2018 in the evening a girl child aged 7 years was referred to
emergency ward of M.Y. Hospital, Indore. She was admitted in the
pediatric surgery department and was found to be injured. Her
admission document is Ex.P/75. As per the witness the initial
examination was carried out and she was hauled into operation
theater and was administered anesthesia. She was then subjected to
operation and the wounds were repaired. The relevant document
showing operation notes are Exhibit P/78. In the aforesaid report, it
has been stated that there is a tear found in posterior wall of vagina,
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complete perineal tear with tear of anterior rectal wall, urethral
meatus found to be torn, posterior rectal wall tear and stab wound of
size 1cm x 3cm deep was present over medial part of left thigh. The
witness states that the girl child suffered numerous injuries on her
face, eyes, throat and there were suture marks on her thigh. As per
her C.T. Brain report Exhibit P/75(c) hemorrhagic collection was
noted in visualized right maxillary sinus. As per this witness, there
were serious injuries on the private parts of the girl child and had
been subjected to perineal as well as anal injury. The perineal injury
found to be present on the private parts of prosecutrix was of very
serious nature. There was complete perineal tear. He states that the
mouth of the passage of urine tract was repaired with stitches. The
vaginal opening was also repaired with minute stitches, the injury on
her anus was also repaired. The perineal body existing between
vaginal orifice and anal portion was subjected to reconstruction. She
underwent colostomy meaning creation of passage in abdomen to
bring out feeal material as per Ex. P/80. The injuries on private parts
were also serious in nature. The witness states that after operation,
girl child was shifted to ICU. A paediatric surgeon was also called
from Bombay and the girl child was still being subjected to treatment
i.e. up to 6.8.2018 girl child was under treatment. From the testimony
of Dr. Brajesh Kumar Lahoti (PW.25) which has not been adversely
challenged, it becomes clear that the prosecutrix had suffered life
threatening injuries, and it was also found to be proved that the girl
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child was not only subjected to barbarous and violent act of rape.
52. Now the question before us is, whether the prosecution has
duly proved the appellants as the perpetrators involved in committing
gang rape of prosecutrix?
53. The prosecution has sought to prove the identity of the
appellants by way of oral testimony of prosecutrix, in which there
has been a dock identification of appellants preceded by showing her
album containing photographs of appellants along with other accused
persons, at the investigation stage.
54. The prosecutrix (PW.5) in her examination-in-chief has stated
that the accused who led her to Jungle, opened up her lower clothing
and other accused caught hold of her hands and legs and the accused
who had taken off her clothes, committed dirty act upon her. She
reiterates that extremely dirty act was committed upon her and the
person committing such act had also closed her eyes and mouth, had
scratched her hands and legs and taken off the nail of her right finger
and had inflicted knife blows on her throat and on her private parts.
The statements of prosecutrix have been recorded on 31.7.2018, just
one month and 4 days after the incident. She has shown marks of her
injuries to the presiding officer and presiding officer has noted injury
marks on her throat and eye. There were bandages on her abdomen
and waist. Witness states that she had lost her consciousness and
regained the same next day. She states that in the hospital, photo
albums had been shown to her. In the first album (Article A/1) she
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has identified one of the accused whose photo has been marked as
Article A/1(a) and the second album has been marked as Article A/2,
in which second accused has been identified which has been marked
as Article A/2(a).The aforesaid identification memo is Ex.P/11
carrying signatures of prosecutrix, from A to A part. The prosecutrix,
during her deposition, has further been shown the faces of accused
after withdrawing the curtain, which was drawn between her and the
accused persons and has pointed out by name the accused showing
that the first accused is Irfan and the another accused is Asif, both of
whom had committed the offence against her. In the cross-
examination she denies that all the persons shown in the album were
made to wear the same type of clothes.
55. The objection pertaining to identification by photo album has
already been considered earlier. To repeat, in the circumstances in
which the prosecutrix was hospitalized in serious condition, the
investigating agency appropriately considered this method for
identification of accused. It would have been a different matter if
there was only this piece of identification collected by an
Investigating Officer. However, as can be seen the dock
identification is another important substantive piece of evidence. The
dock identification apart there are other corroborative piece of
evidence also collected by Investigating Officer, which shall be
discussed.
56. The dock identification has been conducted just a month after
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the incident and looking to the short gap, the dock identification is a
strong piece of evidence. The prosecutrix has in fact not been cross-
examined in a manner showing any fault committed by her in dock
identification. In the cross-examination the prosecutrix has been
confronted with her 164 Cr.P.C. statements Ex.P/10, in which it has
been stated that while the act was being committed upon her by Irfan,
some 3 to 4 boys were standing at some distance and these 3-4 boys
had held her. The witness during her examination, has denied to have
given any such statements that there were 3 to 4 boys who had come
on the spot. Moreover, in her police statements recorded on the same
day i.e. Ex.D/1 there is no mention of there being 3 to 4 persons.
Thus, the aforesaid discrepancy is not of serious nature.
57. The involvement of each of the appellants in respect to
committing gang-rape of prosecutrix shall now be considered in view
of evidence available against them. First of all, the evidence against
Irfan would be considered. As already found earlier, it has been
proved against Irfan that he had kidnapped the minor prosecutrix and
taken her from the school on foot and his involvement through
CCTV footages could be noted from 5.39 PM to 6.15 PM. The
prosecutrix has stated that she was taken by this accused to a jungle
and as already noted earlier, she has narrated that Irfan committed the
brutal offence of sexual assault upon her. Regarding other accused
Asif, prosecutrix (PW.5) has stated that the person carrying her
(Irfan) had called other accused whom she has identified as Asif.
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She states that while Irfan committed sexual assault upon her, Asif
had held the hands and legs of prosecutrix.
58. Learned counsel for the appellant has submitted that mobile
phone of Irfan had been found to be switched off and this fact has
been admitted by the prosecution and the Investigating Officer also.
Hence, the statements of prosecutrix is incorrect that Irfan had called
Asif over phone. The question which arises is as to how Asif came
on the spot. It may be seen that prosecutrix (PW-5) has not stated
anywhere in her examination-in-chief that Irfan had called Asif on
mobile phone. She simply states that Irfan had called Asif meaning
thereby, that Irfan knew where Asif would be found and he called out
on him. Although, in the 161 and 164 Cr.P.C. statements, the
prosecutrix has stated that the aforesaid call to Asif by Irfan was
made on mobile phone. However, aforesaid part in the police
statements and magisterial statements in which mobile phone was
stated to be used by Irfan has not been shown to prosecutrix to
confront her. If the memorandum statements of Irfan and Asif, i.e.,
Exs.P/33 and P/36 were perused, it would be found that both had
given statements to the effect that both had arrived at the school
together on motorcycle and Asif had drawn the prosecutrix out of the
school and handed over her to Irfan and both had already decided
that they would be meeting at the designated spot, i.e., spot which
leads to Laxman Darwaja. Infact Anand (PW.16) has stated in so
many terms as well that both the accused were seen by him in the
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aforesaid manner at the school. However, statements of Anand
(PW.16) has not been found creditworthy earlier by this Court but the
fact of the matter remains that it is the prosecution story that both the
accused had arrived at the school premises and they hatched a plan in
the aforesaid manner.
59. With offence of kidnapping having been proved only against
Irfan, the question whether Asif was present on the spot and was
actively participating and assisting Irfan in committal of aggravated
penetrative sexual assault upon prosecutrix, is the fact which is the
important material to be established. There is no ulterior motive on
the part of child prosecutrix to falsely implicate Asif. The
prosecution has collected other pieces of evidence also in order to
establish presence of Asif on the spot which shall now be considered.
60. Mr. S.S. Sisodiya (PW.35) has stated that he was posted as
ASI, he had gone to the spot of incident which was identified by
Shakti Singh and had prepared the spot map Ex.P/28. The witness
states that he had found a pair of socks on spot which is spot A,
underwear of the prosecutrix is spot B, as also her shoes and he had
found the blood stains and hair strands at spot C. These apart, he had
found a school bag containing copies and tiffin. Apart from that beer
bottle and bisleri bottle were also found on the spot of incident. The
witness has stated that 10 - 12 hair strands were picked up by him
from the spot with a forcep as also blood soaked soil. The seizure
memo is Ex.P/29. In para 15, it has been noted that the sealed packet
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carrying seal of FSL Sagar has been opened before this witness in
which plastic container was found with a seizure chit embedded on
it. Inside the container there are hair strands which have been seized
from the spot and these are articalized as Article A/28. In cross-
examination, he denies the suggestion that the aforesaid items were
not sealed before him.
62. Learned counsel for the appellants has argued that the manner
in which girl's clothes were found to be wet and mud was smeared on
her clothes, there was no possibility of recovering blood soaked soil.
The submission was considered. It has been found that the
prosecutrix had suffered heavy loss of blood from her injuries and it
cannot be conjectured that no traces of blood could have been
detected in the soil.
63. Mr. Rakesh Mohan Shukla (PW.31) states that he was posted
as CSP at Police-Station, Mandsaur and was heading the specially
constituted SIT (Special Investigating Team) for conducting
investigation in this matter and vide FSL Draft letter No.177-B, he
had sent the hair strands for DNA Examination to FSL Sagar, the
draft letter is Ex.P/156 and the DNA report is Ex.P/157.
64. Dr. Bahadur Katare (PW.27) states that he was posted as
Medical Officer at District Hospital at Mandsaur. On 29.06.2018,
when Constable Mukesh Singh brought Asif for medical
examination, the same was conducted and he was found to be
capable of performing sexual intercourse. His belongings and slides
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were prepared. The investigation report is Ex.P/140. On that same
day, he received a letter of SHO AJAK Police-Station, Mandsaur to
take blood samples of both the accused i.e. Irfan and Asif in the jail
premises only for DNA analysis. Such instructions to obtain blood
samples in the police station premises had been given for security
purposes. Subsequently the aforesaid letter is Ex.P/141. The witness
states that he had signed the identification memorandum of Asif and
Irfan which are respectively Ex.P/26 and Ex.P/25 and took 3 ML of
blood of each of them in EDTA vial and handed over the same to
Constable Mukesh Bhadoria. The same seal carries the impression of
CH Mandsaur and the sealed impression was seized from him as per
Seizure Memo Ex.P/143. Similarly the sealed sample and the sealed
memo in respect of accused Irfan was seized as per Ex.P/142.
65. Ms. Pushpa Singh (PW/37) states that on 29.06.2018 while
shewas posted as SHO in Police-Station AJAK [for Anusueshit Jati
Janjati], she was included in the specially constituted SIT (Special
Investigation Team) for investigating the present case. In para 12, she
states that she had requested the Medical Officer, Mandsaur to obtain
blood samples of accused/appellants Irfan and Asif vide Ex.P/141.
Dr. Bahadur Katare (PW.27) had appeared in police-station AJAK
and preserved the bloods samples of both the accused and filled up
their identification forms which are Ex.P/25 and Ex.P/26 and had
sealed the same on which the signatures of the witnesses are
appended. She states that she had prepared the certificate Ex.P/185,
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Ex.P/186 and Ex.P/187 authorizing the Director, FSL to use the
samples for analysis either in full or in part. She states that the blood
samples of Irfan and Asif were seized vide seizure memo Ex.P/142
and Ex.P/143 respectively.
66. Mr. Rakesh Mohan Shukla (PW.31) has stated that he in his
capacity as the head of SIT had written a letter to Inspector General
of Police for carrying out DNA analysis vide letter Ex.P/153 and then
sent the draft letter Ex.P/154 along with the seized articles to
Director, FSL, the letter is Ex.P/154. In this draft letter, Article 'F' has
been shown to be the blood sample of Asif kept in the EDTA vial
which is further stored and sealed in the thermocoal container. As per
the witness the DNA report is Ex.P/157.
67. The mixed hair strands recovered from the spot of the incident
were subjected to DNA analysis. The hair strands are articled as 'Y'.
They were found to contain 'Y' chromosomes of different individuals.
The DNA profile of the two varying hair strands were prepared. It
was found that the aleels found in the genetic marker of autosomal
STR DNA of hair were the same as aleels in the genetic marker of
autosomal STR DNA profile of the blood sample of Asif articled as
'F'. Shortly speaking, the DNA profile in the source of Asif (blood
sample) matched with DNA profile of the hair found on the spot
(Article 'Y').
68. Thus, it is proved conclusively that accused/appellant Asif was
present on the spot when the incident had taken place.
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69. Ms. Pushpa Singh (PW.37) has stated that on 29.06.2018, she
arrested the accused/appellant Asif and the arrest memo is Ex.P/35.
In his memorandum, he proposed to recover the seized clothes worn
by him as also the motorcycle bearing registration No.MP14MH-
9143 Ex.P/36 is the memorandum and Ex.P/37 is the seizure
memorandum. In the seizure memo, one red colored shirt and blue
colored jeans and a motorcycle has been shown to be seized from
Asif which carries the signatures of Asif (the witness). In cross-
examination, the witness in para 34 is not able to state as to the
colour of Almirah from where clothes were seized or as to how many
rooms are there in the aforesaid house of Asif. She also does not
know as to where are the staircases for going to the terrace of Asif
are situated but she denies that these documents were prepared by her
in the police-station.
70. Considered.
71. Just because of not minutely observing the number of rooms
and the positioning of staircases or the color of an Almirah from
where the clothes were seized does not tend to discredit the witness.
When the whole focus was on obtaining the memorandum statement
and seizure memo from accused Asif, the Investigating Officer was
not required to minutely examine the aforesaid non-consequential
details. There was no necessity to prepare the map of the house of the
accused/appellant Asif.
72. The statement of witness Ms. Pushpa Singh (PW/37) regarding
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the recovery of red colored shirt and the motorcycle assumes
importance in view of the fact that the moments after the incident,
Asif was found to be moving in a red shirt along with
accused/appellant Irfan whose CCTV footages were captured in the
CCTV Cameras installed in the shop called E-Square Plaza. The
prosecution story is that after the incident both the accused persons
had brought a mobile phone to the shop of Pradeep (PW15) who runs
his mobile shop in the name of Rohit Mobile Parlour. This witness
has stated that on 26.06.2018 in the evening two boys had come to
the shop for selling the mobile of VIVO Company. He states that he
was shown CCTV footage in a shop called E - Square Plaza which
is 8 - 10 shops away from his shop. He had identified both the
accused from their bike and shirt which is Ex.P/40. The aforesaid
CCTV footage which has been downloaded in pen-drive also was
shown to him and the photo-print of CCTV footage is Ex.P/41. The
witness has further stated the mobile phone sold by the accused was
seized from the witness along with its bill. The seizure memo of the
mobile phone and mobile bill are Ex.P/20 and Ex.P/42 and on the
back side of the bill it has been mentioned by accused Irfan that he is
selling the mobile for Rs.5000/-. The witness in para 8 has stated that
photographs of the accused started appearing in newspapers from
29.06.2018 onwards. The witness in para 13 admits that in the photo-
print, i.e., Ex.P/41 in which the faces of both the accused cannot be
seen, he however states that in the CCTV footage, he had seen the
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accused from both the sides and further they had also come to his
shop and therefore it was easy for him to identify the accused. Tejram
Verma (PW.17) is the Naib Tehsildar who has conducted the
identification parade and has stated that the accused was identified
by Pradeep vide Ex.P/43. Although Pradeep (PW.15) has admitted
that he had seen the photographs of the accused in newspapers,
however before conducting the identification parade it has also been
found that the witness had ample time to see both the accused
persons when they had come to sell their mobile phone at his shop
and therefore the identification of both the accused by the witness
does not become compromised because he had seen the photographs
in the newspapers. Further the evidence of this witness had been
recorded in the presence of accused persons on 02.08.2018, as can be
seen in the order-sheet. This examination in the Court had taken
place barely a month after the incident. Hence, no doubt remains that
both the accused persons had come to his shop on 26.06.2018 at
about 7:00 pm. Gaurav Laad (PW.28) who had checked the CCTV
footages of shops has stated that on 01.07.2018, he had found the
CCTV footages of E-Square Plaza to be relevant. He had shown the
aforesaid footages to Pradeep (PW.15) who had identified both the
accused persons as Asif and Irfan and had signed the identification
memo Ex.P/40. The witness had seized the DVR of UNV Company
along with its Adopter of ERD Company vide seizure memo Ex.P/54.
The same were sealed and its articles are A/5 and A/6. Pradeep
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(PW.15) has been shown the aforesaid CCTV footage before the
Court and while deposing the aforesaid CCTV footage of the same
has been downloaded in a pendrive which has been run in Court. The
timings are from 7:05:31 to 7:05:44 pm.
73. As already stated earlier, the downloading of footages from
DVR to pendrive was done by Rajesh Sharma (PW.29) who was
posted as Constable in Cyber Cell has stated that he had downloaded
the footages in the pendrive. As per instructions, the Sub-Inspector
Mr. Surendra Singh has stated that he had opened the DVRs after
downloading the same and had again sealed it. The memorandum of
opening and sealing the DVR is Ex.P/144. The pendrive was seized
from him by Surendra Singh vide Ex.P/146 and he had given
certificate under Section 65-B of Evidence Act which is Ex.P/145.
This witness in cross-examination has admitted that the DVR were
not brought before him in a sealed condition and he cannot state that
before being brought to him whether any interpolation was made in
the DVRs by police. However, no such suggestion has been given to
Surendra Singh (PW.35) before whom Ex.P/144 and Ex.P/146 was
executed by Rajesh Sharma. It can be seen that the footages were
recovered in the CCTV Cameras installed in the shop. The same were
shown to Pradeep (PW.15) immediately after such detection and the
spot identification memo Ex.P/40 was thereafter prepared. Thus,
there was no scope for the police to make any interpolation in the
CCTV footages by deliberately inserting the same in order to falsely
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implicate the appellants.
74. From the aforesaid evidence, it is clear that right after the
incident, the accused/appellant Asif was found to be moving wearing
a red shirt with accused/appellant Irfan on a red colored motorcycle
and it was the red colored shirt which was recovered from his
possession as per the memorandum.
75. Thus against accused Asif, the doc identification by
prosecutrix is the most relevant piece of evidence, his presence at the
time of incident has been proved by matching of DNA present in
hair found on the spot with DNA profile of his blood. Immediately
after the incident, he was found to accompany the accused/appellant
Irfan on motorcycle wearing the red colored shirt which has been
seized from him.
76. It has already been seen that the mobile of accused/appellant
Irfan which has been seized from Pradeep (PW.15) was found to be
switched off. Ms. Pushpa Singh (PW.37) in para 48 has admitted that
location of the accused from the mobile phone could not be traced
because the mobile phone was found to be switched off at the time of
incident. This piece of evidence that the mobile phone was switched
off at the time of incident shows only one possibility that accused
Asif was present on the spot when accused Irfan had committed the
incident and he was ready at the beckon and call of Irfan at the spot.
The mobile phone having been kept in a switched off mode is also a
relevant piece of evidence against the appellants. It can be fathomed
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that the mobile phone was kept in a switched off mode so that the
location may not be traced as in the eventuality of any incoming call
at the time of committing the offence, the mobile location could be
traced if the mobile was not switched off. Thus the accused/appellant
appear to have kept the mobile deliberately switched off in order to
evade detection of their presence at the spot of incident. The
accused/appellants themselves have not come forward to state as to
where were they positioned at the time of incident. Evidence is
already available against them regarding they being seen to be
moving together after the incident. Hence onus was upon them to
show as to whether they were coming from and where they were
going to. This onus has not been discharged by the appellants. The
factum of keeping the mobile phone switched off mode is a relevant
fact against the appellants under Section 8 of Evidence Act, 1872.
77. Thus it has been seen that generally no person would keep his
mobile phone in a switched off condition until and unless it is
extremely necessary such as being in a meeting etc. It has further
been stated that it was the appellants who had to clarify as to why the
mobile phone was kept in a switched off mode at the time of incident
and what was the necessity to sell the VIVO Company Mobile Phone
purchased barely two months earlier on paying Rs.8500/- on
17.04.2018 and why the accused persons had sold off their mobile to
Pradeep (PW.15) two months later just for Rs.5000/- only. (As per
Ex.P/42). The only conclusion derivable is that the appellants may
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have thought that keeping the mobile with them and using it after
switching it off would land them in trouble later. This act of selling
off mobile phone is also a relevant pience of evidence under Section
8 of Evidence Act against the appellants. Thus it is found proved
against accused Asif that he was present on the spot when the offence
against prosecutrix was being committed by accused Irfan and he had
actively participated in the aforesaid offence which includes
committal of aggravated penetrative sexual assault and causing life
threatening injuries upon the prosecutrix. Now the involvement of
accused/appellant Irfan would be considered in the light of evidence.
78. The statements of prosecutrix has already been considered in
para-31, in which she has stated that the person who had escorted her
from school had committed extremely dirty act upon her in the jungle
and had also inflated number of injuries on her. It has been found
proved that the person who had escorted the prosecutrix to the jungle
is Irfan. The prosecutrix has identified Irfan in the doc identification
and also in the photo album. The propriety of identification through
photo album has already been found to be appropriate in the
circumstances of prosecutrix who was injured in serious condition.
It has also been found that the evidence of prosecutrix as far as
involvement of Irfan is considered, has not been found to contain any
contradictions or omissions in a manner so as to discredit her.
79. In the case of Vishnu @ Undrya vs. State of Maharashtra,
2006 (1) SCC 289, it has been laid down as under :-
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"It is well settled by catena of decisions of this Court
that there is no rule of law in practice that the
evidence of prosecutirx could not be relied upon
without corroboration and as such, it has been laid
down that corroboration is not a sine qua non for
conviction in a rape case. If the evidence of a victim
does not suffer from any basic infirmity and the
probability factor does not render it unworthy of law,
as a general rule, there is no reason to insist on
corroboration accepting medical evidence, where
having regarding to the circumstances of the case,
medical evidence can be expected to be put-forth.
80. In this matter, the medical examination of prosecutrix has
already been discussed in great detail and she has been found to be
subjected to brutal penetrative sexual assault and life threatening
injuries including stab injuries. Even though the aforesaid citation
does not call for necessity for any other corroborative piece of
evidence however, in view of such evidence available on record, it
would be proper to appreciate the same.
81. Pushpa Singh (PW.37) has stated that she was posted as SHO,
Police Station Ajak on 27.06.2018 and was a member of special
constituted SIT team. She has stated that Irfan was taken to the spot
on 30.06.2018 and the verification report of the spot was made at his
instance, which is Ex.P/183.
82. Jaya Bharadwaj (PW-34) has stated that while posted as S.I. in
Police Station Kotwali, District Mandsaur, she had conducted the
investigation and had arrested Irfan vide arrest memo Ex.P/32 and
Irfan was questioned before witnesses Hemant and Rocky Singh
wherein Irfan proposed to recover the clothes worn by him at the
time of incident along with knife and shoes and memo is Exhibit-
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P/33. On the basis of this memo, shirt bearing blood marks on right
sleeve, trousers bearing blood marks, knife bearing blood stains,
banyan (vest) bearing blood traces, underwear bearing semen and
blood traces, soles of pair of shoes with thorns embedded therein
were seized by seizure memo Ex.P/34 as per FSL report. She also
states that Head Constable Banshilal had handed her over a sealed
packet containing clothes worn by the prosecutrix, which was
recovered from her by the witness as per seizure memo Ex.P/163.
The aforesaid packet has been opened before the Court. It contained
skirt and shirt of prosecutrix on which mud and blood stains are
visible. The seizure chit is also placed to be shown containing seal
and signatures of Bahadur Katare, which is Article A/12. The items
seized from Irfan have also been opened before the Court, which
were kept in sealed packet bearing FSL seal. On opening, a shirt
with black checks bearing light blood traces on the pocket and right
sleeve has been found, which is Article A/14. Another such packet is
Article A/15 which contains underwear of appellant Irfan, the packet
A/15 has been seized as well which is a white coloured vest bearing
blood traces. Article A/18 is a knife recovered from appellant Irfan.
This witness in cross-examination has denied that the aforesaid
seizure was made by her in the police station without going to the
spot. No other substantial cross examination has been made in
respect of memo and seizure.
83. The aforesaid seizure apart, his blood sample was also collected
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by Dr. Bahadur Katare (PW.27). The manner in which the blood
sample was collected is identical to that in respect of co-accused
Asif, which has already been described earlier. The identification
form in respect of Irfan executed by this witness is Ex.P/25. The
blood sample of Irfan was seized as per seizure memo Ex.P/142.
84. Dr. Deepak Agrawal (PW.24) has stated that while he was
posted in the emergency duty at District Hospital, Mandsaur on
28.06.2018, Constable Rameez Raja had brought Irfan at 3.10 AM
for examination. On his examination, he had found that in the
frenulum of the male organ of Irfan, there was redness present which
occurs when forcible sexual intercourse is committed. He states that
he prepared the semen slide and pubic hair of Irfan. He had also
found number of nail marks on his chest and scratch marks on his
back and it was also found that Ifran was having a teeth bite mark on
his left shoulder, report of which is Ex.P/74. In the cross-
examination, he admits in Ex.P/74 that it has not been specifically
mentioned by him that the redness on the male organ was because of
forceful sexual intercourse.
85. Non-mentioning of the reasons of redness in the report does not
weaken the evidence made by the witness. The witness is a medical
expert and he is expected to know the general cause of such signs as
found on the person of Irfan. The aforesaid redness on the male
organ of Irfan is a corroborative piece of evidence showing that he
had recently committed forceful sexual intercourse. The nail marks
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and scratches on his chest and teeth bite depict resistance on the part
of the victim who tried to fight her way off when subjected to ghastly
offence against her.
86. Jaya Bharadwaj (PW.34) has stated that the nails and hair
strands drawn from the scalp of Irfan were handed over by her in a
sealed condition to Saurav Mavariya by letter Ex.P/164 and the
seizure memo of which is Ex.P/165.
87. All the articles so seized were sent by Rakesh Mohan Shukla
(PW-31), CSP to FSL by draft Ex.P/154. The hair, nails and other
items were sent vide draft Ex.P/156 and DNA report is Ex.P/157.
88. Before discussing the DNA report in respect of articles seized
from Irfan, it would be appropriate to discuss the articles seized from
the prosecutrix as well because DNA report is based upon matching
of source from prosecutrix and Irfan.
89. Dr. Neha Jain (PW.23) has stated that while posted as Medical
Officer at District Hospital, Mandsaur, after examining the
prosecutrix on 27.06.2018, she had preserved the vaginal slide of the
prosecutrix and leaves which were stuck on her private parts and had
sealed and given the same to Constable Narayan.
90. Dr. Meena More (PW.26) states that on 02.07.2018, while she
was posted as Resident Doctor in M.Y. Hospital, Indore, she had
drawn blood sample of prosecutrix as well as oral swab sample and
drawn identification memo vide Ex.P/13. EDTA vial in which blood
sample was drawn along with oral swab was sealed in M. Y. Hospital
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and the seized sample was sealed in her presence by ASI Dr. Vinay,
who was the CMO and the seizure memo is Ex.P/138.
91. Dr. Bahadur Katare (PW.27) has stated that on 27.06.2018,
while he was posted as Medical Officer, District Hospital, Mandsaur,
he had examined the prosecutrix and her school dress containing
brown and light blue skirt which were wet and smeared in mud
carrying blood stains were sealed and given to Constable. The
witness has stated that the prosecutrix was not wearing underwear. It
would be recalled that the underwear of the prosecutrix was
recovered from the spot by S. S. Sisodya (PW.35) and the seizure
memo is Ex.P/29. The aforesaid sealed packet containing the
underwear has been opened before the Court in the presence of the
witness, which has been marked as Article A/25.
92. Jaya Bharadwaj (PW.34) has stated that while posted as S. I. at
Police Station Kotwali, Mandsaur on 26.08.2018, she had received a
message on wireless set at 12.40 PM to arrive at Mandsaur Civil
Hospital immediately. On arrival, she found the prosecutrix to be in
a serious condition. The recovery memo was drawn at Ex.P/8 and
and I-card of Saraswati Shishu Mandir School which was worn
around the neck by prosecutrix was seized by the witness and the
seizure memo is Ex.P/27. She states that on 27.06.2018, on being
produced by Head Constable Banshilal, the sealed packet bearing
seal of CHMO, Mandsaur which contained vaginal slide of the
prosecutrix and another sealed packet containing leaves drawn out of
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the person of prosecutrix and the clothes worn by her were seized
vide seizure memo Ex.P/163.
93. Learned counsel for the appellant has pointed out that Neha
Jain has given the same slides and sealed packets containing leaves
and clothes to Constable Narayan but Constable Narayan has not
been examined and admits that the packets has changed hands and
ultimately same packets were handed over to Jaya Bharadwaj
(PW.34) by Head Constable Banshilal, who has also not been
examined. Learned counsel submits that this lapse on the part of
prosecution creates a doubt regarding possibility of tampering of
evidence. Neha Jain has stated that she had examined and seized
other items and given the same to Constable Narayan on 27.06.2018.
94. Jaya Bharadwaj (PW.34) has stated that on the same day on
27.06.2018, Head Constable Narayan had given her same packets in
sealed condition. Submissions were considered. First of all, there
was no motive to falsely implicate the appellants on the part of the
prosecution. Secondly, the sealed packets had been handed over to
Jaya Bharadwaj (PW.34) on the same day, i.e., on 27.06.2018 and
such items were contained in sealed packets by Neha Jain. There is
no scope for intermeddling with the packets which were already
handed over to the Constable and Head Constable in sealed
condition. It is for the sake of exigency that packets had changed
hands but no adverse inference can be drawn because of non-
examination of Narayan and Banshilal, who were merely carriers of
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sealed packets and no occasion for doubt arises regarding possibility
of tampering of samples.
95. Sandeep Singh (PW.32) has stated that while he was posted as
S. I. in Police Station Kotwali, District Mandsaur on 02.07.2018, he
had prepared identification form for obtaining the blood sample and
oral swab of prosecutrix at M.Y. Hospital which is Ex.P/13. After
obtaining the sealed sample, it was placed in thermocol container and
the sealed sample of M. Y. Hosptial was seized as per Ex.P/138.
96. Dr. Brijesh (PW.25) who was posted in M.Y. Hospital as
Assistant Professor in Pediatric Surgery Department on the date of
incident has performed the operation on the prosecutrix, who has
stated in para-16 that he had been informed by the Gynecologist vide
Ex.P/117 that the blood samples, perineal and vaginal swab, vulval
pad, hair and nails of prosecutrix had been collected and sealed and
handed over to the police.
97. Pushpa Singh (PW.37) has stated that on 29.06.2018, the Head
Constable Laxmi Rathore had brought the sealed packet from M.Y.
Hospital in which the smear tube, vulval pad, hair, nails and vulval
smear tube sealed with M.Y. Hospital seal were seized by the witness
along with sealed sample of M.Y. Hospital as per seizure memo
Ex.P/181. All the sealed packets received from FSL, Sagar have been
opened up before the Presiding Officer and its contents have been
perused.
98. The witness Rakesh Mohan Shukla (PW.31) has stated the
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blood sample and oral swab of prosecutrix was sent to FSL vide draft
letter Ex.P/155. He has stated that along with this draft letter, other
items were also sent for DNA examination vide letters Exhs.P/152
and P/153. In the draft letter, vaginal slide of the prosecutrix has
been marked as Article 'O', shirt and her skirt as Article 'P', smear
tube of prosecutrix drawn from M. Y. Hospital as Article 'Q', vulval
pad of prosecutrix drawn from M. Y. Hospital are marked as Article
'F', smear drawn from M. Y. Hospital marked as Article 'U',
underwear of prosecutrix marked as Article 'V' and blood mixed soil
from the spot marked as Article 'W'. He has stated that the DNA
report received from FSL, Sagar is Ex.P/157.
99. Vijay Purohit (PW-33) was posted as S. I. at Police Station
Piplyamandi and was member of SIT team constituted for
investigation in the matter. The witness states that samples from
Article A to Y were deposited by him on 29.06.2018 along with draft
letter in FSL laboratory of which receipt is Ex.P/160. Thereafter, he
had deposited sealed packets on two further occasions in the matter.
On 03.07.2018, he deposited Article 'Z-1 to Z-2' for FSL vide draft
letter No.177-A/2018 of which receipt is Ex.P/161 and on
06.07.2018, he deposited Article 'Z-3 to Z-8' in FSL vide draft letter
No.177-B/2018 of which receipt is Ex.P/162.
100. Now coming to the DNA report, same is placed as Ex.P/1. In
the DNA report, it has been found that in the source of prosecutrix
drawn from vulval pad (Article 'R') and her nails (Article 'T'), Y
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chromosomes of one individual male were found in STR DNA
profile. The alleles of each genetic marker and Y chromosome of
STR DNA profile found in the vulval pad and nails matched with the
alleles found in each genetic marker of Y chromosome STR DNA
profile in the source of Irfan drawn from his blood sample (Article
'G'). The underwear seized from the spot bearing Article 'B' and
blood soaked soil seized from the spot (Article 'W') were subjected to
DNA profile and in the allele pairs found in each genetic marker of
these samples matched with the corresponding alleles of each genetic
marker in the Autosomal STR DNA Profiling of the blood samples of
prosecutrix confirming thereby that the incident had occurred with
the prosecutrix at the spot from where her underwear was sized. It
has been further found that hair strands seized from the spot (Article
'Y') which contained mixed Autosomal STR DNA, when subjected to
DNA profiling, alleles of each genetic marker of such profile
matched with the corresponding alleles in the profile of blood sample
of Irfan thereby confirming that the hair strands found on the spot
was that of Irfan establishing his presence on the spot. The knife
which had been seized from Irfan was also subjected to profiling but
it was found to contain low interpretable Autosomal STR DNA
Profiling. The pubic hair of Irfan which is Article 'I' when subjected
to DNA profiling, it was found that in the alleles contained in each
genetic marker of the Autosomal STR DNA Profiling of the pubic
hair of appellant Irfan matched with the allele pairs of each genetic
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marker determined from blood sample of prosecutrix, meaning
thereby, that the pubic hair of Irfan contained traces of source of
prosecutrix which corroborates the prosecution story that Irfan had
committed rape upon the prosecutrix.
101. The jeans pant marked as Article 'K" seized from Irfan and
banyan (vest) marked as Article 'N' were found to contain Autosomal
STR DNA Profiling of the same female and it was found that the
aforesaid allele found in the genetic marker of Autosomal STR DNA
Profiling of the female found on jeans pant and banyan of Irfan had
matched with those of prosecutrix whose source was her blood
sample. The shirt marked as Article 'L' of Irfan seized from his house
was also subjected to DNA profiling and in the aforesaid shirt, it was
found that the allels found in each genetic marker had matched with
the corresponding allels of each genetic marker in the Autosomal
STR DNA Profiling drawn from the blood sample of prosecutrix,
meaning thereby that shirt of Irfan also contained source of blood of
prosecutrix.
102. Thus, the opinion of aforesaid DNA report conclusively shows
that the source of prosecutrix was found in the source of Irfan and
conversely, source of Irfan has been found to have contained source
of the prosecutrix which further corroborates the evidence of
prosecutrix that she was subjected to aggravated penetrative sexual
assault (rape) by Irfan. The aforesaid evidence apart, the
prosecution has also established presence of Irfan at the spot by way
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of his fingerprints found on a beer bottle lying on the spot.
103. Jitendra Singh PW-36 has stated that on 28.06.2018, he while
posted as Inspector in City Kotwali Police Station, Mandsaur, finger
prints of accused Irfan was taken in three slips Ex.P/169, Ex.P/170
and Ex.P/171 on 29.06.2018. The finger prints of both hands of Asif
were taken in three slips vide Ex.P/172, Ex.P/173 and Ex.P/174. The
witness further states that the finger prints retrieved from the spot of
incident and were sent to the finger print in-charge vide document
Ex.P/179 for its analysis. He further states that he had received letter
of Superintendent of Police on 04.07.2018 accompanied by expert
report. The aforesaid letter is exhibited as Ex.P/175 and the expert
report as Ex.P/177. In the expert report, it was found that the chance
finger print of the beer bottle matched with the sample of finger print
of Irfan. The thumb impression of right hand on the bottle were
found to be matching with specimen fingerprint of Irfan. In cross-
examination, he has been asked questions regarding credibility of
picking up chance finger prints on the bottle, the witness has stated
that the finger prints were not lifted by me but by Jitendra Singh
(PW-36). Jitendra PW-36 has simply given a suggestion in cross-
examination that no finger prints were lifted from beer bottle which
he has denied.
104. During oral submission, it has been argued by learned counsel
that photograph of beer bottle shows different name Monk which
does not co-relate with the seized beer bottle on which the words are
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Black Fort Premium Beer has been written. However, the officer
Surender Singh (PW-35), who had seized the beer bottle has not been
asked any such question in cross-examination even witness Mahesh
Patidar (PW.12), witness of seizure memo Ex.P/29 has also not been
asked any such question. So also, Shakti Singh (PW.11), has not been
put to question regarding identity of beer bottle. Surender Singh
(PW35) has admitted in para no.24 that at the spot where the incident
had taken place, the neighborhood people do throw their garbage and
bottles etc.
105. The finger print analysis is scientific analysis, credibility of
which is not liable to be questioned without there being
extraordinary reasons, which we are afraid, are not available in the
present case.
106. The Apex court in its various judgments has laid out the
importance of DNA profiling and has held that the DNA matching,
due to its scientific character, conclusively nails the culprit. These
citations are Dharam Deo Yadav v/s. State of Uttar Pradesh, (2014)
5 SCC 509, Santosh Kumar Singh v/s. State through CBI, (2010) 9
SCC 747 and the Nirbhaya's case, which is cited as Mukesh & Anr.
v/s. State (NCT of Delhi) & Ors., (2017) 6 SCC 1 etc. The Apex
court in the case of Santosh Kumar Singh (supra) held that it would
be dangerous doctrine to lay down that report of an expert witness
could be brushed aside by making reference to some other text. In
Nirbhaya's case, the Supreme Court commented on DNA profiling as
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under :-
"455. Before considering the above findings of
DNA analysis contained in tabular form, let me
first refer to what is DNA, the infallibility of
identification by DNA profiling and its accuracy
with certainty. DNA - De-oxyribonucleic acid,
which is found in the chromosomes of the cells of
living beings, is the blueprint of an individual.
DNA is the genetic blueprint of life and is virtually
contained in every cell. No two persons, except
identical twins have ever had identical DNA. DNA
profiling is an extremely accurate way to compare
a suspect's DNA with crime scene specimens,
victim's DNA on the blood-stained clothes of the
accused or other articles recovered, DNA testing
can make a virtually positive identification when
the two samples match. A DNA finger print is
identical for every part of the body, whether it is
the blood, saliva, brain, kidney or foot on any part
of the body. It cannot be changed; it will be
identical no matter what is done to a body. Even
relatively minute quantities of blood, saliva or
semen at a crime scene or on clothes can yield
sufficient material for analysis. The Experts opine
that the identification is almost hundred per cent
precise. Using this i.e. chemical structure of
genetic information by generating DNA profile of
the individual, identification of an individual is
done like in the traditional method of identifying
finger prints of offenders. Finger prints are only on
the fingers and at times may be altered. Burning or
cutting a finger can change the make of the finger
print. But DNA cannot be changed for an
individual no matter whatever happens to a body.
456. We may usefully refer to Advanced Law Lexicon,
3rd Edition Reprint 2009 by P. Ramanatha Aiyar which
explains DNA as under:-
"DNA.- Deoxyribonucleic acid, the
nucleoprotein of chromosomes. The double-
helix structure in cell nuclei that carries the
genetic information of most living organisms.
The material in a cell that makes up the genes
and controls the cell. (Biological Term) DNA
finger printing- A method of identification
especially for evidentiary purposes by analyzing
and comparing the DNA from tissue samples.
(Merriam Webster)"
In the same Law Lexicon, learned author refers
to DNA identification as under:
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DNA identification- A method of comparing a
person's deoxyribonucleic acid (DNA) - a
patterned chemical structure of genetic
information - with the DNA in a biological
specimen (such as blood, tissue, or hair) to
determine if the person is the source of the
specimen. Also termed DNA finger printing;
genetic finger printing (Black, 7th Edition,
1999).
457. DNA evidence is now a predominant forensic
technique for identifying criminals when biological
tissues are left at the scene of crime or for identifying
the source of blood found on any articles or clothes
etc. recovered from the accused or from witnesses.
DNA testing on samples such as saliva, skin, blood,
hair or semen not only helps to convict the accused
but also serves to exonerate. The sophisticated
technology of DNA finger printing makes it possible to
obtain conclusive results. Section 53A Cr.P.C. is
added by the Code of Criminal Procedure
(Amendment) Act, 2005. It provides for a detailed
medical examination of accused for an offence of rape
or attempt to commit rape by the registered medical
practitioners employed in a hospital run by the
Government or by a local authority or in the absence
of such a practitioner within the radius of 16 kms.
from the place where the offence has been committed
by any other registered medical practitioner.
458. Observing that DNA is scientifically accurate
and exact science and that the trial court was not
justified in rejecting DNA report, in Santosh Kumar
Singh v. State (2010) 9 SCC 747, the Court held as
under:
461. As discussed earlier, identification by DNA
genetic finger print is almost hundred per cent
precise and accurate. The DNA profile
generated from the blood-stained clothes of the
accused and other articles are found consistent
with the DNA profile of the victim and DNA
profile of PW-1; this is a strong piece of
evidence against the accused. In his evidence,
PW-45 Dr. B.K. Mohapatra has stated that once
DNA profile is generated and found consistent
with another DNA profile, the accuracy is
hundred per cent and we find no reason to
doubt his evidence. As pointed out by the Courts
below, the counsel for the defence did not raise
any substantive ground to rebut the findings of
DNA analysis and the findings through the
examination of PW-45. The DNA report and the
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findings thereon, being scientifically accurate
clearly establish the link involving the accused
persons in the incident."
107. Reverting to the application under Section 367 of Cr.P.C filed
by the appellants regarding taking further evidence in respect of
appellant Irfan's mobile phone having been found switched off, as
also request for exhibiting the video footages of the spot map, the
prayer was considered. Pushpa Singh (PW.37), in para 48 has stated
that she did not trace the location of Irfan's mobile because his
mobile has been found to be switched off. She has denied the
suggestion that mobile had not been switched off at the time of
incident. It is the case of the appellant that had this evidence been
led, it would have been proved by the appellants that the seized
mobile was in fact, not switched off, which would have proved that
the appellants were not present at the spot at the time of incident.
108. This submission was considered.
109. It has not been the case of the appellants shown by way of
suggestion or statements recorded under Section 313 of Cr.P.C, that
at the time of incident they were elsewhere and not present on the
spot. The appellants themselves could have proved their defence by
way of examining the network provider company's officer to prove
their alibi, which has not been done by them. Hence, no case is made
out for leading any additional evidence in this regard. As far as
request for exhibiting the video footages of the spot is concerned, the
still photo prints have been produced by the prosecution and the
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same has been exhibited as well. The appellants have themselves put
their signatures in 'Tasdik' (verification report) of the spot. The
various incriminating articles have been seized from the spot. In
police investigations, the spot map, seizure memo, still photographs
etc., are generally considered to be sufficient pieces of investigation
and there is no statutory requirement as such to exhibit each and
every piece of investigative material by the prosecution. Thus, the
aforesaid application deserves to be rejected.
110. There is another circumstance, against the appellants which is
of relevance. The appellants in their accused statements have not
been found to be forthcoming by way of offering any sort of
explanation or clarification. Most of the answers have been given as
"do not know". No explanation at all for any of the circumstances
has been given by the appellants. In the case of Edmund S. Lyngdoh
vs. State of Meghalaya, reported as (2016) 15 SCC 572, it has been
held that where the accused gives evasive answers in his cross -
examination under Section 313 of Cr.P.C, an adverse inference can
be drawn against him.
111. Reverting back to the DNA analysis, in the report, ie., Exhibit
P/157, it has already been found that the same inculpates both the
appellants.
112. From the aforesaid analysis, it is conclusively proven that the
prosecutrix who was below 12 years of age at the time of incident
was subjected to violent gang rape by appellants Irfan and Asif. She
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was also subjected to life threatening injuries on her vital parts which
includes stab injuries and serious injuries on her neck and also to her
eyes. The charges against both the accused under Section 376(DB) is
found proved. As far as offence punishable under Section 376(2)(m)
of IPC is concerned, it has to be proved that while committing rape,
the accused has caused grievous bodily harm or maims or disfigures
or endangers life of woman. The same is found proved only against
appellant Irfan. Appellant Asif is held guilty under Section 376(2)
(m)/34 of IPC. It has been found proved that appellant Irfan had
kidnapped the prosecutrix. It has further been found proved that
appellant Asif was present on the spot when the offence of rape was
committed therefore, offence of kidnapping under Sections 363 and
366A of IPC are found proved against appellant Irfan, but appellant
Asif stands acquitted from the aforesaid charges. Charge under
Section 307 of IPC is further found proved against Irfan and Asif is
found proved to have committed offence under Section 307/34 of
IPC. Charge under Section 5(g) read with Section 6 of POCSO Act
prescribes the punishment for committing gang penetrative sexual
assault on a child and the same is found proved against both the
appellants. Further, both the accused also found guilty under Section
5(r)/6 of POCSO Act, which punishes act of penetrative sexual
assault on a child and attempt to murder the child. The only
difference is that while appellant Irfan is convicted under this
substantive sentence, appellant Asif is liable under this section with
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the aid of Section 34 of IPC. The final conviction of each of the
appellant would be as under :-
(i) appellant Irfan is convicted under Section 363, 366A,
376(2)(m), 376(DB), 307 of IPC and also under Section 5(g) and
5(r), read with Section 6 of POCSO Act, 2015.
(ii) appellant Asif is convicted under Section 376(2)(m)/34,
376(DB), 307/34 of IPC and under Section 5(g), read with Section 6,
5(r)/6 of POCSO Act, read with Section 34 of IPC.
113. Coming to the question of reference seeking to confirm the
death sentence, it is to be seen by this Court as to whether the
sentence of death imposed upon the appellants is proper in the given
circumstances or not?
114. One needs to travel through various Apex Court judgments
on the issue. It has already been laid down that death penalty can be
awarded only in rarest of rare case. The time tested judgments on this
issue are the cases of Bachan Singh vs. State of Punjab, 1980 (2)
SCC 684, Macchi Singh vs. State of Punjab, 1983 (3) SCC 470.
115. In Bachan Singh's case (supra), the Apex Court had laid
down aggravating and mitigating circumstances against and in favour
of accused and it was directed that a balance sheet of such
circumstances be drawn up and a just balance has to be accorded
while awarding such sentence. The court has to record exceptional
reasons founded on exceptional grave circumstances of a particular
act relating to the crime and the criminal.
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116. In Macchi Singh's case (supra), the Apex court observed that
before awarding death sentence following questions need to be asked
and answered:-
"(a) Is there something uncommon about the crime
which renders sentence of imprisonment for life
inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is
no alternative but to impose death sentence even after
according maximum weightage to the mitigating
circumstances which speak in favour of the offender ?
If upon taking an overall global view of all the
circumstances in the light of the aforesaid proposition
and taking into account the answers to the questions
posed here in above, the circumstances of the case are
such that death sentence is warranted, the court would
proceed to do so."
117. The Apex court in the case of Shankar Kisan Rao Khade vs.
State of Maharashtra, 2013 (5) SCC 546, has held that for awarding
death penalty, the Crime Test, Criminal Test and R.R. Test have to be
satisfied. Crime Test has to be 100%, Criminal Test 0% and R.R.
Test, ie., Rarest of Rare Test is also required to be proven. Crime Test
is 100% when no iota of doubt remains regarding commission of
offence by the accused. Criminal Test is 0% when there are no such
mitigating circumstances in favour of the accused, which may call for
a lenient view in his favour.
118. The Apex court in the case of Shankar Kisan Rao Khade
(supra) took into account a number of Apex court judgments in
which the offence of rape and murder of children had been
committed by the accused and in some of which the extreme penalty
of death was imposed and in others life imprisonment had been
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imposed and observed that the reason for such variance was not
considering the mitigating circumstances, ie., Criminal Test. The
Apex court in para 47 has observed as under :-
"47. Bachan Singh is more than clear that the crime is
important (cruel, diabolic, brutal, depraved and
gruesome) but the criminal is also important and this,
unfortunately has been overlooked in several cases in
the past (as mentioned in Santosh Kumar Satishbhushan
Bariya v/s. State of Maharashtra, (2009) 6 SCC 498)
and even in some of the cases referred to above. It is this
individualized sentencing that has made this Court wary,
in the recent past, of imposing death penalty and instead
substituting it for fixed term sentences exceeding 14
years (the term of 14 years or 20 years being
erroneously equated with life imprisonment) or
awarding consecutive sentences. Some of these cases,
which are not necessarily cases of rape and murder, are
mentioned below."
119. The Apex court in the case of Purushottam Dashrat Borate
vs. State of Maharashtra, 2015 (6) SCC 652 has held that the age of
the accused or family background of the accused or lack of criminal
antecedents cannot be said to be mitigating circumstances. It cannot
also be considered as mitigating circumstance, particularly taking
into consideration the nature of the heinous offence and cold and
calculated manner in which it was committed by the accused person.
120. How the society would consider the nature of crime
committed by an accused such as the appellant has been described by
the Apex court in the case of Sham Narain vs. State (NCT of Delhi)
reported as (2013) 7 SCC 77 wherein it has been observed as follows
:-
"1. The wanton lust, vicious appetite, depravity of senses,
mortgage of mind to the inferior endowments of nature,
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the servility to the loathsome beast of passion and
absolutely unchained carnal desire have driven the
appellant to commit a crime which can bring in a
"tsunami" of shock in the mind of the collective, send a
chill down the spine of the society, destroy the civilized
stems of the milieu and comatose the marrows of sensitive
polity".
121. A three Judges Bench of the Apex court in a judgment of
Vasanta Sampat Dupare vs. State of Maharashtra, (2015) 1 SCC
253 maintained the death sentence and observed as under :-
"58. Presently, we shall proceed to dwell upon the
manner in which the crime was committed.
Materials on record clearly reveal that the
appellant was well acquainted with the inhabitants
of the locality and as is demonstrable he had
access to the house of the father of the deceased
and the children used to call him "uncle". He had
lured the deceased to go with him to have
chocolates. It is an act of taking advantage of
absolute innocence. He had taken the deceased
from place to place by his bicycle and eventually
raped her in a brutal manner, as if he had an
insatiable and ravenous appetite. The injuries
caused on the minor girl are likely to send a chill
in the spine of the society and shiver in the
marrows of human conscience. He had battered
her to death by assaulting her with two heavy
stones. The injured minor girl could not have
shown any kind of resistance. It is not a case
wherethe accused had a momentary lapse. It is
also not a case where the minor child had died
because of profuse bleeding due to rape but
because of the deliberate cruel assault by the
appellant. After the savage act was over, the
coolness of the appellant is evident, for he washed
the clothes on the tap and took proper care to hide
things. As is manifest, he even did not think for a
moment the trauma and torture that was caused to
the deceased. The gullibility and vulnerability of
the four year girl, who could not have nurtured
any idea about the maladroitly designed biological
desires of this nature, went with the uncle who
extinguished her life- spark. The barbaric act of
the appellant does not remotely show any concern
for the precious life of a young minor child who
had really not seen life. The criminality of the
conduct of the appellant is not only depraved and
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debased, but can have a menacing effect on the
society. It is calamitous"
122. The Co-ordinate Bench of this High Court in the case of In
Reference vs. Vinod @ Rahul Chouhtha, I.L.R. [2018] M.P. 2512
(DB), affirmed the death penalty imposed upon the accused while
observing thus :-
"66. In the light of the evidence and the judgments
referred to hereinabove, we find that there is no
mitigating circumstance in favour of the appellant in
the present case. The appellant was young unmarried
boy aged 22 years at the time of commission of offence
but he breached the trust of a girl child of four years
when he tempted her by offering biscuit to accompany
him to meet her father. He violated her and took her
life within3-4 hours of taking her with him. It is an act
of extreme depravity when the appellant prompted a
young child whose only fault was that she believed the
appellant to be her well-wisher. The crime against the
girl child are on rise, therefore, extreme punishment
may deter the other criminals indulging in such crime.
Such crime sends shock wave in the society when it is
committed against a girl child. This Court has the
social responsibility to make the citizen of this country
know that law cannot come to the rescue of such
person on the basis of humanity. The extreme
punishment may convey a message to these predators
that it is not a soft State where the criminals
committing such serious crimes may get reprieve in the
guise of humanity. The humanity is more in danger in
the hands of the persons like the appellant. Therefore,
we find that the capital punishment awarded to the
appellant is one of the rarest of rare cases where the
extreme capital punishment is warranted.
67. In view of the foregoing reasons, we affirm the
death sentence awarded to the appellant by the Trial
Court while dismissing the appeal preferred by the
accused against his conviction and sentence. We order
accordingly."
123. In the case of Omprakash vs. State of Haryana, (1999) 3
SCC 19, it has been held that the court must respond to the cry of the
society and to settle what would be a deterrent punishment for what
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was an apparently abominable crime.
124. It would be appropriate to revisit Section 376(DB) of IPC
which provides for imposition of death sentence. This provision is
reproduced as under :-
"Section 376DB. Punishment for gang rape on woman
under twelve years of age.-Where a woman under twelve
years of age is raped by one or more persons constituting a
group or acting in furtherance of a common intention, each
of those persons shall be deemed to have committed the
offence of rape and shall be punished with imprisonment for
life, and with fine, or with death:
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this
section shall be paid to the victim.]"
125. The aforesaid Section has been instituted by Act 22 of 2018
w.e.f. 21.4.2018. In fact the Criminal Law (Amendment Act, 2018)
No.22/2018 is dated 11.8.2018 and Section 1(ii) of the aforesaid Act
provides that it shall be deemed to have come into force on
21.4.2018. On 21.4.2018 the ordinance incorporating Section
376(DB) of IPC had come into force. By the Act of 2018, it has been
deemed that this provision of Section 376(DB) of IPC had come into
force from 21.4.2018 i.e., the date of promulgation of ordinance. The
offence in the present case was committed on 26.6.2018. On that date
the ordinance was in force, which had brought in penal provision of
Section 376(DB) of IPC. Thus, the ordinance was in force since two
months prior to the date of incident. The Supreme Court in the case
of Shatrughna Baban Meshram Vs. State of Maharashtra, [(2021)
1 SCC 596], while considering a case involving the murder and
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Section 376(A) of IPC with the later offence prescribing for
punishment of death, when in the course of committal of rape death
has been caused or persistent vegetative state of affair has resulted,
was of the opinion that as far as Section 302 of IPC was concerned,
the offence of having been found proved under Section 300 fourthly
of IPC, death sentence is rarely awarded in such case. However, as
far as Section 376(A) was concerned, the Hon'ble Apex Court
observed as under:-
"83. The second count on which death sentence has
been imposed is under Section 376-A IPC. As noted
earlier, the offence was committed on 11.2.2013 and
just few days before such commission, Section 376-A
was inserted in IPC by the Ordinance (3.2.2013). Ex-
post facto effect given to Section 376-A inserted by the
Amendment Act would not in any way be inconsistent
with Article 20(1) of the Constitution. The appellant is
thus definitely guilty of the offence punishable under
Section 376-A IPC. But the question remains whether
punishment lesser than death sentence gets ruled out
or not. As against Section 302 IPC while dealing with
cases under Section 376-A IPC, a wider spectrum is
available for consideration by the courts as to the
punishment to be awarded. On the basis of the same
aspects that weighed with the Court while considering
the appropriate punishment for the offence under
Section 302 IPC, in view of the fact that Section 376-A
IPC was brought on the statute book just few days
before the commission of the offence, the appellant
does not deserve death penalty for the said offence. At
the same time, considering the nature and enormity of
the offence, it must be observed that the appropriate
punishment for the offence under Section 376-A IPC
must be rigorous imprisonment for a term of 25
years."
126. It can thus, be seen that the Apex Court refrained from
confirming the death sentence on the ground that the ordinance
prescribing for death sentence had been inserted in IPC just 9 days
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before the date of incident. However the Apex Court went on to
impose rigorous imprisonment for a period of 25 years under Section
376(A) of IPC only.
127. As far as the present case is concerned, the new provision of
Section 376(DB) of IPC had come into force two months prior to the
date of incident which is substantial period as against the period of
only 9 days in the case of Shatrughna Baban Meshram (supra).
128. Over the years, cases pertaining to child rape have increased
and the northward trend of the graph of such cases has not shown any
signs of ebbing. This situation probably has arisen out of easily
accessible porn material available to such persons, which further
tends to deprave their mindset, resulting in such havoc in the lives of
unsuspecting minor children who suffer lifelong trauma and
ignominy. The legislature in such circumstances was compelled to
bring in such stringent provisions in IPC which were not there
earlier, not only in IPC nor in POCSO Act as well, as can be seen that
similar provisions under POCSO Act only prescribed for Life
Imprisonment. Consequential amendment was incorporated in
Section 42 of POCSO Act on 21.4.2018 as well which is reproduced
as under :-
"42. Alternate punishment.-Where an act or omission
constitutes an offence punishable under this Act and also
under sections 166A, 354A, 354B, 354C, 354D, 370, 370A,
375, 376, 376A, 376C, 376D, 376DA, 376DB, 376E or
Section 509 of the Indian Penal Code, then, notwithstanding
anything contained in any law for the time being in force, the
offender found guilty of such offence shall be liable to
punishment under this Act or under the Indian Penal Code as
provides for the punishment which is greater in degree."
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129. The Apex Court in the aforesaid case of Shatrughna Baban
Meshram (supra) in Para-83 (reproduced earlier) has very
specifically held that as against Section 302 of IPC while dealing
with cases under Section 376(A) of IPC, a wider spectrum is
available for consideration by the courts as to the punishment to be
awarded.
130. Earlier while awarding death sentences, specially in the case
of circumstantial evidence, the requirement of proving a case beyond
residual doubt as prescribed in the earlier case of Ashok Dev Berma
@ Achak Deb Berma vs. State of Tripura, [(2014) 4 SCC 747] and
in the case of Ravi Shankar vs. State of M.P., [2019(4) JLJ 258
(SC))] was considered by the Apex Court in the case of Shatrughna
Baban Meshram (supra). The three judges Bench was of the view
that theoretically, the concept or theory of residual doubt does not
have any place in a case based on circumstantial evidence and the
only thing required is to prove the case on the lines as held in
Sharad Birdhichand Sarda vs. State of Maharashtra, [1984(4) SCC
116].
131. Although the present case is based on ocular evidence of
prosecutrix, however, there are circumstantial corroborative pieces of
evidence also available against the appellants. The substantial
evidence against the appellants are in themselves form complete
chain satisfying the standards of Sharad Birdhichand Sarda vs.
State of Maharashtra (supra) and the case would stand proved on
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the aforesaid basis of circumstantial evidence itself. As already
stated, the theory of "residual doubt" would not arise for awarding
the extreme penalty. In the present case, the ocular evidence of
prosecutrix supported with medical evidence is in itself sufficient to
prove the charge under Section 376(DB) of IPC against the
appellants.
132. The facts of the present case reveal an ominous plot hatched
by the appellants seeking to satiate their lust by breaching the
confidence of the minor prosecutrix girl and then heaping miseries
upon her by committing such forceful aggravated penetrative sexual
assault which is most ruthless in nature. She had been assaulted
mercilessly and had been left for dead in the Jungle, confident of
escaping detection as they had taken all the precautions by choosing
a desolated spot, switching off their mobile phone and escorting the
prosecutrix from the school to the spot in such a manner so as not to
raise any doubts in the minds of passerbys. It was only providence
and inherent presence of mind on the part of prosecutrix that she
survived the ordeal and lived to tell the story. She could barely
survive after numerous operations and being provided best of health
care facilities in ICU. One fails to understands that what could be a
worse scenario in which alone the death sentence can be awarded. It
was considered by us as to whether such extreme punishment should
have been awarded when the prosecutrix is left in vegetative state
which was not the case here ?. However, this question also cannot be
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answered in affirmative because Section 376(A) of IPC provides that
death sentence can be awarded when the victim is left in vegetative
state. No such mention is there in Section 376(DB) of IPC. The
offence of gang rape in itself is a very heinous offence and to impose
further condition of the victim being left in vegetative state for
awarding death penalty would be asking for too much, which was not
the intention of the legislature in any case.
133. In the case of Ravi S/o. Ashok Ghumare vs. State of
Maharashtra, 2019 (9) SCC 622, a three Judge Bench of the Apex
Court has observed the following :-
"58. It is equally apt at this stage to refer the recent
amendments carried out by Parliament in the
Protection of Children from Sexual Offences Act, 2012
by way of The Protection of Children from Sexual
Offences (Amendment) Act, 2019 as notified on 6th
August, 2019. The unamended Act defines "Aggravated
Penetrative Sexual Assault" in Section 5 which
included, "whoever commits aggravated penetrative
sexual assault on a child below the age of 12 years."
Originally, the punishment for an aggravated sexual
assault was rigorous imprisonment for a term not less
than 10-years but which may extend for imprisonment
for life with fine.
59. The recent amendment in Section 6 of 2012 Act has
substituted the punishment as follows:-
"Post the Amendment, Section 6 has been substituted as
follows:-
"6. Punishment for aggravated penetrative
sexual assault. (-1) Whoever commits
aggravated penetrative sexual assault shall
be punished with rigorous imprisonment for
a term which shall not be less than twenty
years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of natural
life of that person, and shall also be liable to
fine, or with death.
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(2) The fine imposed under sub-section (1)
shall be just and reasonable and paid to the
victim to meet the medical expenses and
rehabilitation of such victim."
[Emphasis applied]
60. The minimum sentence for an aggravated
penetrative sexual assault has been thus increased from 10
years to 20 years and imprisonment for life has now been
expressly stated to be imprisonment for natural life of the
person. Significantly, `death sentence' has also been
introduced as a penalty for the offence of aggravated
penetrative sexualt assault on a child below 12 years.
61. The Legislature has impliedly distanced itself from
the propounders of "No-Death Setence" in "No
Circumstances" theory and has re-stated the will of the
people that in the cases of brutal rape of minor children
below the age of 12 years without murder of the victim,
`death penalty' can also be imposed. In the Statement of
Objects and Reasons of amendment, Parliament has
shown its concern of the fact that "in recent past
incidents of child sexual abuse cases administering the
inhuman mindset of the accused, who have been
barbaric in their approach to young victim, is rising in
the country." If the Parliament, armed with adequate
facts and figures, has decided to introduce capital
punishment for the offence of sexual abuse of a child,
the Court hitherto will bear in mind the latest
Legislative Policy even though it has no applicability in
a case where the offence was committed prior thereto.
The judicial precedents rendered before the recent
amendment came into force, therefore, ought to be
viewed with a purposive approach so that the
legislative and judicial approaches are well
harmonised.
62. In the light of above discussion, we are of the
considered opinion that sentencing in this case has to
be judged keeping in view the parameters originating
from Bachan Singh and Machhi Singh cases and which
have since been strengthened, explained, distinguished
or followed in a catena of subsequent decisions, some of
which have been cited above. Having said that, it may be
seen that the victim was barely a two-year old baby whom
the appellant kidnapped and apparently kept on assaulting
over 4-5 hours till she breathed her last. The appellant who
had no control over his carnal desires surpassed all natural,
social and legal limits just to satiate his sexual hunger. He
ruthlessly finished a life which was yet to bloom. The
appellant instead of showing fatherly love, affection and
protection to the child against the evils of the society, rather
made her the victim of lust. It's a case where trust has been
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betrayed and social values are impaired. The unnatural sex
with a two-year old toddler exhibits a dirty and perverted
mind, showcasing a horrifying tale of brutality. The
appellant meticulously executed his nefarious design by
locking one door of his house from the outside and bolting
the other one from the inside so as to deceive people into
believing that nobody was inside. The appellant was thus in
his full senses while he indulged in this senseless act.
Appellant has not shown any remorse or repentance for the
gory crime, rather he opted to remain silent in his 313
Cr.P.C. statement. His deliberate, well-designed silence with
a standard defence of `false' accusation reveals his lack of
kindness or compassion and leads to believe that he can
never be reformed. That being so, this Court cannot write
off the capital punishment so long as it is inscribed in the
statute book.
63. All that is needed to be followed by us is what O' Conner
J. very aptly observed in California v. Ramos, 463 U.S. 992
that the "qualitative difference of death from all other
punishments requires a correspondingly greater degree of
scrutiny of the capital sentencing determination" and in
order to ensure that the death penalty is not meted out
arbitrarily or capriciously, the Court's principal concern
has to be with the procedure by which the death sentence is
imposed than with the substantive factors laid before it.
64. For the reasons aforestated, we dismiss the appeals and
affirm the death sentence.
134. In the present case also the appellants have not shown any
remorse, they have acted in a cold blooded manner and have
followed their natural routine after committing the ghastly incident,
which shows that they were already hardened into such perverts with
criminal mindset which was devoid of any emotions or care about
small girl child.
135. Learned counsel for the appellants have argued that while
awarding the death sentence, adequate hearing to appellants was not
granted which was necessary as per Section 235(2) of Cr.P.C.
Citation of Jagdish Daya Bhai Patel & Anr. vs. State of
Maharashtra, 2012 (8) SCC 43 has been relied upon on this issue.
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Learned counsel has submitted that on the date of the verdict of
conviction, the sentence has been pronounced, giving detailed
opportunity to accused to make submissions on the quantum of
sentence. This submission was considered. A three Judge Bench of
the Apex Court in the case of Shatrughna Baban Meshram (supra)
has considered this issue. The Apex court has observed that the fact
of imposition of sentence on the same day, the order of conviction
was pronounced cannot by itself be a ground to commute death
sentence to life imprisonment. In such case, though remand of the
matter for consideration afresh is not necessary but the appellant
must be afforded adequate and sufficient opportunity to place all the
relevant materials on record while arguing the case before the
appellate Court on the question of sentence. The relevant paras are
36, 38, 40 & 41 :-
"36. We now turn to the first submission advanced by Ms
Mathur, learned Senior Advocate on the issue of
sentence. Section 235(2) of the Code mandates that the
accused must be heard on sentence. In the instant case
the order of sentence was made on the same day the
order of conviction was pronounced. In Santa Singh v.
State of Punjab [Santa Singh v. State of Punjab, (1976)
4 SCC 190 : 1976 SCC (Cri) 546] the accused was
convicted and sentenced to death by one single judgment
and thus a Bench of two Judges of this Court found that
there was infraction of Section 235(2) of the Code. The
sentence of death was therefore set aside and the matter
was remanded to the Sessions Court. Whether, for non-
compliance with Section 235(2) of the Code, the matter
be remanded in the light of the decision in Santa Singh v.
State of Punjab [Santa Singh v. State of Punjab, (1976) 4
SCC 190 : 1976 SCC (Cri) 546] was thereafter
considered by a Bench of three Judges of this Court in
Dagdu v. State of Maharashtra [Dagdu v. State of
Maharashtra, (1977) 3 SCC 68 : 1977 SCC (Cri) 421] .
Chandrachud, C.J. who delivered the leading judgment,
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observed: (SCC p. 89, para 79)
"79. But we are unable to read the judgment in
Santa Singh [Santa Singh v. State of Punjab,
(1976) 4 SCC 190 : 1976 SCC (Cri) 546] as laying
down that the failure on the part of the court,
which convicts an accused, to hear him on the
question of sentence must necessarily entail a
remand to that court in order to afford to the
accused an opportunity to be heard on the question
of sentence. The court, on convicting an accused,
must unquestionably hear him on the question of
sentence. But if, for any reason, it omits to do so
and the accused makes a grievance of it in the
higher court, it would be open to that court to
remedy the breach by giving a hearing to the
accused on the question of sentence. That
opportunity has to be real and effective, which
means that the accused must be permitted to
adduce before the court all the data which he
desires to adduce on the question of sentence. The
accused may exercise that right either by
instructing his counsel to make oral submissions to
the court or he may, on affidavit or otherwise,
place in writing before the court whatever he
desires to place before it on the question of
sentence. The court may, in appropriate cases,
have to adjourn the matter in order to give to the
accused sufficient time to produce the necessary
data and to make his contentions on the question
of sentence. That, perhaps, must inevitably happen
where the conviction is recorded for the first time
by a higher court."
Goswami, J., authored a concurring opinion, the
relevant part of which was quoted in B.A. Umesh
v.High Court of Karnataka [B.A. Umesh v. High
Court of Karnataka, (2017) 4 SCC 124 : (2017) 2
SCC (Cri) 304] .
38. In B.A. Umesh v. High Court of Karnataka [B.A.
Umesh v. High Court of Karnataka, (2017) 4 SCC 124 :
(2017) 2 SCC (Cri) 304] , a Bench of three Judges of this
Court considered the decisions on the point including the
question whether the matter was required to be remanded
to hear the accused on sentence. Paras 11 to 13 of the
decision were as under: (SCC p. 131)
"11. In Dagdu v. State of Maharashtra [Dagdu v.
State of Maharashtra, (1977) 3 SCC 68 : 1977 SCC
(Cri) 421] Goswami, J. observes as under: (SCC p.
92, para 90)
'90. I would particularly emphasise that there
is no mandatory direction for remanding any
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case in Santa Singh v.State of Punjab [Santa
Singh v. State of Punjab, (1976) 4 SCC 190 :
1976 SCC (Cri) 546] nor is remand the
inevitable recipe of Section 235(2), Code of
Criminal Procedure, 1973. Whenever an appeal
court finds that the mandate of Section 235(2)
CrPC for a hearing on sentence had not been
complied with, it, at once, becomes the duty of
the appeal court to offer to the accused an
adequate opportunity to produce before it
whatever materials he chooses in whatever
reasonable way possible. Courts should avoid
laws' delay and necessarily inconsequential
remands when the accused can secure full
benefit of Section 235(2) CrPC even in the
appeal court, in the High Court or even in this
Court. We have unanimously adopted this very
course in these appeals.'
12. In another two-Judge Bench case in Tarlok Singh
v. State of Punjab [Tarlok Singh v. State of Punjab,
(1977) 3 SCC 218 : 1977 SCC (Cri) 490] , at para 4,
Krishna Iyer, J. writes: (SCC pp. 219-20)
'4. In Santa Singh v. State of Punjab [Santa Singh
v. State of Punjab, (1976) 4 SCC 190 : 1976 SCC
(Cri) 546] this Court considering Section 235(2)
CrPC held that the hearing contemplated by that
sub-section is not confined merely to hearing oral
submissions but extends to giving an opportunity
to the prosecution and the accused to place
before the Court facts and materials relating to
the various factors bearing on the question of
sentence and, if they are contested by either side,
then to produce evidence for the purpose of
establishing the same. Of course, in that
particular case this Court sent the case back to
the Sessions Court for complying with Section
235(2) CrPC. It may well be that in many cases
sending the case back to the Sessions Court may
lead to more expense, delay and prejudice to the
cause of justice. In such cases, it may be more
appropriate for the appellate court to give an
opportunity to the parties in terms of Section
235(2) to produce the materials they wish to
adduce instead of going through the exercise of
sending the case back to the trial court. This may,
in many cases, save time and help produce
prompt justice.'
13. In Deepak Rai v. State of Bihar [Deepak Rai v. State
of Bihar, (2013) 10 SCC 421 : (2014) 1 SCC (Cri) 52] , yet
another three-Judge Bench case, Dattu, J. observes in para
54 as under: (SCC p. 449)
'54. Herein, it is not the case of the appellants that
the opportunity to be heard on the question of
sentence separately as provisioned for under Section
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235(2) of the Code was not provided by the courts
below. Further, the trial court has recorded and
discussed the submissions made by the appellants
and the prosecution on the said question and
thereafter, rejected the possibility of awarding a
punishment less harsh than the death penalty.
However, the High Court while confirming the
sentence has recorded [State of Bihar v. Deepak Rai,
2010 SCC OnLine Pat 949] reasons though
encapsulated. The High Court has noticed the motive
of the appellants being non-withdrawal of the case by
the informant and the ghastly manner of commission
of crime whereby six innocent persons as young as 3
year old were charred to death and concluded that
the incident shocks the conscience of the entire
society and thus deserves nothing lesser but death
penalty.' "
40. Recently, in Manoj Suryavanshi v. State of
Chhattisgarh [Manoj Suryavanshi v. State of
Chhattisgarh, (2020) 4 SCC 451 : (2020) 2 SCC (Cri)
601] , a Bench of three Judges of this Court, after
considering the relevant decisions on the point,
concluded: (SCC p. 476, para 27.2)
"27.2. Thus, there is no absolute proposition of law that
in no case there can be conviction and sentence on the
same day. There is no absolute proposition of law laid
down by this Court in any of the decisions that if the
sentence is awarded on the very same day on which the
conviction was recorded, the sentencing would be
vitiated."
41. Thus, merely on account of infraction of Section
235(2) of the Code, the death sentence ought not to be
commuted to life imprisonment. In any case we have
afforded adequate and sufficient opportunity to the
appellant to place all the relevant materials on record in
the light of principle laid down in Dagdu v. State of
Maharashtra [Dagdu v. State of Maharashtra, (1977) 3
SCC 68 : 1977 SCC (Cri) 421].
136. In the present case, adequate hearing on sentencing has been
given to the appellants at appellate stage as well.
137. The other citations in which both sentence was commuted into
life imprisonment are Sachin Kumar Singhraha vs. State of M.P.,
2019 Cr.L.R. (S.C.) 317, Chhannu Lal Verma vs. State of
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Chattisgarh, AIR 2019 SC 243, State of M.P. vs. Naveen @ Ajay S/o.
Dattaji Rao Gadke, 2018 SCC Online M.P. 952, CRRFC No.8 of
2019 & CRA.No.4554/2019 decided on 28.7.2021 Appellant : In
Ref (Suo Moto) & Ors. vs. Manoj & Ors. (Gwalior Bench),
Rameshbhai Chandubhai Rathod vs. State of Gujarat, AIR 2011 SC
803, Criminal Ref. No.07/2018 In Reference vs. Raj Kumar Kol,
CRA. No.5786/2018 (Raj Kumar Kol vs. State of M.P.) decided on
26.10.2018 at Principal seat, Jabalpur, Sachin Kumar Singhraha vs.
State of M.P., 2019 Cr.L.R (SC) 317. These citations have been relied
upon by the appellants.
138. Broadly speaking, in the aforesaid citations, the commutation
of death sentence to life imprisonment has been allowed when the
probability of reform of the accused / appellant has been not ruled
out and there is absence of prior offending history. However, all these
cases pertain to dates of incident prior to the date when Section
376(DB) of IPC came into force. Earlier also in the case of
Purushottam Dashrat Borate (supra), a three Judge Bench of Apex
Court has laid down that age, family background and lack of criminal
antecedents cannot be a paramount consideration as a mitigating
circumstance in such heinous offences relating to gang rape and
subsequent murder of a woman. Regarding the chances of
rehabilitation and reformation, the Apex Court in the aforesaid case
has held that the manner in which offence was committed shows
meticulous and careful planning coupled with sheer brutality and
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apathy for humanity in the execution of the offence, in every
probability the accused would have the potency to commit the similar
offence in future and therefore, the probability that the accused can
be reformed or rehabilitated is strongly negated.
139. The learned Additional Advocate General has made strenuous
efforts to meet the submissions made by learned Senior counsel and
other counsel for the appellants and has bolstered his view point by
citing numerous Apex Court judgments which though considered, are
not being mentioned separately for the sake of avoiding repetition of
the philosophy already culled out by the Apex Court in citations
referred to by us.
140. After due consideration and having taken into account all the
circumstances prevailing in the case, we are constraint to hold that
the rights of the victim cannot take a back seat while considering the
rights of the accused persons. Although in the aforesaid case of Ravi
S/o. Ashok Ghumare vs. State of Maharashtra (supra), the
appellants have committed gang rape and murder of victim.
However, the present case not less serious. The appellants in the
present case had done all they could to ebb out the life of prosecutrix
and had left her thinking her to be dead, but prosecutrix regained
consciousness the next day and was saved due to quirk of fate.
141. The Division Bench of this High Court in Criminal Appeal
No.653/2006 (Aftab Khan vs.State of M.P.) (supra) has considered
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the aspect relating to sentencing of an accused in such cases by
resorting to various Apex Court judgments. It would be appropriate
to reproduce portions of the same which are as under :-
"(29) The Supreme Court in the case of Shyam Narain Vs.
State (NCT of Delhi) reported in (2013) 7 SCC 77, has held
as under : -
"14. Primarily, it is to be borne in mind that sentencing
for any offence has a social goal. Sentence is to be
imposed regard being had to the nature of the offence
and the manner in which the offence has been
committed. The fundamental purpose of imposition of
sentence is based on the principle that the accused must
realise that the crime committed by him has not only
created a dent in his life but also a concavity in the
social fabric. The purpose of just punishment is
designed so that the individuals in the society which
ultimately constitute the collective do not suffer time
and again for such crimes. It serves as a deterrent. True
it is, on certain occasions,opportunities may be granted
to the convict for reforming himself but it is equally true
that the principle of proportionality between an offence
committed and the penalty imposed are to be kept in
view. While carrying out this complex exercise, it is
obligatory on the part of the court to see the impact of
the offence on the society as a whole and its
ramifications on the immediate collective as well as its
repercussions on the victim.
(30) The Supreme Court in the case of Raj Bala Vs.
State of Haryana reported in (2016) 1 SCC 463 has
held as under :-
"4. We have commenced the judgment with the
aforesaid pronouncements, and our anguished
observations, for the present case, in essentiality,
depicts an exercise of judicial discretion to be
completely moving away from the objective parameters
of law which clearly postulate that the prime objective
of criminal law is the imposition of adequate, just and
proportionate punishment which is commensurate with
the gravity, nature of the crime and manner in which
the offence is committed keeping in mind the social
interest and the conscience of the society, as has been
laid down in State of M.P. v. Bablu, State of M.P. v.
Surendra Singh and State of Punjab v. Bawa Singh.
16. A court, while imposing sentence, has a duty to
respond to the collective cry of the society. The
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legislature in its wisdom has conferred discretion on the
court but the duty of the court in such a situation
becomes more difficult and complex. It has to exercise
the discretion on reasonable and rational parameters.
The discretion cannot be allowed to yield to fancy or
notion. A Judge has to keep in mind the paramount
concept of rule of law and the conscience of the
collective and balance it with the principle of
proportionality but when the discretion is exercised in a
capricious manner, it tantamounts to relinquishment of
duty and reckless abandonment of responsibility. One
cannot remain a total alien to the demand of the socio-
cultural milieu regard being had to the command of law
and also brush aside the agony of the victim or the
survivors of the victim. Society waits with patience to
see that justice is done. There is a hope on the part of
the society and when the criminal culpability is
established and the discretion is irrationally exercised
by the court, the said hope is shattered and the patience
is wrecked. It is the duty of the court not to exercise the
discretion in such a manner as a consequence of which
the expectation inherent in patience, which is the
"finest part of fortitude" is destroyed. A Judge should
never feel that the individuals who constitute the society
as a whole is imperceptible to the exercise of discretion.
He should always bear in mind that erroneous and
fallacious exercise of discretion is perceived by a visible
collective."
142. Consequently, we confirm the death sentence awarded to the
appellants under Section 376(DB) of IPC. It is directed that the
appellants shall be hanged by neck till their death. The sentence of
life imprisonment on both the appellants under Section 307, 307/34
of IPC is also affirmed and the sentence of life imprisonment and
Rs.10,000/- fine each with the default stipulation of six months RI
also stands affirmed. The conviction of the appellant Irfan under
Section 366A and 363 of IPC also stands affirmed. However, the
sentence would be imposed only under the more serious of these
offences under Section 366A of IPC and the sentence of appellant
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Irfan imposed by the trial Court of 10 years of RI and Rs.10,000/-
fine with default stipulation of six months of R.I also stands
affirmed.
143. Appellant Asif stands acquitted from the offence under
Sections 363 and 366A of IPC. Any fine amount deposited by Irfan
in lieu of Section 363 of IPC and deposited by Asif under Sections
363 and under Section 366A of IPC be returned to these appellants.
The fine amount of Rs.30,000/- so deposited shall be handed over to
the prosecutrix as compensation. We also affirm the observation of
trial Court that the copy of this judgment be sent to a Secretary
District Legal Service Authority, Mandsaur, for giving adequate
compensation to prosecutrix under M.P. Apradh Pidit Pratikar Yojna,
2015. The disposal of properties shall be as per para 104 of the
impugned judgment. The jail sentences under various sections
awarded to the Irfan shall run concurrently. A copy of this judgment
be provided to both the appellants. The copy of this judgment be sent
along with the original record for compliance. The reference thereby
stands answered wherein, the death sentence imposed upon the
appellants has been affirmed. The appeals of appellant Irfan stands
rejected while the appeal of Asif stands partly allowed with regard to
his conviction under Section 363 and 366A of IPC.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
SS/-
Digitally signed by SHAILESH
MAHADEV SUKHDEVE
Date: 2021.09.09 18:01:07
+05'30'
